49548 Federal Register / Vol

49548 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations

DEPARTMENT OF LABOR loss, which is distinguishable from After considering the recurrent hearing loss associated with aging or incidence of noise-induced hearing loss Mine Safety and Health Administration with medical conditions. For many among miners and repeated years, the risk of acquiring noise- recommendations from the mining 30 CFR Parts 56, 57, 62, 70 and 71 induced hearing loss was accepted as an community that MSHA adopt a single RIN 1219±AA53 inevitable consequence of mining noise standard covering all mines, occupations, in which the use of MSHA published an Advance Notice of Health Standards for Occupational mechanized equipment often subjects Proposed Rulemaking (ANPRM) (54 FR Noise Exposure miners to hazardous noise exposures. 50209) on December 4, 1989. In But noise-induced hearing loss can be response, the Agency received AGENCY: Mine Safety and Health diagnosed, prevented, and its progress numerous comments from mine Administration (MSHA), Labor. delayed. operators, trade associations, labor ACTION: Final rule. Prolonged exposure to noise over a groups, equipment manufacturers, and period of years generally causes other interested parties. SUMMARY: This final comprehensive rule permanent damage to the auditory nerve After reviewing the comments to the replaces MSHA’s existing standards for or its sensory components. Hearing loss ANPRM, MSHA published a proposed occupational noise exposure in coal is rapid when exposures are over a rule (61 FR 66348) on December 17, mines and metal and nonmetal mines. prolonged period at high sound levels. 1996. The comment period, originally The final rule establishes uniform Hearing loss may also be gradual, so that scheduled to close on February 18, requirements to protect the Nation’s the impairment is not noticed until after 1997, was extended to April 21, 1997 miners from occupational noise-induced a substantial amount of hearing loss (62 FR 5554), and 6 public hearings hearing loss. The rule is derived in part occurs. Noise-induced hearing loss is were conducted in Beckley, West from existing MSHA noise standards, irreversible. Considerable safety risks Virginia; St. Louis, Missouri; Denver, and from the Department of Labor’s arise because workers with noise- Colorado; Las Vegas, Nevada; Atlanta, existing occupational noise exposure induced hearing loss may not hear Georgia; and Washington, D.C. standard for general industry audible warnings and safety signals. In Transcripts of the proceedings were promulgated by the Occupational Safety addition, most people with noise- made available to the public. and Health Administration (OSHA). induced hearing loss have reduced Supplementary statements and data As a result of the Agency’s ongoing hearing sensitivity to higher frequencies were received from interested persons review of its safety and health and lose the ability to discriminate until the record closed on August 1, standards, MSHA determined that its consonants, making them unable to 1997. existing noise standards, which are distinguish among words differing only After the close of the record, NIOSH more than twenty years old, do not by one or more consonants. This sent MSHA a report entitled, adequately protect miners from impairment jeopardizes the safety of ‘‘Prevalence of Hearing Loss For Noise- occupational noise-induced hearing affected miners as well as the safety of Exposed Metal/Nonmetal Miners.’’ On loss. A significant risk to miners of those around them, and, as a result, December 16, 1997, MSHA published a material impairment of health from general employee health and notice (62 FR 65777) announcing that workplace exposure to noise over a productivity. the report was available and had been working lifetime exists when miners’ Revising the existing rules to protect entered into the rulemaking record. exposure exceeds an 8-hour time- miners from noise-induced hearing loss Then, on December 23, 1997, MSHA weighted average (TWA8) of 85 dBA. is necessary because exposure to published a follow-up notice (62 FR MSHA expects that the final rule will workplace noise continues to present a 67013) inviting interested persons to significantly reduce the risk of material significant risk of material impairment comment on the NIOSH report, with the impairment within the mining industry of health to miners. MSHA estimates comment period closing on February 23, as a whole. that 13.4% of the mining population of 1998. DATES: The final rule is effective the United States (approximately 13,000 Early commenters on the proposal September 13, 2000. coal miners and 24,000 metal and expressed concern that the spirit of FOR FURTHER INFORMATION CONTACT: nonmetal miners) will develop a section 103(c) of the Federal Mine Carol J. Jones, Acting Director, Office of material hearing impairment during a Safety and Health Act of 1977 (Mine Standards, Regulations, and Variances, working lifetime under current working Act) was not being met. Section 103(c) MSHA, 4015 Wilson Boulevard, conditions. MSHA anticipates that requires that miners or their Arlington, VA 22203–1984. Ms. Jones miners will benefit substantially from representatives be allowed to observe can be reached at [email protected] the final rule’s effect of improving miner any monitoring or measuring of hazards (Internet E-mail), 703/235–1910 (voice), health and lessening the personal and in their workplaces and to have access or 703/235–5551 (fax). social hardships of occupational noise- to monitoring records. Proposed induced hearing loss. § 62.120(f) contained a provision SUPPLEMENTARY INFORMATION: requiring operators to establish a system b. Rulemaking Process I. Background of monitoring for effectively evaluating MSHA’s existing noise standards in each miner’s noise exposure, but did not a. Noise-Induced Hearing Loss metal and nonmetal mines (30 CFR require that miners be allowed to Noise is one of the most pervasive §§ 56.5050 and 57.5050) and in coal observe. health hazards in mining. The National mines (30 CFR §§ 70.500–70.511, and In response, on December 31, 1997, Institute for Occupational Safety and §§ 71.800–71.805) were originally MSHA published a notice (62 FR 68468) Health (NIOSH) has identified noise- promulgated in the early 1970’s. They supplementing its proposed rule with induced hearing loss as one of the ten were derived from the Walsh-Healey proposed § 62.120(g), asked for leading work-related diseases and Public Contracts Act occupational noise comments, and scheduled a public injuries. Exposure to hazardous sound standard, which adopted a permissible hearing. The comment period for the levels results in the development of exposure level of 90 dBA, a 5–dB supplement closed on February 17, and occupational noise-induced hearing exchange rate, and a 90–dBA threshold. a public hearing was held in

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Washington, DC on March 10. The post- is issued based exclusively on the industry will accrue. The existing hearing comment period and exposure measurement. In coal mines, a costly, paperwork-intensive rulemaking record closed on April 9, citation is not issued if appropriate requirements for biannual coal miner 1998. hearing protectors are being worn. noise exposure surveys, supplemental On May 26, 1998, MSHA published a Moreover, when a coal mine operator noise surveys, calibration reports, notice (63 FR 28496) announcing its receives a citation for noise exposure survey reports, and survey certifications preliminary determination of no exceeding the permissible exposure are eliminated by the final rule. Rather, significant environmental impact; level, the operator is required to the final rule has a flexible requirement requesting comments; and reopening the promptly institute administrative and/or for mine operators to establish a rulemaking record for the limited engineering controls to assure monitoring program that effectively purpose of receiving these comments. compliance. In addition, within 60 days evaluates miner exposures. The agency received many comments of receiving the citation, a coal mine on the proposed noise rule, including operator is required to submit a plan to II. Final Rule the supplemental proposed rule on MSHA for the administration of a a. General Requirements Applicable to observation of monitoring. The agency continuing, effective hearing All Mines received a total of 182 written and conservation program. electronic comments. In addition, 57 The Federal Mine Safety and Health The following summarizes general speakers provided verbal comments at Review Commission (Commission) has requirements for all mines in the final the public hearings. Comments were addressed the ‘‘feasibility’’ of noise rule although, the rule and this received from various entities including controls regarding the existing preamble should be consulted for mine operators, industry trade standards. In determining technological details. A mine operator must establish associations, such as the National feasibility, the Commission has held a system of monitoring which evaluates Mining Association, National Stone that a control is deemed achievable if each miner’s noise exposure. In Association, American Iron and Steel through reasonable application of addition, the mine operator must give Institute and American Portland Cement existing products, devices, or work prior notice and provide affected miners Alliance; organized labor groups, such methods with human skills and and their representatives with an as the United Mine Workers of America abilities, a workable engineering control opportunity to observe the monitoring. and the United Steelworkers of can be applied to the noise source. The When an exposure equals or exceeds the America; noise equipment control does not have to be ‘‘off-the- action level, exceeds the permissible manufacturers; the American Industrial shelf;’’ but it must have a realistic basis exposure level, or exceeds the dual Hygiene Association; the National in present technical capabilities. In hearing protection level, the mine Hearing Conservation Association; the determining economic feasibility, the operator must notify a miner of his or Acoustical Society of America; colleges Commission has held that MSHA must her exposure. A copy of the notification and universities; and other Federal assess whether the costs of the control must be kept for the duration of the agencies, such as NIOSH and the U.S. are disproportionate to the ‘‘expected affected miner’s exposure at or above Small Business Administration. benefits’’, and whether the costs are so the action level and for at least 6 months great that it is irrational to require its c. Current Standards thereafter. use to achieve those results. The MSHA’s existing maximum noise Commission has expressly stated that If a miner’s noise exposure is less exposure levels for metal and nonmetal cost-benefit analysis is unnecessary in than the action level, no action is mines (30 CFR 56/57.5050) and for coal order to determine whether a noise required by the mine operator. If the mines (30 CFR 70.500 through 70.511 control is required. According to the miner’s exposure equals or exceeds the and 71.800 through 71.805), were Commission, an engineering control action level, but does not exceed the derived from the Walsh-Healey Public may be feasible even though it fails to permissible exposure level, the operator Contracts Act occupational noise reduce exposure to permissible levels must enroll the miner in a hearing standard. The standards adopted a contained in the standard, as long as conservation program which includes a permissible exposure level of 90 dBA as there is a significant reduction in system of monitoring, voluntary use of an eight-hour time weighted average exposure. In Todilto Exploration and operator-provided hearing protectors, and a 5–dB exchange rate. Development Corporation, 5 FMSHRC voluntary audiometric testing, training, MSHA’s existing metal and nonmetal 1894 (1983), the Commission accepted and record keeping. If a miner’s noise standards require the use of the Agency’s determination that a 3 dBA exposure exceeds the permissible feasible engineering or administrative reduction is significant. exposure level, the operator must use or controls when a miner’s noise exposure MSHA has interpreted the ‘‘expected continue to use all feasible engineering exceeds the permissible exposure level. benefits’’ to be the amount of noise and administrative controls to reduce Hearing protectors are also required if reduction achievable by the control. exposure to the permissible exposure the exposure cannot be reduced to MSHA generally considers a reduction level, enroll the miner in a hearing within the permissible exposure level. of 3 dBA or more to be a significant conservation program including The existing metal and nonmetal reduction of the sound level because it ensuring the use of operator-provided standards do not require the mine represents at least a 50% reduction in hearing protectors, post administrative operator to post the procedures for any sound energy. Consequently, a control controls and provide a copy to the administrative controls used, to conduct that achieves relatively little noise affected miner; and must never permit specific training, or to enroll miners in reduction at a high cost could be viewed a miner to be exposed to sound levels hearing conservation programs. as not meeting the Commission s test of exceeding 115 dBA. If a miner’s MSHA’s existing practices for coal economic feasibility. exposure exceeds the dual hearing mines are different from those for metal MSHA estimates that the costs protection level, the operator must and nonmetal mines due to differences attributable to the final rule requirement enroll the miner in a hearing in the circumstances under which the to use engineering and administrative conservation program, continue to meet Agency is authorized to issue citations. controls would be significantly offset by all the requirements for exposures above In metal and nonmetal mines, a citation the paperwork savings the coal mining the permissible exposure level, and

VerDate 18-JUN-99 17:20 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\13SER2.XXX pfrm07 PsN: 13SER2 49550 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations ensure the concurrent use of an earplug level. In response to commenters, the less reduction than their ratings suggest and earmuff. final rule requires only that mine and that the reduction achieved is operators offer audiometric testing, highly variable. These two factors b. Major Features of the Final Rule leaving it to the miner to decide prevent accurate prediction of the Consistent with OSHA’s noise whether to participate in the testing effectiveness of hearing protectors for a exposure standard, MSHA has adopted program. given individual. However, MSHA the existing permissible exposure level The proposed rule would have recognizes that in some environments it of 90 dBA as an 8-hour time-weighted required that mine operators ensure that may not be feasible to reduce miners’ average (TWA8). The final rule, miners were not exposed to workplace noise exposures to the permissible however, requires the use of all feasible noise during a 14-hour quiet period exposure level with the use of engineering and administrative controls required before a baseline audiogram is engineering or administrative controls. to reduce a miner’s noise exposure to taken. In addition, the use of hearing In these circumstances, the interim use the permissible exposure level. Such protectors would not have been of personal hearing protectors may offer controls may be used separately or in permitted as a substitute for the quiet the best protection until controls combination. When controls do not period. Many commenters suggested become feasible and can be reduce exposure to the permissible that prohibiting the use of hearing implemented. exposure level, miners must be protectors to meet the quiet period provided hearing protectors and mine requirement was not practical, because The final rule is consistent with operators are required to ensure that the many miners work 12-hour shifts and Executive Order 12866, the Regulatory miners use them. that OSHA’s noise standard allows Flexibility Act, the Small Business The final rule also addresses a hearing protection to be used during the Regulatory Enforcement Fairness Act currently recognized hazard that is not quiet period. The final rule permits the (SBREFA), the National Environmental covered by existing standards: noise use of hearing protectors during the Policy Act (NEPA), the Paperwork exposures at or above a TWA8 of 85 dBA quiet period. Reduction Act, the Unfunded Mandates but below the permissible exposure The proposed rule would have Reform Act, and the Mine Act. MSHA level. Exposure at a TWA8 of 85 dBA is required a mine operator, upon estimates that metal and nonmetal termed the ‘‘action level,’’ and, under termination of a miner’s employment, to mines with fewer than 20 miners would the final rule, mine operators are provide the miner with a copy of the incur an average cost increase of about required to enroll miners exposed at or records required under part 62. $460 annually. Coal mines with fewer above the action level in a hearing Commenters overwhelmingly supported than 20 miners would have an average conservation program consisting of giving copies of records only to those cost increase of about $400, reflecting exposure monitoring, the use of hearing miners who request them. In response to the elimination of the numerous survey protectors, audiometric testing, training, comments, the proposed provision was and paperwork requirements in the and recordkeeping. not adopted in the final rule, and the current noise rules for the coal sector. The final rule has been revised from final rule instead requires that mine the proposal in several respects, which operators provide copies of records to In accordance with the SBREFA makes it more consistent with existing miners upon request. Amendments to the Regulatory OSHA regulations: The final rule departs from the OSHA Flexibility Act, MSHA has taken steps MSHA had proposed that all sound noise standard in several respects: to minimize the compliance burden on levels between 80 dBA and 130 dBA be The final rule adopts the proposed small mines. The effective date of the included in determining exposure for ‘‘dual hearing protection level’’ at a final rule, one year after promulgation, both the action level and permissible TWA8 of 105 dBA. This requirement for provides time for small mines to achieve exposure level. Based on comments dual hearing protection is supported by compliance. In addition, MSHA is received, the final rule requires research showing that greater noise mailing a copy of the final rule to each inclusion of sound levels between 90 reduction results from the use of both mine operator, which benefits small dBA and at least 140 dBA for earplugs and earmuffs than from either mine operators. determining exposure with respect to type of hearing protector alone. MSHA anticipates that the mining the permissible exposure level. The Accordingly, mine operators must community will benefit substantially final rule adopts the proposed inclusion provide and require the use of both an from the final rule. The primary benefit of sound levels from 80 dBA to at least earplug and an earmuff at a TWA8 of will be a sizable reduction, by as much 130 dBA for determining exposure with 105 dBA. as two-thirds, in the incidence of respect to the action level. The final rule does not include occupational hearing impairment among In response to the proposed definition detailed, technical procedures and miners. The final rule will also serve to of a hearing conservation program, criteria for conducting audiometric mitigate the progression of hearing loss commenters suggested that, for the sake testing. Rather, the rule is performance- in working miners and preserve the of consistency, the final rule adopt the oriented, requiring only that health and quality of life of miners existing definition included in the audiometric testing be conducted in newly entering the industry. OSHA noise standard. MSHA agrees accordance with scientifically validated and has revised the final rule to procedures, such as those in OSHA’s Two charts compare key features of incorporate all relevant elements of a noise standard. the final standard to MSHA’s existing hearing conservation program under Nor does the final rule require standards. Note that entries in the charts this definition. determining the adequacy of hearing and the discussions in the preamble The proposed rule would have protectors. Although OSHA’s noise reflect legal and/or policy required mine operators to ensure that standard includes such information in interpretations that would not be miners participate in an audiometric its mandatory Appendix B, MSHA’s apparent from the text of the standards. testing program if their noise exposures research on mining applications Other parts of this preamble should be were above the permissible exposure indicates that hearing protectors provide consulted for details.

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CHART 1: GENERAL REQUIREMENTS

Existing metal and Noise level Final rule nonmetal rules Existing coal rules

At or above a TWA8 of 85 Enroll miner in HCP which includes requirements for No requirements ...... No requirements. dBA (action level). training, monitoring, recordkeeping, voluntary hearing tests, voluntary use of operator-provided HP in most cases, but use of HP is mandatory in particular instances. Above a TWA8 of 90 dBA Use or continue to use all feasible engineering and Use all feasible engineer- Use all feasible engineer- (PEL). administrative controls to reduce exposure to PEL; ing or administrative ing and/or administrative enroll miner in an HCP including ensuring use of controls and provide HP controls, but can first re- operator-provided HP, post administrative controls if noise level cannot be duce exposure by rated and provide copy to affected miner, never permit lowered to PEL. value of HP minus 7 un- miner to be exposed to sound levels exceeding 115 less cited for failure to dBA. require HP use; also must enroll miners in HCP if cited. At or above 105 dBA (dual Ensure concurrent use of earplug and earmuff type Limited requirement for N/A hearing protection level). HPs in addition to above requirements for the action dual HPs. level and PEL.

Abbreviations: HP (hearing protector), HCP (hearing conservation program), TWA8 (eight-hour time-weighted average), dBA (decibel, A-weighted), PEL (permissible exposure level); Hz (hertz), and n/a (not applicable).

COMPARISON CHART 2: GENERAL FEATURES

Existing metal and Feature Final rule nonmetal rules Existing coal rules

Monitoring ...... Operator must establish an effective system of moni- No requirement on mine Mine operator required to toring noise exposure. operator. conduct periodic monitoring. Notification of exposure ...... Operator must notify miner of certain exposures ...... Not required ...... Not required. Dual Threshold (lowest 85 dBA for action level and 90 dBA for PEL ...... 90 dBA for PEL ...... 90 dBA for PEL. sound level counted). Exchange rate ...... 5 dB ...... 5 dB ...... 5 dB. Training ...... Specific training requirements ...... Part 48 ...... Part 48. Quiet period prior to 14 hours for baseline audiogram and use of HP per- N/A ...... N/A. audiometric examination. mitted. Standard Threshold shift ..... Average of 10 dB at 2000, 3000, and 4000 Hz in ei- N/A ...... N/A. ther ear. Reportable hearing loss ...... Average of 25 dB at 2000, 3000, and 4000 Hz in ei- Reporting required but Reporting required but ther ear. level was undefined. level was undefined. Employee access to records Available upon request ...... N/A ...... N/A. Abbreviations: HP (hearing protector), dBA (decibel, A-weighted), PEL (permissible exposure limit); Hz (hertz), n/a (not applicable).

III. Paperwork Reduction Act of 1995 number. The OMB control number, requirements for operators’’ and that the when assigned, will be announced by ‘‘paperwork involves one letter and two The information collection separate notice in the Federal Register. 32 cent stamps per year per coal requirements contained in this final rule In accordance with § 1320.11(h) of the operator.’’ The February 1984 Program have been submitted to the Office of implementing regulations, OMB has 60 Information Bulletin eliminated the Management and Budget (OMB) for days from today’s publication date in requirement for the completion and review under the Paperwork Reduction which to approve, disapprove, or submission to MSHA of a Coal Mine Act of 1995 (44 U.S.C. 3501–3520), as instruct MSHA to make a change to the Noise Data Report Form when operator implemented by OMB in regulations at information collection requirements in 5 CFR part 1320. The Paperwork noise exposure surveys are found to be this final rule. within compliance. The Program Reduction Act of 1995 (PRA 95) defines Recordkeeping requirements in the Information Bulletin retained the collection of information as ‘‘the final rule are found in §§ 62.110, 62.130, obtaining, causing to be obtained, 62.170, 62.171, 62.172, 62.173, 62.174, requirement that a written and signed soliciting, or requiring the disclosure to 62.175, 62.180, and 62.190. statement (certification) be submitted to third parties or the public of facts or MSHA received comments both MSHA that the required surveys were opinions by or for an agency regardless supporting and opposing the proposed made and that the surveys show of form or format.’’ (44 U.S.C. information collection requirements. compliance. The Program Information 3502(3)(A)). Under PRA 95, no person MSHA has reviewed these comments. Bulletin did not drop the requirement may be required to respond to, or may Several commenters questioned for noise surveys to be conducted, be subjected to a penalty for failure to MSHA’s estimates of the paperwork exclude the requirement for comply with, these information burden reduction of the noise rule. Two supplemental noise surveys for collection requirements until they have commenters noted that the February exposures at or above the permissible been approved and MSHA has 1984 Program Information Bulletin 84– exposure level (and a submission of announced the assigned OMB control 1C ‘‘eliminated virtually all paperwork them), or eliminate the requirement of

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(reflecting 30 minute monitoring for unnecessary requirement which For these reasons, MSHA’s estimates in each of four miners in a small mine and generated too much paper and that the final rule are consistent with the ten miners in a large mine) are miners may not even want a copy of the requirements of PRA 95. reasonable. Other commenters stated that they Another commenter questioned if records. In response, the final rule will still have to conduct surveys, retain there will be an observation time limit requires mine operators to provide survey records, conduct training and and also believed that MSHA’s estimate copies of records to a miner if the miner audiometric testing, and implement of 5 hours annually was too low. Also, requests such records. engineering and administrative controls a commenter questioned MSHA’s Numerous commenters stated that to demonstrate compliance. The existing estimates of lost production, the length records should not have to be retained standards require coal mine operators to of time needed for observation, and at the mine site. MSHA agrees and the perform semiannual monitoring for each MSHA’s average time estimates per final rule provides that records are not miner. Under the final rule, mine small mine and per large mine. A required to be maintained at the mine operators must establish a system of commenter also believed that the total site, and therefore can be electronically monitoring that evaluates each miner’s estimated annual information collection filed in a central location, so long as the noise exposure sufficiently to determine burden was low. With the exception of records are made available to the continuing compliance with this part. the one commenter who provided the authorized representative of the However, under the final rule mine estimate of 12,000 hours annually to Secretary upon request within a operators may use their own monitoring observe monitoring, none provided data reasonable time, in most cases one day. records as well as the Agency’s data to support their statements. Although the final rule does not from inspector sampling to determine At the public hearing, several require backing up the data, some compliance. commenters testified that they means are necessary to ensure that Some commenters stated that the considered MSHA’s time estimates and electronically stored information is not performance-based system of photocopy cost estimates high. In compromised or lost. MSHA encourages monitoring may result in increased particular, they believed that the time to mine operators who store records monitoring. MSHA anticipates that a give instructions to the secretary were electronically to provide a mechanism number of mine operators will use some excessive. Further, they stated MSHA’s that will allow the continued storage form of representative sampling within estimates for the length of time to and retrieval of records in the year 2000. job classes or work areas to minimize perform typing and posting were too costs related to dose determination. In high. Other commenters stated that the MSHA solicited comment on what addition, large operators who use the bulk of the paperwork would be actions would be required, if any, to same equipment on more than one shift completed by safety professionals and facilitate the maintenance of records in may conduct monitoring on a single industrial hygienists as opposed to electronic form by those mine operators shift to determine miner exposures, clerical workers. Based upon a review of who desire to do so, while ensuring provided that the circumstances are all the comments and MSHA’s access in accordance with these similar. experience, the Agency believes the requirements. The Agency received The Agency published a estimates in the final rule are several comments supporting electronic supplemental proposal that would give reasonable. storage of records, but no specifics affected miners and their The proposed rule would have regarding actions required to facilitate representatives the right to observe required mine operators to obtain from the maintenance of the records in operator monitoring. MSHA estimated the physician, audiologist, or qualified electronic form. In revising the that the time required for observation of technician who conducts an requirements from those that appeared monitoring would take about 2 hours audiometric test a certification that each in the proposed rule, MSHA has annually at small mines and about 5 test was conducted in accordance with evaluated the necessity and usefulness hours annually at large mines. Several scientifically validated procedures. of the collection of information; commenters questioned the Agency’s Commenters stated that requiring mine reevaluated MSHA’s estimate of the estimates. One commenter questioned operators to obtain a certification for information collection burden, the Agency’s estimate of 5 hours for a each individual audiogram was unduly including the validity of the underlying large mine. The commenter believed burdensome. The Agency agrees and the methodology and assumptions; and that for a mine which employed 1,500 proposed certification requirement has minimized the information collection workers, 12,000 hours will be spent on not been adopted in the final rule. burden on respondents to the greatest noise monitoring (1,500 workers * an 8 Under the final rule, evidence is simply extent possible. The following charts hour workday). Under the final rule, required that the audiograms were provide, by section, the paperwork mine operators will need to determine conducted in accordance with requirements for Year 1 and for each miners’ exposure; this may be achieved scientifically validated procedures. For succeeding year, respectively.

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TABLE 1.ÐSUMMARY OF NET INFORMATION COLLECTION BURDEN HOURS IN YEAR 1

Coal mines M/NM mines Section Paperwork requirements and associated tasks Total Small Large Small Large

62.110 to 62.130 ...... Evaluate noise exposure; notify miners, pre- (7,988) (50,666) 14,605 12,579 (31,471) pare, post, and distribute administrative controls; and permit observation of monitoring. 62.170 ...... Perform audiograms; and notify miners to ap- 940 4,181 3,577 5,271 13,969 pear for testing and of need to avoid high noise levels. 62.171 ...... Compile an audiometric test record; and ob- 1,021 4,616 3,882 5,820 15,339 tain evidence. 62.172 ...... Provide information and audiometric test 1,413 4,374 5,474 5,513 16,774 record; and perform audiometric retests. 62.173 ...... Perform otological evaluations; and provide 7 27 29 34 98 information and notice. 62.174 ...... Prepare a retraining certification; and review 105 334 407 420 1,266 effectiveness of engineering and administrative controls. 62.175 ...... Inform miners of test results and tSTS...... 1,038 4,623 3,950 5,829 15,440 62.180 ...... Prepare and file a training certificate...... 1,280 4,165 4,957 5,180 15,581 62.190 ...... Provide access to, and transfer, records ...... 244 303 1,027 915 2,489

Total ...... (1,941) (28,045) 37,909 41,561 49,484

TABLE 2.ÐSUMMARY OF NET INFORMATION COLLECTION BURDEN HOURS FOR AFTER YEAR 1

Coal mines M/NM mines Section Paperwork requirements and associated tasks Total Small Large Small Large

62.110 to 62.130 ...... Evaluate noise exposure; notify miners, pre- (8,532) (48,006) 6,595 3,567 (46,376) pare, post, and distribute administrative controls; and permit observation of monitoring. 62.171 ...... Compile an audiometric test record; and ob- 153 692 582 873 2,301 tain evidence. 62.172 ...... Provide information and audiometric test 212 656 821 827 2,516 record; and perform audiometric retests. 62.173 ...... Perform otological evaluations; and provide 1 4 4 5 15 information and notice. 62.174 ...... Prepare a retraining certification; and review 16 53 62 67 198 effectiveness of engineering and administrative controls. 62.175 ...... Inform miners of test results and STS ...... 156 694 593 874 2,316

Total ...... (7,994) (45,907) 8,658 6,213 (39,029)

Executive Order 12866 and Regulatory monetization of these benefits would be entities. Traditionally, MSHA considers Flexibility Analysis difficult and inappropriate. small mines to be mines with fewer than In accordance with Executive Order Based upon the economic analysis, 20 employees. Under the Regulatory 12866, MSHA has prepared a final MSHA has determined that this rule is Flexibility Act, MSHA must use the analysis of the estimated costs and not an economically significant SBA definition for a small mine of 500 benefits associated with the revisions of regulatory action pursuant to section employees or fewer or, after the noise standards for coal and metal 3(f)(1) of Executive Order 12866. The consultation with the SBA Office of and nonmetal mines. Agency does consider this rulemaking Advocacy, establish an alternative The final Regulatory Economic significant under section 3(f)(4) of the definition in the Federal Register for Analysis containing this analysis is Executive Order for other reasons, and notice and comment. The alternative available from MSHA. The final rule has so designated the rule in its annual definition could be the Agency’s will cost approximately $8.7 million agenda. traditional definition of ‘‘fewer than 20 miners’’ or some other definition. As annually and will prevent or contribute Regulatory Flexibility Certification to the prevention of approximately 595 reflected in the certification, MSHA hearing impairment cases annually. The In accordance with section 605 of the analyzed the costs of this final rule for benefits are expressed in terms of cases Regulatory Flexibility Act, the Mine small and large mines using both the of hearing impairment that can be Safety and Health Administration traditional Agency definition and SBA’s avoided and have not been monetized. certifies that the final noise rule does definition, as required by the Regulatory Although the Agency has attempted to not have a significant economic impact Flexibility Act, of a small mine. No quantify the benefits, it believes that on a substantial number of small small governmental jurisdictions or

VerDate 18-JUN-99 17:20 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:\FR\FM\13SER2.XXX pfrm07 PsN: 13SER2 49554 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations nonprofit organizations are adversely begins with a ‘‘screening’’ analysis. The such a quantitative analysis. The affected. screening compares the estimated Agency is fully cognizant of the Under the Small Business Regulatory compliance costs of the final rule for diversity of mining operations in each Enforcement Fairness Act (SBREFA) small mine operators in the affected sector, and has applied that knowledge amendments to the Regulatory sector to the estimated revenues for that as it developed the final rule. Flexibility Act, MSHA must include in sector. When estimated compliance In determining revenues for coal the final rule a factual basis for this costs are less than 1 percent of mines, MSHA multiplied coal certification. The Agency must also estimated revenues (for the size production data (in tons) for mines in publish the regulatory flexibility categories considered), the Agency specific size categories (reported to certification statement in the Federal believes it is generally appropriate to Register, along with the factual basis, MSHA quarterly) by $18.14 per ton, conclude that there is no significant Department of Energy (1997). For metal followed by an opportunity for the impact on a substantial number of small public to comment. The Agency has and nonmetal mines, the Agency entities. When estimated compliance estimated revenues for specific mine consulted with the Small Business costs approach or exceed 1 percent of Administration (SBA) Office of size categories as the proportionate revenue, it tends to indicate that further share of these mines’ contribution to the Advocacy and believes that this analysis analysis may be warranted. provides a reasonable basis for the Gross National Product, Department of certification in this case. Derivation of Costs and Revenues Interior (1998). In the proposal, MSHA specifically The Agency performed its analysis Results of Screening Analysis solicited comments on the Agency’s separately for two groups of mines: the regulatory flexibility certification coal mining sector as a whole, and the As shown in the following chart, for statement, including cost estimates and metal and nonmetal mining sector as a coal mine operators with fewer than 20 data sources. To facilitate public whole. Based on a review of available employees, the estimated yearly cost of participation in the rulemaking process, sources of public data on the mining the final rule is $400 per mine operator, MSHA mailed a copy of the proposal industry, the Agency believes that a and estimated yearly costs as a and will mail a copy of the final rule, quantitative analysis of the impacts on percentage of revenues are 0.08 percent. including the preamble and regulatory various mining subsectors (that is, As shown in the next chart, for coal flexibility certification statement, to beyond the 4-digit SIC level) is not mine operators with 500 or fewer every mine operator and miners’ feasible. The Agency requested employees, the estimated yearly savings representative. comments, however, on whether there from the final rule are $634 per mine Factual Basis for Certification are special circumstances that warrant operator. The savings are due to the separate quantification of the impact of elimination of existing coal industry General Approach this final rule on any mining subsector requirements for performing and The Agency’s analysis of impacts on and information on how it might readily recording semiannual surveys and other ‘‘small entities’’ and ‘‘small mines’’ obtain the data necessary to conduct related surveys and reports.

TABLE 1.ÐTHE IMPACT OF FINAL RULE ON THE COAL MINING INDUSTRY *

Estimated Cost as per- Mine type Estimated Estimated revenue cost per cent of rev- costs mine enue

Small (<20) ...... $603,941 $767,307,869 $400 0.08 Large (≥20) ...... 763,112 18,964,691,818 727 0.00 * Source: Preliminary Data 1997 from CM441 and Department of Energy/Energy Information Agency. Annual Energy Review 1997. POE/EIA± 038497. July 1998. P. 187.

TABLE 2.ÐTHE IMPACT OF FINAL RULE ON THE COAL MINING INDUSTRY *

Estimated Cost as per- Mine type Estimated Estimated revenue cost per cent of rev- costs mine enue

Small (≤500) ...... $1,296,461 $19,038,974,646 $508 0.01 Large (<500) ...... 70,592 693,025,041 6,403 0.01 * Source: Preliminary Data 1997 from CM441 and Department of Energy/Energy Information Agency. Annual Energy Review 1997. POE/EIA± 038497. July 1998, P. 187.

As shown in the following chart, for operator, and estimated costs as a fewer employees, the estimated yearly metal/nonmetal mines with fewer than percentage of revenues are 0.04 percent. cost is $617 per mine operator, and 20 employees, the estimated yearly cost As shown in the next chart, for metal/ estimated costs as a percentage of of the final rule is $414 per mine nonmetal mine operators with 500 or revenues are 0.02 percent.

VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.011 pfrm08 PsN: 13SER2 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations 49555

TABLE 3.ÐTHE IMPACT OF FINAL RULE ON THE METAL/NONMETAL MINING INDUSTRY *

Estimated Cost as per- Mine type Mine costs Estimated revenue Cost per cent of rev- mine enue

Small (<20) ...... $4,321,282 $10,651,022,009 $460 0.04 Large (≥20) ...... 3,056,036 27,348,977,991 1,945 0.01 * Source: Preliminary Data 1997 from CM441 and Department of Interior, Bureau of Mines, Mineral.

TABLE 4.ÐDISTRIBUTION OF MINE OPERATIONS AND EMPLOYMENT BY MINE TYPE AND SIZE INCLUDING INDEPENDENT CONTRACTORS AND CONTRACTOR WORKERS POTENTIALLY AFFECTED BY THE FINAL RULE *

Coal Metal/nonmetal Mine Size (No. of employees) No. of No. of min- Miners per No. of No. of min- Miners per mines ers mine mines ers mine

Small (<20) ...... 2,401 14,347 5.97 10,098 56,859 5.63 Large (≥20) ...... 1,133 82,142 72.48 1,666 122,378 73.45

Total ...... 3,535 96,489 27.30 11,764 179,238 15.24 * Source: Table 2 and Table 3. Office workers are not included in these employment figures.

In all cases, the cost of complying and lowering the exchange rate to 3 dB. voluntary. In this regard, it is also with the final rule is less than one In both cases, the scientific evidence in compatible with OSHA’s noise percent of revenues, well below the favor of these approaches was strong, standard. level suggesting that the final rule might but commenters offered divergent views In addition, under the proposal, mine have a significant impact on a on the alternatives. In both cases, for the operators would not have been allowed substantial number of small entities. purpose of this final rule, MSHA has to use hearing protectors as a substitute Accordingly, MSHA has certified that concluded that it would not be feasible for the 14-hour quiet period prior to an there is no such impact on small coal for the mining industry to accomplish audiogram. Mine operators had stated mines or small metal/nonmetal mines. these more protective approaches. The that they could not, without substantial impact of these approaches on small burden to production and management, Regulatory Alternatives Considered mine operators was an important meet this requirement. Some noted that The limited impacts on small mines, consideration in this regard. in cases in which the audiometric regardless of size definition, reflect Further, MSHA proposed using an 80- testing cannot be scheduled on a day decisions by MSHA not to include more dBA threshold for determining the after a non-work day, the only way to costly regulatory alternatives. In permissible exposure level. If the ensure a 14-hour quiet period was to considering regulatory alternatives for Agency had done this, the number of pay the miner not to work. Under the small mines, MSHA must observe the mines with exposure levels at or above final rule, mine operators may use requirements of its authorizing statute. the permissible exposure level would hearing protectors as a substitute for the Section 101(a)(6)(A) of the Mine Act have increased substantially. quiet period. Again, this is compatible requires the Secretary to set standards Accordingly, with more mines above with OSHA’s noise standard. which most adequately assure, on the this level, the total cost of compliance Paperwork Impact basis of the best available evidence, that would have been higher, including no miner will suffer material penalties. Many commenters opposed In accordance with the Regulatory impairment of health over his/her the change in the threshold. They Flexibility Act and the Paperwork working lifetime. In addition, the Mine believed that the current 90-dBA Reduction Act of 1995, MSHA has Act requires that the Secretary, when threshold was sufficient for achieving analyzed the paperwork burden for both promulgating mandatory standards adequate health protection for miners metal and nonmetal and coal mines. pertaining to toxic materials or harmful and was compatible with OSHA’s noise While the final rule results in a net physical agents, consider other factors, standard. Additionally, as discussed in paperwork burden decrease for large such as the latest scientific data in the more detail later in the preamble, coal mines in year one and both small field, the feasibility of the standard, and MSHA did not intend to change the and large coal mines after year one, experience gained under the Act and permissible exposure level for noise. A there will be an increase in paperwork other health and safety laws. Thus, the change in the threshold would have had burden hours for small coal mines in Mine Act requires that the Secretary, in this effect. For these reasons, the final year one and in metal and nonmetal promulgating a standard, attain the rule includes the existing threshold for mines’ year one and every year highest degree of health and safety the permissible exposure level. thereafter. protection for the miner, based on the Under the proposal, the mine operator For small coal mines with fewer than ‘‘best available evidence,’’ with would have had to make certain that 20 miners the final rule will result in an feasibility as a consideration. miners exposed above the permissible increase of about 485 paperwork burden As a result of this statutory exposure level take the audiometric hours in year one. After year one there requirement, MSHA considered two examination. Several commenters will be a savings of 4,438 paperwork alternatives that would have expressed concerns about the burden hours for small coal mines. For significantly increased costs for small enforceability of this provision. MSHA large coal mines with 20 or more mine operators lowering the permissible considered these concerns, and under miners, the final rule will result in a exposure level to a TWA8 of 85 dBA, the final rule, audiometric testing is decrease of about 10,405 paperwork

VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.012 pfrm08 PsN: 13SER2 49556 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations burden hours in year one, and a savings and for MSHA to brief the mining in accordance with NEPA, the CEQ and of 28,498 each year thereafter. For metal community about the rule’s the Department’s procedural and nonmetal mines, the final rule will requirements. Also, as stated previously, regulations. MSHA’s preliminary result in an increase of paperwork MSHA will mail a copy of the final rule determination was based on its burden hours for both small and large to every mine operator, which benefits Regulatory Impact Analysis which mines. There will be an increase of small mine operators. The Agency has explained the costs and benefits of the 33,955 paperwork burden hours for committed itself to issuance of a proposed rule. MSHA has complied small metal and nonmetal mines and compliance guide for all mines; MSHA with the requirements of the NEPA, increase of 38,183 paperwork burden believes that compliance workshops or including the Department of Labor’s hours for large metal and nonmetal other approaches will be valuable and compliance procedures and the mines in year one. After year one, there the Agency will hold such workshops if regulations of the Council on will be an increase of 15,526 paperwork requested. Environmental Quality. The Agency has burden hours per year for small metal For this rulemaking’s Regulatory not received any new information or and nonmetal mines, and an increase of Flexibility Analysis, the Agency is using comments that would affect its previous 14,331 per year for large. its traditional definition of ‘‘small determination. As a result of the Although the substantial increases in mine’’ as a mine with fewer than 20 Agency’s review of the final noise rule, paperwork burden hours result from employees, in addition to the SBA’s MSHA has concluded that the rule will §§ 62.175 and 62.180 for coal mines, definition of operations with fewer than not have significant environmental these will be offset by the net savings of 500 employees, as required by the impacts, and therefore neither an §§ 62.110–62.130, which eliminate Regulatory Flexibility Act. For purposes environmental assessment nor an current requirements for biannual noise of this final rule, MSHA has continued environmental impact statement is surveys and other miscellaneous reports its past practice of using ‘‘under 20 required. In addition, MSHA believes and surveys in that sector. However, for miners’’ as the appropriate point of that the final rule will indirectly aid the metal and nonmetal mines there will be reference, in addition to SBA’s environment since many of the an increase in paperwork burden hours definition. Reviewers will note that the engineering controls which control associated with complying with the paperwork and cost discussions noise, such as mufflers and curtains, final rule. continue to refer to the impacts on also aid in controlling environmental As required by the Paperwork ‘‘small’’ mines with fewer than 20 pollutants. Reduction Act of 1995, MSHA has employees. The Agency has not included in its paperwork burden established a definition of ‘‘small Executive Order 13084 (Consultation estimates the time needed to perform entity’’ for purposes of the final rule. and Coordination With Indian Tribal tasks associated with information Based on this analysis, MSHA Governments) collection. For example, the final rule concludes that whatever definition of MSHA certifies that the final rule requires a mine operator to notify a ‘‘small entity’’ is eventually selected, does not impose substantial direct miner if the miner’s noise exposure the final noise rule does not have a compliance costs on Indian tribal equals or exceeds the action level. In significant economic impact on a governments. Further, MSHA provided order to determine if notification is substantial number of small entities. the public, including Indian tribal necessary, the mine operator must governments which operated mines, the Executive Order 13045: Protection of perform a dose determination. MSHA opportunity to comment on the proposal Children From Environmental Health has included the time needed for dose and to participate in the public hearing Risks and Safety Risks determination in its burden estimate, as process. No Indian tribal government required under PRA 95. In accordance with Executive Order applied for a waiver or commented on 13045, MSHA has evaluated the the proposal. Small Business Regulatory Enforcement environmental health and safety effects Fairness Act (SBREFA) of the final rule on children. The Executive Order 12612 Federalism In accordance with the Small Agency has determined that the final Executive Order 12612, regarding Business Regulatory Enforcement rule will have no adverse effects on federalism, requires that agencies, to the Fairness Act (SBREFA) amendments to children. extent possible, refrain from limiting the Regulatory Flexibility Act, MSHA state policy options, consult with states Environmental Assessment carefully considered all of the proposed prior to taking any actions which would requirements, in addition to alternatives The final noise rule has been restrict state policy options, and take to the proposal, to ensure that the final reviewed in accordance with the such actions only when there is clear rule would provide the least requirements of the National constitutional authority and the burdensome impact necessary to Environmental Policy Act (NEPA) of presence of a problem of national scope. promote miner health. MSHA believes 1969 (42 U.S.C. 4321 et seq.), the Because this final rule does not limit that it has complied with the SBREFA regulations of the Council of state policy options, it complies with amendments. Environmental Quality (CEQ) (40 CFR the principles of federalism and with The preamble to the proposed rule part 1500) and the Department of Executive Order 12612. included a full discussion of MSHA’s Labor’s NEPA compliance procedures preliminary conclusions about (29 CFR part 11). In the Federal Register Unfunded Mandates Reform Act of 1995 regulatory alternatives. The public was of May 26, 1998 (63 FR 28496), MSHA MSHA has determined that, for invited to suggest additional alternatives made a preliminary determination that purposes of § 202 of the Unfunded for compliance. the proposed noise rule was of a type Mandates Reform Act of 1995, this final MSHA is taking several actions to that does not have a significant impact rule does not include any Federal minimize the compliance burden on on the human environment. In response, mandate that may result in increased small mines. The effective date of the one comment was received by the expenditures by State, local, or tribal final rule will be a full year after its Agency. The commenter expressed a governments in the aggregate of more publication, to provide adequate time concern that the Agency had not than $100 million, or increased for small mines to achieve compliance prepared an environmental assessment expenditures by the private sector of

VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.014 pfrm08 PsN: 13SER2 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations 49557 more than $100 million. Moreover, the mining industry to implement a reduced 2. Ceiling Level. The NIOSH draft Criteria Agency has determined that for permissible exposure level for noise, Document recommended a ceiling at a 115 purposes of § 203 of that Act, this final including a reduction in the exchange dBA sound pressure level. The final Criteria rule does not significantly or uniquely rate. For these reasons the final rule Document recommends a 140 dBA sound does not reduce the permissible pressure level ceiling limit for continuous, affect small governments. varying, intermittent, or impulsive noise. exposure level, but it does require mine Background 3. Dual Hearing Protection Level. The draft operators to take a number of other Criteria Document did not make a The Unfunded Mandates Reform Act actions that will substantially reduce recommendation for such a level. However, was enacted in 1995. While much of the miners’ risk of occupational noise- the final Criteria Document recommends the Act is designed to assist the Congress in induced hearing loss. use of dual hearing protection at exposures determining whether its actions will MSHA will continue to examine exceeding a TWA8 of 100 dBA. impose costly new mandates on State, closely the feasibility of a reduction in 4. Quiet Period. The draft Criteria local, and tribal governments, the Act the permissible exposure level for Document recommended a 14-hour quiet also includes requirements to assist miners’ noise exposure. This will period prior to a baseline audiogram, and include, but is not limited to, would not permit the use of hearing Federal agencies to make this same protectors as a substitute. The final Criteria determination with respect to regulatory assessment of the availability and Document recommends a quiet period of 12 actions. suitability of equipment retrofits for hours, and still would not permit the use of noise control, evaluation of the state of hearing protectors in lieu of the quiet period. Analysis existing noise control technology Based on the analysis in the Agency’s appropriate for mining applications, and Rule Format final Regulatory Economic Analysis, the the availability of alternative, and less In the preamble to the proposed rule annualized cost of this final rule is noisy, equipment for various mining MSHA solicited comments on the approximately $8.9 million. tasks. MSHA intends to work closely appropriate format for the final rule, Accordingly, there is no need for further with all segments of the mining providing examples for commenters of analysis under § 202 of the Unfunded community in its continuing assessment alternate approaches. There was no Mandates Reform Act. of feasibility. clear consensus among commenters to MSHA has concluded that small NIOSH Criteria Document the proposal that the traditional format governmental entities are not of MSHA’s regulations should be significantly or uniquely impacted by In March 1996, the National Institute changed. As a result, the final rule the final regulation. The final rule will for Occupational Safety and Health adopts the format of existing MSHA impact approximately 15,299 coal and (NIOSH) released for peer review a draft regulations. Criteria Document for Occupational metal and nonmetal mining operations; Unlike the proposal the final rule Noise Exposure, which was intended to however, increased costs will be does not include a question and answer update an earlier NIOSH Criteria incurred only by those operations section. Instead, after publication of the Document for Noise that had been (approximately 10,476 mines) where final rule, MSHA will develop and issue issued in 1972. MSHA summarized the noise exposures exceed the allowable a compliance guide for the mining recommendations of the draft Criteria limits. MSHA estimates that community to facilitate its Document in the preamble to the approximately 187 sand and gravel or understanding of and compliance with proposed rule (61 FR 66369–66370), and crushed stone operations are run by the requirements of the final rule. considered the draft Criteria Document state, local, or tribal governments and Additionally, MSHA is receptive to recommendations, as well as comments will be impacted by this rule. submission by the mining community of that addressed the draft Criteria When MSHA issued the proposed suggestions for issues that should be Document, in developing this final rule. rule, the Agency affirmatively sought addressed in the compliance guide. input of any state, local, and tribal In June 1998 NIOSH issued the final government which may be affected by Criteria Document for Occupational V. Material Impairment Noise Exposure, which in large part the noise rulemaking. This included Section 101(a)(6) of the Federal Mine state and local governmental entities adopts the recommendations of the 1996 draft Criteria Document, which, as Safety and Health Act of 1977 (Mine who operate sand and gravel mines in Act) provides that, in dealing with toxic the construction and repair of highways mentioned above, were considered as part of this rulemaking. However, the materials or harmful physical agents, and roads. MSHA mailed a copy of the standards set by the Secretary shall: proposed rule to these entities. No state, final Criteria Document does include local or tribal government entity several recommendations which differ ** * most adequately assure on the basis of from recommendations in the 1996 draft the best available evidence that no miner will commented on the proposed rule. When suffer material impairment of health or the final rule is published, MSHA will Criteria Document. The main differences between the draft and the functional capacity even if such miner has mail a copy to all 187 entities. regular exposure to the hazards dealt with by final Criteria Documents are as follows: IV. Miscellaneous such standard for the period of his working 1. Action level. In the draft document, life. Permissible Exposure Level NIOSH proposed what was essentially an ‘‘action level’’ that would trigger MSHA has determined that there is a The final rule affirms MSHA’s initial establishment of a Hearing Loss Prevention significant risk of material impairment determination, set out in the proposal, Program. The ‘‘action level’’ would have been of health and functional capacity to that there is a significant risk for miners an 8-hour TWA of 85 dBA. The final Criteria miners from exposure to workplace of material impairment from noise Document does not adopt the ‘‘action level’’ noise despite the existing noise exposures at or above an 8-hour time- concept, and instead would trigger standards, and the Agency’s rulemaking weighted average of 85 dBA. However, establishment of a Hearing Loss Prevention evidence supports this. MSHA Program at the recommended exposure limit the final rule also comports with anticipates that the final rule will of an 85 dBA TWA8. Under MSHA’s final MSHA’s initial conclusion that it would rule, a miner’s noise exposure at 85 dBA reduce, by approximately two-thirds, not be either technologically or TWA8 requires enrollment of the miner in a the number of miners who will suffer a economically feasible at this time for the Hearing Conservation Program. material impairment due to exposure to

VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.015 pfrm08 PsN: 13SER2 49558 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations occupational noise under the existing also suggest that holding exposure individual’s threshold hearing level the regulations. below a time-weighted average of 85 lowest level of discrete frequency tones MSHA’s conclusion that there is a dBA will significantly improve both that he or she can hear. The test significant risk of material impairment psychological and physiological stress procedures for pure tone audiometry are of health for workers exposed over their reactions. relatively simple, widely used, and working lifetimes to sound levels of 85 Safety risks at the workplace may standardized. Although there is little dBA is based on the Agency’s definition arise as a result of noise-induced debate in the scientific community of material impairment, which is hearing loss. Workers suffering from about the usefulness of pure tone referred to in this preamble as the noise-induced hearing loss may not hear audiometry in assessing hearing loss, OSHA/NIOSH–72 definition. Under the safety signals because of reduced there is some disagreement about the OSHA/NIOSH–72 definition, the excess hearing sensitivity to higher range of audiometric frequencies that risk of a hearing impairment from frequencies. In addition, noise-induced should be used in determining hearing occupational noise exposure is 15% or hearing loss results in the loss of the loss. one-hundred fifty-in-a-thousand miners ability to distinguish between many When OSHA initially published its at an 85 dBA TWA8 exposure for a pairs of consonants, which makes noise standard establishing noise working lifetime. The Supreme Court speech incomprehensible. As a result, exposure limits for employees, most has indicated, in discussing significant miners suffering from noise-induced medical professionals used the 1959 risk in the context of litigation under hearing loss may have trouble criteria developed by the American section 6(f) of the OSH Act, that OSHA understanding directions or warnings Academy of Ophthalmology and is free to use conservative assumptions given by their supervisors or co- Otolaryngology (AAOO), a subgroup of in interpreting data so long as they are workers. the American Medical Association supported by reputable scientific (AMA). This definition (AAOO 1959) of Definition of Material Impairment concepts, and that a one-in-a-thousand hearing impairment is a hearing level risk is significant. Industrial Union MSHA has determined that a 25 dB exceeding 25 dB, referenced to Department, AFL–CIO v. American hearing level averaged over 1000, 2000, audiometric zero, averaged over 500, Petroleum Institute, 448 U.S. 607, 655 and 3000 Hz in both ears is the most 1000, and 2000 Hz in either ear. The (1980) (the Benzene Case). If the Mine appropriate gauge of a miner’s risk of American Academy of Otolaryngology Act were to impose the same risk- developing significant noise-induced Committee on Hearing and Equilibrium finding requirement as the OSH Act, hearing loss. MSHA therefore considers and the American Council of MSHA’s determination of a significant such a loss to constitute a material Otolaryngology Committee on the risk of material impairment of health impairment in hearing. MSHA’s Medical Aspects of Noise (AAO–HNS) falls well within the Supreme Court’s definition of material impairment is modified the 1959 criteria in 1979 by direction to OSHA in the Benzene Case. based on one developed in 1972 by adding the hearing level at 3000 Hz to Exposure to hazardous sound levels NIOSH and subsequently adopted by the 500, 1000, and 2000 Hz frequencies. results in noise-induced hearing loss. OSHA in its noise standard for general The AAOO 1959 and AAO–HNS 1979 Noise-induced hearing loss is often industry, referred to below as the definitions cover all types of hearing described in terms of the relationship OSHA/NIOSH–72 definition. (As noted loss and were designed for hearing between the sound level to which a by a commenter, the preamble to the speech under relatively quiet person is exposed and the duration of proposed rule incorrectly stated that the conditions. The NIOSH–72 definition the exposure. Exposures to noise at OSHA/NIOSH–72 definition included includes the higher frequencies, which sound levels equal to or greater than the the phrase ‘‘in either ear.’’ This mistake are crucial to the comprehension of 8-hour average sound level of 85 dBA is corrected here and in the final rule.) speech under everyday conditions. have been shown to lead to hearing loss, In addition, as discussed elsewhere in In its draft 1996 Criteria Document for which can be temporary or permanent. this preamble, MSHA notes that it has occupational noise exposure, NIOSH Noise-induced hearing loss causes not adopted the revised definition of indicated that it was considering a new difficulty in hearing and understanding material impairment set forth in the definition for material impairment of a speech. People suffering from final NIOSH Criteria Document issued 25 dB or greater hearing loss at 1000, significant noise-induced hearing loss in June 1998. Throughout this preamble, 2000, 3000, and 4000 Hz in both ears. require even nearby persons to speak therefore, MSHA will continue to refer This definition was a recommendation loudly and clearly to be understood, and to the definition of material impairment of a Task Force to the American Speech- they are often frustrated by missing vital developed by NIOSH in 1972. Language-Hearing Association (ASHA) information. Also, background noise In nearly all studies of risk, material in 1981. In 1997, NIOSH conducted a affects the person’s ability to distinguish impairment from exposure to noise is reanalysis of the NIOSH-Occupational meaningful sounds from ambient noise. defined as a 25-dB hearing level. Noise and Hearing Survey data and Little benefit can be derived from the Hearing level is the deviation in hearing reevaluated the excess risk of material use of a hearing aid because it amplifies sensitivity from audiometric zero. hearing impairment incorporating the sound indiscriminately, without Positive values indicate poorer hearing 4000 hertz audiometric frequency in the increasing clarity, decreasing distortion, sensitivity than audiometric zero, while definition of material impairment. or screening out unwanted sounds. negative values indicate better hearing. (Excess risk is defined by NIOSH as the Noise also produces secondary, non- Audiometric zero is the lowest sound percentage with material impairment of auditory effects. pressure level that the average, young hearing in an occupational noise Although the secondary effects of adult with normal hearing can hear. exposed population after subtracting the noise-induced hearing loss are more Because of the widespread use of this percentage who would normally incur difficult to identify, document, and definition in the scientific community, such impairment from other causes in a quantify than the hearing loss itself, MSHA has used it in the final rule. population not exposed to occupational recent laboratory and field studies have Most definitions of hearing noise.) In 1998, NIOSH published the found an association between noise and impairment are based solely on pure results of this reanalysis in its final cardiovascular problems and other tone audiometry, in which an Criteria Document. The excess risk of illnesses such as hypertension. Studies audiometer is used to measure an developing occupational noise induced

VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.017 pfrm08 PsN: 13SER2 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations 49559 hearing loss under the reassessment is differ according to the frequencies that preamble to its noise standard (46 FR 8%. The excess risk of developing are used in the measurement criteria. 9739, 1983). This method allows the occupational noise induced hearing loss For example, AAOO 1959 is weighted differentiation of the population under the 1972 NIOSH definition of toward the lower frequencies, because it expected to develop a hearing material impairment is 15% for average was developed to determine an impairment due to occupational noise noise exposure level of 85 dBA. The individual’s ability to communicate exposure from the population expected final Criteria Document recommends under quiet conditions. AAO–HNS, to develop an impairment from non- that the reanalysis reaffirms support for which includes 3000 Hz, is weighted occupational causes, such as aging or the 85 dBA NIOSH recommended toward the higher frequencies. Because medical problems. exposure limit. OSHA/NIOSH–72 is weighted even Although studies of hearing loss in The final rule does not adopt the more towards the higher frequencies the rulemaking record consistently revised NIOSH definition for hearing due to the elimination of the hearing indicate that exposure to increased impairment. Several commenters noted level at 500 Hz, the population of those sound levels or increased duration that this definition has not been adopted impaired due to noise exposure will be results in increased hearing loss, the by the scientific community, and no greater than under the AAOO 1959 and reported risk estimates of occupational state workers’ compensation agency AAO–HNS 1979 definition. noise-induced hearing loss vary awards compensation for hearing MSHA has found that there is no considerably from one study to another. impairment based upon the current reliable mathematical relationship The variation is due to three factors: NIOSH hearing impairment criterion. among the three ways of assessing (1) The definition of ‘‘material Despite the fact that noise-induced hearing impairment, so that direct impairment’’ used (discussed above); hearing loss usually first becomes comparisons of their results are not (2) The screening of the control (non- detectable at 4000 Hz, MSHA finds that possible. That is, it is not possible to noise-exposed) group; and the scientific evidence does not, as yet, accurately predict the values computed (3) The sound level below which support including 4000 Hz in the using one definition from values material impairment from noise frequencies used for calculating hearing computed using either of the other two exposure is not expected to occur. impairment. Inclusion of test methods. In addition, most of the raw In some of the data used by MSHA, frequencies above 2000 Hz, however, is data that would allow conversion from researchers did not screen their study necessary to show the effect of noise one definition to another are no longer and control populations, while in others below 90 dBA on hearing, so MSHA available. Nonetheless, the results from they used a variety of screening criteria. continues to include the 3000 Hz all three approaches tend to Theoretically, screening does not have a frequency. Several commenters demonstrate the same result. significant impact on the magnitude of suggested that MSHA use the AAO– occupational noise-induced hearing loss HNS 1979 definition of material Measuring Risk experienced by given populations as impairment. There were relatively few MSHA could not determine an long as the same criteria are used to commenters in favor of using the AAO– individual miner’s risk from exposure to screen both the noise-exposed and the HNS 1979 definition. MSHA has particular levels of noise because at any non-noise-exposed populations being excluded the 500 Hz frequency from the given noise exposure, some miners will compared. However, failure to take into definition of hearing impairment suffer harm long before others, and a account any non-occupational noise because it is not as critical for miner’s susceptibility cannot be exposure, loss of hearing sensitivity due understanding speech and is least measured in advance of exposure. to aging, or both, can have a profound affected by noise. MSHA chose the However, as MSHA noted in the effect when considering whether the hearing levels at 1000, 2000, and 3000 proposal, risks can be determined for subjects have exceeded an established Hz on which to base its definition of entire populations. The probability of definition of material impairment. For material impairment because high acquiring a material impairment of example, if both the exposed and frequency hearing is critically important hearing in a given population can be control populations are screened to to the understanding of speech, which determined by extrapolating from data eliminate persons with a history of often takes place in noisy conditions. obtained from a test population exposed military exposure, use of medicines The Agency’s determination is to the same sound levels. Three harmful to the ear, noisy hobbies, and consistent with OSHA’s reasoning for its methods are generally used to express conductive hearing loss from acoustic noise standard, and many comments this population risk: trauma or illness, the excess risk would and studies cited support this approach. (1) The hearing level of the exposed be significantly different from that population; determined using unscreened Risk of Impairment (2) The percentage of an exposed populations. The risk of developing a material population meeting the selected criteria; The studies used by MSHA for the impairment becomes significant over a and final as well as the proposed rule working lifetime when workplace (3) The percentage of an exposed generally assumed exposures below 80 exposure to noise exceeds sound levels population meeting the selected criteria dBA to be nonhazardous. Although a of 85 dBA. Data reviewed by the Agency minus the percentage of a non-noise few researchers—Kryter (1970) and indicate that lowering exposure from 90 exposed population meeting the same Ambasankaran et al. (1981)—have dBA to 85 dBA does not eliminate the criteria, provided both populations are reported hearing loss from exposure to risk, it reduces the risk by similar, apart from their occupational sound levels below 80 dBA, most approximately half. noise exposures. scientists believe that the risk of Typically, noise-induced hearing loss MSHA has determined that the third developing a material impairment of occurs first at 4000 Hz and then method, commonly known as ‘‘excess hearing from exposure to such low progresses into the lower and higher risk,’’ provides the most accurate levels over a working lifetime is frequencies. MSHA notes that because picture of the risk of hearing loss negligible. Accordingly, almost all noise noise does not affect hearing sensitivity resulting from occupational noise risk studies consider the population equally across all frequencies, the exposure. OSHA also used this method exposed only to average levels of noise population defined as impaired will in quantifying the degree of risk in the below 80 dBA as a ‘‘non-noise exposed’’

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TABLE 1.ÐOSHA RISK TABLE

Excess risk (%) Sound level (dBA) ISO EPA NIOSH (1975) (1973) (1972) Range

80 ...... 0 5 3 0±5 85 ...... 10 12 15 10±15 90 ...... 21 22 29 21±29 The excess risk of material impairment under the 1997/1998 NIOSH reanalysis is discussed earlier in this preamble under Definition of Mate- rial Impairment.

Table 1 shows that the excess risk of intermittent noise that peaked at 118 the component of noise-induced material impairment after a working dBA, 3% of the workers experienced permanent threshold shift (the actual lifetime at a noise exposure of 80 dBA hearing impairment according to the shift in hearing level due only to noise is low. On the other hand, a noise AAOO 1959 definition of hearing exposure) to the control data. exposure of 85 dBA indicates a risk impairment. If the AAO–HNS 1979 MSHA did not receive any comments ranging from 10% to 15%. At a noise definition is used, the percentage on the three tables reflecting the exposure of 90 dBA, the risk ranges increases to 9%. Royster et al. predictable fact that, for any given from 21% to 29%. confirmed that the exclusion of 500 Hz population, the excess risk of material Table 2 presents additional and the inclusion of 3000 Hz increased impairment due to noise exposure will information on the risk assessments the number of hearing impaired be greater using the AAO–HNS 1979 calculated by NIOSH (Table XVII, individuals in their study of potential definition than using the AAOO 1959 Criteria Document, 1972), one portion of workers’ compensation costs for hearing definition. Likewise, the excess risk of which was included in Table 1. Table 2 impairment (Royster et al., 1978). Using material impairment due to noise is based on both the AAOO 1959 and an average hearing loss of 25 dB as the exposure will be greater using the the OSHA/NIOSH–72 definitions. It criterion, Royster found that 3.5% of the OSHA/NIOSH–72 definition than using shows that NIOSH’s risk assessment industrial workers developed a hearing the AAO–HNS 1979 definition. All found little difference between using the impairment according to AAOO 1959, three tables show a smaller excess risk OSHA/NIOSH–72 definition and using 6.2% according to AAO–HNS 1979, and than did the data presented in Table 1. the AAOO 1959 criteria. 8.6% according to the OSHA/NIOSH–72 definition. TABLE 3.ÐRISK OF IMPAIRMENT USING TABLE 2.ÐNIOSH RISK TABLE MSHA included the following three AAOO 1959 DEFINITION OF IMPAIR- tables in the preamble to the proposed MENT AND USING MELNICK ET AL., Excess risk (%) rule in order to show data regarding the 1980 DATA Sound level working lifetime risk of material (dBA) OSHA/ impairment based upon the three NIOSH±72 AAOO 1959 Excess risk different definitions commonly used for Exposure Percent with (percent) 80 ...... 3 3 material impairment. Table 3 is based impairment with noise 85 ...... 16 15 on AAO 1959, Table 4 is based on exposure 90 ...... 29 29 AAO–HNS 1979, and, Table 5 is based non-noise ...... 26.8 0.0 on the OSHA/NIOSH–72 definition. 80 dBA ...... 26.8 0.0 Regarding how adjustments to the MSHA constructed these tables based 85 dBA ...... 27.8 1.0 definitions used would affect the excess on data presented in Volume 1 of the 90 dBA ...... 31.4 4.6 risk figures above, MSHA agrees with Ohio State Research Foundation Report several researchers referred to by (Melnick et al., 1980) commissioned by commenters. Suter (1988) estimates that OSHA. The hearing level data used to TABLE 4.ÐRISK OF IMPAIRMENT USING the excess risk would be somewhat construct the tables are taken from AAO±HNS 1979 DEFINITION OF IM- higher if 500 Hz were excluded and summary graphs in that report. The PAIRMENT AND USING MELNICK ET 3000 Hz were included in the definition noise-exposed population was 65 years AL., 1980 DATA of material impairment. Sataloff (1984) old, with 40 years of noise exposure. reports that the effect of including Because the control group was not Excess risk hearing loss at 3000 Hz in the AAOO screened for the cause of hearing loss, Percent with (percent) Exposure impairment with noise 1959 definition of hearing impairment a high level of non-occupational hearing exposure would dramatically increase the loss may undervalue the excess risk prevalence of hearing impairment, as from occupational noise exposure. The non-noise ...... 41.6 0.0 follows. After 20 years of exposure to researchers (Melnick et al., 1980) added 80 dBA ...... 41.8 0.2

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TABLE 4.ÐRISK OF IMPAIRMENT USING impairment. Tables 3, 4, and 5 present populations in determining excess risk AAO±HNS 1979 DEFINITION OF IM- the results of this analysis. Because due to occupational noise exposure. PAIRMENT AND USING MELNICK ET Melnick did not screen his control Comparison of these tables shows that AL., 1980 DATAÐContinued group for the cause of the hearing loss the percentage of workers with hearing (could be non-occupational noise impairment is greater in the table Excess risk exposure), the amount of hearing loss in constructed with an unscreened the supposed non-noise exposed group Exposure Percent with (percent) population as the base. impairment with noise is high. By subtracting the value for the exposure non-noise exposed (control) group from TABLE 6.ÐRISK OF IMPAIRMENT USING the values determined for groups with 85 dBA ...... 44.4 2.8 AGE-INDUCED HEARING LOSS DATA 90 dBA ...... 50.0 8.4 different levels of occupational noise exposure, we determined the excess risk OF PASSCHIER-VERMEER AND ROB- for populations exposed at that level. INSON TABLE 5.ÐRISK OF IMPAIRMENT USING Tables 6 and 7 were also included in OSHA/NIOSH±72 DEFINITION OF the preamble to the proposed rule to Excess risk Percent with (percent) IMPAIRMENT AND USING MELNICK ET show data derived by Melnick in Exposure impairment with noise AL., 1980 DATA Forensic Audiology (1982) for risk of exposure impairment due to noise exposure. Excess risk These tables show the results of 75 dBA ...... 3 0 80 dBA ...... 5 2 Exposure Percent with (percent) applying the AAO-HNS 1979 method to impairment with noise a population that is 60 years old with 85 dBA ...... 9 6 exposure 40 years of exposure to the specified 90 dBA ...... 21 18 non-noise ...... 48.5 0.0 sound levels. In both tables, the data represent the noise-induced permanent 80 dBA ...... 48.7 0.2 TABLE 7.ÐRISK OF IMPAIRMENT USING 85 dBA ...... 51.5 3.0 threshold shift calculated by Johnson, 90 dBA ...... 57.9 9.4 but the screening criteria used in the NON-OCCUPATIONAL HEARING two tables are different. Melnick’s data The excess risk in Table 1 represents in Table 6 are based upon the screened Excess risk Percent with (percent) the risk assessments conducted by ISO, age-induced hearing loss data (that is, Exposure impairment with noise EPA, and NIOSH in three different years they are screened for non-occupational exposure during the early 1970’s. All three hearing loss) of Robinson and Passchier- agencies used the same definition of Vermeer, whereas Table 7 is based on 75 dBA ...... 27 0 impairment (AAOO 1959) in evaluating unscreened, non-occupational hearing 80 dBA ...... 29 2 available studies. Their results are loss data from the 1960–62 U.S. Public 85 dBA ...... 33 6 similar. Health Survey. 90 dBA ...... 40 13 MSHA applied three different Overall, the excess risk information definitions of hearing impairment to the presented in these tables is closer to that Chart 1 incorporates the risk same data (Melnick 1980) to show that in Table 1 than to that in Tables 3, 4, assessment results of Tables 3, 4, 5, 6, the excess risk of impairment varies and 5, but still differs. Tables 6 and 7 and 7. depending on how you define directly illustrate the effect of screening

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Note that the data from both Table 6 and relationship of noise exposure to noise- approach also consistently yielded a Table 7 used the AAO-HNS 1979 induced hearing loss was described. slightly lower excess risk. Thus, Prince definition. The exact numbers of those NIOSH studied 792 industrial workers concluded that there is an excess risk of at risk varies with the study because of whose daily noise exposures were 85 developing a hearing impairment from a the definition of material impairment dBA, 90 dBA, and 95 dBA. The noise- noise exposure of 85 dBA and above. used, the screening criteria used, and exposed workers were compared to a NIOSH (1976) published the results the selection of the control group. control group whose noise exposures from a study on the effects of prolonged Despite these differences, the data were lower than 80 dBA. The exposures exposure to noise on the hearing consistently demonstrate three points: were primarily to steady-state noise, but sensitivity of 1,349 coal miners. From (1) The excess risk increases as noise the exposure levels fluctuated slightly this study, NIOSH concluded that coal exposure increases; in each category. Both groups were miners were losing their hearing (2) There is a significant risk of screened to exclude non-occupational sensitivity at a faster rate than would be material impairment of hearing loss for noise exposure or medical expected from the measured workers exposed over their working complications. The subjects ranged in environmental sound levels. While the lifetimes to sound levels of 85 dBA; and age from 17 to 65 years old. The report majority of noise exposures were less (3) Lowering the exposure from 90 clearly shows that workers whose noise than a TWA8 of 90 dBA (only 12% of dBA to 85 dBA reduces the excess risk exposures were 85 dBA experienced the noise exposures exceeded a TWA8 of of developing a material impairment by more hearing loss than the control 90 dBA), the measured hearing loss of approximately half. group. In addition, as the noise the older coal miners was indicative of noise exposures between a TWA8 of 90 Related Studies of Worker Hearing Loss exposures increased to 90 dBA and 95 dBA, the magnitude of the hearing loss dBA and 95 dBA. NIOSH offered as a The preamble to the proposed rule possible explanation that some miners increased. indicated that MSHA examined a large are exposed to ‘‘very intense noise’’ for body of data on the effects of varying NIOSH reanalyzed these data in a a sufficient number of months to cause industrial sound levels on worker report, ‘‘Reexamination of NIOSH Risk the hearing loss. hearing sensitivity, including studies Estimates’’ (Prince et al., 1997), which Coal miners in the NIOSH (1976) that specifically addressed the mining was published after MSHA’s proposed study experienced a higher incidence of industry. Regardless of the industry in rule. The authors reanalyzed the data hearing impairment than the non- which the data were collected, MSHA from NIOSH’s report (Lempert and occupational-noise-exposed group found that exposures to similar sound Henderson, 1973) that had established a (control group) at each age. Using the levels results in similar degrees of dose-response relationship for noise. In OSHA/NIOSH–72 definition of material material impairment in workers. These the original study, Lempert and impairment, 70% of 60-year-old coal studies support the conclusions reached Henderson had interpreted response to miners were impaired while only a third in the previous section about the risk of be proportional to dose. Prince of the control group were. This would impairment at different sound levels. interpreted the relationship to be a more correspond to an excess risk of 37%. NIOSH (Lempert and Henderson, complex one, and this analysis resulted NIOSH also sponsored a study, 1973) published a report in which the in a better fit with the data. Prince’s conducted by Hopkinson (1981), on the

VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.022 pfrm08 PsN: 13SER2 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations 49563 prevalence of middle ear disorders in Baughn used this data to estimate the language difficulty. Burns and Robinson coal miners. In this study, the hearing hearing levels of workers exposed to 80 analyzed 4,000 audiograms and found sensitivity of 350 underground coal dBA, 85 dBA, and 92 dBA and that the hearing levels of workers miners was measured. The results of extrapolated the exposures up to 115 exposed to low sound levels for long this study supported the results of the dBA. Based upon the analysis, 43% of periods of time were equivalent to those 1976 NIOSH study on the hearing 58-year-old workers exposed for 40 of other workers exposed to higher sensitivity of underground coal miners years to noise at 85 dBA would meet the sound levels for shorter durations. From (i.e., coal miners had worse hearing than AAOO 1959 definition for hearing the data, the researchers developed a the controls); the measured median impairment. Thirty-three percent of an mathematical model that predicts hearing levels of the miners were the identical but non-noise exposed hearing loss between 500 Hz and 6000 same in the two studies. population would be expected to meet Hz in certain segments of the exposed OSHA’s 1981 preamble to its Hearing the same definition of impairment. The Conservation Amendment referred to excess risk from exposure to noise at 85 population. studies conducted by Baughn; Burns dBA would therefore be 10%. Using the Using the Burns and Robinson and Robinson; Martin et al.; and Berger same procedure, the excess risk for 80 mathematical model, MSHA et al. Baughn (1973) studied the effects dBA is 0% and for 90 dBA is 19%. constructed Chart 2. The chart shows of average noise exposures of 78 dBA, Burns and Robinson (1970) studied that a noise exposure of 85 dBA over a 86 dBA, and 90 dBA on 6,835 industrial the effects of noise on 759 British 40-year career is clearly hazardous to workers employed in midwestern plants factory workers exposed to average the hearing sensitivity of 60-year-old producing automobile parts. Noise sound levels between 75 dB and 120 dB workers. Chart 2 compares the same exposures for these workers were with durations ranging between one three definitions of impairment to the measured for 14 years and, through month and 50 years. The control group Burns-Robinson Model as used in interviews, exposure histories were consisted of 97 non-noise exposed Tables 3, 4, and 5 with the Melnick estimated as far back as 40 years. workers. Thorough screening removed data. Chart 2 confirms the relationship Neither the control group nor the noise- workers with unknown exposure between the definition of impairment exposed groups were screened for histories. Also excluded were people and the computation of excess risk. anatomical abnormalities of the ear. with ear disease or abnormalities and

dBA. Up to 22% of these workers would on hearing loss among 20 groups of The prevalence of hearing loss in a be at risk of incurring a hearing workers. About 4,600 people were group of 228 Canadian steel workers, impairment with a TWA8 90 dBA included in the analysis. The researcher ranging in age from 18 to 65 years of permissible exposure level compared to concluded that the limit of permissible age, was compared to a control group of 4% with a TWA8 85 dBA permissible noise exposure (defined as the 143 office workers in a study conducted exposure level. Both the noise-exposed maximum level which did not cause by Martin et al. (1975). The researchers and the control groups were screened to measurable noise-induced hearing loss, reported that the risk of hearing exclude workers with non-occupational regardless of years of exposure) was impairment (average of 25 dB at 500, hearing loss. shown to be 80 dBA. Furthermore, the 1000, and 2000 Hz) increases Passchier-Vermeer (1974) reviewed researcher found that noise exposures significantly between 85 dBA and 90 the results of eight field investigations

VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.024 pfrm08 PsN: 13SER2 49564 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations above 90 dBA caused considerable such as past military service, farming, sound levels, found in the International hearing loss in a large percentage of hunting, or shop work, since these Standards Organization’s publication employees and recommended that noise exposures were common to all. The ISO 1999 (1990). The noise exposures control measures be instituted at this researchers found that exposure to a for the population ranged between 75 level. The researcher also recommended daily steady-state Leq of 89 dBA for 10 dBA and 100 dBA. Table 8 presents the that audiometric testing be implemented years caused a measurable hearing loss mean and various percentages of the when the noise exposure exceeds 80 at 4000 Hz (Leq is an average sound level hearing level of a 60-year-old male dBA. computed on a 3-dB exchange rate). exposed to noise for 40 years. The noise- According to the researchers, the Berger, Royster, and Thomas (1978) induced permanent threshold shift in measurable loss was in close agreement hearing was combined with the age- studied 42 male and 58 female workers with the predictions of Burns and induced hearing loss values to employed at an industrial facility and a Robinson, Baughn, NIOSH, and determine the total hearing loss. The control group of 222 persons who were Passchier-Vermeer. not exposed to occupational noise. Of age-induced hearing loss values were the 322 individuals included in the Studies of Impact of Lower Sound Levels from an unscreened population study, no one was screened for Table 8 reproduces the most recent representing the general population. exposures to non-occupational noise data on the harm that can occur at lower

TABLE 8.ÐHEARING LEVEL RESULTING FROM SELECTED NOISE EXPOSURES

Hearing level in dB Sound level in dBA 500 Hz 1000 Hz 2000 Hz 3000 Hz

80 ...... 12 6 10 30 85 ...... 12 6 11 33 90 ...... 12 6 16 42

Information about the effects of lower Hearing Loss and Its Prediction.’’ He sound levels ranging from less than 80 noise exposures on hearing are states that due to the global trend in the dBA up to 115 dBA and arranged them especially valuable in attempting to last decade to institute noise control and into eight study groups based on average identify subpopulations particularly hearing conservation programs, new exposures. Assuming that exposure to sensitive to noise. The Committee on retrospective studies are no longer sound levels less than 80 dBA did not Hearing, Bioacoustics, and feasible. Kryter believes that the cause any hearing loss, they assigned Biomechanics of the National Research retrospective studies of Baughn, Burns workers exposed to these levels to the Council (CHABA) (1993) reviewed the and Robinson, and the U.S. Public control group. The researchers reported scientific literature on hazardous Health Service are thus the best that workers with 6 to 15 years of exposure to noise. The report reaffirmed available on the subject of noise- exposure at 85 dBA had significantly many of the earlier findings of the induced permanent threshold shift. worse hearing than the control group. Committee. Based on temporary Kryter developed a formula to derive the For the five groups whose exposure was threshold shift (TTS) studies, the report effective noise exposure level for between 80 dBA and 103.5 dBA, hearing suggests that to prevent noise-induced damage to hearing from the earlier loss tended to increase steadily during hearing loss, exposures must remain studies and determined the noise- their careers but leveled off after 15 below 76 dBA to 78 dBA. Based on field induced permanent threshold shift at years. In contrast, for workers exposed studies, the report suggests that, to different percentiles of sensitivity at to sound levels above 103.5 dBA, guard against any permanent hearing various audiometric test frequencies for hearing loss continued to increase loss at 4000 Hz, the sound level should a population of workers. beyond 15 years. be less than 85 dBA, and possibly less Studies of workers in other countries A statistical method for predicting than 80 dBA. Finally, the report can provide valuable information in hearing loss was developed using the suggests that therapeutic drugs, such as assessing the consequences of data collected in the Rop study. The aminoglycoside antibiotics and workplace noise exposure between 85 researchers predicted that 20.1% of the salicylates (aspirin), can interact dBA and 90 dBA. Differences in 55-year old males in the control group synergistically with noise to yield more socioeconomic factors such as with 15 years of work experience would hearing loss than would be expected by recreational noise exposure, use of incur hearing loss. For a comparable either stressor alone. medicines harmful to the ear, and group of males with exposures at 85 Few current studies of unprotected inflammation of the middle ear (otitis dBA the risk increased to 41.6%; at 92 U.S. workers exposed to a TWA8 media) make it difficult to directly dBA the risk increased to 43.6%; and at between 85 and 90 dBA are available, apply the results of studies of workers 106.5 dBA the risk increased to 72.3%. because the hearing conservation from other countries. However, MSHA The study concluded that exposure to program of OSHA’s noise standard has determined that these studies can be sound levels at or above 85 dBA requires protection at those levels for used as further support for the existence damaged workers’ hearing. most industries (the exception being of a risk in the 80 to 90 dBA range. A study (Schwetz et al., 1980) of employers engaged in oil and gas well Rop, Raber, and Fischer (1979) 25,000 Austrian workers concluded that drilling and servicing operations). The studied the hearing loss of 35,212 male the workers exposed to sound levels difficulty in constructing new and female workers in several Austrian between 85 dBA and 88 dBA retrospective studies of U.S. workers has industries, including mining and experienced greater hearing loss than been noted by Kryter (1984) in his quarrying. The researchers measured the workers exposed to sound levels less chapter entitled ‘‘Noise-Induced hearing levels of workers exposed to than 85 dBA. The study further

VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.025 pfrm08 PsN: 13SER2 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations 49565 concluded that at 85 dBA there is no steady-state noise. Therefore, the studies dB hearing level at 1000, 2000, 3000, hearing recovery, ultimately causing are reliable and applicable. MSHA’s risk and 4000 Hz) by age 51 compared with noise-induced hearing loss. Schwetz, assessment is based upon the best only 10% of the general population. therefore, recommended 85 dBA as the scientific data available to the Agency, Even at age 69, only 50% of the non- critical intensity—the permissible as required by the Mine Act. noise-exposed population acquire a exposure limit. Reported Hearing Loss Among Miners hearing impairment. Stekelenburg (1982) calculated age- By age 35 the average miner has a induced hearing loss according to Spoor To confirm the magnitude of the risks mild hearing loss, and 20% of miners and noise-induced hearing loss of noise-induced hearing loss among have a moderate loss. By age 64, fewer according to Passchier-Vermeer. Based miners, MSHA examined the following than 20% of the miners have marginally upon these calculations, Stekelenburg evidence of reported hearing loss among normal hearing, while 80% have suggested 80 dBA as the acceptable miners. moderate to profound hearing loss. In level for noise exposure over a 40 year Audiometric Databases contrast, 80% of the non-noise-exposed work history. At this exposure, Audiometric testing is not currently population will not acquire a hearing Stekelenburg calculates that socially loss as severe as the average miner’s, impaired hearing due to noise exposure required in metal and nonmetal mining and is offered in coal mining only after regardless of how long they live. would be expected in 10% of the Further, Franks concluded that miners, population. a determination of overexposure to noise. However, in connection with its after working 20 to 30 years, could find A study of 537 textile workers by themselves in life-threatening situations Bartsch et al. (1989), which defined ongoing assessments of the effectiveness of the current standards in protecting resulting from their inability to hear socially significant hearing loss as a 40 safety signals and roof talk. dB hearing level at 3000 Hz, found that miner health, MSHA has obtained two the hearing loss resulting from audiometric databases consisting of Metal and Nonmetal Miner Audiometric exposures below 90 dBA mainly occurs 20,022 audiograms conducted on 3,439 Data at frequencies above 8000 Hz (these coal miners and 42,917 audiograms NIOSH used a computer expert frequencies are not normally tested conducted on 9,050 metal and nonmetal system to screen the audiometric data during conventional audiometry). Even miners. The audiometric evaluations on on metal and nonmetal miners. The data though the study concluded that the the coal miners were conducted were screened for year-to-year hearing loss was not of ‘‘social between 1971 and 1994, mostly during consistency of the audiograms, test importance,’’ it did support a reduced the latter years. The audiograms on room background noise, and asymmetry hearing loss risk criterion of 85 dBA be metal and nonmetal miners were in hearing that might indicate a loss of used to protect the workers’ hearing. collected between 1974 and 1995. Each With the exception of the Bartsch audiogram in the data set contained a hearing in only one ear (not study, the results of the foreign studies miner identification number, age, date characteristic of an occupational noise- are generally consistent with those of of test, and audiometric thresholds for induced hearing loss). The expert U.S. workers. The Bartsch conclusion each ear at 500, 1000, 2000, 3000, 4000, system identified 20,429 questionable that the hearing loss is not of ‘‘social and 6000 Hz. Supplemental data such as audiograms, and a subset of 1000 were importance’’ is not supported by the dates of employment, noise exposures, reviewed by an audiologist. many studies, discussed earlier, that use of protective equipment, and The final screened database consisted point to the importance of good hearing training histories were not provided. of 22,488 audiograms representing 5,244 sensitivity at 3000 Hz in order to MSHA asked NIOSH to examine the metal and nonmetal miners. The data understanding speech in everyday, audiometric data and both MSHA and were compared to those in Annex A of noisy environments. Based on NIOSH (Franks, 1996) have performed ‘‘ISO–1999.2 Acoustics—Determination experience, MSHA has found that analyses of the coal miner database. of Occupational Noise Exposure and people will encounter hearing difficulty Estimation of Noise-Induced Hearing before their hearing loss level reaches 40 Coal Miner Audiometric Data Loss.’’ NIOSH’s report, entitled dB at 3000 Hz. Franks used a computer expert system ‘‘Prevalence of Hearing Loss for Noise- One commenter stated that the studies to screen the data for year-to-year Exposed Metal/Nonmetal Miners’’ cited by MSHA in justifying the risk of consistency of the audiograms, test- (NIOSH, 1997), supports the material impairment at exposures below room background noise, and asymmetry conclusions of earlier scientific studies 90 dBA were based on sound levels in hearing that might indicate a that metal and nonmetal miners are determined using older instrumentation. unilateral loss of hearing (which is not losing their hearing sensitivity faster Assuming that MSHA would be using characteristic of occupational noise- than the general population. It indicates more modern instrumentation for induced hearing loss). More than 2,500 that, ‘‘At age 20, approximately 2% have compliance purposes, he suggested that questionable audiograms were reviewed hearing impairment, rising to around the Agency should not use the old data by NIOSH audiologists. 7% at age 30, 25% at age 40, 49% at age and studies. The commenter suggested The final screened database consisted 50, and 70% by age 60. By contrast, 9% that MSHA either raise or retain the of 17,260 audiograms representing 2,871 of the non-occupationally noise-exposed criterion level of a TWA8 of 90 dBA or coal miners. It was compared to the have hearing impairment at age 50.’’ have the studies re-done with newer database in Annex A of ‘‘ISO–1999.2 Franks noted a difference in the increase instrumentation before proceeding with Acoustics—Determination of of hearing loss between men and rulemaking. MSHA maintains that the Occupational Noise Exposure and women. He also noted that, due to the studies remain valid, however, because Estimation of Noise-Induced Hearing NIOSH definition of hearing impairment they were conducted using Loss.’’ NIOSH’s report entitled used in the study (inclusion of 4,000 methodologies based on sound level ‘‘Analysis of Audiograms for a Large Hz.), there was a sufficient degree of meters. The studies, like the final rule, Cohort of Noise-Exposed Miners’’ hearing impairment in the population to were based on the standardized (NIOSH, 1996) indicates that 90% of cause communications problems, definitions of A-weighting network and these coal miners had a hearing because miners would have difficulty in slow response and usually measured impairment (defined as an average 25- understanding some consonants whose

VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.026 pfrm08 PsN: 13SER2 49566 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations frequency is between 3,000 and 4,000 identical—the ANSI document having hearing sensitivity than the general Hz. been adapted from the ISO document. population has. MSHA believes that the MSHA received comments on both However, MSHA also received a great NIOSH studies are valid evidence that NIOSH studies. One commenter deal of support for the NIOSH studies, supports the rule. which showed that the use of the Annex asserted that Franks used an incorrect MSHA conducted a separate analysis A control group—highly screened screening process for the audiograms as of the audiometric data for coal miners, audiometric data was appropriate and well as the incorrect control group using the 25 dB hearing level at 1000, the use of Annex B or C in the (ANNEX A of ISO R–1999) and alleged 2000, and 3000 Hz definition of material reanalysis was inappropriate. other deficiencies in the studies. This impairment of hearing. In order to One commenter stated, ‘‘The use of reflect current trends, the percentage of commenter stated that he reanalyzed the Annex B * * * is questionable because data using minimal screening of current coal miners (whose latest these data were not screened to exclude audiogram was taken between 1990 and audiograms, and compared it to the persons with occupational noise ‘‘correct’’ control group (Annex C of 1994) with material impairment of exposure.’’ hearing was compared to NIOSH’s study ANSI S3.44–1996, ‘‘Acoustics— MSHA agrees with Dr. Franks in that on coal miners published in 1976. The Determination of Occupational Noise Annex A was the most appropriate results are shown in Chart 3, along with Exposure’’) estimating that the hearing database for the analysis conducted impairment of the miners was caused by because it is the only database in ISO NIOSH’s 1976 results for both the noise- noise exposure. The commenter 1999 for which year-to-year changes in exposed miners and the non-noise- concluded that both the coal and metal hearing and prevalence of hearing exposed controls. and nonmetal audiometric data suggest impairment could be calculated. MSHA The data points for Chart 3 represent that typical occupational noise also received support from commenters the mean hearing loss of both ears at exposures are on the order of lifetime for the NIOSH studies. Additionally, 1000, 2000, and 3000 Hz relative to time-weighted exposures of about 89 MSHA conducted its own research and audiometric zero. The top line dBA. This commenter thus suggests that determined that miners are still losing represents the 1976 (pre-noise- there is no need for MSHA to continue more of their hearing sensitivity than regulation) group, the middle line with rulemaking, as the current non-noise-exposed workers. Annex A is represents the 1990–1994 (noise- regulations are adequate in protecting a more stringent screening method than regulated) group, and the bottom line miners’ hearing sensitivity. Some Annex C which was used by Dr. Clark. represents the non-noise-exposed group. commenters concurred with the re- Annex A was selected because it Although there has been some progress analysis of the NIOSH studies represents a highly screened sample, under the existing regulations, miners performed by this commenter. MSHA free from ‘‘undue noise exposure’’ and are still losing more of their hearing notes, however, that there was no ear disease. sensitivity than non-noise-exposed significant difference between the Several researchers who studied the workers. This is true even if the analysis control groups, as the International health status of miners provided is limited to miners under 40 years of Standards Organization 1999.2 standard testimony based on numerous research age (that is, those who have worked and the American National Standards reports. Their conclusion was that only under the current coal noise Institute S3.44 standard are virtually miners have incurred a greater loss of regulations).

proposal, MSHA defined a standard more at 2000, 3000, and 4000 Hz in MSHA also analyzed the audiometric threshold shift as a change in hearing either ear. The final rule adopts this data for the number of standard threshold level, relative to the miner’s definition. The importance of a standard threshold shifts and reportable hearing original or supplemental baseline threshold shift is that it reveals that a loss cases. In the preamble to the audiogram, of an average of 10 dB or permanent loss in hearing sensitivity

VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.028 pfrm08 PsN: 13SER2 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations 49567 has occurred. When the change from the For the second analysis, the first data, it was not possible to exclude non- baseline averages 25 dB or more at the audiogram of each miner was assumed occupational standard threshold shifts, same frequencies, the hearing loss must to be the baseline. The last audiogram resulting in a greater number of be reported to MSHA. ‘‘Standard of each miner was compared to the standard threshold shifts. The results of threshold shift’’ and ‘‘reportable hearing baseline. Neither audiogram was the 3,102 coal miners audiograms loss’’ are discussed in greater detail corrected for age-induced hearing loss. analyzed are presented in Chart 4. below. Also, because of the lack of supporting

Chart 4 clearly shows that many of the about 25% of the miners have an specific information on miner’s age, coal miners were found to have a average hearing loss of 25 dB or more occupation, and degree of hearing loss. standard threshold shift. The likelihood at 1000, 2000, and 3000 Hz. Corrected Several commenters submitted data, of acquiring a standard threshold shift for age-induced hearing loss, the some in conjunction with an analysis of generally increases with advancing age. percentage of miners with this level of the data, in support of their position The MSHA analysis was conservative in hearing loss decreased to about 15%. that hearing protectors can be effective that only the first and last audiograms The second commenter referred to an as the primary means of protecting were included, resulting in each miner oral presentation by Smith et al. at the miners against occupational noise- having only one standard threshold 1989 Alabama Governor’s Safety and induced hearing loss. shift. In fact, a miner may have Health Conference. (MSHA notes that The NIOSH (Franks) analysis of the experienced multiple standard the Smith presentation itself is not part two databases cited by MSHA and the threshold shifts. of the rulemaking record, although three analyses conducted by Clark and In addition to the above audiometric Smith verified that the comment was Bohl under the auspices of the National data, two NIOSH studies mentioned in correct via letter (December 5, 1994). Mining Association (the first a report the section of this preamble on risk of MSHA believes that the Smith paper is summarizing a reanalysis of the NIOSH impairment support MSHA’s conclusion valid evidence which supports the rule.) Coal Miner Study, the second a report that miners are at risk of noise-induced This commenter stated that Smith et al. containing a reanalysis of the NIOSH hearing loss. In the 1976 NIOSH study, reported on the evaluation of serial Metal and Nonmetal Miner Study, and although the majority of noise exposures audiograms from 100 workers exposed the third a report containing an analysis were less than 90 dBA, approximately to sound levels less than 85 dBA. The of two data bases from the National 70% of the 60-year old coal miners had authors found that 15% of these workers Mining Association) indicate that experienced a material impairment of would have some degree of hearing miners are developing hearing losses to hearing using the OSHA/NIOSH–72 impairment using the AAO–HNS 1979 a degree that constitutes material definition. The Hopkinson (1981) definition. They also reported that at impairment. These analyses also NIOSH study also supports the earlier least 26% of the mining population indicate that the amount of hearing loss NIOSH results. would have some degree of hearing and the percentage of the population impairment using the same definition. that is impaired is highly variable. Data Provided by Commenters In response to MSHA’s request for Further, some individual miners Two commenters to the proposed rule additional specific information received a substantial hearing loss. The provided information on the hearing regarding hearing loss among miners, differences in the conclusions of these sensitivity of miners. The first some commenters stated that they had studies are attributable to the different commenter estimated that 45 to 50% of no workers’ compensation awards for baselines used in the analyses for employed miners have experienced a miners’ hearing loss at their operations. comparison of the exposed populations. standard threshold shift (at least 25% if No commenters supplied information The NIOSH analysis included detailed corrected for age-induced hearing loss). regarding the cost of compensation screening of the data and used a control Further, this commenter estimated that awards. Some commenters supplied group (described in Appendix A of

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ANSI S3.44, ‘‘American National mining experience were excluded from loss. Another 7% of the reported cases Standard Determination of Occupational the analysis. indicated that a workers’ compensation Noise Exposure and Estimation of Metal and nonmetal mine operators claim for noise-induced hearing loss Noise-Induced Hearing Impairment’’) reported 650 cases among surface had been filed. In metal and nonmetal where the hearing losses of the group miners and 154 cases among mines, at least 21% of the reported cases are strictly due to aging. In contrast, the underground miners, a total of 804 resulted from the miner being Clark-Bohl analyses and conclusions cases. According to mine operators, 172 compensated for noise-induced hearing did not include screening of the data of the 804 cases began working at a loss. Nearly another 4% of the reported and used for comparison the control mine after the implementation of noise cases indicated that a workers’ group (described in Appendix C of regulations for metal and nonmetal compensation claim for noise-induced ANSI S3.44) where the control group’s mines in 1975. Again, workers with no hearing loss had been filed. hearing losses included those due to reported mining experience were The low number of cases reported to exposures to less than two weeks of excluded from the analysis. the Agency are believed to be due to occupational noise, exposures to non- Comparing the two types of mining, either: occupational noise, otological there were significantly more reported (1) The lack of a specific definition of abnormalities, as well as those due to hearing loss cases at coal mines than at a noise-induced hearing loss in MSHA’s aging. There is insufficient information metal and nonmetal mines, and a higher part 50 regulations and the resulting in the studies to allow a determination proportion of those cases were reported confusion on the part of mine operators of which method of analysis is more of workers who began working after the about which cases to report; appropriate or superior. As a result of implementation of the current (2) The lack of consistency among the differences in approach between standards. This is despite the fact that, state requirements for awarding these analyses, the analyses arrive at at present, there are more metal and compensation for a noise-induced different conclusions regarding the nonmetal miners than coal miners hearing loss and among physicians in magnitude of the hearing losses employed in the United States. A diagnosing what constitutes a hearing exhibited by miners, although all of possible explanation of the difference loss caused by noise; or these analyses do indicate that some between reported cases of noise-induced (3) The lack of required periodic miners are developing a material hearing loss among coal and metal and audiometric testing in the mining impairment of hearing in varying nonmetal miners may be that there is industry. degrees. Additionally, these analyses do more frequent use of engineering noise In sum, the hearing loss currently not support the conclusion that a controls in metal and nonmetal mining. reported to MSHA under part 50 cannot hearing conservation program that relies Because the occupational noise be used to accurately characterize the primarily or exclusively on the use of standards for coal mines allow incidence, prevalence, or severity of hearing protectors effectively protects inspectors to take into account the use hearing loss in the mining industry. all miners from noise-induced of hearing protectors in determining However, the data clearly show that occupational hearing loss. compliance, most coal mines use miners are experiencing noise-induced Other studies and data were hearing protectors for compliance hearing loss. unless the engineering controls are submitted by other commenters in Workers’ Compensation Data support of their position that a hearing inexpensive or come with the conservation program that relies equipment. Metal/nonmetal mines are The preamble to the proposal primarily or soley on the use of hearing not allowed to use hearing protectors for reviewed a study by Valoski (1994) of protectors can adequately protect compliance unless they have the number of miners receiving workers’ miners’ hearing. These studies and data implemented all feasible engineering compensation and the associated are discussed later in the preamble. and administrative controls. Other indemnity costs of those awards. possible reasons include differences in Despite contacting each state workers’ Reported Hearing Loss Data the severity of the noise exposures, compensation agency and using two Under MSHA’s existing regulations at variations among states’ criteria for national databases, Valoski was unable 30 CFR part 50, mine operators are workers’ compensation awards, to obtain data for all states, including required to report cases of noise- continual use of hearing protectors, and those with significant mining activities. induced hearing loss to MSHA when it the effectiveness of selected hearing Valoski reported that between 1981 and is diagnosed by a physician or when the protectors. 1985 at least 2,102 coal miners and 312 affected miner receives an award of MSHA reviewed the narrative metal and nonmetal miners were compensation. Between 1985 and 1997, associated with each case of noise- awarded compensation for occupational mine operators reported a total of 2,590 induced hearing loss to determine the hearing loss. The identified total cases of noise-induced hearing loss. In average degree of hearing loss. Although indemnity costs of those awards a substantial number of these cases, the many narratives included reasons for exceeded $12.5 million, excluding occupational noise exposures occurred reporting the noise-induced hearing rehabilitation or medical costs. after the implementation of the current loss, others only listed the illness as In a letter to MSHA, NIOSH cited the noise regulations. ‘‘hearing loss.’’ Approximately half the Chan et al. (1995) investigation for Coal mine operators reported 674 cases had no information on the severity NIOSH of the incidence of noise- cases among surface miners, 1,098 cases of the hearing loss. Some contained induced hearing loss among miners among underground miners, and 14 designations such as standard threshold using information from the Bureau of cases among miners whose positions shift, OSHA reportable case, or percent Labor Statistics’ (BLS) Supplementary were not identified. According to coal disability. The narratives did not Data System. In the 15 states that mine operators, 710 of the 1,786 cases contain enough information with which participated in the BLS program began working at a mine after the to determine an average severity for between 1984 and 1988, a total of 217 implementation of the noise regulations cases of noise-induced hearing loss. miners (93 coal miners and 124 metal for coal mines—1972 for underground At least 40% of the reported cases in and nonmetal miners) were awarded coal mining and 1973 for surface coal coal mining resulted in the miner being workers’ compensation for noise- mining. Workers with no reported compensated for noise-induced hearing induced hearing loss. During those

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TABLE 9.ÐMNM MINES NOISE DOSE TRENDS CYS 1974±97 *

Number Percent Number of samples ex- exceeding Fiscal year samples ceeding 90 90 dBA dBA TWA8 TWA8

1974 ...... 363 139 38.3 1975 ...... 3,826 1,661 43.4 1976 ...... 9,164 3,725 40.6 1977 ...... 13,485 5,047 37.4 1978 ...... 17,326 6,415 37.0 1979 ...... 21,176 7,638 36.1 1980 ...... 15,185 5,203 34.3 1981 ...... 11,278 3,651 32.4 1982 ...... 3,208 876 27.3 1983 ...... 7,628 2,188 28.7 1984 ...... 8,525 2,311 27.1 1985 ...... 8,040 2,094 26.0 1986 ...... 9,213 2,402 26.1 1987 ...... 10,145 2,818 27.8 1988 ...... 10,514 2,417 23.0 1989 ...... 10,279 2,208 21.5 1990 ...... 13,067 2,721 20.8 1991 ...... 14,936 2,947 19.7 1992 ...... 14,622 2,809 19.2 1993 ...... 14,566 2,529 17.4 1994 ...... 15,979 2,627 16.4 1995 ...... 13,865 1,989 14.4 1996 ...... 16,686 2,228 13.4 1997 ...... 10.731 1,989 14.3 * From USBM's MIDAS data base. Italicized data not included in chart 9a.

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Table 10 shows samples with readings full-shift samples collected by MSHA not begin building the database until exceeding the permissible exposure from 1986 through 1997 using personal 1986. level (TWA8 of 90 dBA) and noise dose noise dosimeters. MSHA began routine trends in coal mines based on 75,691 sampling in coal mines in 1978 but did

TABLE 10.ÐCOAL MINE NOISE DOSE TRENDS, FYS 86±97

Number Percent Number of samples ex- exceeding Fiscal year samples ceeding 90 90 dBA dBA TWA8 TWA8

1986 ...... 2,037 593 29.1 1987 ...... 12,774 3,314 25.9 1988 ...... 11,888 2,702 22.7 1989 ...... 11,035 2,313 21.0 1990 ...... 10,861 2,388 22.0 1991 ...... 6,898 1,635 23.7 1992 ...... 6,636 1,660 25.0 1993 ...... 7,223 1,908 26.4 1994 ...... 6,339 1,656 26.1 1995 ...... 5,407 1,219 22.5 1996 ...... 6,064 1,256 20.7 1997 ...... 6,542 1,388 21.2

The inspection data for the coal and consistent downward trend in the MSHA attributes this difference to the metal and nonmetal mining sectors have percentage of samples exceeding the established use of engineering and been graphed in Charts 9a and 10a, current permissible exposure level. administrative controls in metal and which indicate that the metal and However, there was no such clear trend nonmetal mines. nonmetal sector shows a gradual but for coal mines during the same period.

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MSHA notes that the interaction of Dual Survey Data settings were the same as those used two factors in the data represented in MSHA conducted a special survey to during normal compliance inspections these charts may offset each other. First, compare noise exposures at different (the 90 dBA criterion level, 5-dB the database is made up of samples threshold levels, because the final rule exchange rate, and A-weighting and collected in noisier mines and requires integration of sound levels slow response characteristics). The occupations. Second, the database between 80 dBA and at least 130 dBA noise doses were mathematically includes both initial overexposure and for the action level and between 90 dBA converted to their corresponding TWA8. the results of any resampling to and at least 140 dBA for the permissible Tables 11 and 12 display the dual- determine compliance after the mine exposure level. The survey, referred to threshold data in metal and nonmetal operator has utilized engineering or as the dual-threshold survey, involved mines and in coal mines. Table 11 administrative controls (in the case of the collection by MSHA inspectors of shows the dual-threshold data collected an overexposure found during an initial data in coal, metal, and nonmetal mines. for metal and nonmetal mines from survey). Each sample was collected using a March 1991 through December 1994 personal noise dosimeter capable of using personal noise dosimeters. This collecting data at both thresholds data consisted of more than 42,000 full- simultaneously. All other dosimeter shift samples.

TABLE 11.ÐM/NM DUAL-THRESHOLD NOISE SAMPLES EQUAL TO OR EXCEEDING SPECIFIED TWA8 SOUND LEVELSÐ MARCH 1991 THROUGH DECEMBER 1994

90 dBA threshold 80 dBA threshold TWA8 sound level (in dBA) Number of Percent of Number of Percent of samples samples samples samples

90 (PEL) ...... 7,360 17.4 ......

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TABLE 11.ÐM/NM DUAL-THRESHOLD NOISE SAMPLES EQUAL TO OR EXCEEDING SPECIFIED TWA8 SOUND LEVELSÐ MARCH 1991 THROUGH DECEMBER 1994ÐContinued

90 dBA threshold 80 dBA threshold TWA8 sound level (in dBA) Number of Percent of Number of Percent of samples samples samples samples

85 (action level) ...... 28,250 66.9

As indicated in Table 11, 17.4% of all the final rule feasible engineering and action level (a TWA8 of 85 dBA using samples collected by MSHA in metal administrative controls are required to an 80–dBA threshold). and nonmetal mines during the be implemented in such instances in all MSHA’s dual-threshold sampling data specified period equaled or exceeded mines to reduce the noise exposure to for coal mines is presented in Table 12. the permissible exposure level (a TWA 8 the permissible exposure level. These data consist of over 4,200 full- of 90 dBA using a 90-dBA threshold)— Furthermore, 67% of the samples in shift samples collected from March 1991 slightly less than the results of the metal and nonmetal mines exceeded the through December 1995 using personal inspectors’ samplings in Table 9. Under noise dosimeters.

TABLE 12.ÐCOAL DUAL-THRESHOLD NOISE SAMPLES EQUAL TO OR EXCEEDING SPECIFIED TWA8 SOUND LEVELS [March 1991 Through December 1995]

90 dBA threshold 80 dBA threshold TWA8 sound level (in dBA) Number of Percent of Number of Percent of samples samples samples samples

90 (PEL) ...... 1,075 25.3 ...... 85 (action level) ...... 3,268 76.9

As indicated in Table 12, 25.3% of all almost 77% of the survey samples from Tables 13 and 14 present some of the samples collected by MSHA in coal the coal industry showed noise MSHA dual-threshold sampling data by mines during the specified period exposures equaling or exceeding a occupation for the most frequently equaled or exceeded the permissible TWA8 of 85 dBA using an 80–dBA sampled occupations in metal and exposure level (a TWA8 of 90 dBA using threshold (the action level). nonmetal and coal mines, respectively. a 90-dBA threshold). Furthermore,

TABLE 13.ÐPERCENTAGE OF MSHA M/NM INSPECTOR NOISE SAMPLES EXCEEDING SPECIFIED TWA8 SOUND LEVELS, BY SELECTED OCCUPATION ²

90 dBA 80 dBA threshold threshold Occupation Number of Percent of samples Percent of samples ≥85 samples >90 dBA (action dBA (PEL) level)

Front-End-Loader Operator ...... 12,812 12.9 67.7 Truck Driver ...... 6,216 13.1 73.7 Crusher Operator ...... 5,357 19.9 65.1 Bulldozer Operator ...... 1,440 50.7 86.2 Bagger ...... 1,308 10.2 65.0 Sizing/Washing Plant Operator ...... 1,246 13.2 59.7 Dredge/Barge Attendant ...... 1,124 27.2 78.7 Clean-up Person ...... 927 19.3 71.3 Dry Screen Operator ...... 871 11.7 57.6 Utility Worker ...... 846 12.4 60.6 Mechanic ...... 761 3.8 43.9 Supervisors/Administrators ...... 730 9.0 32.2 Laborer ...... 642 17.1 65.7 Dragline Operator ...... 583 34.0 82.5 Backhoe Operator ...... 546 8.4 52.6 Dryer/Kiln Operator ...... 517 10.5 55.5 Rotary Drill Operator (electric/hydraulic) ...... 543 39.6 83.1 Rotary Drill Operator (pneumatic) ...... 489 64.4 89.0 ² These occupations comprise about 87 percent of the 42,206 MSHA dual-threshold samples collected at metal/nonmetal mines from March 1991 through December 1994 using a personal noise dosimeter over a miner's full shift

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TABLE 14.ÐPERCENTAGE OF MSHA COAL INSPECTOR NOISE SAMPLES EXCEEDING SPECIFIED TWA8 SOUND LEVELS, BY SELECTED OCCUPATION ²

90 dBA 80 dBA threshold threshold Occupation Number of Percent of samples Percent of samples ≥85 samples >90 dBA (action dBA (PEL) level)

Continuous Miner Helper ...... 68 33.8 88.2 Continuous Miner Operator ...... 262 49.6 96.2 Roof Bolter Operator (Single) ...... 234 21.8 85.5 Roof Bolter Operator (Twin) ...... 92 31.5 98.9 Shuttle Car Operator ...... 260 13.5 78.5 Scoop Car Operator ...... 94 18.1 74.5 Cutting Machine Operator ...... 22 36.4 63.6 Headgate Operator ...... 20 40.0 100.0 Longwall Operator ...... 34 70.6 100.0 Jack Setter (Longwall) ...... 25 32.0 68.0 Cleaning Plant Operator ...... 107 36.4 77.6 Bulldozer Operator ...... 225 48.9 94.2 Front-End-Loader Operator ...... 244 16.0 76.6 Highwall Drill Operator ...... 83 21.7 77.1 Refuse/Backfill Truck Driver ...... 162 13.6 78.4 Coal Truck Driver ...... 28 17.9 64.3 ² These occupations comprise about 71 percent of the 4,247 MSHA dual-threshold samples collected at coal mine from March 1991 to Decem- ber 1995 using a personal noise dosimeter over a miner's full shift

As shown in these tables, the rotary drill operators would have noise miners (13,294 miners) will incur a percentage of miners exceeding the exposures exceeding the action level. material impairment of hearing under specified noise exposures varied greatly present exposure conditions. Conclusion: Miners at Significant Risk according to occupation. For example, Table 15 presents MSHA’s profile of of Material Impairment Table 13 shows that only 8.4% of the the projected number of miners backhoe operators in metal and MSHA has concluded that, despite currently subjected to a significant risk nonmetal mines had noise exposures many years under existing standards, of developing a material impairment exceeding the permissible exposure noise exposures in all sectors of mining due to occupational noise-induced level, while 64.4% of the pneumatic continue to pose a significant risk of hearing loss under existing exposure rotary drill operators had similar material impairment to miners over a conditions. The totals represent 13% of exposures. 52.6% of the backhoe working lifetime. Specifically, MSHA metal and nonmetal miners and 13.4% operators and 89.0% of the pneumatic estimates in the REA that 14% of coal of miners as a whole.

TABLE 15.ÐPROJECTED NUMBER OF MINERS LIKELY TO INCUR NOISE-INDUCED HEARING IMPAIRMENT UNDER MSHA'S EXISTING STANDARDS AND EXPOSURE CONDITIONS

80±84.9 85±89.9 90±94.9 95±99.9 100±104.99 ≥ <80 dBA dBA dBA dBA dBA dBA 105 dBA Total*

COAL ...... 0 464 10,954 1,315 456 104 1 13,294 M/NM ...... 0 1,091 15,472 6,030 1,002 48 0 23,643

Total* ...... 0 1,555 26,426 7,345 1,458 152 1 36,937 * Includes contractor employees. Does not include office workers. Discrepancies are due to rounding.

MSHA promulgated noise standards what constitutes an effective prevention demonstrates that noise-induced for underground coal mines in 1971, for program, the Agency’s requirements are hearing loss constitutes a serious hazard surface coal mines in 1972, and for dated. NIOSH, for example, currently to miners. MSHA’s experience in metal and nonmetal mines in 1974. At recommends a comprehensive program enforcing its existing standards bears that time, the Agency regarded which includes the institution of a this out, necessitating the replacement compliance with the requirements as hearing conservation program to prevent of those standards with new ones that adequate to prevent the occurrence of noise-induced hearing loss, but MSHA’s would provide additional protection to noise-induced hearing loss in the current standards do not include such miners consistent with section mining industry. Since that time, protection. 101(a)(6)(A) of the Federal Mine Safety however, there have been numerous Some commenters suggested that the and Health Act of 1977 (Mine Act), awards of compensation for hearing loss existing standards adequately protect which states that MSHA’s promulgation among miners. Moreover, in light of miners against noise-induced hearing MSHA’s experience and that of other loss and that MSHA over-estimates the of health standards must: domestic and foreign regulatory hazard. However, the vast majority of ** * [A]dequately assure on the basis of the agencies, as well as expert opinion on the current scientific evidence best available evidence that no miner will

VerDate 18-JUN-99 17:20 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 E:\FR\FM\13SER2.XXX pfrm07 PsN: 13SER2 49574 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations suffer material impairment of health or provided to the Secretary of Labor at a and Industrial Union Dep’t., AFL–CIO v. functional capacity even if such miner has hearing or during the public comment Hodgson, 499 F.2d 467 (D.C. Cir. 1974). regular exposure to the hazards dealt with by period, may be given weight by the Secretary. The Secretary may also impose a such standard for the period of his working In adopting the language of [this section], the standard that requires protective life. Committee wishes to emphasize that it rejects equipment, such as respirators, if Based on the numerous studies and the view that cost benefit ratios alone may be the basis for depriving miners of the health technology does not exist to lower MSHA’s calculations and analysis protection which the law was intended to exposure to safe levels. See United presented above, the Agency has insure. Steelworkers of America, AFL–CIO–CLC concluded that the new requirements in S. Rep. No. 95–181, 95th Cong., 1st Sess. 21 v. Marshall, 647 F.2d 1189, 1266 (D.C. this rule are necessary to address the (1977). Cir. 1981). continued excess risk of material The Agency has vast experience in impairment due to occupational noise- In American Textile Manufacturers’ Institute v. Donovan, 452 U.S. 490, 508– working with the mining community in induced hearing loss. continually refining and improving Compliance will reduce noise- 509 (1981), the Supreme Court defined the word ‘‘feasible’’ as ‘‘capable of being existing noise control technology. At the induced hearing loss among miners, as request of MSHA’s Coal Mine Safety well as the associated workers’ done, executed, or effected.’’ The Court further stated, however, that a standard and Health or Metal and Nonmetal Mine compensation costs. The new rule Safety and Health, MSHA’s Technical provides the added benefit of making would not be considered economically feasible if an entire industry’s Support staff actively assists mine MSHA’s noise rule consistent with operators in developing effective noise OSHA’s noise standard for general competitive structure were threatened. In promulgating standards, hard and controls. Based on this experience, the industry, as recommended by many Agency has concluded that there are few commenters. precise predictions from agencies regarding feasibility are not required. circumstances in mining where such VI. Feasibility The ‘‘arbitrary and capricious test’’ is controls do not exist. Section 101(a)(6)(A) of the Mine Act usually applied to judicial review of MSHA acknowledges that some requires the Secretary to set standards rules issued in accordance with the mining equipment historically has which most adequately assure, on the Administrative Procedures Act. The presented technological feasibility basis of the best available evidence, that legislative history of the Mine Act challenges for the mining industry. no miner will suffer material indicates that Congress explicitly However, MSHA has evaluated, under impairment of health or functional intended the ‘‘arbitrary and capricious actual mining conditions, newly capacity over his or her working test’’ be applied to judicial review of developed noise controls for surface lifetime. Standards promulgated under mandatory MSHA standards. ‘‘This test self-propelled equipment, underground this section must be based upon would require the reviewing court to diesel-powered haulage equipment, research, demonstrations, experiments, scrutinize the Secretary’s action to jumbo drills, track drills, hand-held and such other information as may be determine whether it was rational in percussive drills, draglines/shovels, appropriate. MSHA, in setting health light of the evidence before him and portable crushers, channel burners, and standards, is required to achieve the reasonably related to the law’s purposes. mills, and has found them to be highest degree of health and safety ** *’’ S. Rep. No. 95–181, 95th Cong., effective in producing a significant protection for the miner, and must 1st Sess. 21 (1977). Thus, reduction in a miner’s noise exposure. consider the latest available scientific MSHA need only base its predictions Some of these feasible engineering data in the field, the feasibility of the on reasonable inferences drawn from controls are already designed into new standards, and experience gained under the existing facts. Accordingly, to equipment. In many cases, effective and this and other health and safety laws. establish the economic and feasible controls are available through In relation to promulgating health technological feasibility of a new rule, retrofitting or the proper use of noise standards, the legislative history of the an agency is required to produce a barriers. Mine Act states that: reasonable assessment of the likely Several commenters in the metal and nonmetal sector of the mining industry This section further provides that ‘‘other range of costs that a new standard will considerations’’ in the setting of health have on an industry, and the agency expressed concern regarding the standards are ‘‘the latest available scientific must show that a reasonable probability technological and economic feasibility data in the field, the feasibility of the exists that the typical firm in an of controls for their particular standards, and experience gained under this industry will be able to develop and operations. In Volume IV of MSHA’s and other health and safety laws.’’ While install controls that will meet the Program Policy Manual, which covers feasibility of the standard may be taken into standard. an interpretation, application, and consideration with respect to engineering guidelines on enforcement of MSHA’s controls, this factor should have a Technological Feasibility existing noise standards in metal and substantially less significant role. Thus, the Secretary may appropriately consider the MSHA has determined that a nonmetal mines, the Agency includes a state of the engineering art in industry at the permissible exposure level of a TWA8 of list of feasible noise engineering time the standard is promulgated. However, 90 dBA is technologically feasible for controls for the major classifications of as the circuit courts of appeals have the mining industry. An agency must equipment used in the metal and recognized, occupational safety and health show that modern technology has at nonmetal mining industry. The Agency statutes should be viewed as ‘‘technology- least conceived some industrial intends to continue applying its existing forcing’’ legislation, and a proposed health strategies or devices that are likely to be guidelines on enforcement of the standard should not be rejected as infeasible capable of meeting the standard, and permissible exposure level in the final ‘‘when the necessary technology looms in which industry is generally capable of rule because the permissible exposure today’s horizon’’. AFL–CIO v. Brennan, 530 F.2d 109) (3d Cir. 1975); Society of Plastics adopting. American Iron and Steel level is unchanged from the existing Industry v. OSHA, 509 F.2d 1301 (2d Cir. Institute v. OSHA, (AISI–II) 939 F.2d standards. MSHA, therefore, encourages 1975) cert. den. 427 U.S. 992 (1975). 975, 980 (D.C. Cir. 1991); American Iron mine operators to use this list so they Similarly, information on the economic and Steel Institute v. OSHA, (AISI–I) will be knowledgeable of available noise impact of a health standard which is 577 F.2d 825 (3d Cir. 1978) at 832–835; control technology.

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Acoustically Treated Cabs belting and other materials found at the rooms and booths are typically For mining equipment such as haul mine site. successful in reducing exposures of employees working in them to below 85 trucks, front-end-loaders, bulldozers, Exhaust Mufflers track drills, and underground jumbo dBA. Diesel-powered machinery can be In addition, remote controlled video drills, acoustically treated cabs are equipped with an effective exhaust cameras can be used to provide visual among the most effective noise controls. muffler in addition to an environmental observation of screens, crushing Such cabs are widely available, both cab or barrier shield. The muffler’s equipment, or processing equipment, from the original equipment exhaust pipe can be relocated away minimizing the need for a miner to be manufacturer and the manufacturers of from the equipment operator and the near these loud noise sources. retrofit cabs, for machines manufactured emissions can be redirected away from within the past 25 years. Today, most the operator. For underground mining Substitution of Equipment manufacturers include an acoustically equipment, exhaust mufflers are In the few cases where sound levels treated cab as part of the standard ordinarily not needed where water are particularly severe and neither equipment on the newest pieces of scrubbers are used. A water scrubber retrofit nor factory controls are mobile mining equipment. The noise offers some noise reduction, but the available, the equipment may need to be reduction of factory-installed, addition of an exhaust muffler may replaced with a type that produces less acoustically treated cabs is generally create excessive back pressure or noise. For example, hand-held channel more effective and often less costly than interfere with the proper functioning of burners were used for many years in the that of retrofit cabs. According to some the scrubber. Exhaust mufflers can, mining industry to cut granite in manufacturers, sound levels at the however, be installed on underground dimension stone quarries. Sound levels machine operator’s position inside equipment where catalytic converters typically exceeded 120 dBA at the factory cabs are often below 90 dBA are used. operator’s ear. Several years ago, and, in some cases, below 85 dBA. Exhaust mufflers can also be installed however, alternative and quieter Additionally, environmentally on pneumatically powered equipment. methods of cutting granite, such as high controlled operator’s cabs have the For example, exhaust mufflers are pressure water jet technology, added advantages of reducing dust offered by the manufacturers of almost automated channel burners, and exposure, heat stress, and ergonomic- every jackleg drill, chipping hammer, diamond wire saws, were developed in related hazards. and jack hammer. In the few cases the dimension stone industry. Occasionally, underground mining where such exhaust mufflers are not Dimension stone operators were notified conditions are such that full-sized available from the original equipment by MSHA of the availability of these surface haulage equipment can be used. manufacturer, they can be easily alternatives and given time to phase out Where this is possible, such equipment constructed by the mine operator. the use of diesel-fueled, hand-held can be equipped with a cab as described MSHA has a videotape available to the burners and replace them with one of above. mining community showing the the quieter and more protective These engineering noise controls are construction of such an exhaust muffler alternatives. not new technology. The former United for a jackleg drill. This muffler can be New Equipment Design States Bureau of Mines (USBM) constructed at minimal cost from a published two manuals entitled section of rubber motorcycle tire. Hand-held channel burners can be ‘‘Bulldozer Noise Controls’’ (1980) and replaced with automated channel ‘‘Front-End Loader Noise Controls’’ Acoustical Materials burners supplied with liquid oxygen. (1981) which describe in detail Various types of acoustical materials The automated design does not require installations of retrofit cabs and can be strategically used for blocking, the operator to be near the channel acoustical materials. absorbing, and/or damping sound and burner, thereby using distance to attenuate the noise. Barrier Shields vibration. Damping vibration reduces the generated sound field. Generally The MSHA document entitled, For some equipment, generally over such materials are installed on the ‘‘Summary of Noise Controls for Mining 25 years old, an environmental cab may inside walls of equipment cabs or Machinery,’’ (Marraccini et al., 1986) not be available from the original operator compartments, and in control provides case histories of effective noise equipment manufacturer or from rooms and booths. Barrier and controls installed on specific makes and manufacturers of retrofit cabs. In such absorptive materials can be used to models of mining equipment. The case cases, a partial barrier with selective reduce noise emanating from the engine histories describe the controls used, placement of acoustical material can and transmission compartments, and their cost, and the amount of noise usually be installed at nominal cost to acoustical material can be applied to the reduction achieved. In particular, these block the noise reaching the equipment firewall between the employee and include engineering noise control operator. These techniques are transmission compartment. Noise methods for coal cutting equipment, demonstrated in ‘‘Bulldozer Noise reduction varies depending upon the longwall equipment, conveyors, and Controls’’ (1980). specific application. Care must be taken diesel equipment. Underground coal Barrier shields and partial enclosures to use acoustical materials that will not mining equipment may require some can also be used on track drills where create a fire hazard or emit toxic fumes unique noise controls. However, for coal full cabs are infeasible. Such shields if exposed to heat. extracting machines such as continuous and enclosures can be either miners and longwall shearers, the use of freestanding or attached to the drill. Control Rooms and Booths remote control is the single most Typically, however, they are not as Acoustically treated control rooms effective noise control. The installation effective as cabs and usually do not and booths are frequently used in mills, of noise damping materials and reduce the miner’s noise exposure to the processing plants, or at portable enclosure of motors and gear cases can TWA8 of 90 dBA permissible exposure operations to protect miners from noise be used to aid in controlling noise of level. This barrier can be constructed at created by crushing, screening, or coal transporting equipment such as minimal cost from used conveyor processing equipment. Such control conveyors and belt systems. Diesel

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For the coal industry, however, MSHA Commission has expressly stated that MSHA has found that the controls expects the cost to differ significantly. cost-benefit analysis is unnecessary in utilized in these specific cases can be Under the current coal standards, order to determine whether a noise extended to other pieces of mining personal hearing protectors have control is required. equipment. The Agency is currently typically been substituted for Consistent with Commission case law, updating this publication, and plans to engineering and administrative controls; MSHA considers three factors in reissue it at a later date in order to assist therefore, the industry has not determining whether engineering mine operators in complying with the exhausted the use of feasible controls controls are feasible at a particular requirements of the final rule. capable of significantly reducing sound mine: (1) The nature and extent of the levels. Accordingly, the coal sector is Economic Feasibility overexposure; (2) the demonstrated projected to experience relatively higher effectiveness of available technology; MSHA has determined that a costs for engineering controls under the and (3) whether the committed permissible exposure level of a TWA8 of final rule than the metal and nonmetal resources are wholly out of proportion 90 dBA is economically feasible for the sector. to the expected results. A violation mining industry. Economic feasibility MSHA believes the requirements for under the final standard would entail does not guarantee the continued engineering and administrative controls MSHA determining that a miner has existence of individual employers. It clearly meet the feasibility requirements been overexposed, that controls are would not be inconsistent with the Act of the Mine Act, its legislative history, feasible, and that the mine operator to have a company which turned a and related case law. The most failed to install or maintain such profit by lagging behind the rest of an convincing evidence that the final rule controls. According to the Commission, industry in providing for the health and will be economically feasible for the an engineering control may be feasible safety of its workers to consequently mining industry as a whole is the fact even though it fails to reduce exposure find itself financially unable to comply that the total cost of the final rule borne to permissible levels contained in the with a new standard; see, United by the mining industry, $8.7 million standard, as long as there is a significant Steelworkers, 647 F.2d at 1265. annually, is only 0.01 percent of annual reduction in a miner’s exposure. Todilto Although it was not Congress’ intent to industry revenues of approximately Exploration and Development protect workers by putting their $59.7 billion. Nevertheless, MSHA Corporation v. Secretary of Labor, 5 employers out of business, the increase recognizes that, in a few cases, FMSHRC 1894, 1897 (1983). MSHA in production costs or the decrease in individual mine operators, particularly intends to continue its longstanding profits would not be enough to strike small operators, may have difficulty in policy of determining that a control is down a standard. Industrial Union achieving full compliance with the final feasible where a control or a Dep’t., 499 F.2d at 477. Conversely, a rule immediately because of a lack of combination of controls could achieve a standard would not be considered financial resources to purchase and 3-dBA noise reduction, which economically feasible if an entire install engineering controls. However, industry’s competitive structure were ultimate compliance with the final rule represents at least a 50% reduction in threatened. Id. at 478; see also, AISI–II, is expected to be achieved. sound energy. Where any single control 939 F.2d at 980; United Steelworkers, Whether controls are feasible for does not provide at least a 3-dBA noise 647 F.2d at 1264–65; AISI–I, 577 F.2d at individual mine operators is based in reduction, mine operators must consider 835–36. This would be of particular part upon legal guidance from the the reduction achieved by a concern in the case of foreign Federal Mine Safety and Health Review combination of all available controls. competition, if American companies Commission (Commission). According Some commenters were uncertain as were unable to compete with imports or to the Commission, a control is feasible to whether MSHA’s policy referred to a substitute products. The cost to when it: (1) Reduces exposure; (2) is 3-dBA reduction in sound level or a 3- government and the public, adequacy of economically achievable; and (3) is dBA reduction in a miner’s noise supply, questions of employment, and technologically achievable. See exposure. Exposure and sound level are utilization of energy may all be Secretary of Labor v. A.H. Smith, 6 not synonymous terms because an considered. FMSHRC 199 (1984); Secretary of Labor exposure includes a time factor. MSHA MSHA has determined that retention v. Callanan Industries, Inc., 5 FMSHRC has determined that a 3-dBA reduction of the existing permissible exposure 1900 (1983). in a miner’s exposure is the relevant level, threshold, and exchange rate In determining the technological factor in determining feasibility. This is under the final standard would not feasibility of an engineering control, the true because the permissible exposure result in any incremental costs for Commission has ruled that a control is level is a personal exposure standard, engineering controls for the metal and deemed achievable if, through which can be controlled using nonmetal sector and would result in reasonable application of existing engineering and administrative controls. annualized costs of $1.6 million for the products, devices, or work methods, MSHA chose a 3-dBA reduction because coal mining sector. As described in with human skills and abilities, a accuracy of the current noise more detail in the Agency’s final workable engineering control can be measurement instrumentation is 2 dBA, Regulatory Economic Analysis, MSHA applied to the noise source. The control a control would not be deemed effective evaluated various engineering controls does not have to be ‘‘off-the-shelf,’’ but until the measured reduction exceeds and their related costs. it must have a realistic basis in present the accuracy of the instrumentation. The In determining which engineering technical capabilities. 3-dBA reduction in a miner’s exposure controls the metal and nonmetal In determining the economic is different from and should not be industry will have to use under the final feasibility of an engineering control, the confused with the discussion of the rule, MSHA considered the engineering Commission has ruled that MSHA must exchange rate in this preamble.

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The Agency is cognizant that there operating conditions, new technology, several supportive comments, the may be instances where all feasible or failure of the mine operator to Agency has decided that this delayed engineering and administrative controls comply with the specified control effective date best meets the needs of have been used and a miner’s noise measures. the mining community. exposure cannot be reduced to the VII. Section-by-Section Analysis Section 62.101 Definitions permissible exposure level. Under those circumstances, in both the coal and Section 62.100 Purpose and Scope; The definitions discussed below are metal and nonmetal sectors, MSHA Effective Date included in the final rule to facilitate intends to enforce the final rule understanding of technical terms that The purpose of the mandatory health are used in this part. Some of the consistent with its current p code policy standard established in part 62 is to for metal and nonmetal mines. proposed definitions have been revised prevent the occurrence and reduce the Currently, when MSHA issues a to be consistent with the common usage progression of occupational noise- citation for a noise overexposure, the of such terms. For example, the operator must use all feasible induced hearing loss among miners in Agency’s proposed use of the term engineering and administrative controls every surface and underground metal, ‘‘supplemental baseline audiogram’’ has to bring noise exposures within the nonmetal, and coal mine subject to the been changed to the more commonly permissible level. Under current MSHA Federal Mine Safety and Health Act of used ‘‘revised baseline audiogram.’’ policy where feasible engineering or 1977. The final rule also includes a administrative controls have failed to The final rule establishes a single definition for action level. MSHA lower noise exposures to a permissible uniform noise standard applicable to all moved the definition of action level level at a metal or nonmetal mine, the mines. Most commenters favored the from the text of the proposed rule and citation may be terminated on the one-rule format, agreeing with the included it in the definition section of condition that personal protective Agency that consolidation and the final rule to be consistent with the equipment is provided and worn. This simplification of the existing multiple terms permissible exposure level and type of termination, referred to as a ‘‘P’’ standards may help to facilitate dual hearing protection level which are code, is permitted after certain understanding of, and thus compliance in the definition section. In addition, on procedures have been followed. with, regulatory requirements. the suggestion of several commenters If the District Manager where the Prior to this final rule, MSHA had who expressed confusion over the use of citation was issued believes a ‘‘P’’ code four sets of noise standards: for surface the proposed term ‘‘designated is warranted, the Manager reviews the metal and nonmetal mines (30 CFR representative,’’ MSHA has not adopted situation in consultation with field 56.5050), for underground metal and this term in the final rule, but instead enforcement staff, headquarters officials, nonmetal mines (30 CFR 57.5050), for has substituted the term ‘‘miner’s and MSHA technical experts. This underground coal mines (30 CFR part designee.’’ Also, because no commenter review includes an evaluation of the 70, subpart F), and for surface coal supported MSHA’s proposed definition circumstances surrounding the mines and surface work areas of of a ‘‘hearing conservation program,’’ overexposure, with particular emphasis underground coal mines (30 CFR part that definition has not been adopted in on assessing the feasibility and 71, subpart I). The surface and the final rule. In its place, MSHA is effectiveness of control options. underground noise standards for metal incorporating the elements of a If the reviewers determine that a ‘‘P’’ and nonmetal mines were identical, and traditional hearing conservation code is appropriate, the citation will be the surface and underground noise program into the text of the final rule. terminated and the termination will standards for coal mines were nearly Several commenters requested that state the minimum acceptable identical. MSHA provide a definition for performance requirements for hearing MSHA was influenced by several ‘‘feasible’’ engineering and protectors, and the minimum acceptable factors in deciding to promulgate this administrative controls, indicating that engineering and administrative controls final rule: the prevalence of hearing loss the term is vague and subject to varying that must be used in conjunction with among miners despite experience with interpretations. Because of the the hearing protectors. After a ‘‘P’’ code the current standard, conditions in the performance-oriented nature of the has been issued, MSHA provides the mining industry, MSHA’s review of the requirements for the use of engineering National Institute for Occupational latest scientific information, the and administrative controls, MSHA has Safety and Health (NIOSH) a copy of the comments submitted in response to the refrained from including an explicit associated technical documentation to proposed rule, and the requirements of definition of this term. Rather, MSHA alert researchers of the specific the Mine Act. notes in the discussion under instances of noise overexposures where The rule contains provisions that are ‘‘Feasibility’’ (Part VI of this preamble), noise exposures cannot be reduced to consistent with many of OSHA’s that it follows the Federal Mine Safety permissible levels using feasible requirements yet tailored to meet the and Health Review Commission case engineering or and administrative specific needs of the mining law as to what constitutes a feasible controls. SHA considers both community. In addition, many of the noise control for enforcement purposes. technological capabilities and the provisions are similar, if not identical, MSHA further notes in that discussion economic impact of a control. to the existing MSHA noise standards, that it will provide additional guidance MSHA regularly reviews those which will allow for continuity in the in a companion compliance guide to instances where ‘‘P’’ codes have been transition to the new rule. this final rule. issued to determine whether conditions The final rule takes effect one year A few comments were received have changed or new technology is after the date of publication. MSHA regarding MSHA’s use of non-standard available to warrant reconsidering the recognizes that successful terminology and abbreviations in the justification for the ‘‘P’’ code. MSHA implementation of the final rule proposal, in particular, the use of the may withdraw the ‘‘P’’ code if the requires training of MSHA personnel terms ‘‘decibel A-weighted,’’ ‘‘dBA,’’ original justification for the ‘‘P’’ code is and guidance to miners and mine and ‘‘sound level (in dBA).’’ MSHA no longer valid. The decision may be operators, particularly small mine intends for the terminology used based on such factors as a change in operators. Therefore, in response to throughout this rule to be both

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Under definition of the term ‘‘sound level.’’ examiners, which is consistent with § 62.110(b)(2)(iv) of the final rule, the The following is a summary of some MSHA’s determination that such a criterion level is a sound level of 90 of the key features of the definitions that certification or license is essential to the dBA. If applied for 8 hours, this sound are used in the final rule along with a implementation of an effective hearing level will result in a dose of 100% of the discussion of the comments that the conservation program. Properly trained permissible exposure level (PEL), Agency received in response to the and certified audiologists are qualified established by § 62.130 as an 8-hour proposal. to conduct audiometric testing, evaluate time-weighted average (TWA8) of 90 Access is the right to examine and audiograms, and supervise technicians dBA. The criterion level is a constant. copy records. MSHA is adopting the who conduct and evaluate audiograms. On the other hand, the permissible definition from the proposal, which is The licensing requirements for exposure level is a sound level of 90 consistent with the term used in several audiologists in the final rule are also dBA for 8 hours or a sound level of 95 of MSHA’s and OSHA’s existing health consistent with similar requirements in dBA for 4 hours. Further discussion is standards. In response to commenters OSHA’s noise standard. The term provided under § 62.110(b)(2)(iv) of the who requested that MSHA include a ‘‘audiologist’’ is discussed further under preamble regarding dose determination. ‘‘no cost’’ provision in this definition, § 62.170 of the preamble regarding Decibel (dB) is a unit of measure of MSHA notes that such a provision is audiometric testing. sound pressure levels. It is defined in included in the specific section in Baseline audiogram is the audiogram, the final rule in one of two ways, which it would be applicable. The term recorded in accordance with § 62.170 of depending upon the use. The proposed ‘‘access’’ is discussed further under this part, against which subsequent definition remains unchanged; it § 62.190, regarding records. audiograms are compared to determine continues to include definitions for Action level is an 8-hour time- the extent of hearing loss, except in measuring sound pressure levels and for weighted average sound level (TWA8) of those situations in which this part measuring hearing threshold levels: 85 dBA, or equivalently a dose of 50%, requires the use of a revised baseline (1) For measuring sound pressure integrating all sound levels from 80 dBA audiogram for such a purpose. With the levels, the decibel is 20 times the to at least 130 dBA. The action level is exception of the term ‘‘revised,’’ which common logarithm of the ratio of the discussed further under § 62.120 of the replaces the term ‘‘supplemental,’’ the measured sound pressure to the preamble. definition of baseline audiogram is standard reference sound pressure of 20 Audiologist is a professional unchanged from the proposal. The micropascals (µPa), which is the specializing in the study and baseline audiogram establishes a threshold of normal hearing sensitivity rehabilitation of hearing and who is reference for making hearing loss at 1000 Hertz; and certified by the American Speech- determinations. (2) For measuring hearing threshold Language-Hearing Association or is Although many commenters favored levels, the decibel is the difference licensed by a state board of examiners. the proposal, others believed that a true between audiometric zero (reference The vast majority of commenters baseline, by definition, is conducted pressure equal to 0 hearing threshold indicated no preference for further prior to exposure to noise. MSHA notes level) and the threshold of hearing of restrictions to MSHA’s proposed that the final rule explicitly allows mine the individual being tested at each test definition, which is identical to that operators to use existing audiograms as frequency. used by OSHA in its occupational noise the baseline, provided that they were Dual Hearing Protection Level is a standard. taken under the conditions meeting the TWA8 of 105 dBA, or equivalently, a Some commenters, however, believed testing requirements of this rule. For the dose of 800% of that permitted by the that the definition of ‘‘audiologist’’ final rule, the Agency concludes that the standard, integrating all sound levels should specifically require certification reasons discussed in the preamble to the from 90 dBA to at least 140 dBA. In the by the American Speech-Language proposal remain valid. There MSHA proposal, the definition was included Hearing Association (ASHA), as discussed the importance of the testing within the dual hearing protection evidenced by a Certificate of Clinical requirements that are to be followed in requirement itself. The term is set forth Competence. Other commenters conducting the baseline audiogram, as it as a definition in the final rule for the supported a proviso being added to the is the reference against which sake of clarity. definition of ‘‘audiologist’’ that state subsequent audiograms are to be Exchange rate is the amount of licensing requirements guarantee that compared. If the baseline audiogram is increase in sound level, in decibels, the licensees are as competent as those not conducted properly, it will not truly which would result in reducing the certified by ASHA. The rationale for this reflect the miner’s hearing thresholds. allowable exposure time by half in order comment was that state licensing boards As a result, any changes between the to maintain the same noise dose. In vary significantly from state to state, and baseline and subsequent tests may be response to a comment which requested licensing requirements in some states masked. Accordingly, MSHA is clarification of this definition, MSHA are not as stringent as ASHA adopting the proposed definition. has added language to the final rule certification requirements. The definition of baseline audiogram which states that for purposes of this The final rule does not adopt the also includes the provision that hearing part, the exchange rate is 5 decibels (5 suggestion of commenters that the final loss determinations may require the use dB). In the final rule, a 5-dB increase or rule accept licensing by only those of a ‘‘revised’’ baseline under specific decrease in the sound level corresponds states whose licensing standards are circumstances. Those circumstances are to a halving or doubling of the allowable sufficiently rigorous, because although noted in the further discussion of exposure time. Thus, a 5-dB increase, some state licensing requirements are baseline audiogram and audiometric from 90 dBA to 95 dBA, would result

VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.042 pfrm08 PsN: 13SER2 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations 49579 in halving the allowable exposure time with a noise reduction rating. MSHA exposed during any work shift to noise from 8 hours to 4 hours, and a 5-dB noted in the preamble to the proposed that exceeds the permissible exposure decrease, from 100 dBA to 95 dBA, rule that the noise reduction ratings do level. The permissible exposure level is would result in doubling the allowable not reflect actual reductions in noise in discussed further under § 62.130 of the exposure time from 2 hours to 4 hours. workplace situations. Moreover, other preamble. Exchange rate is discussed further under organizations have recommended that Qualified technician is a person who § 62.110(b)(2)(iv), regarding dose the EPA reconsider its rating system. has been certified by the Council for determination. Therefore, MSHA is adopting the Accreditation in Occupational Hearing Hearing protector refers to any device language in the proposed definition Conservation (CAOHC) or by another or material, capable of being worn on which permits any scientifically recognized organization offering the head or in the ear canal, sold wholly accepted indicator of noise reduction equivalent certification. The proposed or in part on the basis of its ability to value. Further discussion of noise definition remains unchanged in the reduce the level of sound entering the reduction ratings is located under final rule. ear, and which bears a scientifically § 62.110(b)(2)(i), regarding noise Several commenters suggested accepted indicator of noise reduction exposure assessment. additional requirements while other value. The proposed definition remains Hertz (Hz) is the international unit of commenters favored less restrictive unchanged in the final rule. Although frequency, equal to cycles per second. requirements for the qualified one commenter suggested that the The definition has been changed from technician: some commenters did not phrase ‘‘sold wholly or in part on the the proposal. One commenter suggested agree with the proposed requirement basis of its ability to reduce the level of that stating the range of audible that a qualified technician be certified sound’’ be deleted from this definition frequencies for humans with normal by the Council for Accreditation in because a hearing protector’s hearing is superfluous to a definition for Occupational Hearing Conservation or effectiveness cannot be reliably hertz. MSHA agrees, and the reference by another recognized organization determined on the basis of the intended has not been adopted in the final rule. offering equivalent certification. Several purpose for which it is sold, MSHA’s Medical pathology is a condition or commenters recommended that MSHA definition follows the Environmental disease affecting the ear. The definition adopt the requirements for technicians Protection Agency’s (EPA) labeling of medical pathology remains in the OSHA noise rule, which allows standards for hearing protectors (40 CFR unchanged from the proposal. A few physicians and audiologists discretion § 211.203(m)). Under the EPA labeling commenters suggested that the to judge the qualifications of standards, a hearing protector is defined definition be reworded. The term, technicians. A number of commenters as: which is also used in OSHA’s advocated that the final rule be occupational noise standard, is adopted consistent with the OSHA noise ** * any device or material, capable of being worn on the head or in the ear canal, in MSHA’s final rule for use in contexts standard and exempt technicians who that is sold wholly or in part on the basis of which do not require actual diagnosis operate microprocessor audiometers its ability to reduce the level of sound and treatment, but which may from any certification requirement. This entering the ear. ultimately be diagnosed and treated by was based on the commenters’ views This includes devices of which hearing a physician. The Agency intends that that a properly trained technician, protection may not be the primary function, ear injuries be included as a condition under the direction of a physician or an but which are nonetheless sold partially as or disease affecting the ear. Medical audiologist, would have the competence providing hearing protection to the user. pathology is discussed further in the to perform the tests. These commenters Accordingly, MSHA is adopting the preamble sections addressing believed that a requirement for proposed definition. As a result, not all § 62.160(a)(5), regarding hearing certification by CAOHC or an equivalent devices or materials that are inserted in protectors, § 62.172(b)(1), regarding body would unnecessarily limit the or that cover the ear to reduce the noise evaluation of audiograms, and flexibility of mine operators in testing exposure qualify as a hearing protector § 62.173(a) and (b), regarding follow-up employees, and could result in fewer under the final rule. For example, a evaluation when the audiogram is tests being conducted. One commenter hearing aid or cotton does not qualify as invalid. stated that the final rule should require an acceptable hearing protector under Miner’s designee is any individual or CAOHC certification as the minimum the final rule. organization to whom a miner gives qualification for audiometric Although several commenters agreed written authorization to exercise the technicians, and not accept with the proposal that the hearing miner’s right of access to records. This certifications by other organizations, protector should be required to have a definition is new to the final rule. pointing out that CAOHC is currently scientifically accepted indicator of noise MSHA received several comments to the the only organization that currently reduction value, other commenters proposal’s use of the term ‘‘designated issues such certifications. suggested that MSHA’s definition representative,’’ which caused MSHA has concluded that a specifically include the manufacturer’s confusion with the term ‘‘representative certification requirement for noise reduction rating (NRR) or a of miners’’ in 30 CFR § 40.1(b). MSHA audiometric technicians is not overly requirement that the attenuation be intended that the two terms have restrictive, and it ensures the necessary measured according to standards of the distinct meanings. Accordingly, for level of knowledge and proficiency to American National Standards Institute clarification, MSHA has replaced the perform audiometric tests under the (ANSI). Since EPA requires that all proposed term with the new term, final rule. MSHA has also concluded hearing protector manufacturers include ‘‘miner’s designee.’’ Further discussion that certifications from organizations labeling information indicating a noise of the term ‘‘miner’s designee’’ is found other than CAOHC are acceptable, reduction rating, a hearing protector under § 62.190(b), regarding records. provided that the organization imposes bearing such a label would indicate to Permissible exposure level is a TWA8 equivalent requirements. Contrary to the a mine operator that it meets MSHA’s of 90 dBA or equivalently a dose of statements of some commenters, definition of a hearing protector. 100% of that permitted by the standard, CAOHC is not the only organization that However, MSHA is not limiting the integrating all sound levels from 90 dBA issues such certifications—the U.S. range of hearing protectors only to those to at least 140 dBA. No miner shall be armed forces train technicians to

VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.044 pfrm08 PsN: 13SER2 49580 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations perform audiometric tests and issues age. When the permanent hearing loss at result of the circumstances set forth in certifications. Such certifications would all three frequencies is averaged, the § 62.170(c)(1) or (c)(2), to be used in lieu be accepted under the final rule. hearing loss must be reported if the of the baseline audiogram in measuring The final rule also adopts the average loss in either ear is 25 dB or changes in hearing sensitivity. With the proposed requirement that technicians greater. In making this calculation, a exception of the clarifying change in who operate microprocessor revised baseline would be established terms from ‘‘supplemental’’ baseline audiometers have CAOHC or equivalent and used where there has been a audiogram to ‘‘revised’’ baseline certification, to ensure that these significant improvement in hearing audiogram, the definition in the final technicians demonstrate the same level sensitivity, in accordance with the rule remains unchanged from the of proficiency as those technicians who provisions of § 62.170(c)(2). proposal. Use of the term ‘‘revised’’ is operate manual audiometers. Although MSHA is adopting the proposed consistent with the OSHA noise microprocessor audiometers may be definition of reportable hearing loss— standard. Some commenters suggested easier to operate than manual the extent of hearing loss that must be using the term ‘‘reference’’ baseline audiometers, MSHA has concluded that reported to the Agency pursuant to audiogram, however; MSHA believes a certification requirement is still § 62.175(b) of the final rule. Some that less confusion will result by appropriate for technicians who operate commenters who were satisfied with the adopting the term used by OSHA. In this equipment. MSHA’s final rule, proposed 25-dB level for reporting a addition, for further clarity and unlike OSHA’s noise standard, does not hearing loss expressed concern that the accuracy, MSHA is replacing the include detailed procedural proposed requirement does not proposed reference to hearing ‘‘acuity’’ requirements for audiometric testing. discriminate between occupational and with hearing ‘‘sensitivity.’’ Further Instead, the training and expertise of the non-occupational hearing loss. Other discussion of a revised baseline individuals conducting tests is an commenters favored a lower, 10 dB or audiogram is provided under essential element of an effective 15 dB, hearing loss for reportability § 62.170(c), in addition to the related audiometric testing program. For these purposes because the proposed 25-dB discussions on reportable hearing loss reasons, MSHA has chosen not to hearing loss level permits too much and standard threshold shift. exempt technicians who operate damage to occur before reporting is Sound level is the sound pressure microprocessor audiometers from the required. Still other commenters level in decibels, measured using the certification requirements in the final recommended that a hearing loss should A-weighting network and a slow rule. Further, the requirement for be reportable only if it is the subject of response. The final definition is CAOHC or equivalent certification is not a workers’ compensation award. These essentially unchanged from the proposal overly burdensome on the mining commenters believed that workers’ but is reworded for accuracy. Sound industry, as 19,000 technicians compensation data would make good consists of pressure changes in air currently hold this qualification due to reporting criteria and also noted that the caused by vibrations. These pressure OSHA’s requirement for CAOHC accuracy of the reported data could be changes produce waves that move out certification. The 19,000 CAOHC confirmed with state workers’ from the vibrating source. The sound technicians are located around the compensation agencies. Additionally, level is a measure of the amplitude of country. the complex calculations currently these pressure changes and is generally The requirements for audiometric necessary for determining whether a perceived as loudness. For the purpose technicians in the final rule are similar reportable hearing loss has occurred of this rule, the sound level is expressed to requirements in regulations of the could be avoided. in the unit ‘‘dBA.’’ U.S. Army, Air Force, and Navy, which MSHA’s definition of a reportable Under § 62.110(b)(2)(v) of the final require the technician to be CAOHC- hearing loss represents a substantial loss rule, sound pressure levels would be certified or certified through equivalent of hearing, which would provide a measured using the military medical training and be under reliable indication of the effectiveness of A-weighting network and the slow the supervision of a physician or the intervention strategies of the mining response. A-weighting refers to the audiologist. Qualified technicians are industry. The requirement is consistent frequency response network closely further discussed under § 62.170, with the existing OSHA noise standard corresponding to the frequency response regarding audiometric testing and which requires any 25-dB loss to be of the human ear. This network reduces § 62.172(a)(2), regarding evaluation of recorded in an employer’s records. In sound energy in the upper and lower audiograms. addition, § 62.175(b) of the final rule, frequencies (less than 1000 and greater Reportable hearing loss is a change in which is identical to § 62.190 of the than 5000 Hz) and slightly amplifies hearing sensitivity for the worse, proposal, creates an exception for sound energy between the frequencies relative to the miner’s baseline reportable hearing loss when a of 1000 and 5000 Hz. The slow-response audiogram or a revised baseline physician or audiologist has determined time refers to the slow exponential-time- audiogram established in accordance that the loss is neither work-related nor averaging characteristic. The with § 62.170(c)(2), of an average of 25 aggravated by occupational noise specifications of the A-weighting dB or more at 2000, 3000, and 4000 Hz exposure. Furthermore, workers’ network and the slow-response time are in either ear. The definition of compensation reporting criteria, which found in ANSI S1.25–1991, reportable hearing loss remains are controlled by the states and varies ‘‘Specification for Personal Noise essentially unchanged from the from state to state, may produce Dosimeters,’’ and ANSI S1.4–1983, proposal, with the exception that the inconsistent reporting to MSHA, ‘‘American National Standard proposal’s reference to ‘‘supplemental depending upon the state criteria that Specification for Sound Level Meters.’’ baseline audiogram’’ has been replaced are being applied. Further discussion of A few commenters were concerned with ‘‘revised baseline audiogram.’’ reportable hearing loss is provided that MSHA’s abbreviation ‘‘dBA’’ was Under the final rule, reportable under § 62.175(b), regarding the technically incorrect, because it is the hearing loss is calculated by subtracting notification of audiometric test results sound level that is A-weighted, not the the current hearing levels from those on and reporting requirements. decibel. MSHA recognizes that there are the baseline audiogram at 2000, 3000, Revised baseline audiogram is an several scientific fields employing and 4000 Hz and may be corrected for annual audiogram designated, as a distinct acoustical terminology,

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Because the especially in the early stages of noise- the proposal and supplemental proposal abbreviation ‘‘dBA’’ has come to be a induced hearing loss. to include in one section all provisions widely accepted way of succinctly Many commenters voiced concern that address mine operators’ assessment denoting a sound level that is A- that any hearing loss would be and evaluation of miners’ noise weighted and because the majority of considered a result of occupational exposures. The provisions of this the mining community has used this noise exposure. These commenters section of the final rule include the terminology over the past 25 years and believed that many non-occupational requirements that mine operators: did not voice any opposition, MSHA causes could produce a hearing loss and (1) Establish a system to monitor has adopted the proposed abbreviation miners’ noise exposures; ‘‘dBA’’ in the final rule. Further that MSHA should recognize such non- (2) Evaluate each miner’s noise discussion of the A-weighting and slow occupational origins of hearing loss. As exposure to determine continuing response time are provided under stated elsewhere in this preamble, compliance with this part; § 62.110(b)(v), regarding noise exposure MSHA leaves it to the professional (3) Provide affected miners and their assessment. judgement of medical and technical Standard threshold shift is a change personnel to determine, through representatives the opportunity to in hearing sensitivity for the worse interviewing and thorough examination, observe noise exposure monitoring; and relative to a miner’s baseline audiogram whether the origin of hearing loss is (4) Notify miners when their noise or relative to the most recent revised occupational or non-occupational. exposure equals or exceeds certain limits set by this final rule. audiogram, where one has been MSHA believes, after considering the The provisions of this section are established. The hearing loss is relevant factors and reviewing current calculated by subtracting the current similar to provisions in § 62.120(a) and U.S. armed forces and international (f) of the proposal and § 62.120(g) of the hearing levels from those measured by standards, that the definition of a the baseline or revised baseline supplemental proposal. The final rule, standard threshold shift in the final rule like the proposal, requires the mine audiogram at 2000, 3000, and 4000 Hz, is the most appropriate. Further and, optionally, correcting for age. A operator to establish a system of discussion is provided under § 62.172, monitoring to evaluate each miner’s standard threshold shift is defined as regarding the evaluation of audiograms. when the average loss in either ear has noise exposure. The monitoring reached 10 dB. The proposal is Time-weighted average-8 hour (TWA8) requirement establishes specific goals essentially unchanged, except that the is the sound level which, if constant for a mine operator’s monitoring system, term ‘‘sensitivity’’ has replaced the term over 8 hours, would result in the noise including: ‘‘acuity.’’ dose measured. The proposed definition (1) Determining if miners’ noise OSHA defines a standard threshold remains unchanged in the final rule. exposures reach any of the limits shift in essentially the same way and This value is used in the final rule in established by this final rule; requires that an employee’s annual connection with various limits; for (2) Assessing the effectiveness of the audiogram be compared to his or her example, the permissible exposure level engineering and administrative noise baseline audiogram to determine if the is a TWA8 of 90 dBA and the action controls in place; annual audiogram is valid and if a level is a TWA8 of 85 dBA. (3) Identifying areas of the mine standard threshold shift has developed. Not all noise-measurement where the use of hearing protectors is NIOSH (1995) recommends that the instruments provide readouts in terms required; and criteria for a standard threshold shift be of an 8-hour time-weighted average. (4) Ensuring that the noise exposure a 15–dB decrease in hearing sensitivity Personal noise dosimeters, for example, information necessary for proper at any one of the audiometric test measure noise as a percentage of evaluation of miners’ audiograms is furnished to audiometric test providers. frequencies from 500 to 6000 Hz on two permitted dosage, with the permissible The rule is flexible, that is, it does not sequential audiograms. The shift in exposure level equated to 100%. Noise prescribe how the mine operator will hearing sensitivity must be in the same dose may be converted, in accordance accomplish the goals it sets, but rather ear. NIOSH believes this criteria is with § 62.110 of the final rule, to an sufficiently stringent to detect leaves it to the mine operator to equivalent TWA8 to determine if the determine the best means by which to developing hearing loss while excluding action level or the permissible exposure normal variability in workers’ hearing achieve those goals. level has been exceeded and to evaluate sensitivity. NIOSH’s previous (1972) Like the supplemental proposal, the the impact of engineering and criteria defined standard threshold shift final rule requires the mine operator to administrative controls. Accordingly, as a change of 10 dB or more at 500, give prior notice to affected miners and MSHA has provided a list of TWA 1000, 2000 or 3000 Hz; or 15 dB or more 8 their representatives of the date and conversion values in Table 62–2 of the at 4000 or 6000 Hz. time of exposure monitoring by the MSHA’s definition of standard final rule, based on a criterion level of mine operator, and to provide miners threshold shift in the final rule will 90 dBA for 8 hours. and their representatives the identify individuals suffering shifts as Noise exposure must be determined opportunity to observe such monitoring. large as 30 dB at 4000 Hz with no shifts for the entire shift, but regardless of the The final rule also requires that the at the lower frequencies. This permits length of the work shift, a determination mine operator notify miners in a timely the early identification of individuals at of noncompliance with the noise manner if their noise exposures reach risk, so that corrective measures may be standard will be based upon exceeding the levels specified. This ensures that instituted. For example, there are some 100% exposure and the TWA8 (and a 5- miners are aware that they have been instances where significant threshold dB exchange rate). It would thus be exposed to excessive noise and may shifts in hearing level occur at higher improper to adjust a TWA8 reading for encourage them to use the hearing test frequencies (4000 and 6000 Hz) an extended work shift. protectors provided by the mine

VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.048 pfrm08 PsN: 13SER2 49582 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations operator and participate in the Another concern of commenters was noise dosimeter or the formula included audiometric testing program provided the proposed requirement that mine in paragraph (b) of this section of the by the mine operator. Miners must also operators establish a system of final rule. be notified of the corrective action taken monitoring which ‘‘effectively evaluates Determination of Dose if their exposures exceed the each miner’s noise exposure.’’ These permissible exposure level. commenters expressed concern that this Paragraphs (b)(1) and (b)(2) of § 62.110 of the final rule include System of Monitoring provision could place an undue burden on mine operators. Many of these requirements for determining a miner’s Paragraph (a) of § 62.110 of the final commenters suggested that monitoring noise dose. These requirements are rule requires mine operators to establish areas of the mine, representative job essentially the same as those in a system of monitoring that evaluates tasks, or similar occupations would be § 62.120(a) of the proposal. They each miner’s noise exposure sufficiently sufficient to meet the intent of the rule. contain several revisions in language to to determine continuing compliance A few commenters suggested that accommodate the changes in the with all aspects of the final rule. The monitoring should occur only when threshold and range of integration for final rule, like the proposal, takes a information exists that a miner’s noise the permissible exposure level and dual performance-oriented approach, and exposure equals or exceeds the action hearing protection level. Additionally, neither the methodology nor the level. According to one commenter, the final rule, unlike the proposal, intervals of monitoring are specified. because a mine operator’s insurance specifically refers to the use of personal Under § 62.120(f) of the proposed rule, carrier may conduct noise exposure noise dosimeters in determining a mine operators would have been monitoring, monitoring by the mine miner’s noise dose. Finally, the final required to establish a system of operator would not be necessary. rule does not adopt the term ‘‘miner’s monitoring ‘‘which effectively evaluates noise exposure measurement’’ used in each miner’s noise exposure.’’ In response to these commenters, the the proposal, but instead substitutes the Despite a number of commenters who language of this section of the final rule term ‘‘miner’s noise dose questioned the need for monitoring by has been reworded to provide that the determination’’ to be consistent with the the mine operator, MSHA has mine operator must establish a system flexible and performance-oriented determined that operator monitoring is of monitoring that ‘‘evaluates each approach taken by the final rule. This needed to identify those miners who are miner’s noise exposure sufficiently to change in terminology reflects the fact subjected to noise exposures that may determine continuing compliance with that mine operators may choose to be injurious to their hearing, so that this part.’’ This reflects the intent of determine a miner’s noise dose and protective measures can be both the proposal and the final rule, and comply with the requirements of the implemented. Most commenters does not require that each miner be final rule without taking an actual, supported the need for monitoring and individually evaluated for noise physical measurement of a miner’s favored a performance-oriented exposure, provided that the established personal noise exposure. approach, but some suggested a detailed monitoring system serves to detect Paragraph (b)(1) of § 62.110 provides specification-oriented monitoring individual miner exposures equaling or that a miner’s noise dose may be program similar to the program exceeding the specified levels in the determined in one of two ways: previously applicable to coal mines. final rule. As noted by commenters, (1) Through the use of a personal Those commenters questioned how depending upon the circumstances, noise dosimeter; or MSHA would evaluate ‘‘an effective monitoring of areas of the mine or (2) When sound levels and system of monitoring,’’ urging MSHA to representative job tasks may provide a corresponding exposure times are define this term. Other commenters mine operator with sufficient known, the dose is computed using the questioned mine operators’ ability to information to determine compliance specified formula. conduct reliable noise exposure with the final rule. Regardless of the In order to use the formula, it is monitoring. system of monitoring that a mine necessary to know the distribution of MSHA intends to evaluate the operator implements, mine operators sound levels and exposure times effectiveness of mine operators’ continue to be fully responsible for throughout the work shift. Table 62–1 monitoring programs by how well the ensuring that no miner is exposed to provides reference durations for the programs achieve the specified goals. noise above permissible limits, and for sound levels to be used in the During mine inspections, MSHA will ensuring that the required corrective calculation of dose, and Table 62–2 continue to evaluate miners’ noise actions are taken if a miner’s noise addresses converting from dose readings exposures. Overexposures may indicate exposure equals or exceeds the action to equivalent TWA8 values. deficiencies in the mine operator’s noise level or exceeds the permissible The ratios of the actual exposure monitoring program, and may result in exposure level or the dual hearing times to the reference duration for each close scrutiny of the program by MSHA. protection level. As indicated in the specified sound level equal to or In view of the wide variety of mining preamble to the proposed rule, a mine exceeding the threshold (lower bound operations to which the final rule operator could use results of MSHA on the integration range) are summed applies, MSHA has concluded that the sampling or information from and expressed as a percentage of the establishment of rigid and specific equipment manufacturers on the sound permitted standard. A reference monitoring requirements would be levels produced by their equipment in duration is the time over which a miner, unnecessarily inflexible and stifle determining compliance with this rule. exposed at the associated sound level, innovation and improvements in Additionally, as suggested by one receives 100% of the permissible noise monitoring technology. The test of commenter, a mine operator could also dose. The reference duration for an 80- whether the monitoring system is consider the results of other sampling, dBA sound level was added to the table effective is how well the monitoring such as sampling conducted by an in the final rule to reflect the use of the system protects miners. Thus, a insurance carrier, in determining 80-dBA threshold for the determination monitoring program which meets the compliance. It would nonetheless of conformance with the action level, specified goals will be considered benefit mine operators to determine and is consistent with OSHA’s noise effective under the final rule. miners’ noise exposure using a personal standard.

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Formula for Computing a Miner’s Noise Thus, the table is included because it dBA, whether it is collected for 4 hours, Exposure provides an easy reference for 8 hours, or 12 hours, and would If a sound level meter is used, converting the noise dose expressed as indicate noncompliance with the corresponding discrete exposure times a percentage of the permissible permissible exposure level. A miner for each sound level are determined, exposures to the corresponding TWA8. working only 5 or 6 hours can be MSHA noted in the preamble to the and the formula established in this exposed to higher sound levels during proposed rule that the TWA8 and the section is used to compute the miner’s those hours than during an 8-hour shift. dose are to be used interchangeably, and noise exposure. A personal noise Thus, although exposure at 95 dBA is that the TWA8 is not to be adjusted for dosimeter automatically computes a not permitted for 8 hours, exposure at extended work shifts, because the miner’s noise exposure in the same that level would be permitted for a 4- criterion level is based on eight hours. manner as the formula does for readings hour work shift. Conversely, if a miner Noise exposures must reflect the entire taken with a sound level meter over the works a shift longer than 8 hours, the shift in order to determine compliance sound levels would need to be lower. entire measurement period. with the final rule. If the noise dose Like the proposal, the final rule Thus, although exposure at 90 dBA is exceeds 100 percent, regardless of the includes Table 62–1, which lists permitted for 8 hours, it is not permitted length of the work shift, the miner will for a 10-hour work shift. In this way, the incremental sound levels and their be considered to be overexposed to associated reference durations. The conversion of percent dose to TWA8 noise. MSHA requested that simplifies compliance determination. table in the final rule differs from the commenters provide suggestions to help table included in the proposal because Paragraph (b)(2) of this section (1) the Agency ensure that its intent is prohibits adjustments of dose the sound levels that must be integrated clearly conveyed in this final rule, but into the noise exposure determination determinations for the use of hearing received no additional comments. The protectors; (2) specifies the minimum under the final rule are different than Agency provides the following they would have been under the range of sound levels that must be additional guidance. If a miner’s noise included in a miner’s noise dose proposal for the permissible exposure dose exceeds 800 percent, regardless of level and the dual hearing protection determination; (3) requires that the dose the length of the work shift, the miner determination reflect the miner’s full level (see §§ 62.120, 62.130, and will be considered to be exposed above 62.140). These sound levels are shift; (4) requires the use of a 90–dB the dual hearing protection level. If a criterion level and a 5–dB exchange essentially the same as those shown in miner’s noise dose equals or exceeds a Table G–16a in the OSHA noise rate; and (5) requires the use of an A- TWA8 of 85 dBA, regardless of the weighting and slow response instrument standard, except that values above 115 length of the work shift, the miner will setting. dBA are excluded. be considered to be exposed above the Although sound levels in excess of action level. Since the action level and Noise Reduction Ratings 115 dBA are not shown in Table 62–1, permissible exposure level are Section 62.110(b)(2)(i) of the final rule they are to be integrated into the noise determined using 80-dBA and 90-dBA remains unchanged from exposure determination. However, thresholds, respectively, the noise dose § 62.120(a)(3)(i) of the proposal and inclusion of these values in Table 62– using the 90-dBA threshold will always requires that a miner’s noise exposure 1 might lead the reader to erroneously be lower or equal to the noise dose be determined without adjusting for the infer that a miner is permitted to be using the 80-dBA threshold. exposed to sound at such levels, Table 62–2 has been constructed by use of any hearing protector. MSHA contrary to § 62.130(c) of the final rule, equating the permissible exposure level chose not to require the use of any which prohibits the exposure of miners to a dose of 100 percent (criterion level method to determine the effectiveness of hearing protectors. Similarly, the to sound levels exceeding 115 dBA. To of a TWA8 of 90 dBA). More Agency also chose not to provide for avoid any such confusion, Table 62–1 specifically, the TWA8 conversion has not been expanded to include the values in Table 62–2 are based on the any scheme for the use or derating of the corresponding reference durations for use of a 90-dBA criterion level and a 5- noise reduction rating (NRR) currently sound levels greater than 115 dBA. dB exchange rate. Interpolation for determined by manufacturers for Additionally, the Table includes the values not found in this table can be hearing protectors based on laboratory notation that at no time must any determined using the following formula: testing under Environmental Protection excursion exceed 115 dBA. MSHA notes TWA8 = 16.61 log10 (D/100) + 90, Agency (EPA) regulations at 40 CFR that, in any case, the reference durations where D is the dose. Table 62–2 can be §§ 211.201 through 211.214. The noise for sound levels that are not in the table used to determine the equivalent TWA8 reduction rating is an estimate of the can be calculated in accordance with from the percent noise dose. The noise reduction achievable under the formula in the table’s note. Further, conversion is made from dose in percent optimal conditions and was designed to discussion of the range of sound levels to TWA8, regardless of the work shift be used with C-weighted sound levels. that are integrated into a miner’s noise time, and compared to the action level EPA regulations require every hearing dose is included under § 62.110(b)(2), (TWA8 of 85 dBA), the permissible protector manufactured for distribution regarding range of integration. exposure level (TWA8 of 90 dBA), or in the United States to bear a label that dual hearing protection level (TWA8 of includes the protector’s noise reduction Conversion From Dose to TWA 8 105 dBA). Some models of personal rating. Table 62–2 is provided to allow noise dosimeters will provide readings Several commenters supported this conversion of the dose (percent) to the in both the percent dose and TWA8, and aspect of the proposal, and agreed that equivalent eight-hour time-weighted in such cases the conversion table the noise reduction provided by a average (TWA8). The requirements of would not be needed. hearing protector worn by a miner paragraph (b)(1) have been adopted MSHA notes here, as it did in the should not be considered in unchanged from § 62.120(a)(2) of the preamble to the proposal, that noise determining the miner’s noise exposure. proposal. However, the full shift over exposure is interpreted as if averaged They believed the noise should be which the dose determination is made over 8 hours. For example, a dose of 200 controlled by using engineering may be shorter or longer than 8 hours. percent is equivalent to a TWA8 of 95 methods, rather than by relying on

VerDate 18-JUN-99 17:20 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 E:\FR\FM\13SER2.XXX pfrm07 PsN: 13SER2 49584 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations miners to wear hearing protectors. Franks regarding the magnitude of the and the attenuation of the hearing These commenters observed that under hearing losses exhibited by miners. In protector at individual frequencies to MSHA’s existing enforcement policy for any event, although the analyses arrive estimate the sound level beneath the coal mining, in many cases, once at different conclusions, all of these hearing protector. Other commenters adjustment is made for hearing protector analyses indicate that some miners are stated their belief that mine operators use when determining compliance, developing varying degrees of a material lack the sophistication to use this previously installed engineering noise impairment of hearing. Additionally, method. The NIOSH Method No. 1 controls are not maintained. Other these analyses do not support the requires the use of advanced commenters stated that the EPA noise conclusion that a hearing conservation instrumentation and MSHA believes reduction rating is a poor predictor of program that relies primarily or that few mine operators would have the field performance; still others were of exclusively on the use of hearing expensive instruments. In addition, the opinion that the noise reduction of protectors effectively protects all miners because noise in mining is almost hearing protectors should be determined from noise-induced occupational constantly changing its frequency, for individual wearers, not using hearing loss. The Agency also notes that content, or sound level, many average values such as the EPA noise it has examined data submitted by mine measurements of individual noises will reduction ratings. operators in accordance with the need to be conducted before an On the other hand, many other Agency’s notification regulations under appropriate hearing protector could be commenters believed that some 30 CFR Part 50. This data shows that a recommended. consideration of the noise reduction number of miners have incurred a In its Compendium of Hearing value of a hearing protector is called for hearing loss despite the use of hearing Protection Devices (1994), NIOSH in determining noncompliance. Some of protectors. compares several sets of laboratory- these commenters stated that the EPA Other studies and data were measured noise reduction values noise reduction rating is a scientifically submitted by TU Services, Rochester (obtained using various standardized accepted indicator of noise reduction Group, Kerr-McGee Coal Corporation, methods), including the noise reduction value and should be retained. A number and BHP Minerals Inc., in support of rating. NIOSH lists the noise reduction of those commenters believed that their position that a hearing of various hearing protectors estimated hearing protectors could be used conservation program that relies by these various methods. Also, listed effectively and were the most cost- primarily or solely on the use of hearing are the physical attributes, composition, effective method to achieve compliance protectors can adequately protect and compatibility with other personal with the rule. Other commenters miners’ hearing. However, all these safety equipment of the hearing recommended that hearing protectors be studies lack sufficient data to allow protectors. rated using methods recommended by such a conclusion to be drawn because NIOSH (1995) recommends a rating the National Hearing Conservation no information has been provided that adjustment scheme based on the type of Association, while others stated that the indicates the miners’ history of noise hearing protector, resulting in the NIOSH method of adjusting hearing exposure; the history of the use of following field-adjusted ratings: protector ratings should be used. Both of hearing protectors; the type of hearing (1) Earmuffs—75% of the noise these methods are discussed below. protectors used or the circumstances of reduction rating; Several commenters provided use; and what type, if any, of (2) Formable earplugs—50% of the audiometric data from their hearing engineering or administrative controls noise reduction rating; and conservation programs, claiming that that may have been implemented. In (3) All other earplugs—30% of the the data showed that hearing protectors addition, the data or studies lacked noise reduction rating. adequately protect the hearing information on employment history and The National Hearing Conservation sensitivity of miners. As discussed training history. Also, no details of the Association’s Task Force on Hearing earlier, the NIOSH (Franks) analysis of audiometric testing procedures were Protector Effectiveness (Royster, 1995) the two databases cited by MSHA and provided to the Agency. One study recommends that the EPA’s noise the three analyses conducted by Clark submitted by Kerr-McGee used an reduction rating be replaced with a and Bohl under the auspices of the internal control to which the hearing of noise reduction rating-subject fit, or National Mining Association indicate miners were compared. However, the NRR(SF). According to the researchers, that miners are developing hearing loss noise exposure of the control group was the NRR(SF) more realistically reflects of a degree that constitutes material not indicated. Because of the lack of the field performance of hearing impairment. The differences in the such essential information for all the protectors. The noise reduction rating- conclusions of these studies are largely raw data or studies submitted to the subject fit is determined by laboratory attributable to different attributes of the Agency, it is impossible for MSHA to testing after a person fits the hearing control groups, i.e. prior noise exposure determine with any degree of certainty protector to his or her head. This differs or the existence of otological the level of effectiveness of any hearing from EPA’s noise reduction rating, abnormalities (which generally results protectors that may have been used, and which is determined after a researcher in poor hearing), which were used in as a result to give any of these studies fits the hearing protector to the person. the studies. As noted earlier in the significant weight in the development of Both are averages for general preamble, Franks’ analysis used a non- the final rule. Moreover data by BHP populations, but the noise reduction noise exposed population and the and the Rochester Group showed the rating-subject fit is more realistic audiograms of miners who had rates for a standard threshold shift (STS) because it more closely approximates experienced otological abnormalities to be unacceptably high, in excess of 5% field conditions by having the user were screened out. Clark and Bohl, (BHP had a 7% rate and the Rochester insert or put on the hearing protection however, used a population that could Group had a 6.6% STS rate in 1996 and device. The Task Force also have had an occupational noise a 7.9% STS rate between 1988 and recommends continued audiometric exposure or an otological abnormality. 1997). testing whenever hearing protectors are Because of the different baselines, the Some commenters recommended a used. conclusions reached by Clark and Bohl requirement for NIOSH Method No. 1, MSHA notes that the American are different from those reached by which uses the spectrum of the noise Industrial Hygiene Association (AIHA,

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1995) requested that EPA revise its was related to the spectrum of the noise. Crawford and Nozza (1981) report that noise rule on noise labeling According to the researchers, ‘‘The the average noise reduction of the requirements for hearing protectors. The earmuffs’ effectiveness in reducing earplugs was typically 50% of the reasons given for this request included: noise exhibited great variability and manufacturer’s values, except for user- (1) The current method of rating frequently fell far short of the NRR.’’ molded earplugs, whose actual noise hearing protectors overestimates the The researchers did develop a method reduction in the field was near the actual workplace protection by 140 to for predicting the effectiveness of laboratory values. almost 2000 percent. earmuffs, but it is complex as well as Lempert and Edwards (1983) report (2) Absolute levels of protection from impractical. that, in the majority of cases, workers labeled values cannot be predicted. Giardino and Durkt (1996) and received less than one-half of the (3) The labeled values are a poor Giardino and Durkt (1994) expanded on potential noise reduction of earplugs. predictor of relative performance of one the two previously discussed studies. A They conclude that regardless of the hearing protector versus another. total of 1,265 tests were performed on type of earplug used at a facility, a large (4) There are no provisions for 545 distinct machines of 20 different portion of the workers obtained little or retesting the hearing protectors on a types. According to the researchers, no noise reduction. recurring basis. earmuffs provided minimal noise Hempstock and Hill (1990) report that (5) There is no requirement for quality reduction for operators of equipment assessment or accreditation of the test the workplace performance of earmuffs powered by internal combustion more closely approximated the laboratory. engines. They concluded that the noise Despite the fact that OSHA’s noise laboratory performance than earplugs. reduction rating was a poor predictor of For both earmuffs and earplugs, the standard includes methods to estimate earmuff performance under actual the effectiveness of hearing protectors, measured workplace noise reductions mining conditions. were lower and the standard deviations MSHA has concluded that there is no Bertrand and Zeiden (1993), the scientific consensus regarding the higher than those measured in the exception noted above, determined the laboratory. The researchers attribute method that should be used to effectiveness of hearing protectors by these results to the ease of fitting an determine the noise reduction of a measuring the hearing levels of miners earmuff compared to fitting an earplug. hearing protector. exposed to sound levels exceeding 115 Their study also revealed that the Many field studies have been dBA. They found that, although the decrease in effectiveness was dependent conducted on the effectiveness of hearing protectors provided less noise upon the model of hearing protector and hearing protectors in the mining reduction than their ratings indicated, even differed between sites; safety industry. With one exception, these the difference was not significant. For glasses substantially degraded the studies report that hearing protectors, example, miners exposed to 118 dBA performance of earmuffs; workers whether old or new, provide much less experienced hearing levels consistent wearing safety glasses received noise reduction than was measured in with exposure to 98 dBA, indicating approximately one-half of the laboratory the laboratory. In many instances, noise that the hearing protector rated at 24 noise reduction. reduction was minimal and highly dBA provided 20 dBA of noise Royster et al. (1996) also found that variable, indicating that hearing reduction. protector effectiveness cannot be Several research studies performed in personal protective equipment such as reliably predicted under actual use other industries by Pfeiffer (1992), hard hats and safety glasses worn by conditions and is substantially less than Hempstock and Hill (1990), Green et al. miners may affect the noise reduction of that indicated by the noise reduction (1989), Behar (1985), Lempert and hearing protectors. In their study, rating of the manufacturer. These Edwards (1983), Crawford and Nozza wearing safety glasses reduced the noise studies are summarized below. (1981), and Regan (1975) also indicate reduction of earmuffs by about 5 dB at Durkt (1993) studied the effectiveness that hearing protector effectiveness is all frequencies. of 11 models of new earmuffs using substantially less than the noise Pfeiffer (1992) surveyed studies of miniature microphones inside and reduction rating indicated by the hearing protector effectiveness in outside the ear cups. A total of 107 tests manufacturer. German industry, and reports that at were conducted at surface mines on Other findings by these researchers industrial sites, earplugs provided operators of equipment that included sometimes conflict with one or more of between 10 and 15 dB less noise bulldozers, front-end-loaders, and the others, underscoring the logic of reduction, and earmuffs about 6 dB less, overburden drills. When the noise MSHA’s decision not to mandate any than they did in the laboratory. In spectrum included significant amounts rating adjustment system at this time: another part of the study, used but not of low frequency noise, the measured Regan (1975) found that earmuff-type defective earmuffs were tested against noise reduction was much less than the protectors provide the most noise new ones. The used earmuffs provided noise reduction rating. This is relevant reduction and custom molded earplugs significantly less noise reduction than in mining because most diesel-powered the least. new ones. The decrease in reduction equipment, including the machines Behar (1985) found that the measured depended on the model and frequency used at the surface mines, generate noise reduction rating in industrial tested, exceeding 7 dB for some noise primarily in the low frequency settings averaged 14.9 dB lower and frequencies. range. reached 25 dB lower than the Abel and Rokas (1986) report that the Kogut and Goff (1994) studied the manufacturer’s rated value. noise reduction of earplugs decreases effectiveness of earmuffs being used in Green et al. (1989) report workers who with wearing time, and that head and surface and underground mines. A total used earplugs and were receiving one- jaw movement accelerate the decline. of 540 miners were tested wearing their third to one-half of the laboratory-based Cluff (1989) investigated the effect of normal earmuffs. The procedure was noise reduction rating value, and jaw movement on the noise reduction similar, but not identical, to the workers enrolled in an effective hearing provided by earplugs and determined procedure used by Durkt (1993). Like conservation program obtain greater that the change in reduction depended Durkt, the researchers concluded the noise reduction from their hearing on the type of earplug. Self-expanding noise reduction provided by earmuffs protectors. viscose foam earplugs retained more of

VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.055 pfrm08 PsN: 13SER2 49586 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations their noise reduction ability than multi- Royster et al. (1996) also report on the loss. These factors include comfort, flanged or glass-fiber earplugs. progress of the American National training, fit, maintenance, and At Noise-Con 81, Berger (1981) Standards Institute Working Group that consistent use. Because engineering and concluded that the performance of has developed a methodology that administrative controls are more reliable hearing protectors decreased with reflects the reduction achieved by and measurable, they must be the first wearing time. Kasden and D’Aniello workers in a well managed hearing line of defense in reducing noise (1976, 1978) found that custom molded conservation program, and is in the exposures. This fact does not, however, earplugs retained their noise reduction process of drafting an ANSI standard diminish the usefulness of hearing after three hours of use during normal around it. While testing their protectors as part of a continuing and activity, but typical earplug methodology, the researchers concluded effective hearing conservation program. performance decreased after three hours that because some test subjects could In recognition of the role played by of use. Krutt and Mazor (1980) report not properly insert an earplug by simply hearing protectors in a hearing that the noise reduction of mineral reading the manufacturer’s instructions, conservation program, MSHA will down earplugs decreases over a three- these instructions may be inadequate. provide guidance to the mining hour period of wear, but the noise As summarized above, many community in estimating the adequacy reduction of expandable foam earplugs researchers have compared the results of of hearing protectors as applied to does not. Casali and Grenell (1989) standardized methods of measuring the individuals in the form of a compliance tested the effect of activity on the noise noise reduction of hearing protectors in guide that will be issued after the reduction provided by an earmuff and a laboratory setting to estimated or publication of the final rule. measured field reductions. Researchers found that there was significant Range of Integration decrease only at 125 Hz and that the have yet to develop a standardized test noise reduction was highly dependent for measuring the noise reduction of Section 62.110(b)(2)(ii) of the final on the fit. hearing protectors in the field. In rule requires the integration of all sound levels over the appropriate range in Royster and Royster (1990) report that general, commenters concurred with determining a miner’s noise dose. Under the noise reduction rating cannot be MSHA’s preliminary conclusion in the the proposal, the range of integration for used to determine or even rank the field proposal that, while methods exist to the action level, the permissible effectiveness of hearing protectors. They measure the noise reduction provided to exposure level, and the dual hearing found that two individuals, using the an individual by a hearing protector, none of these methods has been protection level would have been from same model of hearing protector, can standardized or shown to be effective in 80 to 130 dBA. The ‘‘range of obtain vastly different levels of noise field usage or applies equally to all integration’’ means the level at which reduction. They conclude that types of hearing protectors. This makes the dosimeter starts recognizing the ‘‘Products that are more goof-proof it virtually impossible to accurately sound level and counting it to the sound (earmuffs and foam earplugs) provided predict in any systematic way the in- level where the dosimeter stops higher real-world attenuation than other mine effectiveness of hearing protectors counting. Unlike the proposal, the final HPDs [hearing protection devices].’’ in reducing noise exposures for rule establishes dual thresholds: Casali and Park (1992) report that the individual miners. § 62.120 of the final rule sets the range noise reduction at 500 or 1000 Hz In addition to the studies that have of integration for the action level from showed a high correlation with the been summarized above, MSHA has 80 to at least 130 dBA, while the range overall noise reduction of hearing reviewed the procedures for exposure of integration for both the permissible protectors. Therefore, they believe, measurement in regulations and codes exposure level and the dual hearing models can be developed to predict the of practice (mandatory or protection level is from 90 to at least overall reduction of hearing protectors recommended) of OSHA, selected 140 dBA (§§ 62.130(a) and 62.140). To based upon the measured reduction at a branches of the U. S. armed services, accommodate the dual thresholds, the single frequency, eliminating the need international communities, the language of the final rule has been to adjust the noise reduction rating to International Standards Organization, revised to require the ‘‘appropriate accurately reflect noise reduction in the American National Standards Institute, range’’ of integration of sound levels, field. Casali and Park also believe that and the American Conference of rather than specifying the range of this model could be used to fit hearing Governmental Industrial Hygienists. A integration set forth in the proposed rule protectors objectively. variety of methods are used by these for all dose determinations. Berger (1992), in ‘‘Field Effectiveness organizations, but nearly all of the The term ‘‘all sound levels’’ in the and Physical Characteristics of Hearing entities either specify or imply that final rule includes, but is not limited to, Protectors,’’ reports on the progress of noise reduction provided by hearing continuous, intermittent, fluctuating, the American National Standards protectors should not be considered in impulse, and impact noises. A Institute (ANSI) Working Group S12/ determining a worker’s noise exposure. discussion of impulse and impact noise WG11, which is charged with Accordingly, based on the rulemaking is provided at the end of this section. developing a laboratory methodology of record, and consistent with OSHA’s rating hearing protectors that reflects the noise standard, the final rule adopts the Dual Thresholds noise reduction obtained by workers in proposed requirement that a miner’s Many commenters urged MSHA to the field. Berger also summarizes the noise dose be measured or computed develop a rule consistent with the results of 16 studies involving over without regard to any noise reduction OSHA noise standard, which requires 2,600 subjects on the field performance provided by the use of personal hearing an 80-dBA threshold for the action level of hearing protectors. Earplug field protectors. This is consistent with and a 90-dBA threshold for the ratings averaged about 25% of the MSHA’s determination that there are permissible exposure level. Some published U.S. laboratory ratings other factors that may be as important commenters, however, supported the (ranging from 6% to 52%) and earmuff or even more important than a hearing proposed 80-dBA threshold for both the reduction rates averaged about 60% of protector’s noise reduction in ensuring action level and permissible exposure the laboratory rates (ranging from 33% that a miner is protected from level. Also, a few commenters requested to 74%). occupational noise-induced hearing that MSHA adopt a threshold of 85 dBA

VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.057 pfrm08 PsN: 13SER2 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations 49587 for the permissible exposure level, exposure using dual thresholds in order Because industrial impulse noises are while other commenters recommended to be consistent with OSHA. Nearly all almost always superimposed on a that MSHA retain the 90-dBA threshold personal noise dosimeters currently background of moderate-to-high levels used under MSHA’s existing noise being manufactured have variable of continuous noise, and because both standards, believing that sound levels threshold settings that facilitate the can be harmful, it is reasonable to less than 90 dBA were not hazardous collection of noise exposures using two consider their combined effect, rather and that an 80-dBA threshold for different thresholds. Some older than to treat each separately. MSHA has compliance with the permissible personal noise dosimeters that lack the therefore concluded, and the final rule exposure level would merely increase capability of dual thresholds but which reflects, that impulse/impact noise must the number of citations without have been used to measure a miner’s be combined with continuous noise significantly benefitting the miners. noise exposure under MSHA’s existing when a miner’s noise exposure is MSHA has concluded that the noise regulations—may be somewhat determined. This is consistent with adoption of a dual threshold in the final obsolete, but can still be used to make provisions in OSHA’s noise standard. rule is protective and will decrease a a noise exposure measurement to MSHA has received comments on miner’s risk of developing noise- determine conformance with either the whether impulse and impact noise can induced hearing loss. In not adopting action level or the permissible exposure be accurately integrated into the proposed 80-dBA threshold for both level. They simply cannot do both determining a miner’s noise dose. The the permissible exposure level and the simultaneously. Additionally, some of studies cited by these commenters pre- action level, MSHA is not ignoring the the older instruments may not be dated the new ANSI S1.25–1991 scientific evidence, noted in Part V, capable of integrating the required range ‘‘American National Standard Material Impairment, which of sound under the final rule, and will Specification for Personal Noise demonstrates that there is a risk of need to be replaced. Dosimeters.’’ Personal noise dosimeters hearing loss from exposure to sound meeting this standard cover the ranges levels at or above 80 dBA. The Agency Impulse/Impact Noise of sound levels that are to be integrated addressed the risk of hearing As noted above, § 62.110(b)(2)(ii) of into a miner’s noise dose under impairment from prolonged exposure the final rule requires that ‘‘all sound §§ 62.120, 62.130(a), and 62.140 and above 80 dBA in the preamble to the levels,’’ including impulse and impact accurately integrate impulse and impact proposed rule. However, MSHA noise, be integrated into a miner’s noise noise into a worker’s noise exposure. concludes that the dual thresholds in dose determination. Impulse noise MSHA received comments in the final rule will protect miners against sources, such as gunshots, or impact response to its request for data noise-induced hearing loss which noise sources, such as a sledge hammer addressing a critical level to prevent a occurs at those sound levels, primarily striking metal, result in high sound traumatic hearing loss. A critical level is because the final rule incorporates pressure levels being generated almost one which causes immediate and significant changes to the proposed instantaneously. These sources are irreparable damage to the hearing hearing conservation program. hazardous because their duration is so mechanism. The comments received MSHA has concluded that the short that the protective mechanisms of dealt primarily with impulse and protection provided by the final rule the ear do not have sufficient time to impact noise as it pertained to the adequately addresses the risk of noise- react. The final rule, like the proposal, proposed ceiling level of 115 dBA, and induced hearing loss which occurs at does not include a separate provision these comments are therefore addressed exposures between a TWA8 of 85 dBA for impulse or impact noise. under § 62.130 of this preamble. and a TWA8 of 90 dBA. Under the final In the preamble to the proposed rule, Full Work Shift rule, mine operators are required to MSHA discussed in depth the many implement a system of monitoring that factors it considered in determining the Section 62.110(b)(2)(iii) of the final evaluates each miner’s noise exposure merit of proposing an impulse/impact rule has been adopted with some sufficiently to determine compliance noise limit for the mining industry. changes from proposed with part 62. All sound levels ranging Although there is evidence in the § 62.120(a)(3)(ii), and requires that a from 80 to at least 130 dBA must be literature on the harmful effects of miner’s noise dose determination reflect integrated to determine whether a impulse/impact noise, MSHA the miner’s full work shift. Under the miner’s noise exposure equals or concluded that, currently, there is proposed rule, a miner’s noise exposure exceeds a TWA8 of 85 dBA—the action insufficient scientific consensus to measurement would have been required level. Mine operators are required to support a separate impulse/impact noise to integrate all sound levels from 80 enroll miners whose noise exposure standard. Further, existing procedures dBA to 130 dBA during the miner’s full equals or exceeds the action level into for identifying and measuring such work shift. Many commenters supported a hearing conservation program. Under sounds lack the practicality to enable its the proposal, based on their belief that the hearing conservation program, mine effective measurement. This is due, in a miner’s noise exposure should be operators are required to provide part, to the complexity of the monitored for the entire work shift. enrolled miners with hearing protectors, phenomena, where consideration must Several commenters specifically audiometric testing, and training, all in be given to such technical factors as the recommended that full-shift sampling accordance with specific requirements. peak sound pressure level, the shape of also include extended work shifts, that Commenters noted that, in addition to the wave form, the number of impulses is, those that are longer than 8 hours. being protective, a dual threshold is per day, the presence or absence of Another supported the use of dosimetry workable. Many mine operators are steady-state (background) sound, the to determine a miner’s noise exposure. currently using personal noise frequency spectrum of the sound, and MSHA received several comments dosimeters with dual threshold the protective effect of the middle ear suggesting alternatives to full-shift capability for measuring noise acoustic reflex. sampling. Several commenters exposures. Some commenters, familiar As discussed in Part V, Material suggested that miners could be with both OSHA and MSHA Impairment, when impulse/impact monitored only during the loudest regulations, recommend thatMSHA noise is combined with continuous portion of their work shift, assuming require measuring a worker’s noise noise, hearing loss is exacerbated. that this portion was predictable. Under

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One commenter wanted full work shift sample is typically more Many commenters favored the 5–dB MSHA to specify that the noise indicative of a miner’s noise exposure exchange rate because they thought that measurement be conducted for at least than is a partial-shift sample, and that implementing a 3–dB exchange rate was two-thirds of the work shift, because mine operators are responsible under infeasible. Some of these commenters, this commenter believed that a mine the final rule for ensuring that miners believing that a 5–dB exchange rate is operator cannot always monitor a miner are protected from exposures in excess based on work shifts with intermittent for the complete work shift, and because of the permissible exposure level. Mine noise exposure, felt that a 5–dB two-thirds of a work shift would operators also must ensure that miners exchange rate is more appropriate provide sufficient information to with noise exposures that equal or because mining noise exposures are accurately characterize the shift. exceed the action level must be enrolled generally intermittent. A few of the MSHA noted in the preamble to the in a hearing conservation program. commenters believed the 3–dB proposal that because most mining jobs MSHA therefore recommends that, exchange rate was not supported by have highly variable work tasks, high when a personal noise dosimeter is used scientific evidence. Some commenters mobility, and irregular work schedules, for measurement, the determination be also suggested that, if the 5–dB measurement of a miner’s noise made over the duration of the entire exchange rate is retained, the exposure for a partial shift may not shift. Alternatively, if another dose permissible exposure level should be reliably project the miner’s noise determination methodology is used, it lowered to 88 or 85 dBA, and that either exposure for a full work shift (one that must reflect the noise dose for the a 3–dB exchange rate apply above 115 is at least 8 hours), and monitoring the miner’s full shift. For example, the dBA, or mine operators be prohibited loudest part of the work shift could multiple-shift sampling approach from implementing administrative overestimate the miner’s exposure. recommended by a commenter would controls to control exposures to sound MSHA also received several produce results that are not relevant to levels exceeding 100 or 105 dBA. comments suggesting other ways to compliance with the standard, which is As indicated in the preamble to the measure sound levels or a miner’s noise based upon a miner’s exposure over a proposal, MSHA evaluated the impact a exposure. A few commenters suggested full work shift. 3–dB exchange rate would have on the that if the sound level measured with an One commenter expressed concern measured noise exposure of miners area sample indicated that no possible that personal noise dosimeters would working in U.S. metal and nonmetal overexposure exists, a full-shift only integrate sound levels for 8 hours. mines. Federal mine inspectors measurement would be unnecessary. A On the contrary, it has been MSHA’s collected measurements during the few commenters suggested that the final experience that personal noise rule require a 40-hour multiple-shift dosimeters integrate sound levels for at course of their regular inspections using sampling period in order to better define least 8 hours, or until the personal noise personal noise dosimeters, collecting a representative work exposure. dosimeters are either turned off or data using 5–dB and 3–dB exchange The monitoring requirements of the placed in a standby mode. Therefore, rates simultaneously. final rule are intended to be highly personal noise dosimeters can measure The measurements for a 5–dB performance-oriented. The final rule a miner’s noise exposure during an exchange rate were made using a 90– simply requires that mine operators extended shift. dBA threshold, while the 3–dB effectively evaluate a miner’s noise exchange rate data were obtained exposure to determine compliance with Criterion Level and Exchange Rate without a threshold, allowing for part 62. Section 62.110(b)(2)(iv) of the final analysis of data at values below a TWA8 To be consistent with this rule remains unchanged from proposed of 90 dBA, which is not possible with performance-oriented approach, the § 62.120(a)(3)(iii) and establishes the a 90–dBA threshold. The results of the language of this section of the final rule criterion level of 90 dBA. Because study indicated the selection of an has been revised from the proposal to commenters who referenced the exchange rate substantially affects the require that the miner’s dose criterion level did so in the context of measured noise exposure in the determination reflects the miner’s full the permissible exposure level, their following ways: shift. This means that the mine operator comments are addressed under § 62.130 (1) The percentage of miners whose has flexibility in determining a miner’s of the preamble. noise exposures would be calculated to noise dose, and may choose to use a Section 62.110(b)(2)(iv) of the final exceed a TWA8 of 90 dBA permissible method that does not necessitate rule also adopts the 5-dB exchange rate, exposure level (or an Leq,8 of 90 dBA in sampling over the course of the entire which was proposed in the case of a 3–dB exchange rate) shift. § 62.120(a)(3)(iii). The exchange rate is increased from 26.9% to 49.9% when For example, if a miner who works an the change in sound level which the exchange rate changed from 5 dB to eight-hour shift typically spends four corresponds to a doubling or a halving 3 dB; hours in a noisy area of the mine and of the exposure duration. For example, (2) Switching to a 3–dB exchange rate the other four hours in a quiet area, such using a 5-dB exchange rate, a miner who and setting the permissible exposure as a mine office, the mine operator may receives the maximum permitted noise level at an Leq,8 of 85 dBA would choose to sample the miner’s noise dose over an 8-hour exposure to 90 dBA increase the percentage of miners whose exposure only during the four-hour would have accumulated the same dose exposure is out of compliance with the period that the miner is exposed to as a result of only a 4-hour exposure at permissible exposure level from 67.6% higher noise levels. In such a case, the 95 dBA, or 2-hour exposure at 100 dBA. to 85.5%; and mine operator would have a reasonable If the exchange rate were reduced to 3 (3) Additional engineering and basis for concluding that a full-shift dB, a miner would receive the same administrative noise controls would be measurement is not needed to verify dose with a 4-hour exposure at only 93 required under the 3–dB exchange rate, that the miner is not being overexposed. dBA or a 2-hour exposure at 96 dBA. In and they would be more expensive.

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Although the Agency has not would be extremely difficult and Response time is a measurement of compiled similar data for coal mines, prohibitively expensive for the mining the speed at which an instrument MSHA has concluded that the industry to comply with the existing responds to a fluctuating noise. There consequences of adopting a 3–dB permissible exposure level with a 3–dB are several instrument response times exchange rate would be similar. This exchange rate, using currently available that have been standardized fast, slow, conclusion is based on the similarity of engineering and administrative noise impulse, exponential, and peak. The mining operations and equipment and controls. MSHA therefore cannot quickest response is the peak response the consistency of the exposure data at demonstrate that implementation of and the slowest is the slow. Originally the 5–dB exchange rate in either sector such an exchange rate would be the slow response (1000 milliseconds) of the mining industry. feasible. However, the Agency will was used to characterize occupational Several commenters advocated the continue to monitor the feasibility of noise exposure, because reading the use of a 3–dB exchange rate, citing adopting a 3–dB exchange rate. needle deflections on a meter in rapidly scientific studies to support their fluctuating noise was easier. Using the position. A-Weighting and Slow Response fast response (125 milliseconds) In the preamble to the proposed rule, Instrument Setting resulted in needle deflections that were MSHA noted its awareness of a Section 62.110(b)(2)(v) of the final too difficult for the human eye to consensus in the recent literature that rule, like § 62.120(a)(3)(iv) of the follow. The slow response was in use to noise dose actually doubles more proposed rule, requires that instruments characterize noise exposure at the time quickly than measured by the 5–dB used for measuring noise exposures be when most damage risk criteria were exchange rate, and that there appears to set for the A-weighting network and developed. As a result, both the be a consensus for an exchange rate of slow response. OSHA also uses the A- previously referenced ANSI S1.4 and 3 dB. However, the Agency also noted weighting network and the slow S1.25 instrumentation standards for in the preamble to the proposal that it response for evaluating exposure to sound level meters and personal noise intended to retain the proposed 5–dB noise. dosimeters, respectively, contain exchange rate because of feasibility Weighting networks were originally specifications for the slow response. considerations. designed to approximate the loudness- Some commenters suggested that Under the Mine Act, MSHA is level-sensitivity of the human ear to MSHA adopt the fast response for all required, when promulgating a pure tones. The human ear does not measurements. Others objected to the standard, to make a reasonable use of the slow response only with prediction, based on the ‘‘best available respond uniformly to all frequencies of tones. At low sound pressure levels personal noise dosimeters, where, they evidence,’’ that the industry can believe, the slow response overestimates generally comply with the standard (e.g., 50 dB), the ear is less responsive to low- and high-frequency tones. At the noise exposure for fluctuating or within an allotted period of time. The intermittent noise. These commenters higher sound pressure levels (that is, 90 Agency must demonstrate a reasonable had no objection to using the slow dB), the ear responds more uniformly to probability that the typical mine response with sound level meters where low- and high-frequency tones. Low- operator will be able to develop and the effect of intermittency could be frequency tones are, however, less install controls meeting the standard. taken into account. One commenter damaging to hearing than mid-frequency MSHA noted in the preamble to the stated MSHA should use the fast tones. proposal that the exposure data, in response to conform with an conjunction with the study referenced Several weighting networks have been international consensus standard. above, suggested that it would be developed to take these differences into However, the majority of the scientific difficult for MSHA to make such a account and have been designated as A, community and most international showing in proposing a 3–dB exchange B, and C. Early researchers suggested regulatory authorities accept slow rate. This is particularly true at smaller the use of the A-weighting network response as the appropriate mines, where many mines would not when the sound pressure level was less measurement parameter for have enough employees to allow than 55 dB; the B-weighting network characterizing occupational noise implementation of certain between 55 and 85 dB; and the C- exposures, and it has been used by the administrative controls, such as job weighting network for sound pressure U.S. Department of Labor since the rotation. Although some commenters levels exceeding 85 dB (Scott, 1957). adoption of the Walsh-Healey Public were not persuaded by the discussion in Since that time, however, a scientific Contracts Act noise regulations of 1969 the preamble to the proposal that a 3– consensus has developed on the use of to measure occupational noise exposure. dB exchange rate would be infeasible in the A-weighting network to measure Based upon data included in Part V, the mining industry, MSHA received no occupational noise exposure at all Material Impairment, which showed additional data from commenters sound levels. good correlation between hearing loss contradicting this determination. The acoustical performance of the A- and A-weighted noise exposures, and Additionally, MSHA believes that any weighting network has been defined in the accepted use of the slow response decision on the appropriate exchange consensus standards established by the setting, the final rule adopts the rate for noise dose determinations is American National Standards Institute proposed A-weighting and slow closely linked to a decision on the (ANSI). ANSI S1.4–1983, ‘‘American response settings for instruments that appropriate permissible exposure level, National Standard Specification for are used to determine a miner’s noise and should be considered as part of that Sound Level Meters,’’ and ANSI S1.25– exposure. process. As indicated in the preamble 1991, ‘‘American National Standard discussion of feasibility and under Specification for Personal Noise Observation of Monitoring § 62.130, MSHA has concluded that the Dosimeters,’’ define the identical A- Paragraph (c) of § 62.110 of the final existing permissible exposure level weighting networks for the respective rule, like proposed § 62.120(g), requires should not be revised at this time. instruments. No comments were mine operators to provide affected Revision of the applicable exchange rate received recommending the use of a miners and their representatives with an should also be deferred. Accordingly, weighting network other than the A- opportunity to observe any monitoring MSHA continues to conclude that it weighting network. required under this rule. In addition, the

VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.062 pfrm08 PsN: 13SER2 49590 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations final rule requires mine operators to MSHA has consistently considered management. The final rule does not give prior notice to miners and their noise to be a ‘‘harmful physical agent’’ adopt this comment, because MSHA representatives of the dates and times covered under section 103(c) of the broadly interprets the opportunity for when the mine operators intend to Mine Act. The legislative history of the observation of this monitoring to extend conduct the monitoring. MSHA has no Federal Coal Mine Health and Safety to both miners and their representatives, existing requirement in this area. Act of 1969, Conference Report 91–761, consistent with the underlying purposes This provision is consistent with indicates that excessive noise was one of the Mine Act. Further, participation section 103(c) of the Mine Act, which of the harmful physical agents that by miners and their representatives will requires that regulations issued by Congress anticipated would be the enhance miner safety and health MSHA for monitoring or measuring subject of health standards. Also, the awareness and contribute to greater toxic materials or harmful physical legislative history of the Federal Mine understanding of the nature and extent agents such as noise provide miners or Safety and Health Act of 1977 reveals of the noise hazard. their representatives with an that NIOSH had conducted studies on In its Preliminary Regulatory Impact opportunity to observe such monitoring. ‘‘toxic substances,’’ including Analysis for the proposed rule, MSHA MSHA views mine operator monitoring substances in metal and nonmetal used the terms ‘‘off-duty’’ and ‘‘non- as an important component in operators’ mines, and had developed criteria duty’’ miners in the context of efforts to protect the hearing of the documents on those substances, which observation of monitoring. One miners they employ. The primary included noise. In addition, a U.S. commenter raised concerns about purpose of operator monitoring is Circuit Court of Appeals has determined MSHA’s use of these terms, and protection of miners. Monitoring that noise is a ‘‘harmful physical agent’’ questioned whether MSHA intended to provides operators with an awareness of under the Occupational Safety and create a new category of miner. MSHA the miners’ noise exposures at their Health Act. Forging Industry did not intend by using this term to mines and the specific sound levels to Association v. Secretary of Labor, 773 create a new category of miner. Instead, which miners are exposed. In addition, F.2d 1436, 1444 (4th Cir. 1985). MSHA used the two terms it reminds operators of their obligations Accordingly, MSHA has concluded that interchangeably to refer to a miner who to reduce excessive sound levels to noise falls within the scope of section works on a shift other than the one ensure protection of miners. 103(c) of the Mine Act, and that MSHA where he or she is observing the The Agency received a number of has the authority to establish regulations monitoring. To avoid any confusion, comments on this aspect of the that provide miners and their MSHA uses only the term ‘‘off-duty’’ proposal. Several commenters representatives access to noise exposure miner in the final Regulatory Economic supported providing miners and their monitoring conducted by mine Analysis. operators. representatives with an opportunity to One commenter was opposed to Several commenters recommended observe required monitoring. Several letting an off-duty miner or miners’ that the Agency substitute the term commenters stated that miners should representative on the property to ‘‘representatives of miners’’ for ‘‘their observe noise monitoring. The be paid when observing monitoring. On representatives,’’ because they believed the other hand, many commenters commenter stated that this raised a that it was important to clarify that the number of issues, including: stated that section 103(f) of the Mine representatives referred to in this Act, which requires mine operators to section are miners’ representatives Who would be responsible for escorting compensate representatives of miners designated under MSHA’s regulations at these people around the property? Is the who accompany MSHA inspectors on 30 CFR part 40. operator supposed to provide them with inspections, does not apply to Under part 40, the definition of transportation? What happens if they should observation of operator monitoring get injured? They are off duty but still on the ‘‘representative of miners’’ includes mine property. How would this be classified? because it is not conducted as part of an ‘‘ ‘representatives authorized by the MSHA inspection. MSHA agrees. miners,’ ‘miners or their representative,’ The final rule does not specify how Section 103(f) of the Mine Act requires ‘authorized miner representative,’ and the requirement of observation of ‘‘walkaround pay’’ when a other similar terms as they appear in the monitoring must be implemented. representative of miners who is Act.’’ Consequently, MSHA believes Instead, mine operators have the employed by the operator accompanies that the terminology used in the final flexibility to determine, based on an an MSHA inspector during an rule is sufficient to indicate that the assessment of their unique mining inspection of the mine. Section 103(f) ‘‘representative’’ referred to in this operations, how to best implement this does not authorize ‘‘walkaround pay’’ section is a ‘‘miner’s representative’’ provision. MSHA does not believe that for time spent by a representative of designated under part 40. The final rule it is either necessary or in the best miners observing a mine operator’s therefore does not adopt the suggestion interest of miners’ health to impose monitoring program. The final rule, of commenters. additional restrictions on who should be therefore, does not include a Many commenters were opposed to allowed to observe monitoring, or how requirement for mine operators to allowing both miners and their the observation of monitoring should be compensate a representative of miners representatives to observe operator conducted. Most if not all of the for participating in the observation of monitoring. Several commenters stated hypothetical situations raised by the monitoring. that because most mine operators use commenter could occur in contexts One commenter stated that by personal noise dosimeters, which must other than the observation of requiring mine operators to provide be placed on the miner, the miner is monitoring. MSHA expects that these miners’ representatives with an effectively participating in the questions will be resolved through the opportunity to observe noise monitoring, and is told of the results at labor-management processes already in monitoring, MSHA is improperly the end of the day. These commenters place. expanding the scope of section 103(c) of believe that requiring a miners’ Several commenters were concerned the Mine Act, which addresses representative to observe would be that allowing miners’ representatives to monitoring of ‘‘toxic materials’’ or redundant and result in adversarial observe could place the miners’ ‘‘harmful physical agents.’’ relations between labor and representative in unsafe positions,

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The purpose the mine operator to inspect for safety MSHA agrees with these commenters, of observation by the miners’ or conduct health surveys for the benefit and the final rule, like the proposal, representative is to ensure that the of workers. Because miners and their requires prior notice to miners and their miner is operating the equipment under representatives will only be observing representatives but does not specify normal working conditions and that the monitoring and not actually conducting how this notice is to be given. The instrumentation is being used properly. monitoring, prior notice will not Agency considers ‘‘prior notice’’ under Thus, in those cases where mobile, compromise the integrity of the the final rule to be a reasonable amount single-occupancy equipment is monitoring. Nonetheless, MSHA of time which is practical under the involved, the miners’ representative can emphasizes that the exercise of the right circumstances to allow miners and their observe the monitoring from a safe to observe monitoring should not representatives to exercise the distance. interfere with the monitoring process. opportunity to observe monitoring. Several commenters questioned Several commenters stated that Under the final rule, the operator may whether the number of observers or the requiring mine operators to provide use any method of notification— observation time would be limited. The prior notification of monitoring would including oral, written, and posted final rule does not limit the number of interfere with spot area sampling. notification—which effectively informs miners, their representatives, or time Another commenter stated that miners and their representatives of spent observing monitoring. Therefore, providing prior notice is not always intended monitoring. For example, under the final rule miners have the possible, such as during the some mine operators may use informal option of observing monitoring for the introduction of a new piece of talks as an effective means of keeping full shift, part of the shift, or not at all. equipment or machinery. Several miners informed on a day-to-day basis. MSHA considers field calibration of commenters also questioned whether Other mine operators may elect to the instruments, and any recording of MSHA intended to require mine inform miners in writing to avoid results to be included within the right operators to give prior notice of all confusion and to demonstrate of observation. MSHA believes that operator monitoring and whether compliance. Finally, some mine miners who observe operator’s miners and their representatives should operators may elect posting because monitoring procedures gain insight into have the opportunity to observe any and miners know where the bulletin board the nature and extent of the noise all such monitoring. These commenters is located and because posting is an hazard, and are more likely to become suggested that the final rule require that more involved in the hearing the mine operator provide notice and accepted and well established method conservation program. This involvement the opportunity for observation only of of disseminating information at mine should increase the motivation for a reasonably representative number of sites. Any of these methods would be an proper use of hearing protectors, thereby such monitoring events. effective means of providing the increasing the effectiveness of the The final rule does not require prior notification required under the final program and allowing them to share notice of such activities as spot area rule. Therefore, this provision is their knowledge with their fellow sampling or measurement of the sound adopted as proposed. miners, thus improving overall health at produced by a new piece of equipment Miner Notification the mine. before the equipment is placed into Paragraph (c) also requires mine service. Under the final rule, mine Paragraph (d) of § 62.110, like operators to give prior notice to affected operators are required to give prior § 62.120(f)(2) of the proposal, requires miners and their representatives of the notice only of monitoring that is notification when a miner’s noise date and time they intend to conduct conducted to determine whether a exposure equals or exceeds the action monitoring. One commenter supported miner’s noise dose equals or exceeds the level or exceeds the permissible the provision as proposed, stating that it action level, or exceeds the permissible exposure level or the dual hearing is an acceptable and reasonable practice. exposure level or the dual hearing protection level. Whenever a miner’s Several commenters stated that protection level. exposure is determined to exceed any of requiring notification of both miners Additionally, paragraph (c) of this the levels established in §§ 62.120, and their representatives of operator section of the final rule, like the 62.130, or 62.140 of this part, based on monitoring would be unduly proposal, does not specify a required exposure evaluations conducted either burdensome, and would not enhance method of notification. One commenter by the mine operator or by MSHA, and health and safety. One commenter supported the provision because of its the miner has not received notification recommended that MSHA adopt flexibility with respect to such of exposure at such level within the OSHA’s provision, which simply notification. Another commenter stated prior 12 months, the mine operator must requires employees or their that for notice to be unambiguous it notify the miner in writing within 15 representatives to be afforded an must be in writing and either mailed or calendar days of the exposure opportunity to observe noise posted on the mine bulletin board. determination and of the corrective measurements. Several commenters also questioned action being taken. The mine operator The Agency concludes that miners what would constitute adequate prior must maintain a copy of any such miner and miners’ representatives need time to notice. For example, one commenter notification, or a list on which the make necessary preparations to exercise supported requiring prior notice but relevant information about that miner’s their right to observe monitoring, and stated that the notice should be given at notification is recorded, for the duration that notification is necessary to achieve least five days in advance so that miners of the affected miner’s exposure at or this goal. Notification may be needed in and their representatives had sufficient above the action level and for at least 6 order to alert the miner and the miners’ time to prepare to observe. Several months thereafter.

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The notification requirement in the for participation in the voluntary fact that administrative delays may final rule is consistent with section audiometric testing program. arise, but balances these delays against 103(c) of the Mine Act, which states in MSHA has also concluded, and the the need for miners to be alerted pertinent part: final rule reflects, that the notification promptly of potentially harmful noise Each operator shall promptly notify any should be in writing. This ensures that exposures, and to be informed of the miner who has been or is being exposed to the miner understands the exposure steps that are being taken to remedy the ** * harmful physical agents * * *at levels determination and the corrective actions situation. which exceed those prescribed by an being taken. The proposal would have required applicable mandatory health or safety Several commenters agreed with the that records of required notification be standard promulgated under section 101 approach taken by the proposal that maintained at the mine site. Several ** *and shall inform the miner who is would make notification unnecessary if commenters requested that the final rule being thus exposed of the corrective action the mine operator had already notified allow the required records to be being taken. the affected miner of the exposure level maintained at a central location, such as Several commenters supported the during the past 12 months. One of the a corporate office, to ease the burden of requirement for written notification and primary objectives of notification, as managing the records of multiple mine requested that MSHA also require explained above, is to ensure that sites. Commenters also stated that they written notification to the miners’ miners are aware of the importance of believed this would make it easier for representative. Other commenters taking the additional precautions to MSHA to review the required records suggested that the required written protect their hearing. If a miner’s noise for these sites. notification also be submitted to MSHA. exposure has not changed, there would As stated in Part III of this preamble, One commenter believed that be no additional benefit to be gained by MSHA agrees with the points made by notification should not be required if all repeated notification. In any case, these commenters, particularly in light miners are enrolled in a hearing annual retraining is required for those of the fact that electronic records are conservation program. A number of miners whose noise exposures continue common in the mining industry, and other commenters questioned the need to equal or exceed the action level. that many or all of a mine’s records may to notify affected miners in writing. Many commenters took issue with the be stored on computer at a centralized Some of these commenters stated that proposed time frame of 15 calendar days location. The final rule therefore does posting the exposure determination for mine operators to notify a miner in not adopt the proposed requirement that results would be sufficient notification writing that the miner’s noise exposure these records be maintained at the mine for the affected miner and any other exceeded any limit prescribed in site, and does not specify a location miners working in the area. Other proposed § 62.120. Most of the where the records must be maintained. commenters believed that the mine commenters believed that the 15-day However, the records must be stored in operator should be able to choose any time frame was too restrictive and a location that will allow the mine method of notification as long as the suggested that this period be extended. operator to produce them for an MSHA miner received the required notice. One Among the reasons given in support for inspector within a relatively short commenter supported the notification this suggestion were delays in obtaining period of time, which in most cases will requirement, and suggested including a exposure reports from consultants and be no longer than one business day. statement concerning the mandatory use employee vacations. Commenters Commenters also presented their of hearing protectors, if appropriate. recommended time frames for views on record retention. Under the The notification provided for in this notification that ranged from 15 to 60 proposal, records of miner notification paragraph is required under section days. A few recommended that the mine would have been required to be retained 103(c) of the Mine Act. In addition, operator be allowed to determine the for the duration of the miner’s exposure MSHA has determined that such appropriate time frame. One above the action level and for 6 months notification is an integral part of the commenter, however, suggested that the thereafter. A few commenters believed a protection afforded to miners whose time allowed for notification be reduced requirement for record retention was noise exposures may be injurious to to 24 hours for exposure determinations unnecessary. Other commenters their hearing. The Agency also believes and 7 days for reporting the mine believed the records should be that in order to ensure that all affected operator’s plan of corrective actions to maintained for longer than 6 months miners are properly notified and reduce the noise exposure. One beyond the duration of exposure. The informed of the additional precautions commenter was opposed to the recommended record retention time necessary to protect their hearing, such notification requirement, because ranged up to 40 years. Several notification must be in writing and must OSHA’s noise standard lacks this commenters believed the exposure be recorded. Noise exposures at or provision. records should be treated as medical above the action level present a MSHA believes that timely records. Another commenter believed significant risk of material impairment notification is an important first step in the exposure records should be retained (as discussed under Part V of this protecting miners from excessive noise for at least the duration of the affected preamble, Material Impairment). Miners exposure. The final rule therefore miner’s employment. must be notified when their noise adopts the proposed requirement that MSHA has concluded, and the final exposures are at or above the action the mine operator notify the miner rule reflects, that it is sufficient for the level because of this risk, and also within 15 calendar days of any noise mine operator to retain exposure because such exposures trigger specific exposure that equals or exceeds the notification records for the duration of corrective actions by the mine operator action level or exceeds the permissible the miner’s exposure at or above the under the final rule—training miners, exposure level or the dual hearing action level and for at least 6 months providing miners with hearing protection level. The 15-day time frame thereafter. The retention period protectors, and offering miners is adopted from the proposal based on provided for by the final rule calls for audiometric testing. Notification alerts MSHA’s determination that 15 days records to be retained for a relatively miners of the need to conscientiously affords the mine operator sufficient time short period of time after cessation of wear their hearing protectors and may to provide this notification. This exposure at or above the action level, also provide some additional incentive determination takes into account the minimizing the recordkeeping burden

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However, the Under the final rule, the mine initial protective action at the level of 85 records required to be maintained under operator is required to enroll a miner in dBA, and the threshold of 80 dBA for this section of the final rule are not the a hearing conservation program that integrating all sound levels when type of dose determinations that would complies with § 62.150, which computing the action level. These be suitable for epidemiological analysis. consolidates the elements of a hearing commenters stated that the 85-dBA Additionally, unlike the effects of conservation program into a single action level and 80-dBA threshold were exposure to carcinogens, hearing loss section. These elements include a more protective of miners and based on due to noise exposure manifests itself system of monitoring that complies with the best available scientific information, shortly after the exposure. The effects of § 62.110; the use of hearing protectors and were also compatible with OSHA’s exposure to carcinogens may not be under § 62.160; audiometric testing noise standard. seen until years after exposure. under §§ 62.170 through 62.175; However, a number of commenters Requiring the retention of noise training under § 62.180; and were opposed to the proposed exposure records for many years recordkeeping under § 62.190. Although establishment of an action level. Several therefore serves no purpose. The final the language of the final rule differs commenters questioned the appropriate rule therefore does not adopt this from that of the proposal, the action level, stating that the level should comment. requirements are essentially the same. be set at a TWA8 of 90 dBA. Some of This reorganization of the rule was these commenters believed that noise Warning Signs made in response to commenters who control technology for complying with The proposed rule did not include recommended that the final rule take a an action level of a TWA8 of 85 dBA is any requirements for the posting of more traditional approach to the hearing not available, and that an allowance for warning signs at mines to alert miners conservation program. This issue is the use of hearing protectors should be of noise hazards that may be present. In discussed in greater detail under made when determining compliance the preamble to the proposed rule, § 62.150 of the preamble. with the action level. MSHA acknowledged the possible value The final rule requires that the mine MSHA’s determination that it is of warning signs but concluded that the operator enroll a miner in a hearing necessary to establish an action level in constantly changing mining conservation program if, during any the final rule is based on several environment presents significant work shift, the miner’s noise exposure considerations. The first and most obstacles to effective posting. MSHA equals or exceeds a TWA8 of 85 dBA or, important of these factors is that therefore determined that the miner equivalently, a dose of 50%. Like the MSHA’s review of the scientific training requirements of the final rule proposal, the final rule requires that all literature and Agency risk data, coupled will ensure that miners are sufficiently sound levels from 80 dBA to at least 130 with the comments submitted under informed of the noise hazards to which dBA be integrated into the noise this rulemaking, indicates that there is they may be exposed. exposure determination for the action a significant risk of material impairment Although MSHA did not solicit level. This integration range to miners from a lifetime of exposure to comments in the proposed preamble on requirement is identical to the one in noise at a TWA8 of 85 dBA, as discussed warning signs, several commenters did OSHA’s noise standard. Sound levels in the preamble section on material express their opinions on this issue. below the 80-dBA threshold are not impairment. For that reason, miners Some commenters believed the warning integrated into the noise exposure need to be protected from noise signs should be required, other measurement. It should be noted that a exposures at or above this level. commenters believed posting signs is noise dose determination for the However, as explained in greater detail appropriate only where hearing permissible exposure level requires the under the preamble discussion of the protectors must be worn. Several other use of a 90-dBA threshold. In practice, permissible exposure level, the Agency commenters believed that posted when a noise exposure measurement is has determined that it is not feasible at warning signs were not effective performed, either two separate noise this time for the mining industry to because they were ignored. dosimeters (one set for an 80-dBA comply with a lower permissible MSHA continues to conclude that the threshold for the action level, and one exposure level. The issue of risk to posting of warning signs should be set for a 90-dBA threshold for the miners is discussed in greater detail optional and is best left to the discretion permissible exposure level), or a single under the material impairment section of the operator. As stated in the dosimeter with dual threshold of this preamble. proposed preamble, MSHA expects that capabilities would be required. MSHA has nonetheless concluded many mine operators will voluntarily The final rule clarifies that the mine that it is necessary to provide miners post signs to indicate areas of the mine operator must enroll a miner in a with protection at this level in order to where hearing protectors should be hearing conservation program if during reduce instances of new hearing loss worn. any work shift the miner’s exposure and to prevent the progression of equals or exceeds the action level. The existing hearing loss. Agency data reveal Section 62.120 Action Level proposal would have provided that the that a miner’s risk of developing a Like the proposal, § 62.120 of the final mine operator take action if the miner’s significant hearing loss drops by rule requires mine operators to take exposure exceeded the action level. A approximately half under the new certain actions when a miner’s noise number of commenters recommended action level requirements of the final exposure equals or exceeds an 8-hour this clarification to ensure that the final rule. time-weighted average of 85 dBA during rule was consistent with OSHA’s noise As stated above, the hearing any work shift. Under proposed standard. The final rule has been conservation program in which miners § 62.120(b)(1) and (b)(2), mine operators revised accordingly. are enrolled under the final rule must would have been required to provide Many commenters supported the comply with § 62.150, and must address training to a miner exposed above the concept of an action level but wanted the use of hearing protectors, provide

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The lack of available technology miner is determined to have incurred a the OSHA hearing conservation was one of the bases for MSHA’s standard threshold shift, have been program, and has determined that determination that a permissible adopted in § 62.160(c)(1) and (c)(2) of hearing conservation programs are exposure level of a TWA8 of 85 dBA is the final rule. effective in protecting workers. not feasible for the mining industry at Additionally, as indicated under Under the final rule, a miner who is this time. Consistent with that § 62.160 of the preamble, proposed exposed to noise at or above the action determination, the final rule does not § 62.120(b)(3), which would have level must, as part of the enrollment in require that noise controls be required that the mine operator provide a hearing conservation program, receive implemented to reduce miners’ noise any miner who has been exposed to specialized training that addresses the exposures to the action level. Instead, noise above the action level with hazards of noise and protective mine operators are required to enroll hearing protectors upon request, is not methods. Specific topics that must be miners in a hearing conservation specifically adopted in the final rule. addressed by this training include the program if the miners’ exposures Because the final rule requires that such effects of noise on hearing, the purpose reaches the action level. a miner be enrolled in a hearing and value of wearing hearing protectors, Some commenters stated that the conservation program, which must and the mine operator’s and miner’s proposed action level requirement include the provision of hearing respective tasks in maintaining noise would create unnecessary paperwork protectors under § 62.160 of the final controls. and cost burdens for mine operators. rule, the adoption of the proposed Additionally, a miner who is enrolled MSHA has evaluated all of the requirement is unnecessary. in a hearing conservation program must paperwork provisions in the final rule Section 62.130 Permissible Exposure be provided with properly fitted hearing and has chosen the alternatives which Level (PEL) protectors and receive training on their impose minimal paperwork burdens on Section 62.130(a) of the final rule use. Although MSHA has concluded the industry. Although the final rule adopts proposed § 62.130(c) and that the difficulty in determining the does eliminate some existing paperwork establishes a permissible exposure level noise reduction provided by a given requirements, MSHA believes that the of an 8-hour time-weighted average hearing protector makes it inappropriate remaining paperwork provisions in the (TWA8) of 90 dBA, which represents no to adjust a dose determination on that final rule are necessary for improving substantive change from the existing basis, hearing protectors can serve as an protection for miners. standards. Under the final rule, a TWA8 effective means of protecting miners Many commenters supported the of 90 dBA is equivalent to a dose of from the hazards of excessive noise. proposed integration of all sound levels 100%. The final rule provides that no Miners enrolled in a hearing from 80 dBA to at least 130 dBA when miner be exposed during any work shift conservation program must also be computing the action level. They stated to noise that exceeds the permissible offered annual audiograms at no cost. that this was consistent with OSHA’s exposure level. Paragraph (a) also Annual audiometric testing will enable noise standard, would be more provides that if during any work shift a mine operators and miners to take protective of miners, and would allow miner’s noise exposure exceeds the protective measures in response to resources to be directed at the worst permissible exposure level, the mine identified early hearing loss, and enable exposures. Other commenters opposed operator must use all feasible the prevention of further deterioration the proposed integration range of 80 engineering and administrative controls of hearing. dBA to 130 dBA, stating that it would to reduce the miner’s noise exposure to As discussed in the preamble to the unnecessarily inflate the calculated the permissible level, and enroll the proposed rule, a number of studies have noise dose and dramatically increase the miner in a hearing conservation addressed the effectiveness of hearing time-weighted average daily exposure program. conservation programs in preventing dose. Based on a review of the entire Under the current metal and nonmetal hearing loss. Many of the studies record, the final rule reflects the noise standard, feasible engineering or indicate that a hearing conservation proposed integration range of 80 dBA to administrative controls are required to program can be effective in reducing at least 130 dBA as appropriate for be used when a miner’s noise exposure and controlling noise-induced hearing protecting miners from experiencing exceeds the permissible exposure level. loss, but only if management and additional hearing impairment. The noise reduction provided by a employees strictly follow the program MSHA notes that the requirements in hearing protector is not considered in requirements. § 62.110(b) of the final rule, which determining a miner’s exposure at metal MSHA has therefore concluded that apply to miners’ dose determinations, and nonmetal mines. Under the current enrollment in a hearing conservation must be complied with when a noise coal noise standard, feasible engineering program for miners whose noise exposure assessment is conducted for and/or administrative controls are exposure equals or exceeds the action the action level. This means that, in required to be used when a miner’s level can protect miners from addition to integrating all sound levels exposure exceeds the permissible occupational hearing loss. Consistent over the appropriate range, the exposure level. with this determination, the final rule determination must be made without Unlike the metal and nonmetal requires these miners to be enrolled in adjustment for hearing protectors; must standard, however, the coal standard such a program. However, as stated reflect the miner’s full work shift; must states that required controls may above, the effectiveness of the program use a 90-dB criterion level and a 5-dB include hearing protectors in specific in protecting miners depends on the exchange rate; and use the A-weighting circumstances. Credit is also given at commitment of mine operators and and slow response instrument settings. coal mines for the noise reduction value

VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00048 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.071 pfrm08 PsN: 13SER2 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations 49595 of hearing protectors in determining a they use, as long as mine operators use A number of commenters favored a miner’s noise exposure. all feasible controls necessary to bring a permissible exposure level of a TWA8 of The final rule specifies that mine miner’s exposure to within the 85 dBA, stating that because a operators must integrate sound levels permissible exposure level. significant risk of impairment occurs at from 90 dBA to at least 140 dBA. MSHA Section 62.130(a) of the final rule also this level, miners need greater proposed integrating sound levels requires that if a miner’s noise exposure protection. MSHA gave serious between 80 dBA and 130 dBA into the exceeds the permissible exposure level, consideration to establishing a lower permissible exposure level, but stated in the mine operator must enroll the miner permissible exposure level, including a the proposed preamble that MSHA was in a hearing conservation program that reduced exchange rate, based on its not recommending a lower permissible complies with § 62.150 of the final rule. determination that there is a significant exposure level, since it would be Implementation of a hearing risk to miners of a material impairment infeasible for the mining industry. conservation program is a new of health when noise exposures equal or However, in evaluating and reviewing requirement for metal and nonmetal exceed a TWA8 of 85 dBA. MSHA has the rulemaking record, MSHA has mine operators and for some coal mine concluded, however, that it is infeasible concluded that lowering the threshold operators. at this time for the mining industry to of sound levels integrated into the The final rule adopts the proposed achieve a more protective level by using permissible exposure level requirement for mine operators who use engineering and administrative controls. determination for purposes of administrative controls. Those mine Therefore, under the final rule, MSHA measuring a miner’s noise exposure operators must now post procedures for continues to require a permissible would in fact result in a lower such controls on the mine bulletin exposure level of a TWA8 of 90 dBA, but permissible exposure level, something board and provide a copy of the miner protection is increased from that that the Agency did not intend. The procedures to each affected miner. provided under existing MSHA noise final provision is therefore less Paragraph (b) of § 62.130 of the final standards by requiring that mine restrictive than the proposed provision rule, like the proposal, provides that if operators take protective measures at an would have been, but is consistent with feasible engineering and administrative action level of a TWA8 of 85 dBA. MSHA’s findings on feasibility. controls fail to reduce a miner’s Some commenters believe that MSHA The final rule requires that mine exposure to the permissible exposure did not adequately justify that a operators use all feasible engineering level, the mine operator must continue permissible exposure level of a TWA8 of and administrative noise controls to to use all engineering and 85 dBA was technologically and bring miners’ noise exposures within administrative controls to reduce the economically infeasible. Also, one permissible levels. Mine operators must miner’s exposure to as low a level as is commenter objected to considering provide miners with hearing protectors feasible. economic infeasibility in the rationale and ensure that the protectors are The proposed rule would have also for not reducing the permissible properly used if engineering and required that the mine operator ensure exposure level to a TWA8 of 85 dBA. administrative controls fail to reduce that a miner exposed above the Section 101(a)(6)(A) of the Mine Act exposure to the permissible exposure permissible exposure level submit to the directs that the Secretary’s rulemaking level. audiometric testing provided as part of authority be exercised within the Unlike the enforcement policy at the hearing conservation program. The boundaries of feasibility, and, as metal and nonmetal mines, current coal final rule, however, does not adopt this discussed in the preamble to the enforcement policy allows mine provision. Further discussion of this proposal, MSHA considered both inspectors to subtract the estimated issue is provided under § 62.170, technological capabilities and the noise reduction provided by hearing addressing audiometric testing. economic impact of a lower permissible protectors when determining a miner’s Section 62.130(c) of the final rule exposure level. MSHA made a noise exposure. When a coal mine adopts the proposed provision that at no preliminary determination, set forth in operator does receive a citation for a time must a miner be exposed to sound the preamble to the proposal, that a miner’s exposure exceeding the levels exceeding 115 dBA, and also lower permissible exposure level was permissible exposure level, the operator clarifies that the sound level must be not feasible. MSHA also requested that must promptly institute engineering or determined without adjustment for the commenters submit relevant additional administrative controls, or both. Within use of hearing protectors. data on this issue but did not receive 60 days of receipt of the citation, the Finally, proposed § 62.120(d), which adequate supporting data in response to mine operator must submit to MSHA a addressed the dual hearing protection this request. plan for the administration of a level, has been moved to § 62.140 of the Regarding the feasibility of a TWA8 of continuing, effective hearing final rule. 85 dBA, MSHA has found that a typical conservation program, which includes Section 62.130 of the final rule mine operator will not be able to provisions for reducing environmental establishes a permissible exposure level develop and install engineering controls sound levels to achieve compliance, of a TWA8 of 90 dBA, which represents at this time which will meet a providing hearing protectors, and pre- no substantive change from existing permissible exposure level lower than a employment and periodic audiograms. MSHA standards. The permissible TWA8 of 90 dBA. The Agency’s finding The final rule now requires that mine exposure level is the maximum time- is based on the large number of mines operators in both the coal sector and weighted average sound level to which which would require engineering and metal and nonmetal sectors use all a miner may be exposed. The exposure administrative controls to reduce feasible engineering and administrative needed to reach the permissible current exposures and on an evaluation controls to reduce a miner’s noise exposure level varies by sound level and of noise control technology under actual exposure to the permissible exposure duration. For example, a miner’s mining conditions, including retrofitting level. The final rule does not place exposure would reach the permissible equipment, and the cost of preference on the use of engineering exposure level if the miner is exposed implementing such controls. As stated controls over administrative controls. to a sound level of 90 dBA for 8 hours in the preamble to the proposed rule, MSHA intends for mine operators to or to a sound level of 95 dBA for only MSHA conducted a survey of noise have a choice of which type of control 4 hours. exposures in the mining industry to

VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00049 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.072 pfrm08 PsN: 13SER2 49596 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations assess the capability of the industry to engineering controls in coal mines Another commenter suggested that a comply with a permissible exposure under the current regulations. Thus, long phase-in period, such as 10 years, level lower than the current TWA8 of 90 unlike the metal and nonmetal mining be adopted for a permissible exposure dBA through the use of engineering and industry, the coal mining industry has level of a TWA8 of 85 dBA. In administrative controls. The survey is not exhausted the use of feasible considering the technological and referenced as the ‘‘dual-threshold engineering and administrative controls economic impact of a new standard, survey’’ in the section that addresses to reduce noise exposures to within the MSHA must make a reasonable material impairment in this preamble. permissible exposure level of a TWA8 of prediction, based on the best available Exposure data collected by MSHA 90 dBA. However, significant costs evidence, as to whether the mining indicated that with a permissible would be incurred by the entire mining industry can generally comply with the exposure level of a TWA8 of 85 dBA and industry if the permissible exposure rule within an allotted period of time. an 80-dBA threshold, over two-thirds of level were to be reduced to a TWA8 of MSHA seriously considered establishing the metal and nonmetal mining industry 85 dBA and an 80-dBA threshold. a permissible exposure level of a TWA8 and over three-quarters of the coal MSHA’s ‘‘dual-threshold survey’’ of 85 dBA in conjunction with an mining industry would need to use shows that a significant percentage of all extended phase-in schedule for engineering and administrative controls mines, which would be out of compliance. However, the Agency could to reduce current exposures (see Tables compliance if a lower permissible not project, with any reasonable 11 and 12 in Part V of this preamble). exposure level were adopted, would certainty, when the mining industry A typical mine operator would not be incur costs. Engineering controls that would be capable of developing and able to develop and install engineering are needed to reduce exposure levels to installing the necessary control controls at this time which would result technology to meet such a permissible a TWA8 of 85 dBA are more costly than in compliance with a permissible exposure level. In the preamble to the those which reduce exposure to a TWA8 exposure level lower than a TWA8 of 90 of 90 dBA. MSHA’s analysis indicates proposal, MSHA made no assumptions dBA. Although the discussion of that where it is available, retrofitting about the development of new feasibility in this preamble references equipment to achieve a permissible technologies to further assist mine control rooms and booths and operators in controlling noise. The exposure level of a TWA8 of 85 dBA can acoustically treated cabs as being Agency requested commenters to cost $15,000 or more per piece of capable of reducing exposures to below provide information but received none. equipment. Remote control in 85 dBA, MSHA has found that, for the Although enforcement of the final rule conjunction with a fully-treated, most part, sound levels for most mining requires that individual mine operators environmentally-controlled operator’s equipment cannot be reduced to that only use those controls which are booth can cost $10,000 or more extent using engineering controls. This feasible for the particular mine operator, depending on the size of the booth and includes consideration of retrofit noise MSHA is unable to demonstrate a the extent of technology needed to run control technology to achieve 85 dBA or reasonable probability that the mining the process or equipment remotely. less which is not available for the industry as a whole would be able to MSHA has estimated that a permissible majority of mining equipment without comply, even with a long phase-in major redesign of the equipment. The exposure level of a TWA8 of 85 dBA period. Agency’s finding is based, in part, on with a 3 dB exchange rate would cost Several commenters wanted MSHA to the evaluation of newly developed noise over $54 million annually just to retrofit adjust the permissible exposure level of equipment. However, retrofitting controls under actual mining conditions a TWA8 of 90 dBA for those miners described in ‘‘Summary of Noise existing equipment alone would not working extended work shifts, and one Controls for Mining Machinery’’ enable most mines to achieve commenter believed that it was (Marraccini et al., 1986). Therefore, the compliance with a permissible exposure important to include extended work Agency has concluded that a typical level of 85 dBA as a TWA8. For some shifts in the definition of the mine operator will not be able to of these mines, capital equipment permissible exposure level. The final develop and install engineering controls would need to be replaced by quieter rule requires mine operators to at this time that will result in equipment capable of meeting the lower determine a miner’s noise exposure for compliance with a permissible exposure 85 dBA level, but the cost would be the full work shift, regardless of length level lower than a TWA8 of 90 dBA. enormous. For example, where new of time the miner works on the shift. In addition, the Agency has found equipment exists, depending on its size, MSHA acknowledges that extended that, where available, the cost of costs range from approximately work shifts are becoming a more implementing controls would be $260,000 to $360,000 for single boom common practice in the mining industry prohibitively expensive, based on the drills with fully treated operator cabs, to and intends for miners working on these large percentage of mines that would be approximately $2,000,000 for a 240 ton shifts to receive the full protection of out of compliance if a lower permissible haul truck with a fully treated operator the final rule. Sampling for a full shift exposure level were to be adopted. As cab. However, as previously noted, for is consistent with the OSHA standard as reflected under the preamble discussion many types of capital equipment, no well as current noise regulations for of feasibility, MSHA has determined compliant replacement equipment both coal and metal and nonmetal that retention of the existing permissible currently exists. Because most mines mines. exposure level and threshold under the could not fully meet a lower permissible Section 62.130(a) of the final rule final rule would not result in any exposure level using currently available differs from the proposal in that a incremental costs for engineering technology, the Agency has determined miner’s exposure determination for controls for the metal and nonmetal that a lower permissible exposure level comparison to the permissible exposure sector, but would result in costs of $1.79 would not be feasible at this time. level requires the integration of all million for engineering controls for the Accordingly, the Agency is adopting the sound levels from 90 to at least 140 coal sector. Costs would be incurred existing permissible exposure level of a dBA. The proposal would have required only by the coal mining sector under the TWA8 of 90 dBA, but is also requiring integration of sound levels from 80 to at final rule, because hearing protectors hearing conservation measures when least 130 dBA. Several commenters to have generally been substituted for the exposure reaches a TWA8 of 85 dBA. the proposed standard brought to

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MSHA’s attention that the proposed most consistent and reliable protection exposure levels border on 100 dBA. range of sound integration would result to miners. MSHA’s rulemaking record indicates in a lower permissible exposure level Administrative controls reduce that a number of professional for the mining industry, an unintended exposure by limiting the amount of time organizations have recommended that result of the rule, discussed earlier. that a miner is exposed to noise through OSHA rescind this policy and rely on Moreover, the final rule’s adoption of such actions as rotation of miners to engineering and administrative controls. the proposed 80-dBA threshold for areas with lower sound levels, As explained in the preamble determining whether miners’ exposures rescheduling of tasks, and modifying discussion of § 62.110 of the final rule, equal or exceed the action level ensures work activities. MSHA believes that MSHA has decided to adopt the that miners are afforded protection at or administrative controls can be as approach of the proposal, which is not above an exposure of a TWA8 of 85 effective as engineering controls and are to accept personal hearing protectors in dBA. typically less costly than engineering lieu of engineering or administrative Section 62.130(a) also requires that controls, and MSHA anticipates growing controls. The Agency’s position is when a miner’s noise exposure exceeds interest in implementation of supported by its own research on noise the permissible exposure level, the mine administrative controls by the mining reduction values of hearing protectors operator must use all feasible community. MSHA will make guidance under actual mining conditions. engineering and administrative controls materials pertaining to administrative Additionally, this position is supported to reduce a miner’s exposure to the controls available to the mining by studies referenced in the preamble permissible exposure level before community before the effective date of discussion of § 62.110 that address noise relying on hearing protectors. In the final rule. dose determination without adjustment addition, mine operators must establish In the proposed preamble, MSHA had for the use of hearing protectors. a hearing conservation program for requested comment from the mining Moreover, promulgating a rule which is affected miners. community on the primacy of consistent with OSHA policy would engineering and administrative controls. The final rule does not place result in a diminution of safety to The Agency received a number of miners in the metal and nonmetal preference on the use of engineering comments from the public in support of sectors of the mining industry. Section controls over administrative controls to the primacy of engineering and 101(a)(9) of the Mine Act requires that protect miners exposed above the administrative controls, as well as a no new standard reduce the protection permissible exposure level. All feasible number of comments in support of afforded miners by an existing standard. controls, of both types if necessary, equating personal hearing protectors For metal and nonmetal mines, MSHA must be implemented to reduce noise with controls. These comments are currently requires the use of engineering exposure to the permissible exposure discussed below. or administrative controls to the extent level, or to the lowest feasible level if Commenters who favored permitting feasible to reduce exposures to the the permissible exposure level cannot the use of hearing protectors to meet the permissible exposure level. Under be achieved. In response to commenters permissible exposure level asserted that existing standards if the permissible who questioned which controls mine hearing protectors adequately protect exposure level cannot be achieved, operators must use, MSHA emphasizes the hearing of miners, are more cost hearing protectors must be made that mine operators have a choice of effective, and provide greater noise available to miners. If OSHA’s policy which control method they will use reduction than engineering controls. In were to be adopted into the final rule, first. Under the final rule, they may use addition, some commenters believe that the benefits of using feasible engineering controls, administrative personal hearing protectors used in engineering and administrative controls controls, or both; but if administrative conjunction with a hearing conservation would be lost. In addition, OSHA’s controls are utilized, a copy of such program are as effective as engineering noise enforcement policy is based on a procedures must be posted and given to and administrative controls. judicial interpretation of ‘‘feasible’’ as each affected miner. The final rule Other commenters wanted MSHA to used in the context of OSHA’s noise affords mine operators flexibility in permit the use of hearing protectors in standard which is an established federal selecting the most appropriate control lieu of engineering and administrative standard adopted without rulemaking at method applicable under the controls, provided that the noise the OSH Act’s inception under Section circumstances. exposure did not exceed a TWA8 of 100 6(a) of the OSH Act rather than the Although the final rule does not give dBA. These commenters stressed that product of a regular OSHA rulemaking preference to engineering controls over this is allowed by OSHA’s current under Section 6(b) of the OSH Act. administrative controls, engineering enforcement policy. Under the Mine Act, one of the roles controls provide a permanent method of The OSHA noise standard at 29 CFR of the National Institute for modifying the noise source, the noise § 1910.95 requires employers to use Occupational Safety and Health path, or the environment of the miner engineering and administrative controls. (NIOSH) is to advise MSHA in exposed to the noise, thereby decreasing Under the OSHA noise standard, establishing mandatory health and the miner’s exposure to harmful sound hearing protectors may be used only to safety standards. While MSHA is aware levels. Engineering controls do not supplement controls. Current OSHA that NIOSH is seeking to develop an depend upon individual performance or enforcement policy allows employers to approach that would more accurately human intervention to function. rely on personal protective equipment adjust the noise reduction ratings of Moreover, the effectiveness of and a hearing conservation program hearing protectors in actual workplace engineering controls can be readily rather than engineering and/or use, the prospects for this remain determined using standardized administrative controls when hearing uncertain. In addition, adjustment acoustical measurement and assessment protectors will effectively attenuate the methods that are appropriate for general procedures. In addition, routine noise to which the employee is exposed industry may not be appropriate in the maintenance ensures the long-term to acceptable levels as specified in mining environment. As explained in effectiveness of engineering controls. Tables G–16 or G–16a of the standard. the preamble discussion of § 62.110 of Thus, MSHA has concluded that the use Furthermore, hearing protectors may not the final rule, MSHA has found that of engineering controls provides the reliably be used when employee hearing protectors provide much less

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Economic Analysis. reliably predicted under actual use Although many commenters may Most commenters requested that conditions. prefer to use hearing protectors in lieu MSHA clarify the meaning of the term During the rulemaking process, of engineering or administrative ‘‘feasible.’’ Many commenters MSHA requested that NIOSH provide its controls to protect miners from noise specifically requested that MSHA opinion on the hierarchy of noise overexposures, MSHA has concluded include economic considerations in the controls. NIOSH stated in its December that the scientific evidence does not definition of feasibility. What constitute 16, 1994, response (NIOSH, 1994) that support this position, and that the ‘‘feasible’’ engineering and there are three elements in the hierarchy approach taken in the final rule best administrative noise controls is of effective noise controls: protects miners from further noise- discussed in Part VI of this preamble. As (1) Preventing or containing induced hearing loss. part of that discussion, MSHA cites workplace noise at its source; A few commenters were concerned applicable case law, which specifically (2) Removing the noise by modifying that the miner would suffer a loss of pay provides that a consideration of the pathway between the worker and if administrative controls were feasibility must include both the noise source; and instituted and the miner was rotated to technological and economic factors. (3) Controlling the worker’s exposure a lower-paying job. However, the Mine Some commenters suggested that by providing a barrier between the Act does not authorize the Secretary to ‘‘feasible’’ engineering controls need to worker and the noise source. require pay retention for miners rotated be capable of reducing a miner’s noise NIOSH further stated that noise for the purpose of reducing exposure to exposure to the permissible exposure controls must provide reliable, a harmful physical agent, and the final level rather than to the lowest level consistent, and adequate levels of rule does not adopt that comment. achievable for the control. Others protection for each individual worker Paragraph (a) of § 62.130 of the final suggested that a control should produce throughout the life span of the controls, rule also adopts the requirement of at least a 3-dBA noise reduction before minimize dependence on human proposed § 62.120(c)(1) that mine that control is considered ‘‘feasible,’’ intervention, consider all routes of entry operators post on the mine bulletin which corresponds with MSHA’s (bone and air conduction), and not board the procedures for the current policy. The applicable case law exacerbate existing health or safety administrative controls in effect at the on this issue provides that an problems or create additional problems mine and provide all affected miners engineering control may be feasible of its own. with a copy. MSHA believes that miners even though it fails to reduce exposure The conclusions of a report published must be specifically notified of the to the permissible level set by the by the Office of Technology Assessment administrative controls being used and standard, as long as there is a significant in 1985, entitled ‘‘Preventing Illness and actively follow them to achieve effective reduction in exposure. As stated in the Injury in the Workplace,’’ also support results. Posting informs miners of proposed preamble and reiterated in the MSHA’s position. This report found that critical work practices necessary for discussion of feasibility in this health professionals rank engineering reducing their noise exposures, preamble, MSHA considers a significant controls as the priority means of especially when miners are temporarily noise reduction to be a 3-dBA reduction controlling exposure, followed by assigned to a different job. Moreover, in the miner’s noise exposure. administrative controls, with personal this requirement is consistent with Several commenters were concerned protective equipment as a last resort. section 109 of the Mine Act, which about the development and availability In addition, Nilsson et al. (1977) requires a mine operator to have a of engineering controls, including studied hearing loss in shipbuilding bulletin board at the mine office or in retrofit packages in the marketplace. workers. The workers were divided into an obvious place near a mine entrance Engineering noise controls, including two groups. The first group was exposed for posting of certain documents, retrofit equipment, are currently to sound levels of 94 dBA, with 95% of including notices required by MSHA available for many types of mining the workers using hearing protectors. regulations. machinery, and many manufacturers The second group was exposed to sound A number of commenters objected to sell noise control packages as options. levels of 88 dBA, with 90% of workers a requirement for written notification of Furthermore, mining equipment wearing hearing protectors. Both groups miners of the administrative controls in manufacturers are diligently developing were subjected to impulse noise up to use at the mine. Some of these new engineering controls to reduce 135 dB. commenters were of the opinion that exposure to noise. The preamble Despite the fact that the vast majority written notification may not be the best discussion on feasibility includes a list of the workers in both groups wore method for alerting miners of of available controls for commonly used hearing protectors, cases of noise- administrative control procedures, since mining equipment. Suggestions are also induced hearing loss were common. As these procedures may need to be revised included in that section for retrofitting exposure durations increased, the on a daily basis. Some commenters existing mining equipment. MSHA is amount of noise-induced hearing loss suggested that MSHA accept informal also available to assist mine operators increased, so workers exposed to sound workplace talks and safety meetings as with obtaining retrofit packages and at 94 dBA exhibited more hearing loss compliance with the written notification other necessary controls for reducing than those exposed to 88 dBA. Slightly provision, which they believed would noise sources. more than fifty-eight percent of all of the be burdensome for mine operators. Several commenters questioned workers had some degree of hearing MSHA has reviewed alternative whether the assumption that impairment, only 1.8% of which was methods for compliance under this engineering controls currently feasible caused by factors other than noise. provision and has concluded that a in metal and nonmetal mines could be According to the researchers, the notification provision with a narrow adapted for use in coal mines. In fact,

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MSHA’s experience has been that many miner’s exposure to the permissible maximum exposure. A number of of the engineering noise controls exposure level, the mine operator must commenters, however, believed that the developed for machinery used in metal continue to use the controls to reduce proposed prohibition of noise exposure and nonmetal mines could be easily the miner’s exposure to as low a level above 115 dBA would be too restrictive used on the same types of machinery in as is feasible. and unrealistic for the mining industry. coal mining, and vice versa. Section 62.130(c) of the final rule Some of these commenters suggested A few commenters requested that adopts proposed § 62.120(e) and that occasional exposures above this MSHA continue to ‘‘grandfather’’ older provides that at no time must a miner level are unavoidable when performing equipment, as the Agency does at metal be exposed to sound levels exceeding certain job tasks and that the level and nonmetal mines. Current metal and 115 dBA. Some commenters found the should include a specified allowable nonmetal enforcement policy allows a proposal somewhat confusing, time limit for these exposures, ranging mine operator, upon written request to questioning whether there is a complete from 5 to 15 minutes. MSHA is not the District Manager, up to 12 months prohibition against exposure to noise persuaded by these commenters’ to retire a piece of machinery once it has above 115 dBA or whether, under concerns. In fact, the 115 dBA limit has been identified as the source of a noise proposed Table 62–1 regarding been in effect at metal and nonmetal overexposure. reference durations, the rule permits a mines for a number of years. Further, This comment has not been adopted period of exposure to noise above this the potential damage to miners’ hearing in the final rule. Protection of miners level that is incorporated into a miner’s when exposed to sound at such levels from the harmful effects of noise must dose determination. MSHA intends the is so great that it is not unreasonable to be the first consideration. The final rule requirement of this paragraph to be expect mine operators to take extra steps does not take effect until 12 months applied as has the existing prohibition to prevent miners’ exposures. after the date of publication, which in metal and nonmetal regulations that It must be emphasized that this provides all mine operators with no miner must be exposed to non- provision prohibits exposures above 115 adequate time to retire older, noisy impulsive sound levels exceeding 115 dBA for any duration, not as a time- equipment. After the final rule takes dBA. A clarifying notation has been weighted average. This means that Table effect no exceptions will be allowed for added to Table 62–1 that at no time 62–1, which includes reference equipment that may be nearing the end must any excursion exceed 115 dBA. To durations of noise exposures at various of its useful life. avoid confusion, the term ‘‘ceiling sound levels, should not be read as One commenter stated that the final level,’’ which was used in the proposal, allowing excursions above 115 dBA, rule should not be technology-forcing. has not been adopted in the final rule. even though the average over a quarter However, Congress intended that MSHA MSHA notes that OSHA’s noise of an hour would not exceed 115 dBA. health standards advance technology in standard does not use the term ‘‘ceiling However, it should also be noted that order to better protect miners’ health. It level.’’ The preamble to OSHA’s noise MSHA intends to apply this prohibition is therefore appropriate for MSHA to standard further indicates that OSHA’s as it has enforced the same limit under take into account, in determining ‘‘* * * current standard does not the metal and nonmetal standard. This feasibility, the state-of-the-art permit exposures above 115 dB, means that miners may not be exposed engineering that exists in the mining regardless of duration’’ (46 FR 4078, to sound levels exceeding 115 dBA as industry at the time the standard is 4132). In addition, to be consistent with measured using A-weighting and slow promulgated. exposure determinations under response. As a practical matter, there A few commenters suggested that the § 62.110(b)(2)(i), the final rule clarifies may be some exposure to sound above final rule require mine operators to that exposure determinations under this this level which is of such limited develop a written plan for eliminating paragraph must be made without duration that it cannot be measured. overexposures, so that both miners and adjustment for the use of any hearing Obviously, compliance and enforcement MSHA will be aware of the specifics of protectors. are affected by the limitations of the how a mine operator intends to abate NIOSH’s 1972 criteria document instrumentation used to measure sound. noise overexposures at a particular recommended a ceiling limit of 115 Some commenters stated that older mine. MSHA does not believe that dBA. In its 1996 draft Criteria mining machinery as well as equipment requiring a written plan under the final Document, NIOSH reaffirmed its such as pneumatic tools, jackleg drills, rule enhances health protection beyond recommendation of a 115 dBA limit. welding machines, and relief valves that afforded by an action level and Under this draft recommendation, typically exceed the 115 dBA limit. implementation of all feasible controls. exposures to sound levels greater than MSHA is aware that there are noise MSHA is also mindful of its 115 dBA would not be permitted sources in the mining industry, which responsibilities under section 103(e) of regardless of the duration of the may also include unmuffled pneumatic the Mine Act, which cautions the exposure. NIOSH indicated that recent rock drills and hand-held channel Agency not to impose an unreasonable research with animals indicates that the burners, that produce sound levels burden on mine operators, especially critical level is between 115 and 120 which exceed 115 dBA. However, based those operating small businesses, when dBA. Below this critical level, the on MSHA’s experience, practically all of requesting information consistent with amount of hearing loss is related to the these noise sources can be managed the underlying purposes of the Mine intensity and duration of exposure; but with engineering controls and kept Act. It should be noted, however, that above this critical level, the amount of below the sound level of 115 dBA. For § 62.110(d) of the final rule requires hearing loss is related only to intensity. example, there is a muffler available for mine operators to notify a miner whose MSHA proposed the 115 dBA sound the jackleg drill, and burner tips are noise exposure equals or exceeds the level limit based on these available for the hand-held channel action level of the corrective action recommendations, and also on the fact burner, that in many cases will lower being taken to address that exposure. that MSHA’s noise standard at metal the sound level to below 115 dBA. Paragraph (b) of § 62.130 of the final and nonmetal mines currently includes Sound from other pneumatic tools can rule, like proposed § 62.120(c)(2)(i), this limit. also be muffled. requires that if feasible engineering and Commenters took various positions on In addition, mine operators should be administrative controls fail to reduce a whether 115 dBA is the correct level for aware that significant noise reductions

VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00053 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.079 pfrm08 PsN: 13SER2 49600 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations can be achieved by using alternative almost always superimposed on a preamble discussion on equipment, such as the diamond wire background of moderate-to-high levels § 62.110(b)(2)(ii), regarding noise saw and water jet, instead of a hand- of continuous noise, and since both exposure assessment. held channel burner. In the coal mining types of noise may be harmful, MSHA The proposed dual hearing protection sector, for example, roof bolting believes that it is only reasonable to requirement generated many comments. machines have replaced stopers, which consider their effect together, rather The proposal was favored by some are hand-held pneumatic roof drills. than to treat each separately. commenters, and a few who favored the The roof bolting machines produce Accordingly, under the final rule all use of dual hearing protection also much less noise than the stoper. sounds from 90 dBA to at least 140 dBA suggested that MSHA reduce the dual Some commenters requested that are to be included in the range of hearing protection level to 100 dBA. MSHA permit exposures to exceed 115 integration. Impact or impulse noise is Most commenters who opposed the dBA when the noise source is a warning therefore considered with continuous proposal suggested that a single hearing signal or an alarm. The Agency does not noise when determining a miner’s noise protector with a sufficient noise intend that the 115 dBA sound level exposure level. reduction rating can attenuate sound limit apply to warning signals or alarms; levels and reduce miner exposures the ability to hear these signals is Section 62.140 Dual Hearing below the permissible exposure level. critical to the safety of miners. However, Protection Level One commenter believed that MSHA alarm and warning signal sound levels This section of the final rule should replace the proposal with must be integrated into the overall noise establishes requirements for the use of performance-oriented language which exposure of miners. dual hearing protection. Included in this would require the use of ‘‘adequate’’ Several commenters objected to section is the requirement that the mine hearing protection. Also, one enforcing a ceiling level with personal operator must provide and ensure that commenter questioned the adequacy of noise dosimeters. They believed that both an earplug-and an earmuff-type the scientific studies upon which shouting, bumping the microphone, or hearing protector are used MSHA based the proposed requirement. whistling could give false readings simultaneously when a miner’s noise MSHA is adopting the proposed dual which may be interpreted as exceeding exposure exceeds the dual hearing hearing protection requirement because the 115-dBA level. As a practical matter, protection level of a TWA8 of 105 dBA, the scientific evidence shows that the the fact that the indicator on a personal or equivalently, a dose of 800% of that additional noise reduction that is gained noise dosimeter shows that the 115-dBA permitted by the standard during any by the use of dual hearing protection sound level was exceeded does not work shift. will protect the hearing sensitivity of mean that MSHA will take enforcement Two features of the final rule are miners who are exposed to high sound action. Rather, the duration of the sound slightly different from § 62.120(d) of the levels. In addition, the scientific level would need to be sufficient for it proposal. First, explicit language has evidence supports MSHA’s conviction to exceed 115 dBA when measured been added that the dual hearing that a TWA8 of 105 dBA (800%) is an using the slow response on a sound protector requirement is in addition to appropriate level above which dual level meter, or on an equivalent type of the actions required for noise exposure hearing protection should be required, instrument. This measurement that exceed the permissible exposure since this level of noise exposure can procedure should also serve to eliminate level. The preamble discussion of quickly damage the hearing sensitivity concerns that impulse/impact noise proposed § 62.120(d) reflected this of the exposed miner. MSHA is also would exceed the 115 dBA limit and intent. This language has been added to relying upon the research which shows result in a citation. § 62.140 of the final rule for the purpose that a single hearing protector may not In the preamble to the proposed rule, of clarifying the requirements of this adequately protect workers whose noise MSHA requested comments on whether section, which are set forth separately exposures exceed a TWA8 105 dBA. there should be an absolute dose ceiling, from the section on the permissible The research discussed in the regardless of the economic feasibility of exposure level. preamble to the proposal (Berger, 1984; control by an individual mine operator. In addition, the final rule also Berger, 1986; and Nixon and Berger, One commenter stated that it would be includes the range of sound levels, from 1991) shows that dual hearing inappropriate to include a maximum 90 dBA to at least 140 dBA, which must protectors provide significantly greater dose ceiling in the final rule without be integrated in determining a miner’s protection than a single hearing taking feasibility considerations into exposure under this section. The range protector and is effective for protecting account. As a result of the lack of is included in the definition of ‘‘dual workers above a TWA8 of 105 dBA. scientific consensus on this issue, hearing protection level’’ in final For example, Berger, in EARLOG 13 MSHA has determined that a separate § 62.101. MSHA had proposed that a (1984), has shown that the use of dual provision for a dose ceiling is miner’s noise exposure measurement hearing protectors provides greater unnecessary. The 115-dBA sound level integrate all sound levels between 80 noise reduction, on the order of at least limit, in conjunction with the dBA to at least 130 dBA during the 5 dB greater than the reduction of either requirement for dual hearing protectors miner’s full work shift. MSHA decided, hearing protector alone. Berger at a TWA8 of 105 dBA in § 62.140 of the however, not to lower the range of recommends dual hearing protectors final rule, adequately protects the integrated sound levels for a miner’s whenever the TWA8 exceeds 105 dBA. hearing sensitivity of miners. dose determination under § 62.130 of In addition, Nixon and Berger (1991) The final rule, like the proposal, does the final rule regarding the permissible report that earplugs worn in not include a separate provision for exposure level (see discussion of combination with earmuffs or helmets impact or impulse noise. Presently, § 62.130). The dual hearing protection typically provided more attenuation there is insufficient scientific data to requirement of § 62.140 is directly than either hearing protector alone. support such a standard. MSHA is related to § 62.130, in that it requires The use of dual hearing protection is unaware of any effective sampling dual hearing protection in addition to also required by the U.S. armed services methodology for identifying and engineering and administrative controls. when workers are exposed to high measuring sound at this level. Since A more detailed explanation of the sound levels. Additionally, MSHA’s industrial impulse and impact noise are range of integration is provided in the policy under the existing standards for

VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00054 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.081 pfrm08 PsN: 13SER2 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations 49601 coal, metal, and nonmetal sectors equipment ceases to operate. Because training under § 62.180, and requires the use of dual hearing the use of dual hearing protectors will recordkeeping under § 62.190. This new protectors whenever the noise reduction minimize the extent of any temporary section is consistent with OSHA’s of a single hearing protector does not threshold shift experienced during definition of a hearing conservation reduce the miner’s noise exposure to exposure to high sound levels, MSHA program. within the permissible exposure level. expects that the dual hearing protection MSHA received a number of general Current metal and nonmetal policy will be used in high sound level comments on specific elements that indicates the need to consider dual environments and removed in quiet commenters believed should be hearing protection specifically at sound environments. This procedure would included in any hearing conservation levels exceeding 105 dBA where hand- enhance safety. program. MSHA also received many held percussive drills are used. Also, A few commenters who opposed the comments on specific requirements that dual hearing protection is recommended proposal for dual hearing protection were proposed for each of those by policy where hand-held channel were concerned that the use of earmuffs elements, such as appropriate burners and jumbo drills are used, but may interfere with the use of other audiometric test procedures and the use no sound level is specified at which personal protective equipment such as and maintenance of hearing protectors. such protection should be used. hard hats, safety glasses, and welding Comments addressing the elements that Regarding the commenters who shields. MSHA believes that the proper should be included in a hearing supported the requirement for dual selection and combination of hearing conservation program are discussed hearing protection, but requested that protectors should alleviate this concern. under this section of the preamble. MSHA reduce the dual hearing For example, newer models of ear Comments which address the specific protection level to a TWA8 of 100 dBA, muffs, which are readily available, are requirements for each program element the Agency does not believe that there specifically designed to be used with are discussed under the section where is adequate scientific evidence to hard hats. Other models which were the specific requirements are located. support lowering the proposed level. specifically designed for use with safety For example, a comment that addresses Rather, the Agency is relying upon the glasses or welding shields are also the role of hearing protectors in a scientific studies noted above which readily available. hearing conservation program is recommend dual hearing protectors In response to the commenter who discussed here, while a comment whenever the TWA8 exceeds 105 dBA. expressed a concern regarding dealing with fitting of hearing protectors With respect to the use of canal cap- compliance with this section under the is discussed in the preamble under type hearing protectors under this circumstances where a medical § 62.160. paragraph of the final rule, MSHA notes condition would preclude the use of a None of the commenters supported that it considers a canal cap-type hearing protector, MSHA notes that the MSHA’s proposed definition of ‘‘hearing hearing protector to be neither an dual hearing protection requirement of conservation program.’’ Some earplug-type or earmuff-type hearing this section must be provided in commenters pointed out that the protector. A canal cap hearing protector accordance with § 62.160. Section proposed definition constituted an is an acceptable single-type hearing 62.160(a)(5) allows the miner to choose audiometric testing program only, not a protector but cannot be combined with a different hearing protector if wearing hearing conservation program. These either a plug-type or muff-type the selected hearing protectors is commenters recommended that the use protector, because a proper seal or fit subsequently precluded due to a of hearing protectors should also be cannot be achieved. Therefore, the medical pathology of the ear. included. A number of commenters Agency intends that a canal cap-type recommended that MSHA adopt the Section 62.150 Hearing Conservation hearing protector may not be used for traditional definition of a hearing Program compliance with the dual hearing conservation program used by OSHA, protector requirements of this Under the proposed rule, the stating that any other definition would paragraph. individual elements of a hearing be confusing. These commenters stated Several commenters believed that the conservation program were located in that the term ‘‘hearing conservation proposed dual hearing protection several separate sections. ‘‘Hearing program’’ has been used in general requirement created a safety hazard conservation program’’ was defined in industry since the 1970’s to refer to a because the hearing protectors would § 62.110 of the proposal as a ‘‘generic comprehensive package of actions, prevent a miner from hearing warning reference’’ to the requirements in including noise exposure monitoring, signals, audible alarms, verbal proposed §§ 62.140 through 62.190, noise controls, hearing evaluation and communication, and roof talk. MSHA which addressed audiometric testing protection, training, and recordkeeping. believes that the use of dual hearing requirements and miner notification and MSHA agrees with the commenters protectors would not create an reporting requirements. who believed that the proposed additional safety hazard because the In the interest of clarity and in definition of ‘‘hearing conservation high sound levels generated by some response to commenters, this section program’’ was too narrow and that mining equipment will interfere with consolidates the elements of a hearing adoption of a definition that was similar the detection of roof talk, verbal conservation program in one location in in scope to OSHA’s would avoid communications, and audible alarms. In the final rule, rendering a definition of unnecessary confusion. Accordingly, fact, research by Prout, 1973, discussed ‘‘hearing conservation program’’ the elements identified for inclusion in under § 62.160 of the preamble, shows unnecessary, and the proposed a hearing conservation program under that the noise emitted by mining definition has therefore not been this section of the final rule are, with equipment operating in close proximity adopted in the final rule. In addition to one exception, consistent with OSHA’s to a miner’s assigned work area masks the elements referenced in the proposed definition of ‘‘hearing conservation roof talk. Moreover, if hearing protectors definition of ‘‘hearing conservation program.’’ are not worn, a temporary threshold program,’’ this section also includes as Like OSHA’s noise standard, MSHA’s shift will impair a miner’s ability to hear program elements a system of final rule does not include the use of roof talk, verbal communications, or monitoring under § 62.110, the use of engineering and administrative controls warning signals when the mining hearing protectors under § 62.160, miner as an element of a hearing conservation

VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00055 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.083 pfrm08 PsN: 13SER2 49602 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations program. However, § 62.130 of the final conservation program. This requirement The hearing protectors would have been rule requires the implementation of all is derived from proposed § 62.120(b)(3). required to be worn at any sound level feasible engineering and administrative A detailed discussion of hearing between 80 and 130 dBA. In its place, noise controls whenever a miner’s noise protectors is found under § 62.160 of the § 62.160(b) of the final rule specifies exposure exceeds the permissible preamble. that mine operators must ensure that exposure level. Therefore, although a Paragraph (c) of § 62.150 of the final miners wear hearing protectors under ‘‘hearing conservation program’’ under rule includes audiometric testing, in similar circumstances. Under the final the final rule does not specifically accordance with §§ 62.170 through rule the mine operator must ensure that include the use of engineering and 62.175 of the final rule, as a hearing hearing protectors are worn by miners administrative controls, the application conservation program element. As whenever their noise exposure exceeds of such controls is required to remedy discussed above, audiometric testing the permissible exposure level, either miner overexposure. MSHA regards an would have been included as a program until feasible engineering and effective hearing conservation program element under the proposal, and has administrative controls have been as a supplement to the first line of been adopted as an element in the final implemented, or despite the use of all defense against noise overexposures, rule. Detailed discussion of audiometric feasible engineering and administrative which is the implementation of all testing, test procedures, evaluation of controls. Additionally, mine operators feasible engineering and administrative audiograms, and other related issues can must ensure that a miner whose noise controls. be found in the preamble under exposure equals or exceeds the action This section of the final rule provides §§ 62.170 through 62.175. level wears hearing protectors, either if that, when a miner’s noise exposure Paragraph (d) of § 62.150 of the final the miner has experienced a standard equals or exceeds the action level of rule includes miner training, to be threshold shift or more than 6 months TWA8 of 85 dBA, the mine operator conducted in accordance with § 62.180 will pass before a baseline audiogram must promptly enroll the miner in a of the final rule, as an element of the can be conducted. The final rule, hearing conservation program. This hearing conservation program. Under however, does not adopt the provision requirement is derived in part from § 62.120(b)(1) of the proposal, training proposed at § 62.125(b) that in those proposed requirements in § 62.120(b)(2) would have been required for miners cases where hearing protectors are and (c)(1), which would have provided whose exposure exceeded the action required to be worn, the mine operator for a miner’s enrollment in a hearing level, but the proposed rule would not must ensure that the protector is worn conservation program if the miner’s have included training as a hearing by the miner when exposed to sound noise exposure exceeded either the conservation program element. levels required to be integrated into a action level or the permissible exposure Extensive discussion of miner training miner’s noise exposure measurement. level. Proposed § 62.120 would also under the final rule can be found in the The final rule adopts the proposed have required miner training, hearing preamble under § 62.180. provisions that the hearing protector is protector use, and a system of Finally, paragraph (e) of § 62.150 of to be fitted and maintained in monitoring, but did not specifically the final rule provides that the hearing accordance with the manufacturer’s designate those items as elements of a conservation program must include instructions; that hearing protectors and hearing conservation program, as does recordkeeping in accordance with necessary replacements are to be the final rule. § 62.190 of the final rule. Issues related provided by the mine operator at no cost Paragraphs (a) through (e) of § 62.150 to access to records, maintenance, and to the miner; a miner whose hearing of the final rule enumerate the elements retention are discussed in detail in the protector causes or aggravates a medical of a hearing conservation program, preamble under § 62.190. pathology of the ear must be allowed to which include a system of monitoring, Section 62.160 Hearing Protectors select a different hearing protector from the use of hearing protectors, among those offered. audiometric testing, training, and Section 62.160 specifies the recordkeeping. Each paragraph also requirements for hearing protectors. The Selection of Hearing Protectors refers to the specific section of the final final rule is essentially identical to MSHA’s existing noise standards rule where the detailed requirements of proposed § 62.125 with a few minor require mine operators to provide each program element are located. changes. Proposed § 62.125 required adequate hearing protectors but do not Paragraph (a) of § 62.150 of the final that miners have a choice of one plug- specify that a variety of hearing rule requires that the hearing type and one muff-type hearing protectors be offered. OSHA’s noise conservation program include a system protector. Under § 62.160(a)(2) of the standard requires that employees be of monitoring in accordance with final rule, miners must be allowed to allowed to select from a variety of § 62.110, which provides that the choose from at least two of each type. suitable hearing protectors provided by system of monitoring must evaluate In the event that, under § 62.140, dual the employer but does not define each miner’s noise exposure sufficiently hearing protection is required, miners variety. OSHA states in the 1981 to determine continuing compliance must be allowed to choose one of each preamble to its noise standard that with the requirements of part 62. This type from the selection offered under ‘‘[T]he company must make a concerted requirement is derived from proposed § 62.160(a)(2). effort to find the right protector for each § 62.120(f), which would have required Under §§ 62.120 and 62.125 of the worker-one that offers the appropriate a system of monitoring, but which did proposal, mine operators would have amount of attenuation, is accepted in not include monitoring as an element of been required to ensure that miners terms of comfort, and is used by the the hearing conservation program. A wore hearing protection in specific employee.’’ more detailed discussion of exposure circumstances: when a miner’s exposure MSHA considered several studies and monitoring is included in the preamble exceeded the permissible exposure comments before concluding that the under § 62.110. level; or when a miner’s exposure minimum selection appropriate for Paragraph (b) of § 62.150 of the final exceeded the action level and the miner miners consists of at least two types of rule includes the use of hearing was determined to have a standard earmuffs and two types of earplugs that protectors, in accordance with § 62.160, threshold shift or would have to wait 6 would provide adequate noise as an element of the hearing months before a baseline audiogram. reduction.

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The National Hearing Conservation interfere less with communication and frequencies, and most earplugs and Association’s Task Force on Hearing awareness of surroundings than do earmuffs are more effective at reducing Protector Effectiveness (Royster, 1995) earmuffs, and may be more comfortable sounds of higher than lower recommends that employers consider in hot, humid conditions. frequencies. As a result, a miner with numerous criteria when selecting the Comfort alone does not determine a significant hearing loss who is wearing variety of hearing protectors to be made miner’s choice of hearing protector. a normal hearing protector would available to their workers. According to Coleman et al. (1984) state that other experience even further reduction in the Task Force, the most important factors, such as: hearing at the higher frequencies. In this criterion for choosing a hearing ** * concern with hygiene, belief in (real or situation, the miner could run the risk protector is ‘‘the ability of a wearer to presumed) communication difficulties, and of not hearing or comprehending achieve a comfortable noise-blocking social constraints * * * can influence the otherwise audible warnings. seal which can be maintained during all extent to which workers will use the Pfeiffer (1992) supports this noise exposures.’’ Other criteria include protection provided * * * Sweetland (1981) reasoning, suggesting that greater care the hearing protector’s reduction of found concern about communication be exercised when selecting hearing noise, the wearer’s daily noise exposure, difficulties to be a major factor in mine protectors for workers experiencing workers’ acceptance of protectors. variations in sound level during a work hearing loss. He notes that it is shift, user preference, communication One commenter suggested that important not to overprotect workers, needs, hearing sensitivity of the wearer, because earmuffs might not provide because if workers experience difficulty compatibility with other safety adequate noise reduction, mine in communicating, they will be equipment, the wearer’s physical operators should be allowed to require reluctant to wear hearing protectors. limitations, climate, and working specific hearing protectors to ensure An alternative is the communication- conditions. that their employees receive the best type hearing protector, which combines Berger (1986) stresses the importance protection. MSHA agrees that an earmuff with a radio receiver so that of comfort, arguing that if a miner will employees should receive the best the wearer can hear important not wear a highly rated but available protection. conversations or warnings. Although no uncomfortable hearing protector, its Accordingly, the final rule does not comments were received on the use of actual effectiveness is greatly reduced prevent mine operators from selecting communication-type hearing protection (or nonexistent). Conversely, the miner among the wide variety of styles, types, devices for hearing impaired miners, may wear a comfortable but less and noise-reduction ratings available in MSHA cautions mine operators against effective hearing protector consistently, hearing protectors which would afford their use in very high noise areas thereby gaining greater effective miners the best protection available. because the sound level transmitted into protection. Berger (1981) also Moreover, MSHA maintains that the the ear cup may be hazardous. Some recommends that an employee should requirement that mine operators manufacturers of communication-type have two weeks to try out an adequate encourage the safe and effective use of hearing protectors, however, have hearing protector and select another one hearing protectors gives them incentive placed limiters in the electronics to if the original selection does not to provide an appropriate variety of prevent potentially hazardous sound perform satisfactorily. types. MSHA further maintains that if levels being transmitted. MSHA believes that such a trial miners are allowed to choose from a Even though some researchers have period further encourages miners’ selection of hearing protectors, indicated that using a hearing protector acceptance of the use of hearing particularly if given appropriate may cause communication problems for protectors and may be necessary for training, as required under this rule, a hearing impaired miner, MSHA has miners to determine if the hearing they will be more likely to wear and determined not to require special protectors they have selected are maintain their hearing protectors for hearing protectors and not to limit the comfortable and appropriate for optimal noise reduction. choices of hearing protectors for the prolonged periods of use. If significant The comment that ‘‘miners will only hearing impaired. As a result, the rule discomfort occurs, MSHA encourages wear plugs that are comfortable’’ allows mine operators the maximum the mine operator to allow the affected represents the consensus view, and a flexibility in addressing this matter in miner to select an alternate hearing number of comments to the proposed ways appropriate to local conditions protector. In any case, provision of an rule noted that a choice from at least and individual needs. alternative hearing protector is one of each type is inadequate. On the Use of Hearing Protectors Above 80 dBA mandatory under the final rule if basis of comments reviewed and the required by a medical condition or international consensus (including the Under § 62.125(b) of the proposal, the because the miner has experienced a U. S. armed services) that workers use of hearing protectors would have standard threshold shift. should choose from a selection of been required when the sound levels Mine conditions such as dust, several hearing protectors, MSHA has exceed those which were proposed to be temperature, and humidity can cause concluded that the use of hearing integrated into the noise exposure one type of hearing protector to be more protectors will be better accepted by measurement. This requirement has not comfortable than another. For example, miners if they have the opportunity to been adopted in the final rule. This even under normal mining conditions, choose appropriate hearing protectors provision, while intended to require the some miners may experience problems from an expanded, but not unlimited, use of hearing protectors above 80 dBA with earmuffs because of a buildup of selection. Thus, the final rule requires when the miner’s exposure exceeded perspiration under the seals. The report that at least two plug-type and two the permissible exposure level, would Communication in Noisy Environments muff-type protectors be offered to in effect have required hearing protector (Coleman et al., 1984) finds earmuffs to miners. usage above 80 dBA, and some be better suited to mining conditions commenters to the proposed rule were than earplugs, because helmet-mounted Hearing Protectors for Miners With concerned that this would result in all earmuffs are comfortable, easy to fit and Significant Hearing Loss miners having to wear hearing remove, effective, and hygienic. Hearing loss due to noise and aging protectors throughout every shift. A However, compressible foam earplugs both affect the ear at higher sound number of commenters who objected to

VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00057 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.086 pfrm08 PsN: 13SER2 49604 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations the proposal noted that miners should consensus on fitting procedures but most knowledgeable of the features, be permitted to remove hearing notes that research demonstrates that performance, and use of the device. For protectors when the sound level falls proper fitting can increase the example, the safety standards for below 80 dBA, and that MSHA should effectiveness of hearing protectors. explosives at metal and nonmetal mines recommend wearing hearing protectors For example, Chung et al. (1983) require that initiation systems be used above 85 dBA and require them above report that the major factor in the in accordance with the manufacturer’s 90 dBA. One commenter noted that it is performance of earmuffs is the fit, instructions. Therefore, in light of the impossible to enforce the use of hearing which is dependent on headband wide variety of hearing protectors protectors based on the sound level tension. They report that, while available, the broad range of subjective unless there is a practical means of adequate tension is necessary for fitting procedures, and the lack of knowing what the sound level is at all effective noise reduction, high consensus on an objective fitting times, in order to know when it exceeds headband tension also generally causes method, MSHA has concluded that the the threshold level. discomfort. Chung et al. concluded that manufacturers’ instructions provide the MSHA agrees with the commenters proper fitting can increase the best model for fit at this time. who pointed out that the provision in effectiveness of earmuffs. One commenter noted that the best fit the proposal would have required MSHA considered the use of is obtained when individualized hearing protector usage above 80 dBA, audiometric data base analysis the long- training is available to the user. MSHA which would have resulted in miners term collection of audiograms to agrees that training is a key element in having to wear hearing protectors determine the effectiveness of hearing the fitting of hearing protectors, as throughout every shift. MSHA did not protectors and concluded that reflected in the final rule (see § 62.180). intend for the use of hearing protectors audiometric data base analysis is Maintenance of Hearing Protectors to be based on the threshold level, thus inappropriate for determining fit the proposed provision has not been because it does not provide immediate Section 62.160(a)(3) of the final rule adopted. The final rule does set forth feedback on individual fit. Audiometric requires that mine operators ensure that specific circumstances under which data base analysis requires multiple a hearing protector is maintained in mine operators must ensure that miners subjects, and is useful for determining accordance with the manufacturer’s use hearing protectors: when the the adequacy of the hearing instructions. Many manufacturers miner’s noise exposure exceeds the conservation program (protecting the recommend soap, warm water, and permissible exposure level, until hearing sensitivity of a group of careful rinsing to clean the hearing engineering and administrative controls workers) but not the adequacy in protector. Manufacturers also have been implemented, or despite the protecting an individual. Furthermore, discourage solvents and disinfectants as use of such controls; and when the audiometric data base analysis requires cleaning agents because they can cause miner’s exposure is at or above the audiograms to be conducted on an skin irritation and some can damage the action level, and the miner has incurred annual basis. If no interim protection is hearing protector. In most cases, the a standard threshold shift, or more than provided between audiograms, a miner’s proper insertion technique for earplugs 6 months will pass before the miner’s hearing sensitivity could be irreversibly includes proper basic hygiene cleaning baseline audiogram can be conducted. damaged. the hands before rolling or inserting Use of hearing protectors is not based As stated in the preamble to the earplugs. on the threshold levels. MSHA has proposal, MSHA agrees that proper MSHA reviewed standards of hearing determined that it is the responsibility fitting is necessary to ensure optimal protector maintenance among the U.S. of the mine operator to determine when effectiveness of hearing protectors and armed forces and the international beyond the specific requirements of the that it should not be left solely up to the community. The consensus of the final rule hearing protectors should be individual miner to determine if the standards was that damaged or worn. This is one goal of the mine hearing protector fits properly. deteriorated hearing protectors must be operator’s monitoring program. Some commenters saw the need for an replaced. Research also demonstrates accurate, reliable, and inexpensive that non-disposable hearing protectors Fitting of Hearing Protectors method of testing the fit of earplugs and should be replaced between 2 and 12 Section 62.160(a)(3) of the final rule earmuffs. MSHA agrees that such a fit times per year (Berger, 1980). Constant addresses the fitting of hearing test for earplugs and earmuffs is needed wear causes hearing protectors to lose protectors, and is identical to § 62.125(c) in order to determine the amount of their effectiveness. For example, of the proposed rule. The final rule protection an individual obtains from a headbands on earmuffs can lose their requires that mine operators ensure that hearing protector, but none exists at this compression ability; the soft seals hearing protectors be fitted in time. MSHA believes that, until such a surrounding the ear cup on earmuffs can accordance with manufacturer’s test is developed, the manufacturer’s become inflexible; and plastic earplugs instructions. instructions should be used to fit can develop cracks, shrink, or lose their Many commenters supported the earmuffs and earplugs. elasticity. All types are susceptible to requirement that hearing protectors be Some commenters noted that not all contamination. properly fitted. A number of manufacturers’ instructions are MSHA recognizes that it is difficult to commenters observed that earplugs vary adequate to ensure proper fit. In keep hearing protectors clean in the more from laboratory data than earmuffs addition, one commenter was opposed mining environment. Using because earplugs are harder to fit to mandating the manufacturers’ contaminated hearing protectors, properly. Several commented that instructions, claiming that doing so was however, may contribute to a medical proper fit depends upon the wearer’s ear an unlawful delegation of MSHA’s pathology of the ear. Once the skin has canal size and shape, manual dexterity, responsibility. MSHA disagrees. There been abraded or inflamed, and motivation. Others stated that are many instances of regulations microorganisms in the ear or on a people often select a comfortable requiring that manufacturers’ hearing protector can invade the skin. earplug that does not effectively seal the instructions be followed, because the When hearing protectors appear to be ear canal, so that it provides little manufacturer of the instrument, the cause of inflammation of the protection. MSHA recognizes a lack of machine, or protective device is the external ear canal (otitis externa), the

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If, for example, a miner suffered a burn standard threshold shift or it takes more As noted in the proposed rule, miners in the ear canal and could no longer use than 6 months to conduct the baseline have been known to alter hearing the earplugs he or she had earlier audiogram. protectors to make them more selected, he or she must be allowed to The proposal’s requirement that the comfortable. Such alterations have select an earmuff. Comments to the mine operator ensure the use of hearing included cutting off the ends of earplugs proposed rule indicated a consensus protectors under particular or stretching out the head-band on that miners should be permitted to circumstances generated comments earmuffs to decrease the tension. These change their choice of hearing protector concerning convenience, comfort, and alterations can significantly decrease the on the basis of the opinion of a medical noise reduction. One commenter to the hearing protector’s effectiveness. In professional. A preliminary diagnosis of proposed rule noted that to meet the addition, hearing protectors can be medical pathology by a family physician proposed requirement, miners would damaged from exposure to heat, cold, or nurse must be accepted by a mine need to wear hearing protectors ozone, chemicals, or dirt. Because such operator for the purposes of this throughout entire shifts, which would conditions are common in the mining requirement. be very inconvenient. industry, hearing protectors must be One commenter stated that people Some research supports the periodically checked and replaced if wearing hearing protectors are prone to assumption that miners would resist damage is found. While MSHA ear infections. Berger (1985), however, wearing hearing protectors as recognizes that it is difficult to keep reports that although there are some prescribed. Despite mandatory use of hearing protectors clean and undamaged preexisting ear canal conditions and hearing protectors, most workers in the in the mining environment, the final environmental conditions that prevent Abel (1986) study admitted to wearing rule requires mine operators to ensure the use of certain hearing protectors, in their hearing protectors less than 50% of that hearing protectors are maintained general, otitis externa occurs in the time. Further, many modified their in accordance with manufacturers’ approximately 2% of both users and hearing protectors to provide greater instructions. nonusers of hearing protectors. He comfort. Many of the modifications therefore concludes that regular wear of Replacement of Hearing Protectors lowered the effectiveness of the hearing hearing protectors does not increase a protectors. Section 62.160(a)(4) of the final rule is person’s chances of contracting otitis As noted by Berger (1981), persons identical to proposed § 62.125(d). This externa. In any case, disposable hearing with medical pathologies of the ear are section requires the mine operator to protectors may be warranted for more likely than others to resist wearing provide the hearing protector and individuals prone to infections. necessary replacements at no cost to the MSHA’s existing noise standards do hearing protectors because of pain or miner. MSHA intends for this section to not specifically address the replacement extreme discomfort associated with include repairs to a miner’s hearing of hearing protectors. OSHA’s noise their use. Berger suggests that persons protector when it becomes damaged or standard simply requires that hearing who are more prone to otitis externa deteriorated to the point that the protectors be replaced as necessary. would need to be monitored more required protection is compromised. Based upon the research and several closely for failure to wear their hearing Commenters agreed that this should be international standards, MSHA believes protectors. the case. that hearing protectors need to be As many have emphasized, hearing Replacement of hearing protectors replaced whenever a medical pathology protectors are only effective if they are would take place according to the is present. Such replacements must also worn. Their effectiveness is diminished manufacturer’s instructions upon be available at no cost to the miner. if they are not worn for the duration of finding any deterioration that could any exposure. Chart NR1, below, Circumstances Requiring the Use of adversely affect the hearing protector’s illustrates that the amount of noise Hearing Protection effectiveness or upon diagnosis of a reduction provided is directly medical pathology caused or aggravated Section 62.160(b) of the final rule sets dependent upon the proportion of by the hearing protector provided (see forth the circumstances in which mine exposed time during which the hearing following section for discussion of operators must ensure that hearing protector is worn. medical pathology). For example, protectors are worn. Section 62.160(b) For example, if a hearing protector manufacturers of disposable earplugs incorporates requirements of proposed with a noise reduction rating (NRR) of may state in their instructions that the §§ 62.125(b)(2) and 62.125(c)(2)(iii). 29 dB is worn during only half the earplugs should be replaced after each Section 62.160(b) requires that mine exposure time, the wearer will use. operators ensure the use of hearing effectively obtain only about 5 dB of protectors when the miner’s exposure noise reduction. A noise reduction Replacement Due to Medical Pathology exceeds the permissible exposure level rating of 29 dB is among the highest Section 62.160(a)(5) of the final rule is before the implementation of all feasible reported by hearing protector identical to proposed § 62.125(e). This engineering and administrative controls, manufacturers; yet, if a hearing section requires the mine operator to or if the miner’s exposure continues to protector with this rating is not worn provide an individual miner with a exceed the permissible level despite the 100% of the time that the wearer is different, more appropriate, type of use of all feasible controls. Sections exposed to noise, it is no more effective hearing protector when presented with 62.160(c)(1) and (c)(2) require that mine than a much lower-rated protector.

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Many commenters oppose mandatory hearing protection device is worn, yet communication difficulties and the use of hearing protectors because they recognition is ordinarily the same sense of isolation caused by wearing believe that they would interfere with whether the ears are protected or hearing protectors in such areas. the aural detection of warning signals unprotected.’’ Prout et al. (1975), found The final rule does not adopt and alarms at mine sites. Also, some that hearing protectors do not generally proposed § 62.120(b)(3), which would commenters believe that the use of prevent a miner from hearing and have required mine operators to provide hearing protectors hampers an analyzing roof talk when the noise level hearing protection, upon request, to a underground coal miner’s ability to hear is high enough to require hearing miner whose exposure exceeded the sounds generated by changing stresses protectors, but they diminish the ability action level. Because the final rule in the geologic structure of the mine— to interpret roof warning signals in requires mine operators to enroll miners commonly known as ‘‘roof talk.’’ MSHA quiet. Thus hearing protectors should whose exposures equal or exceed the acknowledges that miners need to be not be worn in quiet conditions. In action level, and hearing protectors are aware of the location and movement of addition, Berger (1986) found that the provided to miners as a part of that equipment in the mining environment. use of hearing protectors by persons program, the proposed requirement is These commenters stated that the ability with normal hearing had no significant unnecessary, and has not been adopted to hear these sounds allows miners to effect on the ability to detect warning in the final rule. retreat from an unsafe area before the signals and that for persons with non- Section 62.170 Audiometric Testing roof collapses, saving their lives and the normal hearing, ‘‘[w]arning sounds may This section of the final rule lives of others wearing hearing be adjusted in pitch and loudness to establishes requirements for the protectors. These commenters submitted achieve optimum perceptibility.’’ Berger audiometric testing conducted as part of anecdotal information to MSHA in (1986) also referenced additional studies the hearing conservation program under support of their position. Other which showed that the use of hearing § 62.150 of the final rule. Included in commenters were concerned that protectors reduced rather than increased this section are specific qualification hearing protectors limit the ability of the number of industrial mishaps. requirements for persons who conduct miners to communicate, hear warning The U.S. armed services and many audiometric testing; a requirement that signals, and properly operate mining international communities have audiometric testing performed under machinery. Still others, however, stated specified sound levels above which this part be offered at no cost to the that miners can hear roof talk while hearing protectors must be worn. miner; and procedures for baseline wearing hearing protectors, and that However, MSHA concludes that audiograms, annual audiograms, and roof fall accidents could not have been requiring specific trigger levels for revised baseline audiograms. prevented if hearing protectors had not hearing protectors in specific The requirements in this section of been worn. circumstances would be burdensome the final rule are nearly identical to the The rulemaking record contains and require mine operators to conduct requirements of proposed § 62.140, with evidence from which MSHA concludes a comprehensive survey on each piece a few relatively minor changes that are that for persons with normal hearing, of equipment. Instead, the Agency is described in detail below. This section the use of hearing protectors will not taking the more practical approach of requires that audiometric tests interfere with the aural detection of requiring mine operators to ensure performed to satisfy the requirements of warning signals and alarms at mine through their policies that hearing part 62 be provided by the mine sites. Nixon and Berger (1991), have protectors are worn whenever noise- operator at no cost to the miner, and be concluded that ‘‘[h]earing protection producing equipment is operating in the conducted by a physician or an devices equally attenuate the levels of miner’s work area and that miners are audiologist, or by a qualified technician both the noise of the environment and permitted to remove their hearing under the direction of a physician or an auditory signals. An auditory warning protectors in areas with low sound audiologist. Section 62.101 of the final signal may sound different when a levels. This should minimize rule defines ‘‘audiologist’’ as a

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The final rule commenters suggested pre-employment licensed by a state board of examiners. therefore does not adopt commenters’ audiograms be used as the baseline. ‘‘Qualified technician’’ is defined in suggestions that additional licensing or The final rule, like the proposal, § 62.101 of the final rule as a technician qualification requirements be requires mine operators to offer miners who has been certified by the Council established for physicians conducting whose noise exposure exceeds the for Accreditation in Occupational audiometric testing and evaluating action level the opportunity for Hearing Conservation (CAOHC) or audiograms. audiometric testing to establish a another recognized organization offering The final rule adopts the proposed baseline and at least annually after the equivalent certification. A number of requirement that qualified technicians baseline has been established. The comments were received regarding the conducting audiometric tests be under proposed rule would have also required, appropriate qualifications for the direction or supervision of a under § 62.120(c)(2)(ii), that mine audiologists or technicians who perform physician or an audiologist. Although operators ensure that a miner whose audiometric testing. These issues are the final rule does not require that the exposure to noise exceeded the discussed in greater detail in the physician or audiologist be present permissible exposure level actually preamble under § 62.101, addressing the when the technician conducts the submitted to the audiometric testing definitions provided in that section. audiometric testing, the physician or offered as part of the hearing Commenters disagreed as to what audiologist must oversee the activities conservation program. MSHA proposed qualifications were necessary for of the technician enough to ensure this mandatory testing requirement for physicians performing audiometric adherence to the appropriate test several reasons, including a concern testing. Some commenters were procedures. that without mandatory testing, concerned that physicians may not have This section provides that all standard threshold shifts and reportable the specific knowledge necessary to audiometric tests performed pursuant to hearing losses would go undetected. conduct audiometric testing, while part 62 must be provided by the mine MSHA was also concerned that a other commenters believed that operator at no cost to the miner. This voluntary program might have a low physicians were appropriately qualified. requirement essentially adopts the rate of participation. Finally, the Agency Several commenters stated that many, if proposed requirement that participation was concerned that unless participation not most, physicians do not have the in a hearing conservation program was mandatory, the costs of miner training, the expertise, or the equipment would be provided by the mine operator testing would provide an incentive for to perform the audiometric testing at no cost to the miner. The proposed mine operators, who will bear the costs called for under this part. Some elements of a hearing conservation of such testing, to discourage miners commenters suggested that physicians program would have included the from participating. MSHA recognized conducting audiometric testing under annual audiometric testing and required that this provision would be the final rule be required to be board- follow-up examinations and actions. controversial for many in the mining certified otolaryngologists; others were community, and specifically solicited Baseline Audiogram of the opinion that the final rule should comments on this issue in the proposed require that physicians conducting the The requirements in paragraphs (a)(1) preamble. testing have expertise in hearing and through (a)(3) of § 62.170 of the final The mandatory audiometric testing hearing loss. Several commenters rule are derived from virtually identical requirement has not been adopted in the preferred a requirement for both requirements in proposed § 62.140(b). final rule, in response to a number of certification and licensure or that the Under these requirements: commenters who were opposed either to physician be an otolaryngologist or an (1) A miner enrolled in a hearing any type of mandatory audiometric otologist. However, MSHA recognizes conservation program must be offered testing or to placing the burden on the that many miners working in outlying an audiometric test within specified mine operator to ensure that the miner areas may not have easy access to an time periods to establish a valid submit to such testing. Some audiologist who is both licensed and baseline audiogram; commenters stated that mine operators certified. (2) The mine operator must provide could not force miners to take hearing The final rule does not adopt the the miner with a 14-hour quiet period examinations. These commenters suggestion of some commenters that prior to the baseline audiogram; and believed that mine operators should be minimum qualifications be included in (3) Revisions in the miner’s baseline required to offer miners such testing, the rule for physicians who conduct audiogram are not permitted because of but should not be penalized if miners do audiometric testing. MSHA recognizes changes in the miner’s enrollment status not take advantage of the offer. Other that a license to practice medicine does in the hearing conservation program. commenters believed that MSHA should not guarantee that a physician has the However, a new baseline may be directly require miner participation in specialized training or experience established for a miner who is away the testing, not put the responsibility on needed to conduct audiometric testing, from the mine for more than 6 the mine operator to see that miners evaluate audiograms, and supervise consecutive months. participate. Finally, one other those technicians who perform such Unlike the proposal, the final rule commenter believed that forcing a miner activities. However, states enforce allows the use of hearing protectors as to participate in an audiometric testing stringent medical licensing a substitute for the 14-hour quiet period. program may violate existing labor requirements, and the medical Commenters who addressed the issue contracts. profession maintains a high degree of of audiometric testing generally A number of commenters supported accountability for physicians and has acknowledged the need for a valid the concept of mandatory audiometric established strict ethical standards for baseline audiogram as part of an testing. One commenter stated that medical practitioners. In light of these effective hearing conservation program. audiometric testing is essential to assess controls, the Agency expects physicians However, commenters disagreed on an employee’s hearing and determine to exercise professional judgment in whether audiometric testing under the future changes in hearing sensitivity.

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This commenter further stated that the when the miners may have concerns appear smaller than if they had been audiogram could therefore not be an about the privacy and confidentiality of compared to a baseline that had been optional medical evaluation, but is the audiometric test records and follow-up established prior to the years of noise keystone of a comprehensive hearing evaluations. MSHA also believes that a exposure. conservation program. Other miner who voluntarily participates in A few commenters believed that the commenters were of the opinion that if audiometric testing will more likely audiogram should be conducted within audiometric testing were voluntary, wear hearing protectors, maintain 12 months of the effective date of the miners would be sent the wrong engineering noise controls, and comply rule to be considered a baseline. Other message and a mine operator’s efforts to with administrative noise controls. commenters believed an existing run an effective hearing conservation Mine operators remain free to make baseline should be used; otherwise, program would be undermined. These audiometric testing mandatory for their experienced miners would be placed at commenters further stated that if miners. However, a miner’s refusal to a disadvantage if their baselines were audiometric testing is voluntary and a participate in a mandatory audiometric established after the implementation of miner refuses the offer of an audiogram, testing program would be a labor- the final rule. any hearing loss should be presumed to management issue rather than an MSHA MSHA encourages the use of existing be non-work-related. Another enforcement issue, and is outside the audiograms as baselines because, as commenter questioned whether a miner scope of this rule. explained above, this approach would would have the right to refuse to Under § 62.120 of the final rule, mine provide a greater degree of protection participate in an audiometric testing operators must enroll miners whose for the affected miner. Therefore, the program. This commenter stated that if exposure to noise exceeds the action final rule adopts the proposed provision a miner could refuse, mine operators level in a hearing conservation program, that permits the use of existing would be placed at a disadvantage in and offer those miners the opportunity audiograms as the baseline at the monitoring work-related hearing loss, for regular audiometric tests. discretion of the mine operator, if the and be subject to unwarranted workers’ Information from these tests indicating audiograms meet the testing compensation claims. This commenter that miners are experiencing hearing requirements of this part. MSHA was also concerned that, without loss should prompt both the mine acknowledges the concerns of mandatory audiometric testing, mine operator and the Agency to examine the commenters about miners who may operators would be unable to collect effectiveness of existing noise controls. already have incurred a hearing loss accurate data to identify hearing-related For example, if a miner incurs a before the effective date of the final rule, problems, hampering mine operators’ standard threshold shift, the mine whose hearing loss may not be ability to take appropriate corrective operator, at the very minimum, should accurately assessed if new baseline action to provide a healthier workplace. ensure that a hearing protector is audiograms are used under this rule. MSHA notes that the commenters provided to and worn by the miner (see However, the establishment of a who supported the concept of preamble for § 62.160(c)(1) for further comprehensive scheme that addresses mandatory audiometric testing for discussion). If the miner already has a existing hearing loss among miners is miners varied greatly as to when such hearing protector, the mine operator outside the scope of the final rule, tests should be required. A number of should determine whether the hearing whose purpose is the prevention of commenters believed that audiometric protector needs to be changed. The occupational noise-induced hearing loss testing should be mandatory for miners information obtained through among miners and the reduction of the whose noise exposures equal or exceed audiometric testing may indicate the progression of such hearing loss. the action level, and that all miners need to pinpoint the source of the noise Paragraph (a)(1) adopts the proposed enrolled in a hearing conservation causing the problem, and may reveal an requirement that the audiometric testing program should be required to submit to undetected failure of existing noise which results in a baseline audiogram audiometric examinations. Other controls, failure to properly fit, maintain be offered to the miner within 6 months commenters supported mandatory or utilize hearing protectors, or failure of enrollment of the miner in a hearing audiometric testing for all miners, of the training to provide adequate conservation program, or, if mobile test regardless of their noise exposures. One instruction. vans are used, within 12 months of the commenter who supported mandatory Paragraph (a) of § 62.170 of the final miner’s enrollment. These requirements testing stated that the Americans with rule, like the proposal, requires that a are consistent with the requirements of Disabilities Act (ADA) protects miners miner be offered the opportunity for OSHA’s noise standard. MSHA’s from discrimination based on hearing audiometric testing to establish a existing noise standards for coal mines disability, and any confidentiality baseline audiogram, against which do not specify a deadline for baseline concerns would be addressed both by subsequent annual audiograms can be audiograms for those miners under a the ADA and the protections in the compared. An existing audiogram may hearing conservation plan, and the proposed rule. be used as the baseline audiogram if it existing noise standards for metal and MSHA has concluded that mandatory meets the audiometric testing nonmetal mines do not require baseline audiometric testing is inappropriate at requirements of § 62.171 of the final audiograms. all levels of noise exposure, based on rule. OSHA also accepts existing Commenters offered differing views several considerations. MSHA audiograms as a baseline because, in on the appropriate period within which acknowledges the concerns of the most cases, use of an existing baseline a baseline audiogram should be commenters who believe that a audiogram is more protective for the conducted. One commenter believed voluntary audiometric testing program employee. Establishing a miner’s that a miner’s audiometric baseline could allow miner hearing loss to go baseline after the miner has been should be determined within 90 days of undetected and unaddressed. However, exposed to high levels of noise for many the miner’s enrollment in the hearing MSHA is reluctant to require miners, years is likely to result in less protection conservation program, rather than 6 either directly or indirectly, to submit to for the miner, because the new months or a year. Others were of the medical examinations that they do not audiogram would typically show higher opinion that 6 months for a baseline (12 wish to undergo. MSHA is also reluctant thresholds. Consequently, the true months if a mobile test van is used) to require miners to submit to testing extent of future hearing losses would established in the proposal was a

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NIOSH believes that waiting up to conducted within the 6-month deadline. to noise away from work. However, the 6 months for a baseline audiogram is The final rule’s requirements for training required under the final rule unacceptable, because exposure to high baseline audiograms, including the use should encourage miners to avoid high sound levels for a relatively short period of hearing protectors, are consistent noise exposures off the job before of time can adversely affect the hearing with the OSHA rule. audiometric testing. One commenter sensitivity of susceptible individuals. also suggested that the 14-hour quiet 14-hour Quiet Period Other commenters advocated the use of period be reduced to 12 hours, because pre-employment audiometric testing, Paragraph (a)(2) of § 62.170 of the it would minimize any interference with under the rationale that such final rule has been adopted with a normal work shifts. examinations should be part of the substantive change from proposed Research has been conducted on the battery of tests conducted when a miner §§ 62.140(b)(2) and (b)(3). This length of the hearing recovery period is hired. These commenters believed paragraph, like the proposal, requires from a temporary threshold shift due to that there is a need to document a that the mine operator notify the miner exposure to noise. Fodor and Oleinick miner’s existing hearing loss at the point of the need to avoid high levels of noise (1986), in their study on workers’ that the miner is hired, so that mine for at least 14 hours immediately compensation programs in the United operators can establish what part of a preceding the baseline audiogram. This States, reported that the initial recovery miner’s hearing loss can be attributed to paragraph also requires that the mine from a temporary threshold shift noise exposure at that mine. Another operator not expose the affected miner appeared to be very rapid at the end of commenter requested that the first to workplace noise for at least a 14-hour the noise exposure, but that the rate of annual or periodic audiogram period immediately prior to receiving recovery appeared to slow as time went conducted after the effective date of the the baseline audiogram. The final rule, on. Most researchers, however, report noise rule should be considered the unlike the proposal, allows the use of complete recovery from a temporary baseline audiogram. hearing protectors as a substitute for this threshold shift taking no longer than 16 Baseline audiograms provide an quiet period. Although existing MSHA hours, provided that the temporary essential point of comparison for standards for noise do not include threshold shift did not exceed 40 dB. On subsequent audiograms, and are critical provisions for a quiet period before a the other hand, some states require that in determining the extent of a miner’s baseline audiogram, these requirements a worker be away from noise exposure hearing loss. If the baseline audiometric are similar to a provision in OSHA’s for 6 months before hearing loss is test is not conducted properly and at the noise standard. evaluated for workers’ compensation appropriate time, it may not accurately The 14-hour quiet period provides a purposes. Standards of the U.S. Navy reflect the miner’s hearing thresholds, miner’s hearing sufficient rest to allow require a quiet period of at least 14 and any changes between the baseline recovery from any temporary elevation hours, and the U.S. Air Force requires audiograms and subsequent audiograms of hearing levels due to noise exposure a 15-hour quiet period before may be masked. Because of the (temporary threshold shift) caused by audiometric testing. importance of the baseline audiogram, it pre-test noise exposure. Hearing levels After consideration of all of the is highly desirable to conduct the return to normal after a period of quiet. comments and a review of the available baseline testing before a miner is If the baseline audiogram is skewed by scientific literature on the subject, exposed to hazardous noise. a temporary threshold shift, compari- MSHA has concluded that a quiet MSHA has determined that a deadline sons of the baseline to subsequent period is necessary to obtain a valid of 6 months (or 12 months if a mobile annual audiograms will not provide an baseline audiogram, and that a 14-hour test van is used) for obtaining the accurate indication of the extent of quiet period is the most appropriate of baseline audiogram is reasonable. This damage incurred during the time several alternatives. This conclusion is is because in many cases it is not between the baseline and subsequent consistent with the requirements in possible to conduct it any sooner due to tests. It is critical that a miner’s baseline OSHA’s noise standard and should the remote location and intermittent audiogram reflect no temporary provide sufficient time to avoid or operation of many mines and to the threshold shift. Otherwise, it will be recover from a temporary threshold shift unavailability of adequate audiometric essentially impossible to determine the before the baseline audiogram is testing facilities. MSHA recommends magnitude or progression of future conducted. that testing should take place as soon as hearing loss. A quiet period of longer than 14 hours possible. Some commenters supported would place an undue burden on mine The 12-month period for testing by a extending the quiet period requirement operators, because in many instances mobile van allows mine operators to to annual audiograms as well as the miner would have to stay away from schedule baseline and annual baseline audiograms. Other commenters the work site to comply with the quiet audiograms simultaneously, and thus opposed a mandatory 14-hour quiet period when the miner works a slightly substantially reduce the cost when period, maintaining that requiring extended shift; many work shifts exceed mobile test vans are used. The 12-month miners to be protected from workplace 8 hours, especially when a lunch period deadline for mobile van testing noise prior to the baseline test was is taken into account. recognizes that there may be significant unreasonable for mines with extended The proposal, like the final rule, logistical and scheduling considerations shifts. In those mines, unless the miner prohibits the exposure of miners to in a visit to a mine by a mobile test van. missed all or part of the work shift, he ‘‘workplace noise’’ during the 14-hour Scheduling may need to be done or she would not receive 14 hours of quiet period. Several commenters months in advance. quiet time. This would severely disrupt requested a definition for ‘‘workplace

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For example, a mine operator must be below 72 dBA to be considered satisfactory condition; and mandatory could provide a miner with a quiet ‘‘effective quiet.’’ Schwetz et al. (1980) use of dual hearing protectors if the found that a sound level below 85 dBA noise exposure exceeds 100 dBA. Many period by scheduling the baseline is needed for recovery from a temporary of the commenters who opposed the use audiogram after a miner’s regularly threshold shift. Studies have shown that of hearing protectors as a quiet period scheduled day off or immediately individuals with a temporary threshold substitute were those who opposed the following a weekend during which the shift recovered their normal hearing use of hearing protectors for any reason miner does not work. This avoids any more quickly when exposed to a 75-dBA (see the preamble discussion of disruption of operations, while at the sound level than they did when they engineering and administrative controls same time ensuring that the audiogram were exposed to an 85-dBA sound level. under § 62.130). As discussed is not contaminated. The 1972 NIOSH Criteria Document elsewhere, although hearing protectors Sound Level Avoidance recommends a sound pressure level of are not as effective as engineering and 65 dB as ‘‘effective quiet,’’ based on administrative controls in protecting Paragraph (a)(2) of § 62.170 of the work by Schmidek et al. (1972). Hodge miners, MSHA has concluded that they final rule, like § 62.140(b)(3) of the and Price (1978) concluded that a sound have an appropriate place in a hearing proposal, requires mine operators to level must fall below 60 dBA to provide conservation scheme. notify the miner of the need to avoid effective quiet and not contribute to the OSHA’s noise standard allows the use high levels of noise during the 14-hour development of a temporary threshold of hearing protectors as an alternative to period immediately preceding the shift. the 14-hour quiet period prior to the baseline audiogram. This requirement is Recovery from a temporary threshold baseline audiogram, under the rationale identical to provisions in OSHA’s noise shift requires exposures below 80 dBA, that they may provide sufficient noise standard. and based on scientific studies, reduction to prevent a noise-induced extended exposure to noise above 80 temporary threshold shift from Only a few commenters addressed dBA may lead to a material hearing contaminating a baseline audiogram, this issue. Some commenters agreed that impairment. MSHA has therefore and that the previous restriction on workers need to be advised to avoid concluded that an acceptable definition hearing protectors as a quiet period non-occupational noise exposure prior of ‘‘workplace noise’’ is a sound level substitute was unnecessarily restrictive. to taking the baseline audiogram. that exceeds 80 dBA, without taking MSHA’s final rule is consistent with Several commenters were concerned into account the noise reduction OSHA’s noise standard in that it allows that notifying the miners to avoid high provided by a hearing protector. hearing protectors to be substituted for levels of noise could lead to fraud in Because the mine operator has no the 14-hour quiet period prior to the workers’ compensation cases. These control over the non-occupational noise baseline audiogram. Although MSHA commenters were concerned that miners exposure of a miner, the final rule does recognizes that this decision may result might intentionally expose themselves not limit non-occupational noise to a in some miners having measured to high levels of noise prior to the specified sound level during the quiet thresholds that are higher than their baseline audiogram in order to provoke period; however, as noted below, the actual thresholds, as a result of exposure a temporary threshold shift and final rule does require that the mine to some high sound levels, the eventually receive an award of operator notify miners of the need to magnitude of the elevated thresholds compensation. MSHA expects that avoid high levels of noise during the 14- should be small unless the noise competent audiologists and physicians hour period preceding the test. It is to exposure is severe. will be able to determine if a miner has the miner’s benefit to limit non- Data indicate that in order to prevent purposely incurred a temporary occupational exposure to noise in order contamination of the baseline, the threshold shift. to obtain accurate audiometric testing. sound levels encountered during the As mentioned above, the final rule, quiet period would need to be below 80 The 1983 preamble to revisions to unlike the proposal, adopts the dBA. MSHA is particularly concerned OSHA’s noise standard (48 FR 9757) suggestion of a number of commenters with the ability of hearing protectors to reflects OSHA’s conclusion that the to permit the use of hearing protectors reduce noise to such low levels. Some likelihood of non-occupational noise as a substitute for the quiet period. The researchers have concluded that even an exposure contaminating the baseline specific prohibition against hearing 80 dBA level may be inadequate to audiogram can be substantially reduced protectors as a substitute for a quiet protect the most susceptible by counseling workers of the need to period in § 62.140(b)(2) of the proposal individuals. However, MSHA has avoid such exposures in the period elicited a number of comments. Many concluded that prohibiting the use of before their baseline tests. MSHA agrees commenters believed that the use of hearing protectors to fulfill the 14-hour with OSHA’s conclusion regarding hearing protectors should be allowed quiet period is too impractical a worker notification, and the final rule because they would provide adequate restriction for most mine operators. reflects this determination. It should be protection for miners. Many also Such a restriction may be too disruptive noted that the final rule does not require believed that a mandatory 14-hour quiet of the operations at many mines. written notification. However, it may be period would be impractical without the Hearing protectors that are correctly in a mine operator’s interest to put the use of hearing protectors. Several fitted and used should provide an notification in writing, because it commenters advocated that hearing acceptable quiet period. The final rule, provides the mine operator with proof protectors be permitted to be used to like OSHA’s noise standard, therefore of notification.

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Exceptions for Revising Baseline Annual Audiogram evaluating the hearing level of miners Audiograms or Revised Baseline Paragraph (b) of § 62.170 of the final whose exposure equals or exceeds the Audiograms rule adopts the requirement of action level for extended periods of § 62.140(c) of the proposal that, after the time. These annual audiograms can be The requirements of paragraph (a)(3) used to detect changes in a miner’s of § 62.170 of the final rule are nearly baseline audiogram has been established, the mine operator must hearing sensitivity, thus triggering identical to proposed § 62.140(b)(4) in continue to offer the miner subsequent several important actions provided for that a mine operator must not establish audiometric tests every 12 months as in the final rule. For example, retraining a new baseline audiogram or revised long as the miner remains enrolled in a of the miner could be required. If a baseline audiogram, where one has been hearing conservation program. miner is enrolled in the hearing established, due to changes in the Existing MSHA standards for metal conservation program as a result of miner’s enrollment status in the hearing and nonmetal mines do not require noise exposure at or above the action conservation program. However, audiometric testing. Under existing level, but the miner’s noise exposure is baseline audiograms may be revised if a standards for coal mines, pre- below the permissible exposure level, miner is away from the mine for a employment and periodic audiograms detection of a standard threshold shift period of time exceeding 6 consecutive are offered to miners at mines operating will require the mine operator to months. OSHA’s noise standard does under a hearing conservation plan, but provide the miner with a hearing not contain such a requirement. This no procedures or time frames for these protector and ensure its use. If a miner restriction is intended to ensure that a audiograms are specified (although is already using a hearing protector, the new baseline audiogram is not MSHA policy provides that periodic miner must be allowed to select a established or a miner’s baseline audiograms must be offered at least different hearing protector. Detection of audiogram is not revised even if a miner every two years). Because MSHA policy a standard threshold shift also requires moves in and out of enrollment in a has allowed consideration of the noise reevaluation of the engineering and hearing conservation program because reduction value of hearing protectors to administrative controls being used at of time away from the mine due to be considered when determining the mine. unemployment or extended periods of compliance with the permissible With regard to those commenters who vacation. Otherwise, a miner’s exposure level in coal mining, few coal were concerned about being held incremental losses of hearing may be mines have hearing conservation plans, responsible for non-occupational erased by revised baseline audiograms, and only one percent of coal miners are hearing loss that occurs between annual and the true extent of a miner’s hearing currently covered by such plans. audiograms, MSHA has concluded that loss may escape accurate measurement. Some commenters supported annual the physicians or audiologists who Some commenters believed a new audiometric testing, while several others conduct the audiometric tests are in a baseline should be established if the supported periodic audiometric testing position to determine whether any affected miner is away from the mine for but recommended different intervals, hearing loss detected by the test is due at least 6 or 12 months. Another ranging from once a year to once every to non-occupational causes. commenter stated the mine operator three years depending upon the severity The intervals between annual of the noise exposure or of the existing should be allowed to obtain a new audiometric testing conducted under hearing loss. However, none of these baseline for a miner who returns to the final rule must not exceed 12 commenters offered suggestions for the work after working for another mine months. This means that testing once relationship between the severity of a operator, regardless of how long the every calendar year would not be miner’s noise exposure and the miner had been away. These acceptable unless the interval between frequency of audiometric testing. One the tests is 12 months or less. For commenters were concerned about commenter requested clarification as to being held responsible for a miner’s example, an annual audiogram in whether the annual audiometric tests January of one calendar year cannot be hearing loss that results from would be required to be administered overexposure to noise during other followed by testing any later than once each year or once each 12 months. January of the following calendar year. employment. A large number of contract Several commenters questioned how a and transient employees work in the Otherwise, the interval between annual mine operator could be protected from audiograms could extend to nearly 24 mining industry. Additionally, many liability for non-occupational hearing metal and nonmetal mines operate months, an unacceptably long time loss that occurs between the annual period, for the reasons explained above. seasonally or otherwise intermittently audiometric tests. Once baseline throughout the year. As a result, a large audiograms have been obtained, OSHA After a review of comments, the number of miners are typically away requires that an audiogram be offered relevant scientific literature, and from the job site for long periods of annually to each employee exposed at regulations of other governmental time. MSHA agrees that mine operators or above the action level in order to agencies, MSHA has concluded, and the should not be held responsible for a identify changes in hearing sensitivity. final rule reflects, that annual miner’s hearing loss incurred during This allows the use of hearing protectors audiometric testing is both necessary employment at other mines or during to be prescribed or other follow-up and appropriate, and is an integral part extended periods of unemployment. measures initiated before the miner’s of a comprehensive hearing Therefore, the final rule adopts the hearing loss can worsen. OSHA adopted conservation program. proposed provision that allows for the the annual audiometric test requirement Revised Baseline Audiogram revision of the baseline audiograms or because of the potential seriousness of revised baseline audiograms, where one the hearing damage that can occur Paragraphs (c)(1) and (c)(2) of § 62.170 has been established, for those miners within a 2-year period, before the of the final rule, which have been who have been away from their hearing loss is identified by an adopted from proposed §§ 62.140(d)(1) employment at a particular mine for audiogram. and (d)(2), require that the mine periods longer than 6 consecutive MSHA has concluded that annual operator establish a revised baseline months. audiometric testing is necessary for audiogram when:

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(1) the standard threshold shift to confirm that the apparent commenters opposed any exemption revealed by the annual audiogram is improvement is real. that would result in temporary miners persistent; or Paragraph (c)(2) requires revision of receiving less protection than that (2) the hearing threshold shown in the the baseline if the annual audiogram provided to other miners. annual audiogram indicates significant shows significant improvement in OSHA has no exemption for improvement over the baseline hearing level. This provision has been audiometric testing for temporary or audiogram. adopted unchanged from the proposal, seasonal workers, and, like the proposal, These requirements are the same as and provides additional protection to MSHA’s final rule does not provide any those in OSHA’s noise standard, and, in the miner because it allows more exemption for temporary or seasonal response to commenters, MSHA has accurate evaluation of the true extent of miners from the final rule’s audiometric adopted the term used by OSHA of hearing loss that may occur in the testing requirements. MSHA has ‘‘revised baseline audiogram’’ rather future. When a baseline audiogram is determined that such an exemption than ‘‘supplemental baseline revised due to an improvement in would mean that miners who work audiogram’’ used in the proposed rule. hearing sensitivity, the revised baseline intermittently in the mining industry Many commenters favored revising must be considered the original baseline may never receive an audiometric test to the baseline if a standard threshold shift for determining when a standard detect hearing loss, even if they work is persistent. Several commenters threshold shift occurs and for under very noisy conditions, and would suggested that MSHA adopt the quantifying the total reportable hearing never receive any of the protections guidelines of the National Hearing loss under part 50. The latter is reflected required under the final rule for miners Conservation Association for revising in § 62.101 of the final rule, under the who have incurred hearing loss. Although the 6-month time period (12 baseline audiograms, to establish some definition of a ‘‘reportable hearing loss.’’ Finally, one commenter suggested months where a mobile van is used) consistency in determinations. that separate baselines be kept for a allowed under the final rule for MSHA has concluded that allowing standard threshold shift and otologic obtaining an audiogram could revision of the baseline after a standard referrals. This measure is not needed, effectively exclude many temporary or threshold shift has been identified will however, because the final rule requires seasonal miners from the audiometric prevent the same standard threshold that all audiograms be retained as part testing program, prudent mine operators shift from being identified repeatedly. of the audiometric test record under will offer audiometric tests to temporary The annual audiogram on which the § 62.171(b)(2). Revision of the baseline or seasonal miners and not take standard threshold shift is identified audiogram does not permit the advantage of the 6-month period to then becomes the revised baseline destruction of the original baseline avoid offering these miners audiometric audiogram. In addition, MSHA intends audiogram. tests. that each ear be treated separately when the baseline audiogram is revised. If the Temporary and Seasonal Miners Section 62.171 Audiometric Test baseline is revised for both ears when In the preamble to proposed § 62.120, Procedures only one has a standard threshold shift, MSHA solicited comments on how to This section of the final rule detection of a standard threshold shift best protect temporary or seasonal establishes the procedural and in the other ear may not be possible, miners whose occupational noise recordkeeping requirements for the even if the miner has lost a substantial exposures equal or exceed the action audiometric testing conducted under amount of hearing sensitivity. level. MSHA raised this issue because this part. This section specifies the Under the final rule, the revised mines producing certain commodities, frequencies to be used in the testing, baseline audiogram should be compared such as sand, gravel, and crushed stone and requires the mine operator to with future annual audiograms to frequently cease operations during the compile and maintain an audiometric identify a second standard threshold winter months. As a result, miners at test record for each miner tested. The shift. The original baseline audiogram these operations may only work part of requirements of this section are continues to be used to quantify the the year, and protecting the hearing of essentially the same as those proposed total hearing loss, and is considered in these miners can be extremely in § 62.150, with several relatively determining whether the hearing loss problematic, given the long periods minor changes. constitutes a ‘‘reportable hearing loss.’’ when miners are away from the mine Paragraph (a) of this section of the Some commenters favored revising site. final rule adopts the proposed the baseline if the annual audiogram Some commenters believed that the requirement that audiometric testing showed an improvement in hearing. fact that the proposal would allow mine under part 62 be conducted in One commenter recommended that a operators 6 months to arrange for miners accordance with scientifically validated revised baseline be permitted only if the to receive baseline audiograms would procedures. MSHA’s metal and improvement in the miner’s hearing was effectively exclude most temporary or nonmetal noise standards do not consistent for multiple consecutive seasonal miners, because their contain audiometric testing provisions. tests. Another commenter stated that employment relationship with the mine While MSHA’s noise standards MSHA should not adopt the provision operator would end before the deadline applicable to coal mines require for revised audiograms in the final rule, for their audiometric testing had passed. audiometric testing, they do not include because hearing sensitivity does not Other commenters suggested that the any procedural requirements for this improve with noise exposure or use of hearing protectors on the job testing. The final rule does not specify increasing age. While it is true that would adequately protect temporary detailed procedures for audiometric hearing sensitivity does not improve; miners from experiencing an testing, calibration of audiometers, or MSHA recognizes that audiometric tests occupational noise-induced hearing qualifying of audiometric test rooms. can sometimes reflect an apparent loss. One commenter suggested that it Instead, the final rule takes a improvement. Under the final rule, would be too burdensome for a mine performance-oriented approach, not MSHA leaves it to the professional operator to enroll miners who had only to allow flexibility in compliance judgement of the medical professional worked less than one year in the but also to accommodate technology or audiologist to conduct multiple tests audiometric testing program. Several developed in the future. The final rule

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Further, the final rule clarify or define the phrase scientific literature, and several the final rule allows the use of any ‘‘scientifically validated procedures.’’ governmental standards, MSHA has scientifically validated procedure, Some commenters believed that if the concluded that the final rule should which provides flexibility for the use of Agency failed to specify the test adopt the proposed performance- new procedures or technology that may procedures that should be followed, oriented approach, and should not be developed in the future. This means audiometric test results would not be include detailed, highly technical that if a new, possibly more accurate, uniform. Other commenters, some of procedures and criteria for conducting procedure is developed and has been whom strongly supported a audiometric testing in the final rule. scientifically validated, the physicians performance-oriented approach to Instead, the final rule adopts the and audiologists who perform testing procedures, suggested that the proposed requirement that audiometric audiometric testing under this part may final rule include an appendix testing procedures be governed by readily adopt its use. specifying the level of testing scientifically validated procedures, Test Parameters performance expected, or at least which would be any method or providing examples of acceptable procedure that has been proven to be Paragraph (a) of § 62.171 of the final procedures that may be followed. effective and is generally recognized by rule, like the proposal, requires that Commenters stated that this would experts in the technical field. Such audiometric tests be pure tone, air allow mine operators to determine if the procedures may be incorporated, for conduction, hearing threshold procedures they have adopted comply example, into consensus standards, examinations, with test frequencies at with the requirements of the final rule. governmental specifications, or military 500, 1000, 2000, 3000, 4000, and 6000 Several commenters recommended regulations, including OSHA’s Hz. The final rule also requires that each specific changes regarding audiometric audiometric testing procedures and ear is to be tested separately. This aspect testing, including audiometric test criteria or the procedures included in of the final rule is consistent both with instruments, calibration procedures, and the three ANSI standards referenced OSHA’s requirements for audiometric audiometric test rooms. Several above. testing frequencies and with NIOSH’s commenters believed that the MSHA anticipates that most recommendations in its 1972 Criteria audiometric testing procedures required audiograms conducted under the final Document. Existing MSHA regulations by the final rule should be identical to rule will employ the procedures do not include any specifications for OSHA’s requirements, which contain specified in OSHA’s noise standard, in audiometric testing. detailed testing procedures in 29 CFR large part because many physicians and A few commenters directly addressed § 1910.95(h) and in associated audiologists are already familiar with the audiometric test parameters in the appendices. Others recommended that those procedures, and many computer proposal. Of these, one commenter the final rule require audiometric testing programs used for or in conjunction specifically supported the test to be conducted in accordance with with audiometric testing are based on frequencies as proposed. A few other several standards of the American that standard. Further, many audiology commenters supported the adoption of National Standards Institute (ANSI), texts and training courses of the Council the test frequencies either in the OSHA including ANSI S3.21–1978, ‘‘Methods for Accreditation in Occupational noise standard or in ANSI S3.21–1978, for Manual Pure-Tone Threshold Hearing Conservation (CAOHC) ‘‘Methods for Manual Pure-Tone Audiometry,’’ which provides detailed reference OSHA’s audiometric testing Threshold Audiometry,’’ and ANSI procedures for conducting audiometric procedures and criteria in detail. S3.6–1996, ‘‘Specification for tests; ANSI S3.1–1991, ‘‘Maximum OSHA’s audiometric testing Audiometers,’’ or a combination of these Permissible Ambient Noise Levels for requirements and associated appendices standards. As stated above, the test Audiometric Test Rooms,’’ which can be found in 29 CFR § 1910.95. To frequencies required by the final rule provides a criterion for the maximum assist the mining community in are identical to those required in background sound pressure levels to complying with the audiometric OSHA’s noise standard. The ANSI obtain a valid audiogram; and ANSI requirements in the final rule, MSHA standards include the additional test S3.6–1996, ‘‘Specification for will post OSHA’s requirements on our frequencies of 250 and 8000 Hz. Other Audiometers,’’ which provides design Internet Home Page at www.msha.gov. commenters supported adding 8000 Hz criteria for various classes of Another possible source of acceptable to the test frequencies included in the audiometers. procedures under the final rule are the proposal. These commenters believed Some commenters suggested that recommendations provided by that adding the frequency of 8000 Hz MSHA specify calibration procedures audiometer manufacturers on would assist the evaluator of the for audiometers. The suggestions audiometer use and calibration (in both audiogram in determining the cause of included requiring daily calibration of the laboratory and the field). These the hearing loss more accurately. audiometers as well as annual equipment manufacturers are in a Commenters pointed out that because laboratory calibration. Other position to issue specific this frequency is standard on commenters recommended that MSHA recommendations on the use and audiometers manufactured since 1974, specify the maximum background calibration of their audiometers. By inclusion of this frequency would not

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OSHA also requires already require that the person characterized by a declining sensitivity employers or audiometric test service conducting the test have minimum to high frequency sounds. This loss providers to maintain an accurate record qualifications, such a certification usually appears first and is most severe of background sound pressure levels in would be unnecessary. at the 4000 Hz frequency, and the ‘‘4000 audiometric test rooms. However, as Some commenters, who believed that Hz notch’’ in the audiogram is typical of discussed above, OSHA’s noise standard requiring mine operators to obtain a noise-induced hearing loss. Continued includes specific procedures for certification for each individual exposure causes the loss to include audiometric testing, and the additional audiogram was unduly burdensome, other audiometric test frequencies, with records required under OSHA’s stated that the final rule should allow 500 Hz being the least affected. While standard are intended to show that the mine operators to obtain a certification 500, 1000, and 6000 Hz are not included required procedures have been for a group of audiograms. in the definition of a standard threshold followed. Without such specific The Agency agrees with commenters shift, MSHA, like OSHA, believes that procedures, these additional records are that the certification requirement set these test frequencies contribute to a unnecessary. OSHA’s noise standard, forth in the proposal would be more thorough audiometric profile and like the final rule, requires that unnecessarily rigid. However, MSHA are helpful in assessing the validity of employers maintain a record of has also concluded that some type of the audiogram as a whole. Testing at audiometric test results. evidence is necessary to indicate that 500 and 1000 Hz makes it easier for an One commenter requested the audiometric tests conducted under audiologist or physician to differentiate clarification of the recordkeeping this part are in accordance with conductive hearing loss from noise- requirement, asking if it was limited to scientifically validated procedures. induced hearing loss, and testing at individual readings for specific miners Therefore, the final rule provides that 6000 Hz allows better differentiation or also included records of area or group audiometric test records required to be between age-induced and noise-induced monitoring. The requirement covers maintained must include evidence that hearing loss, so testing at 8000 Hz is only personal noise exposure the audiograms were conducted in unnecessary. However, this would not determinations, because this accordance with paragraph (a) of this prevent testing at additional information will allow persons section of the final rule, which provides frequencies. evaluating audiometric testing results to that scientifically validated procedures make a better determination regarding must be followed. Such evidence could Audiometric Testing Records the nature of a miner’s hearing loss. include a letter from a physician, The requirements of paragraphs (b)(1) The recordkeeping requirements for audiologist, or qualified technician that through (b)(5) of § 62.171 of the final audiometric testing in the final rule states which audiometric test rule specify which audiometric testing provide essential information to MSHA procedures have been followed. A records a mine operator must maintain. and to health professionals for the billing record that indicates the test They have been adopted from proposed evaluation of a miner’s audiogram. The procedures used would also be § 62.150(c) with one change. Under the information is also necessary for acceptable. Finally, the audiogram itself final rule mine operators are required to identifying the audiograms, for may include information about the test compile an audiometric test record for evaluating whether the audiometric procedures used sufficient to satisfy this each miner tested, including the miner’s tests have been conducted properly, and requirement. Other types of evidence name and job classification, copies of all for determining whether the results are not listed here may also be acceptable of the miner’s audiograms required valid. Further, the information is critical under the final rule, provided they under part 62, evidence that the to the evaluator in determining whether reflect compliance with the procedural audiometric tests were conducted in an identified hearing loss is requirements of the final rule. Evidence accordance with paragraph (a) of this occupationally induced or aggravated by that a group of audiograms were section, any exposure determinations occupational noise exposure. conducted in accordance with required for the miner, and the results of any Section 62.150(b) of the proposal procedures would also be sufficient, follow-up examinations. The proposal would have required mine operators to provided that it makes clear which would have required the mine operator obtain a certification from the physician audiograms are involved. This responds to obtain a certification from the or audiologist responsible for to commenters who believed the physician or audiologist that the conducting audiometric tests under this proposed requirements, which could audiometric testing had been conducted part that such tests had been conducted have been read to require an individual in accordance with scientifically in accordance with scientifically certification for each audiogram, were validated procedures. In lieu of this validated procedures. In its place unnecessarily burdensome. requirement, the final rule provides paragraph (b)(3) of this section of the MSHA agrees that the mine operator greater flexibility by requiring evidence final rule requires that the audiometric would ordinarily not have sufficient that the audiograms were conducted in test record include evidence that the medical knowledge to determine if the accordance with the final rule’s audiometric tests conducted under part tests were properly conducted, and requirements. MSHA’s existing 62 have been conducted in accordance would ordinarily rely on the physician, standards currently contain no with the scientifically validated audiologist, or qualified technician to recordkeeping or record maintenance procedures required under paragraph (a) provide the evidence required under requirements. of this section. this paragraph. The final rule does hold Many commenters raised issues One commenter was of the opinion the mine operator responsible for concerning the proposed requirements that mine operators should be allowed obtaining this evidence from these for audiometric testing records. Several to rely on the professionals certifying professionals—MSHA assumes that commenters proposed that MSHA adopt the audiometric test results, and should mine operators, as a result of their

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MSHA expects that the under it; this added language merely be provided as part of the terms and periods of unemployment experienced affirms this authority. conditions of the service agreement. by miners at those operations generally Section 62.172 Evaluation of Paragraph (c) of § 62.171 of the final will not exceed 6 months, thus ensuring Audiograms rule, which has been adopted with two that these miners’ audiometric records changes from proposed § 62.150(d), will be retained throughout their cycles This section of the final rule has been specifies the location and duration for of employment. adopted unchanged from proposed maintenance of the testing records Under the final rule, ‘‘duration of § 62.160. It establishes the requirements compiled under paragraph (b). In employment’’ is the period of time for evaluating audiograms conducted response to commenters, the final rule between the date of a miner’s initial under part 62. This section requires that does not adopt the proposed hiring and the date on which the miner the mine operator inform the person requirement that the records be is released, quits, retires, or is otherwise evaluating the audiogram of the maintained at the mine site. The final separated. There must be a period of at requirements of this part and provide rule also clarifies that these records least 6 months after formal termination the evaluator with copies of the miner’s must made be available for inspection of employment before a mine operator audiometric test records. Additionally, by an authorized representative of the can destroy the audiometric test records. the mine operator is responsible for Secretary of Labor. MSHA’s existing Moreover, under the final rule, a layoff, having a physician, audiologist, or standards contain no requirements in strike, lockout, furlough, period of leave qualified technician determine if an this area. OSHA standards require that (paid or unpaid), or other temporary audiogram is valid and if a standard audiometric testing records, along with break in service is not considered a threshold shift or reportable hearing loss all other employee medical records formal termination of employment, even has occurred. required to be kept under OSHA if it exceeds 6 months. This section also includes a provision standards, be maintained for at least the MSHA expects that many mine to protect miners’ non-occupational duration of the worker’s employment operators will retain miners’ audiograms medical findings or diagnoses from plus 30 years, with the exception of long after the miners’ employment disclosure to the mine operator and employees who have worked for less ceases, because the records could prove requires a prompt audiometric retest if than one year for the employer. to be relevant if a miner should file a a miner’s audiogram is invalid. Finally, Additionally, the OSHA rule provides subsequent workers’ compensation this section permits, but does not that employee medical records need not claim for hearing loss, especially require, the adjustment of results of be retained beyond the term of because some states allow workers to audiometric tests for age-induced employment if they are provided to the file such a compensation claim many hearing loss. Tables for this purpose are employee upon termination. years after termination of employment. included in the final rule. MSHA received a number of Many commenters took issue with the MSHA’s existing noise standards do comments specifically addressing time proposed requirement that audiometric not address the evaluation of frames for maintaining audiometric test testing records be maintained at the audiograms. The requirements in this records. Commenters recommended mine site, and requested that MSHA section are similar to the requirements several different periods of record permit the records to be stored at a site of OSHA’s noise standard; the few retention beyond the duration of the remote from the mine. These differences are noted below. miner’s employment—6 months, 12 commenters believed maintaining these A number of commenters noted that, months, or 30 years, which is the records at the mine would be although a doctor can distinguish retention period required by OSHA. burdensome, and that it may be much hearing loss that has been caused by Requirements for maintenance and more efficient for many mine operators illness or injury from hearing loss retention of audiometric tests records of to store records at a central site, caused by noise exposure, it is not the U. S. armed forces, including the especially if several small mining possible to distinguish between hearing Navy, the Air Force, and the Army, and operations were in the same general loss from work-related noise exposure several foreign countries require the vicinity. and from non-work-related noise retention of audiometric test records for MSHA agrees with the points made by exposure. These commenters pointed at least the duration of the test subject’s these commenters, particularly in light out that many of their employees were employment, and in most cases for some of the fact that electronic records are very active during their non-working period of time after the termination of becoming more common in the mining hours and had hobbies that could employment. industry, and may be stored on expose them to high sound levels, such MSHA’s rationale in requiring computer at a centralized location. The as woodworking, hunting, motorcycling, retention of audiometric test records for final rule therefore allows mine snowmobiling, etc. These commenters at least 6 months beyond the duration operators to keep audiometric test took issue with the fact that, under the of the miner’s employment is that the records at a location other than the mine proposed rule, mine operators would be miner’s risk of occupational hearing loss site. However, the records must be held responsible for all noise-induced stops with the cessation of employment. stored within sufficient proximity to the hearing loss, regardless of whether it is Retention of audiometric records for mine to allow the mine operator to occupationally related. MSHA agrees an additional 6 months will ensure that produce them to an MSHA inspector that hearing loss may result from many the records remain available for use by within a relatively short time. MSHA causes, not all of which are the mine operator to conduct further expects that in most cases this period occupationally related. Under the final evaluations should the miner return to will be no longer than one business day. rule physicians and audiologists have employment within that period. This 6- The final rule also clarifies that these the obligation to determine if the month retention period does not place records must be available for review by hearing loss was the result of or an unduly heavy paperwork burden on an authorized representative of the aggravated by occupational noise mine operators, but also addresses the Secretary of Labor. MSHA inspectors exposure or a medical condition seasonal operations in the metal and already have the authority to review aggravated by the use of hearing

VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00069 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.104 pfrm08 PsN: 13SER2 49616 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations protectors. If the hearing loss is not the of the requirements of its standard, exhaustive list of indicators of possible result of or aggravated by occupational copies of the employee’s baseline and invalid audiograms. However, some noise exposure or aggravated by the most recent audiometric test records, factors that may indicate an invalid wearing of hearing protectors, mine the background sound pressure levels in audiogram include, but are not limited operators would not be responsible for the audiometric test room, and a record to: large differences in hearing corrective action. In addition, the final of audiometer calibrations. Under thresholds between the two ears; rule allows correction of audiograms for MSHA’s final rule, the person unusual frequency patterns that are not hearing loss due to aging. conducting the audiometric testing and typical of noise-induced hearing loss; MSHA acknowledges that evaluation of the audiogram is required thresholds that are not repeatable; or an determining whether hearing loss is to use scientifically validated unusually large hearing loss incurred in occupationally related is not always procedures, and therefore has some less than a year. straightforward. However, physicians discretion over which procedures are One commenter advocated that the and audiologists conducting used. No comments were received final rule require the supervising audiometric testing should routinely ask addressing this aspect of the proposal, physician or audiologist to establish about a miner’s employment history and and it has been adopted unchanged in specific criteria for a technician to both occupational and non-occupational the final rule. follow in determining whether the noise exposures, in order to make Under paragraphs (a)(2)(i) and audiogram is valid or a standard reasoned assessments and conclusions (a)(2)(ii) of this section, which have threshold shift or a reportable hearing about the source of any hearing loss that been adopted from § 62.160(a)(2) of the loss has occurred. This comment has may be detected in the course of proposal, the mine operator must have not been adopted in the final rule, audiometric testing. If the miner’s a physician or an audiologist, or a because the rule already requires that a occupational noise exposures are qualified technician under the direction qualified technician work under the minimal, and yet the miner has incurred or supervision of a physician or an supervision or direction of a physician a severe hearing loss, this should audiologist, determine if an audiogram or an audiologist. The physician or indicate to the physician or audiologist is valid and if a standard threshold shift audiologist is ultimately responsible that he or she must look beyond the or reportable hearing loss has occurred. under the final rule for ensuring that the workplace for the cause of the hearing This requirement is consistent with technician performs audiometric testing loss. The doctor can make an educated provisions in OSHA’s noise standard. and evaluation with the requisite level determination that a hearing loss is Several commenters stated that only of proficiency. MSHA has therefore occupational based on certain patterns those physicians with experience and concluded that it is unnecessary to commonly seen in occupational loss. expertise in hearing and hearing loss include a specific requirement for Some of these indicators are— should be permitted to review making this determination. 1. If the hearing loss is consistent in audiograms. MSHA has concluded that Another commenter challenged the both ears; physicians should be included among proposed requirement that the mine 2. If the loss is more severe in the those professionals who may evaluate operator instruct the physician, higher speech frequencies; audiograms, for reasons addressed in audiologist, or qualified technician to 3. If the patient has a history of greater detail in the preamble discussion determine if an audiogram is valid, exposures to noisy workplaces; and for § 62.170 of the final rule. maintaining that mine operators should 4. If the patient has no evidence of Other commenters stated that the final rely on the medical professional’s illness or injury to the head or ears and rule should define what constitutes an judgement instead. there is no history of familial hearing invalid audiogram, in light of the fact MSHA agrees with commenters that loss or noisy pastimes (rock music, that physicians, audiologists, and mine operators typically would not have motorcycles, hunting). MSHA has qualified technicians, under the the expertise to determine the validity concluded that taking this approach in direction of a physician or audiologist, of an audiogram. However, the final rule such instances of uncertainty provides are required to determine whether the places on mine operators the the best protection for miners. audiogram is invalid. One commenter responsibility to ensure that miners are Paragraph (a)(1) of § 62.172 of the recommended that the final rule adopt protected from occupational hearing final rule is adopted from proposed the Head and Neck Surgery referral loss. One part of an effective hearing § 62.160(a)(1), and requires that the criteria of the American Academy of conservation program is regular mine operator inform the person Otolaryngology for determining whether audiometric testing for miners at risk, evaluating the audiogram of the an audiogram is invalid. and MSHA has concluded that it is requirements of part 62 and provide the MSHA has not adopted the suggestion appropriate to require mine operators to evaluator with copies of the miner’s above and does not provide a definition ensure that the professionals who audiometric test records. for invalid audiogram, or a list in the conduct and evaluate audiometric tests The intent of this provision is to final rule of the deficiencies that could do so in accordance with the ensure that physicians and audiologists render an audiogram invalid. Instead, requirements of the final rule. are sufficiently familiar with the final the final rule requires that this Paragraph (a)(2)(ii) also requires the rule’s requirements to evaluate miners’ assessment be made by qualified evaluator of the audiogram to determine audiograms in compliance with the professionals—physicians, audiologists, whether a miner has incurred a standard regulations. For example, the evaluator and qualified technicians—and relies on threshold shift in hearing. should be aware of how the final rule their professional judgment and Determination of a standard threshold defines a standard threshold shift, the expertise in determining whether an shift triggers specific remedial actions, criteria in the final rule for audiometric audiogram is valid. These professionals designed to prevent additional hearing retesting or medical follow-up, are free to use whatever criteria they loss. Commenters raised a number of procedures for correction for age- deem appropriate in making such a issues concerning the appropriate induced hearing loss, and recordkeeping determination, including the American definition for ‘‘standard threshold requirements. OSHA’s noise standard Academy of Otolaryngology referral shift,’’ defined in § 62.101 of the final requires employers to provide the criteria referenced above. In any case, it rule, which are addressed in detail in evaluator of the audiograms with a copy would not be possible to provide an the preamble discussion of that section.

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Paragraph (a)(2)(ii) of this section of MSHA has concluded that some would preclude company physicians or the final rule also requires the evaluator protection must be provided to audiologists from either conducting of audiograms to determine if there has individual miners’ medical information audiometric tests or evaluating been a ‘‘reportable hearing loss.’’ Under that is not occupationally related. audiograms. MSHA agrees that medical part 50 of MSHA regulations, mine Accordingly, to safeguard the privacy of professionals conducting audiometric operators must notify MSHA within ten individual miners, the final rule adopts testing who are employees of the mine working days of detection of a miner’s the proposed provision that requires operator should have the same access to hearing loss. ‘‘Reportable hearing loss’’ mine operators to instruct the physician test findings and diagnoses, and are is defined in § 62.101 of the final rule or audiologist conducting the bound by the same strictures on as a change in hearing sensitivity for the audiometric test not to reveal to the confidentiality as professionals who are worse relative to a miner’s baseline mine operator information that is not independently employed. However, audiogram, of an average of 25 dB or occupationally related. MSHA has concluded that clarification more at 2000, 3000, and 4000 Hz in Although MSHA agrees that it is of this interpretation in the preamble is either ear. Several commenters conceivable that some non-occupational sufficient, and no specific provision disagreed with the proposed definition medical conditions (such as an inner ear needs to be included in the final rule. of ‘‘reportable hearing loss,’’ and this condition that affects the miner’s Several commenters pointed out that issue is discussed in detail in the balance) discovered during an the proposal would require the mine preamble in § 62.101. audiometric examination could have a operator to instruct the physician or Paragraph (a)(3) of this section of the bearing on a miner’s safety at the mine audiologist not to reveal information to final rule adopts proposed site, it has concluded that concerns for the mine operator, but would not § 62.160(a)(3), with one addition, and the miner’s privacy outweigh the mine require a qualified technician requires the mine operator to instruct operator’s need for such information. performing the audiometric testing to be the physician, audiologist, or qualified Any greater access to results of similarly instructed. This commenter technician not to reveal to the mine audiometric testing could discourage believed that technicians should be operator, without the written consent of miners from submitting to this given the same direction by the mine the miner, specific findings or diagnoses voluntary testing. In any case, the miner operator. As stated above, MSHA has unrelated to the miner’s exposure to is free to share such information with adopted this comment in the final rule occupational noise or the wearing of the mine operator if he or she chooses for consistency. The expectation is that hearing protectors. In response to to do so. the physician, audiologist, or qualified Other commenters were concerned commenters, the final rule includes technician will receive the instruction about the impact the proposed qualified technicians among those who from the mine operator and will ensure restriction would have on the ability of would receive this instruction. that the information will be protected. Although OSHA’s air quality standards mine operators to defend against Under paragraph (a)(4) of § 62.172 of and benzene and lead standards contain hearing loss claims filed under state the final rule, which has been adopted similar provisions, neither MSHA’s nor workers’ compensation laws. These OSHA’s noise standard currently commenters were afraid that the without change from § 62.160(a)(4) of includes such a restriction. restriction would limit mine operators’ the proposal, the mine operator must This aspect of the proposal elicited access to relevant information on non- obtain the audiometric test results and many comments. A number of occupationally related conditions the interpretation of the results from the commenters opposed the proposed discovered during the course of person evaluating the audiogram within restriction, for a variety of reasons. audiometric testing, and would 30 days of the testing. OSHA’s noise Some stated that if the physician or therefore prevent them from using this standard does not specify a deadline for audiologist discovers a condition that information as a defense. Nothing in the the evaluation of audiograms. could affect the safety or health of the final rule would prevent a mine Some commenters stated that 30 miner or other miners in the workplace, operator from arranging a medical calendar days may not be sufficient for the mine operator should be provided examination for a miner to determine a mine operator to obtain audiometric with that information, and the miner the validity of a workers’ compensation test results from the test provider. should not be permitted to withhold it. claim. Such an examination would be Several commenters expressed concerns Others believed that if mine operators outside the purview of this rule and not about this deadline, and felt that it are required to pay for the testing, they subject to the limitations imposed under would be unrealistic, particularly if a are entitled to have access to the this section. Additionally, information mobile test van provides the information. Still others believe that that is relevant to a workers’ audiometric testing. A number of because mine operators are responsible compensation claim may be subject to commenters suggested the deadline be for protecting miners against noise- the discovery process in civil litigation extended to 60 days. One other induced hearing loss, all information and may be required to be produced commenter believed that 75 days would relating to the miner’s hearing loss, under state law. The restriction in the be appropriate. Other commenters whether occupationally related or not, final rule would not preclude such believed it would be unfair to penalize should be made available to mine disclosure. the mine operator, who has little or no operators or persons employed by One commenter suggested that the control over the promptness with which operators to administer hearing final rule should make clear that the test provider furnishes test results to conservation programs or who are physicians and audiologists who are the operator. Several commenters responsible for the working conditions employees of the mine operator have the suggested that the final rule require and job assignments of individual same access to test findings and mine operators to do what they can to miners. On the other hand, one diagnoses as any other physician or obtain test results within 30 days, but commenter stated that voluntary audiologist, even though the company- should not penalize operators for late audiometric testing results should be employed professionals could be results when the delay is beyond their treated as confidential medical considered to be agents of the mine control. In contrast, one commenter information, and not be disclosed to operator. The commenter believed that recommended that the time limit be anyone without the miner’s consent. a literal interpretation of this provision reduced to 15 days.

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MSHA has determined that a 30- the final rule allow 60 days for a mine (2) Finding the age at which the most calendar-day time limit for the operator to offer a miner a retest. One recent audiogram was taken and evaluation of audiograms is reasonable, other commenter recommended that recording the corresponding values of and is necessary to prevent undue MSHA adopt the provisions in OSHA’s age corrections at 2000 Hz through 4000 delays in the evaluation of the standard for audiometric retests if a Hz; and (3) Subtracting the values found audiogram and in notification of the standard threshold shift is found. in step (1) from the value found in step miner of the results. Because § 62.175 of Under the final rule, audiometric (2). The differences calculated represent the final rule allows mine operators 10 retesting where a miner’s initial that portion of the change in hearing working days after receipt of test results audiogram has been determined to be that may be due to aging. For example: to notify a miner of those results, more invalid must occur within 30 calendar the miner is a 32-year-old male. The than 40 days may pass from the date of days, provided that any medical audiometric history for his right ear is an audiometric test until the miner pathology that may have prevented the shown in decibels below. receives notification of the test results. taking of a valid audiogram has In those cases where an audiometric improved to the point where a valid Audiometric test fre- retest is appropriate, miners may not retest can be conducted. It should be Miner's age quency (Hz) receive their test results more than 100 noted that the 30-day period does not 2000 3000 4000 days after the initial testing. MSHA has begin until the medical pathology concluded that increasing the deadline causing the problem has improved. The 26 ...... 5 5 10 to 60 or 75 days would result in provision in paragraph (b)(2) for a retest 27 * ...... 0 0 5 unacceptably long delays in miner after detection of a standard threshold 28 ...... 0 0 10 notification. Moreover, contrary to the shift allows the mine operator to 29 ...... 0 5 15 30 ...... 5 10 20 assertions of commenters, MSHA does substantiate that the shift has occurred not believe that mine operators have 31 ...... 10 20 15 and confirm that the hearing loss 32 * ...... 10 10 25 little or no control over the promptness detected is permanent before taking with which test results will be required corrective actions such as The audiogram at age 27 is considered furnished. Under the final rule mine miner retraining and review of the operators will either directly employ the baseline since it shows the best effectiveness of noise controls at the hearing threshold levels. Asterisks have test providers, in which case meeting operator’s mine. In the event that the the 30-day time frame will be directly been used to identify the baseline and miner declines to submit to a retest, the most recent audiogram. A threshold within their control, or contract for this 30-day period within which corrective service, in which case they may ensure shift of 20 dB exists at 4000 Hz between action must be taken would begin from the audiograms taken at ages 27 and 32. that compliance with the 30-day the date of the miner’s refusal of a retest. deadline is a requirement of the (The threshold shift is computed by MSHA has concluded that 30 days is contract. Accordingly, MSHA has subtracting the hearing threshold at age a reasonable deadline for audiometric concluded and the final rule reflects 27, which was 5, from the hearing retesting, recognizing that 30 days may that the mine operator must obtain the threshold at age 32, which is 25). A not be sufficient time for a retest if a requisite evaluation of an audiogram retest audiogram has confirmed this mine operator must rely on a mobile test within 30 days. shift. The contribution of aging to this Paragraph (b)(1) of § 62.172 of the van to provide the retesting. However, change in hearing may be estimated in final rule, which is adopted from where retesting is necessary, MSHA the following manner. Go to Table 62– § 62.160(b)(1) of the proposal, requires believes that it should be conducted as 3 and find the age correction values, in the mine operator to offer an quickly as possible, and the mine dB, for 4000 Hz at age 27 and age 32. audiometric retest within 30 calendar operator may find it necessary to send days of receiving a determination that the miner to the nearest available testing Frequency (Hz) facility rather than waiting for a mobile an audiogram is invalid, provided any 2000 3000 4000 medical pathology has improved to the test van. point that a valid audiogram may be Paragraph (c) of § 62.172, which is Age 32 ...... 5 7 10 obtained. If the results of an annual adopted unchanged from proposed Age 27 ...... 4 6 7 audiogram demonstrate a standard § 62.160(c), allows the adjustment of Difference ...... 1 1 3 threshold shift or a reportable hearing audiometric test results for the loss, paragraph (b)(2) of this section contribution of age-induced hearing loss The difference represents the amount of allows a mine operator to offer the in determining whether a standard hearing loss that may be attributed to miner one retest within 30 calendar threshold shift or reportable hearing loss aging in the time period between the days of receiving the results. This will has occurred. Adjustment of baseline audiogram and the most recent allow mine operators to verify the audiometric test results for age-induced audiogram. In this example, the results of the annual audiogram. The hearing loss is optional under the final difference at 4000 Hz is 3 dB. This value mine operator may then substitute the rule; however, any such adjustment is subtracted from the hearing level at results of the retest for the annual must be made to both the baseline and 4000 Hz, which in the most recent audiogram. These provisions are similar annual audiograms, in accordance with audiogram is 25, yielding 22 after to provisions in OSHA’s noise standard, the procedures set forth in paragraphs adjustment. Then the hearing threshold which permits a retest within 30 days to (c)(1) through (c)(3). For each in the baseline audiogram at 4000 Hz (5) confirm a standard threshold shift, but audiometric test frequency, determine is subtracted from the adjusted annual which does not specifically require a from Table 62–3 or 62–4 the age audiogram hearing threshold at 4000 Hz retest if the audiogram is judged to be correction values for the miner by: (1) (22). Thus the age-corrected threshold invalid. Finding the age at which the baseline shift would be 17 dB (as opposed to a Few comments were received on this audiogram or revised baseline threshold shift of 20 dB without age aspect of the proposal. One commenter audiogram was taken and recording the correction). stated that scheduling miners for a retest corresponding values of age corrections OSHA’s noise standard also permits can be difficult, and recommended that at 2000 Hz through 4000 Hz; the use of age-induced hearing loss

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This is adopted in the final rule are those that miner needs a follow-up evaluation, particularly important because the were used by NIOSH in its 1972 Criteria because physicians who are not hearing pattern of hearing loss due to aging Document on Occupational Exposure to specialists may not be qualified to closely resembles that of hearing loss Noise. Although there may be slight determine that a miner needs a follow- due to noise exposure. variations in adjustment at individual up examination. MSHA has not adopted Many commenters who addressed this frequencies among similar tables the suggestion of these commenters in issue supported the use of age developed by other researchers, the light of the licensing and ethical correction factors. Some of these NIOSH age values are similar to those of standards that apply to physicians. The commenters believed that failure to other widely accepted and applied age- Agency expects that physicians will adjust audiometric test results based on induced hearing loss data bases, such as exercise professional judgment in a miner’s age would result in inaccurate the database of the U.S. Public Health assessing whether they possess the data, and may indicate that there is a Service, the data used by Robinson and experience and qualifications to make higher incidence of hearing loss due to Burns, and those of Passchier-Vermeer. the required medical determinations. workplace noise exposure than actually The NIOSH data are derived from a This issue of the qualification of would be occurring. Some commenters highly screened population, that is, one physicians is addressed in greater detail stated that many older miners would be which excluded individuals with any in the preamble discussion of § 62.170. If the physician or audiologist found to have a standard threshold shift. significant noise exposure on the job, off believes that the suspected pathology As a result, mine operators would be the job, or during military service. Use that prevents taking a valid audiogram required to take unnecessary corrective of a single set of age values will is related to occupational noise measures at their mines to address these standardize the process of determining exposure or to the wearing of hearing miners’ hearing loss, which may be standard threshold shifts nationwide. protectors, the final rule requires the unrelated to occupational noise Proposed Tables 62–3 and 62–4 have mine operator to pay for the miner’s exposure. One commenter stated that been adopted under the same numbers follow-up medical evaluations. Several adjustment for age-induced hearing loss in the final rule. is a widely accepted practice, and is commenters to the proposed rule were supported by the scientific community Section 62.173 Follow-Up Evaluation concerned that this could be read to and by the relevant scientific literature. When an Audiogram Is Invalid require the mine operator to pay for a Some commenters opposed the use of follow-up examination for an ear This section of the final rule has been age corrections, because they were infection, if the audiologist or physician adopted from § 62.170 of the proposal, concerned that it could interfere with merely ‘‘believes’’ that the infection is and establishes requirements for a the detection of noise-induced hearing aggravated by occupational noise follow-up evaluation of a miner’s loss in some miners, and because exposure or the wearing of hearing hearing if a valid audiogram cannot be necessary corrective actions would not protectors. These commenters stated obtained because of a suspected medical be taken, and the miners’ hearing would that the mine operator should be be permitted to deteriorate even further. pathology caused or aggravated by noise required to pay only for treatment of NIOSH currently recommends that exposure or the use of hearing conditions that actually result from audiograms not be corrected for age, protectors. This section also provides noise exposure that occurs or hearing based on the reasoning that it is that, in the event that the medical protectors that are used at the mine inappropriate to apply age correction pathology is unrelated to noise exposure operator’s facility. factors from a population to an or to the use of hearing protectors, the The final rule reflects MSHA’s individual. NIOSH maintains that if a mine operator must instruct the conclusion that mine operators have worker’s audiogram is to be corrected physician or audiologist to inform the primary responsibility for work-related for age, the hearing loss of a non- miner of the need for an examination. medical problems. Under the final rule, occupational noise-exposed group with Finally, mine operators must instruct if the physician or audiologist the same demographic characteristics as the physician, audiologist, or qualified determines that the suspected medical the worker should be used. technician not to reveal to the mine pathology is unrelated to the miner’s MSHA has concluded that the operator findings or diagnoses unrelated occupational noise exposure or to the optional use of age correction factors is to the miner’s occupational noise wearing of hearing protectors, the mine appropriate, and has adopted in the exposure or the wearing of hearing operator must instruct the medical final rule the proposed provisions that protectors. MSHA’s current noise professional to inform the miner of the allow it. Such adjustments are standards have no provisions that need for an otological examination. The consistent with current scientific address follow-up evaluations. final rule does not require the mine practice and with OSHA’s noise Paragraph (a) of § 62.173 of the final operator to pay for this examination, standard. rule provides that if a valid audiogram which will be at the miner’s expense. MSHA agrees that not all individuals’ cannot be obtained due to a suspected Another commenter suggested that hearing is affected to the same degree by medical pathology of the ear, and the mine operators be required to pay for age. Additionally, studies have shown physician or audiologist evaluating the follow-up evaluations only if there has that individuals in environments free audiogram believes that the problem been a determination of significant from noise exposure display little was caused or aggravated by the miner’s occupational noise exposure. The final evidence of age-induced hearing loss. exposure to noise or wearing of hearing rule does not adopt this comment, However, MSHA agrees with the protectors, a miner must be referred for because a determination of the need for commenters who stated that failure to a clinical-audiological or otological a clinical-audiological or an otological allow age correction in the final rule evaluation, as appropriate, at the mine examination under this section should would result in many miners being operator’s expense. Section 62.101 of not be based solely on a miner’s noise

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In some cases information on physician or audiologist has concluded operator information not occupationally a miner’s noise exposure may be scarce that the suspected medical pathology of related. A more detailed discussion of or nonexistent. Although noise exposure the ear which prevents obtaining a valid the basis for MSHA’s conclusion on this measurements provided by the mine audiogram is unrelated to the miner’s issue can be found in the preamble operator may form part of the basis exposure to occupational noise or the under § 62.172(a)(3). upon which the qualified reviewer wearing of hearing protectors, the mine Section 62.174 Follow-Up Corrective makes a determination, the final rule operator must instruct the physician or Measures When a Standard Threshold does not adopt the commenter’s audiologist to inform the miner of the Shift Is Detected suggestion that mine operators be need for an otological evaluation. In required to pay for follow-up such cases, the final rule imposes no This section of the final rule, which examinations only when the miner has financial obligation on the mine adopts the requirements of proposed been exposed to significant operator. § 62.180, establishes the corrective occupational noise. Paragraph (c) of § 62.173 adopts, with measures that must be taken by a mine The preamble to the proposal noted one addition, the proposed requirement operator when a miner is determined to that the type of follow-up evaluation that the mine operator instruct the have incurred a standard threshold shift that should be conducted as a result of physician or audiologist not to reveal to in hearing sensitivity. This section the suspected medical pathology the mine operator any specific findings provides that, unless a physician or (clinical-audiological or otological) or diagnoses unrelated to the miner’s audiologist determines that the standard depends upon the specific exposure to noise or the wearing of threshold shift is neither work-related circumstances in each case. Standards hearing protectors without the written nor aggravated by occupational noise found in the international community consent of the miner. As under the exposure, mine operators must take and the U. S. armed forces vary to some similar requirement in § 62.172, specified corrective actions within 30 degree regarding certain elements, such commenters suggested adding qualified calendar days after receiving evidence as the extent of follow-up examinations. technician to the list of persons that the or confirmation of a standard threshold A clinical-audiological evaluation is mine operator must instruct. MSHA has shift. ‘‘Standard threshold shift’’ is generally more comprehensive, adopted this suggested change in the defined in § 62.101 of the final rule as intensive, and accurate than the routine final rule. a change in hearing sensitivity for the audiometric testing conducted to Some commenters were concerned worse relative to the miner’s baseline identify a hearing loss, and may be that this restriction would be audiogram (or revised baseline warranted if, for example, an unusually counterproductive and harmful to the audiogram) of an average of 10 dB or large threshold shift occurs in one year miner in cases where the miner’s more at 2000, 3000, and 4000 Hz in given relatively low noise exposures. An medical condition should be better either ear. otological evaluation, on the other hand, understood by the mine operator in The corrective actions that mine is a medical procedure conducted by a order to allow the miner to be more operators are required to take under medical specialist such as an effectively protected on the job. This § 62.174 of the final rule when a miner otolaryngologist to identify a medical aspect of the proposal, which is similar experiences a standard threshold shift pathology of the ear, such as an acoustic to the restriction in § 62.172(a)(3) of the include: Retraining the affected miner in neuroma, a type of tumor. Another more final rule, was the subject of several accordance with § 62.180 of the final common reason for an otological comments. Some commenters were rule, providing the miner with the examination is for the removal of opposed to the proposed restriction for opportunity to select a different hearing impacted ear wax, which reduces a variety of reasons. Some of these protector, and reviewing the hearing sensitivity and can be commenters stated that if the physician effectiveness of any engineering and aggravated by the use of earplug-type or audiologist discovers a condition that administrative controls to identify and hearing protectors. Audiometric testing could affect the safety or health of the correct any deficiencies. can indicate the existence of such miner in the workplace, the mine A number of commenters supported medical pathologies. operator should be provided with that the need for intervention by the mine Making the determinations under this information, and the miner should not operator when a miner has experienced section will not require a diagnosis by be permitted to withhold it. One a standard threshold shift. Several of a physician-specialist confirming a commenter was concerned about the these commenters stated that it should medical pathology. The rule is intended impact the proposed restriction would not matter whether or not a standard to allow the audiologist or physician have on the ability of mine operators to threshold shift is work-related, and that authorized to review the audiograms to defend against hearing loss claims filed intervention should be required in any make a determination as to whether a under state workers’ compensation case to prevent further hearing loss. One follow-up examination is appropriate- laws. Others maintained that because of these commenters stated that it is and who pays for it. Accordingly, the the mine operator is responsible for probably not realistic to believe that the word ‘‘suspected’’ precedes the words protecting miners against noise-induced mining industry can identify outside ‘‘medical pathology’’ in this section. hearing loss, all information relating to causes of hearing loss. Another Finally, one commenter suggested the miner’s hearing loss, whether commenter was of the opinion that changing the term ‘‘medical pathology’’ occupationally related or not, should be miners whose audiograms indicate such in this paragraph to ‘‘medical made available to the mine operator. a degree of hearing loss should still be condition’’, because the term MSHA has concluded that some provided with information and training ‘‘pathology’’ implies illness. The final protection must be given to individual on how they can protect themselves. rule does not adopt the suggestion of miners’ medical information that is not Still another commenter stated that the this commenter, because the definition occupationally related. Accordingly, to final rule should require additional

VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00074 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.113 pfrm08 PsN: 13SER2 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations 49621 actions, including examination of the importance of regular audiometric addressed in greater detail in the noise exposure of the affected miner or testing, to ensure that the hearing loss preamble discussion of § 62.160. of other miners with similar does not progress. Also as indicated in Several commenters supported the occupations. This commenter strongly the preamble to the proposal, the addition of a requirement that the miner supported a requirement that the mine required training may be conducted in use a hearing protector and the mine operator investigate the cause of the conjunction with annual refresher operator enforce its use when a standard miner’s standard threshold shift. training under 30 CFR Part 48, but only threshold shift is detected. The final One commenter believed that if the training will be conducted within rule also requires that the mine operator effective training and audiometric 30 days of the detection of the standard provide and ensure that miners wear testing would make corrective measures threshold shift, the time frame hearing protectors under certain after the detection of a standard established in this section. conditions, including when the miner threshold shift unnecessary. This Paragraph (b), like the proposal, incurs a standard threshold shift and is commenter added that miners should be requires the mine operator to provide exposed to noise at or above the action encouraged to take responsibility for the miner with an opportunity to select level. A more detailed discussion of their own health. Several other a hearing protector, or a different mandatory use of hearing protectors is commenters stated that the proposed hearing protector if the miner has included under § 62.130 of the requirements for corrective action previously selected a hearing protector, preamble, which addresses the underscored a need for mandatory from among those offered by the mine permissible exposure level. participation by miners in audiometric operator in accordance with § 62.160. Paragraph (c) of this section of the testing. These commenters maintained Several commenters advocated the final rule requires the mine operator to that an effective hearing conservation inclusion of the additional requirement review the effectiveness of any engineering and administrative noise program must require miners to submit that the hearing protector be checked to controls, in order to identify and correct to such tests. ensure that it is in good condition, and MSHA has concluded that it is any deficiencies. The implementation replaced if necessary. These essential that mine operators be and maintenance of engineering and commenters also recommended that required to take certain corrective administrative noise controls when miners should be encouraged to select a measures to prevent further miners are subjected to noise exposures hearing protector providing greater deterioration of miners’ hearing above the permissible exposure level is noise reduction. sensitivity after a standard threshold the primary method for reducing shift has been detected. A hearing loss The final rule, like the proposal, miners’ noise exposure and their risk of of 10 dB is sufficiently significant to allows miners to select their own hearing loss. Because ineffective warrant intervention by a mine operator, hearing protectors. The effectiveness of engineering and administrative controls unless it is determined the loss is not any hearing protector depends on a may be the primary cause of a miner’s work-related. If miners are experiencing number of factors, only one of which is standard threshold shift, the final rule that level of occupationally related its noise reduction rating value. Even requires the mine operator to review the noise-induced hearing loss, as though a miner may not select the effectiveness of existing controls and determined by a physician or hearing protector with the highest noise update or modify them to enhance the audiologist, it is a clear indication that reduction rating, factors such as protection provided to miners. OSHA’s the noise controls in place at the work comfort, fit, and personal preference are existing noise standard does not require site have been ineffective. In such critical in ensuring that the miner will such a review when a standard situations further action is appropriate fully utilize this essential piece of threshold shift is detected. to determine why the miner has not personal protective equipment. Some commenters supported the been adequately protected. Moreover, there is no standardized proposed review of engineering and Paragraph (a) of § 62.174 of the final objective method to determine the administrative controls when a miner rule requires that the miner be retrained, degree of protection a given hearing experiences a standard threshold shift. which includes the instruction required protector will provide a miner. MSHA However, several commenters noted by § 62.180 of the final rule, under has therefore determined that requiring that a mine operator should not be which training must address such topics that miners be encouraged to select a required to review the effectiveness of as the effects of noise on hearing, the hearing protector based primarily or engineering and administrative noise value and effective use of hearing exclusively on the protector’s noise controls if the standard threshold shift protectors, the operator’s and miner’s reduction rating value would not be occurs in a single miner and can be respective tasks in maintaining mine well advised, and this comment has positively attributed to the inaction of noise controls, and the value of therefore not been adopted in the final that miner. audiometric testing. Commenters on this rule. The final rule also does not adopt This comment has not been adopted aspect of the proposal generally commenters’ suggestions that mine in the final rule. Mine operators are supported the training requirement. operators be required to check the fit responsible for protecting miners from As indicated in the preamble to the and condition of the hearing protector overexposures to noise at the mine site. proposal, if the noise controls in place and replace it, if necessary, because The mine operator must determine are effective—including the training— these concerns are already addressed in which are the best and most protective this hearing loss should not be other sections of the final rule. As controls for the particular operation. occurring. Providing the miner with § 62.180 of the final rule requires that The degree to which the noise controls retraining after the miner has miner training address the care, fitting, that have been implemented rely on the experienced a standard threshold shift and use of hearing protectors, miners actions of individuals may have some is intended to ensure that the miner is will be trained to evaluate the condition bearing on how well the controls work. not inadvertently being overexposed to of their hearing protectors and notify the Effective engineering noise controls noise because of a lack of awareness mine operator when the condition of the protect the miner without the need for about effective use of noise controls or protector has deteriorated and needs to the miner’s active participation. If the hearing protectors. This retraining may be replaced. The issue of selection and controls in place rely too heavily on the also emphasize to the miner the effectiveness of hearing protectors is participation of a miner and have

VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00075 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.114 pfrm08 PsN: 13SER2 49622 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations proven to be inadequate (as evidenced providing for miner notification of conservation program. Immediate by the detection of a standard threshold audiometric test findings and for feedback to the miner at the completion shift), a prudent mine operator will notification to MSHA of any instances of the test provides the greatest benefit, explore implementation of engineering of ‘‘reportable hearing loss,’’ as defined because that is the point at which controls that will be effective regardless in § 62.101 of the final rule. miners typically have the greatest of the miner’s actions. The mine Paragraph (a) of this section of the interest in information on the effects of operator determines working conditions final rule requires that mine operators noise on their hearing, and are more at the mine site and is responsible for notify the miner in writing of the results likely to take action, such as wearing ensuring the design, implementation, of an audiogram or a follow-up hearing protectors conscientiously; and use of effective controls to protect evaluation within 10 working days of stringently complying with miners from overexposure to noise and receiving the results. There are no administrative noise controls; or resulting hearing loss. existing MSHA regulations that impose continuing to submit to audiometric Although the proposed rule would such a requirement. testing. not have provided for the transfer of a MSHA received no comments The Agency realizes that it may not be miner with a diagnosed occupational opposing a miner notification practical to inform miners immediately hearing loss to a low-noise work requirement, although several of the results of their audiometric tests. environment, MSHA did solicit commenters believed that mine However, because of the importance of comments on whether a miner transfer operators should be required to notify a the information, it is necessary to provision was necessary. Some miner of test results only when the establish a maximum time frame for commenters stated that it would not be results indicate a significant shift in the mine operators to inform miners of the appropriate to include a miner transfer miner’s hearing level, consistent with audiometric test findings and results. provision in the final rule, arguing that OSHA requirements. These commenters Therefore, the final rule adopts the miners could manipulate audiogram believed that miner notification was not requirements of the proposed rule and results (for example, by listening to loud warranted if the audiometric test allows mine operators up to 10 working music prior to the test) in an attempt to indicated no additional hearing loss. days after the receipt of test results to Commenters disagreed on the length force mine operators to move them to inform the miner. This means that mine of the period within which such different, more desirable jobs. Other operators will have up to two weeks to notification should occur. Several commenters supported the concept of a make this notification, which is a commenters recommended that MSHA miner transfer provision, arguing that sufficient time frame for this adopt the provision in OSHA’s noise this is appropriate when other efforts to notification. halt the progression of the miner’s standard that requires employee MSHA has also concluded that it is hearing loss have failed and that miners notification within 21 days. Other appropriate to require written who were transferred should suffer no commenters recommended a 15-day notification to miners of their test loss in wages or benefits as a result, deadline, while still others believed that results. Important that miners are made similar to the provisions in MSHA’s part a 30-day deadline was appropriate. The aware of their test results, and written 90 regulations for coal miners who have commenters who supported a longer notice minimizes the risk of evidence of black lung disease. period believed that 10 days was The preamble to the proposed rule insufficient to allow mine operators to misunderstanding on the part of miners. suggested that a miner transfer program review the audiograms and to provide Some commenters stated that would be extremely complex for mine the required notification, particularly if notification is necessary only when a operators to administer, and may be large numbers of miner audiograms standard threshold shift has occurred, quite infeasible for the metal and were conducted and processed at the but MSHA believes that notification of nonmetal mining industry. The majority same time. One commenter stated that good results serves to reinforce effective of metal and nonmetal mines are miners should be informed of a standard practices and strengthens the effects of smaller mines, many of which would be threshold shift at the time of the test, a hearing conservation program. unable to rotate miners with hearing and provided with the results of Because of the confidentiality of loss to other, less noisy assignments on audiograms within 5 days rather than audiometric test results, it would be a long-term basis. Although MSHA 10. inappropriate, as suggested by a encourages mine operators to transfer Although no commenter specifically commenter, for the final rule to require miners who have incurred a hearing objected to the requirement that the a mine operator to share an individual impairment to jobs with reduced noise miner notification be in writing, several miner’s test results with other miners. exposure, it has concluded that a miner commenters stated that the method of The final rule therefore does not adopt transfer provision is not feasible at most notification should be left to the this comment. small mining operations, due to the discretion of the mine operator. Another Paragraph (a)(1) of this section adopts small number of employees and the commenter recommended that mine without change § 62.190(a)(1) of the limited number of positions with low operators notify miners in a timely proposal, and requires that the mine noise exposure to which miners with manner and also share the results with operator inform the miner of the results hearing loss could be transferred. other miners during annual refresher and interpretation of the audiometric Because of the significant feasibility training, apparently based on the belief test, including any finding of a standard problems presented by mandatory miner that if miners hear of co-workers’ threshold shift or reportable hearing transfer and the lack of consensus in the hearing losses, it might serve to loss. This differs from OSHA’s noise mining community on the advisability reinforce their own understanding of the standard, which only requires of a transfer program, the final rule does need for noise controls and the notification of a confirmed standard not adopt a miner transfer provision. importance of using hearing protectors. threshold shift. The requirements of this After considering the comments, paragraph ensure that miners receive Section 62.175 Notification of Results; MSHA has concluded that informing timely information of the results of their Reporting Requirements miners of the results of their audiometric tests, and can take This section of the final rule is audiometric tests in a timely manner is appropriate actions in conjunction with identical to § 62.190 of the proposal, critical to the effectiveness of a hearing the mine operator, in order to reduce

VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00076 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.116 pfrm08 PsN: 13SER2 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations 49623 further occupational noise-induced miner’s baseline audiogram, of an section of the final rule, that a mine hearing loss. average of 25 dB or more at 2000, 3000, operator is not required to report a Paragraph (a)(2) of § 62.175, like the and 4000 Hz in either ear. The issue of miner’s hearing loss to MSHA if a proposal, requires that the mine the definition of reportable hearing loss physician or audiologist has determined operator notify the miner of the need is discussed in the preamble under that the loss is neither work-related nor and reasons for any further testing or § 62.101. aggravated by occupational noise evaluation, if applicable. An important goal of the final rule is exposure. However, some commenters One commenter stated that a mine to clarify the level of hearing loss that advocated that any hearing loss be operator could not notify miners of the is reportable to MSHA under part 50. presumed to be non-occupationally reason for further testing or evaluation, MSHA acknowledges that its current related, and that the final rule should because under the proposal, adopted in reporting requirements have resulted in require the physician or audiologist to § 62.173(c) of the final rule, mine inconsistent reporting; some mine determine definitively that the hearing operators would not be told of findings operators have reported even small loss is work-related before the hearing or diagnoses when the condition hearing losses, while other operators loss would be reportable. These diagnosed is not work-related. MSHA only report a miner’s hearing loss when commenters objected to the fact that the has concluded that this limitation does the miner has received an award of proposal seemed to presume that any not present an obstacle to mine compensation. In other cases, mine hearing loss detected would be both operators notifying miners of the need operators have not reported a miner’s noise-induced and work-related. and reasons for further testing or hearing loss even when an award of The final rule reflects MSHA’s evaluation. If the problem encountered compensation was made because the determination that it is reasonable to is occupationally related, the mine miner had retired. Inconsistent place the responsibility on the operator will be informed of the specific reporting of miners’ hearing loss may physician or audiologist to determine reasons why a follow-up is needed. If also stem from the fact that the when a hearing loss is unrelated to the the problem is not occupationally definition of compensable hearing loss miner’s occupational exposure to noise related, the mine operator will be under workers’ compensation laws or to the wearing of hearing protectors. informed only that a follow-up is varies widely from state to state. For Although in some cases it may not be warranted and must pass that these reasons, MSHA had concluded easy to determine whether an identified information on to the miner as part of that its miner hearing loss data under hearing loss is work-related or not, the the notification required under this part 50 tends to underestimate the final rule follows the approach of the section. MSHA expects that in most if prevalence or degree of hearing loss in proposal that the loss would be not all cases miners will already be the mining industry. reportable in the absence of evidence aware of both the need and reasons why Providing a specific definition in the that the hearing loss is not work-related. a follow-up is recommended, because final rule for ‘‘reportable hearing loss’’ MSHA has concluded that this approach the person performing the audiometric as it is used under part 50 is intended is the most protective for miners, and tests will convey this information to to eliminate exclusive reliance on has adopted it in the final rule. them during the course of the test. workers’ compensation awards as a Several commenters stated that the Notification by the mine operator will criterion for defining when noise- rule is unclear regarding who would be reinforce any information that may have induced hearing loss must be reported. responsible for reporting a loss when a been provided to the miner during the Nevertheless, part 50 will still require miner has been employed by several test procedure. that mine operators report to MSHA operators. MSHA specifically solicited Paragraph (b) of § 62.175 of the final hearing loss for which an award of comments in the proposal on how to rule, like the proposal, requires mine compensation has been made if the capture data on work-related noise- operators to inform MSHA when a hearing loss has not been previously induced hearing loss that is not miner has incurred a reportable hearing reported. Two examples of such cases discovered until after the miner’s loss as defined in part 62, unless the are: (1) If the miner incurred the hearing employment is terminated, or that the physician or audiologist has determined loss before the current mine operator miner had accumulated from work with the loss is neither work-related nor conducted the baseline or pre- several employers. Commenters did not aggravated by occupational noise employment audiogram and subsequent provide any data, information, or exposure. This provision parallels testing did not measure a reportable suggestions. The final rule requires the existing requirements in part 50, which loss; and (2) if the miner has not been mine operator currently employing the require mine operators to report a in a hearing conservation program or affected miner to report the hearing loss miner’s hearing loss whenever a has not received an audiometric test no matter where the miner may have physician determines that it is work- while employed by the mine operator. incurred the loss, provided it has not related, or whenever an award of In determining what degree of been previously reported. compensation is made. Section 50.20–6 occupational hearing loss should be The final rule does not require that specifically includes noise-induced reportable under part 50, MSHA gave mine operators report the same hearing loss as an example of a serious consideration to the fact that a ‘‘reportable hearing loss’’ to MSHA each reportable occupational illness. hearing loss of 25 dB diminishes the year that the miner works at the mine. However, § 62.101 of the final rule now quality of life. The hearing loss that is An additional report to MSHA under provides an explicit definition of reportable under the final rule, although part 50 of a hearing loss involving the ‘‘reportable hearing loss,’’ in order to not equal to material impairment, is same miner is required only if the miner clarify mine operators’ compliance substantial enough to diminish the has incurred an additional 25-dB shift responsibilities and promote the quality of life, and it provides a reliable (50-dB shift from the original baseline). development of improved data on indication of the effectiveness of the However, each ear should be treated hearing loss in the mining community. existing action level and permissible independently in terms of reporting Section 62.101 of the final rule adopts exposure level. hearing loss, unless the reportable loss the proposed definition of ‘‘reportable Several commenters expressed occurs in both ears during a particular hearing loss’’ as a change in hearing support for the proposed provision, year. Although not specifically required sensitivity for the worse, relative to the which is adopted unchanged in this in the final rule, MSHA anticipates that

VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00077 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.117 pfrm08 PsN: 13SER2 49624 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations mine operators will report under part 50 controls; and the purpose and value of exposure is at or above the action level, the actual average hearing loss, the audiometric testing and a summary of an exposure which MSHA has ear(s) in which the reportable loss the procedures. Few commenters identified to be hazardous. occurred, and whether the audiograms specifically addressed the topics in the MSHA has determined that were corrected for age-induced hearing noise training program. However, specialized training on the hazards of loss. several commenters stated that it was noise and the importance of hearing important to stress the selection, fitting, conservation is necessary because, as Section 62.180 Training use, and limitations of hearing several commenters pointed out, part 48 This section establishes specific protectors. training typically does not routinely requirements for training miners under Although all commenters appeared to include detailed training on noise and the final rule. These requirements are support the concept of training miners hearing loss. One reason for this, as very similar to requirements proposed on noise-related topics, they disagreed commenters also pointed out, is that under §§ 62.120(b)(1) and 62.130. Under about whether a separate training there are a number of safety and health the final rule, training of miners is one requirement was warranted. Some topics required to be covered under part of the elements of a hearing commenters believed that training 48 in a relatively short period of time. conservation program. Mine operators miners under this part was unnecessary This does not allow the type of in-depth are required to enroll miners in hearing because miners are already required to training on a narrow topic that is conservation programs under § 62.120, receive training under existing MSHA contemplated under this final rule. and to provide training under § 62.180 regulations in part 48, which require Several commenters took issue with to miners whose noise exposure equals regular training of miners on a variety the proposed requirement that the or exceeds the action level under of safety-and health-related topics, training be provided ‘‘at the time’’ that § 62.120. Miners are also required under including the purpose of taking noise the miner’s noise exposure exceeds the § 62.160(a)(1) to be trained before they measurements. Some of these action level. These commenters stated select hearing protectors. Retraining the commenters were concerned that the that the language should be modified to miner, including the instruction training requirements under this part allow the mine operator more flexibility required under this section, is also would create additional recordkeeping regarding how and when training is required under § 62.174(a) when the requirements for mine operators and conducted. Some commenters miner is determined to have would not serve any purpose, and they recommended one week, while others experienced a standard threshold shift. opposed adding additional training suggested that mine operators be Section 62.180(a) requires that mine requirements under this part. allowed 30 days to satisfy this operators provide miners with initial Other commenters stated that there is requirement, in order to accommodate training under this section within 30 not enough time to cover all the topics varying shift schedules and to develop days of their enrollment in a hearing required under part 48 training, and and conduct an effective training conservation program. Retraining at therefore separate training under this program. One commenter recommended least every 12 months thereafter must be part was appropriate, to ensure that that the final rule specify at least one provided if a miner’s exposure miners were well informed about the hour of initial training be given and at continues to equal or exceed the action hazards of noise and how to ensure that least 30 minutes of annual retraining be level under § 62.120. The proposal they are adequately protected. Some of given. would have required that mine these commenters supported training on MSHA agrees that the language of the operators provide a miner with initial work-related noise hazards as well as proposed rule could be read to allow training at the time that the miner’s proper fitting of hearing protectors. mine operators little time to provide exposure exceeded the action level. In They argued that miners need training training under this part, and the final response to commenters who were to make them aware of the damage rule allows mine operators 30 days to concerned that the proposal did not set acoustical energy can do to hearing, and provide the training after a miner has a deadline for such training, the final that the proposed rule seemed to suggest been enrolled in a hearing conservation rule requires that initial training be that there was no need to train workers program. Under § 62.120 of the final conducted within 30 days of a miner’s until they have been enrolled in a rule, mine operators must enroll a miner enrollment in the hearing conservation hearing conservation program. These in a hearing conservation program when program. OSHA’s noise standard commenters advocated training as a the miner’s noise exposure equals or includes training requirements that are preventive measure rather than as after- exceeds the action level. This time similar to those in the final rule. the-fact treatment. frame will ensure that miners receive Paragraphs (a)(1) through (a)(7) of In the preamble to the proposed rule, the necessary training in a timely § 62.180 of the final rule, like § 62.130(a) MSHA stated that there is considerable manner, while at the same time of the proposal, establish specific precedent for requiring training as part providing mine operators with a requirements for the training and of hearing conservation programs. As reasonable amount of time to provide retraining of miners. Under the final indicated in the preamble, Suter (1986) the training. rule, the mine operator must provide the states, ‘‘Workers who understand the The final rule does not provide miner with instruction in the areas of: mechanism of hearing and how it is lost detailed requirements for the training the effects of noise on hearing; the will be more motivated to protect provided by the mine operator. Instead, purpose and value of wearing hearing themselves.’’ Other researchers concur like other performance-oriented aspects protectors; the advantages and with this opinion (Wright, 1980; Royster of this final rule, mine operators have disadvantages of the hearing protectors et al., 1982). Moreover, the first line of the flexibility under this section to to be offered; the care, fitting, and use defense against risks in mining has determine how best to provide the of the hearing protector worn by the always been training. Accordingly, the training as well as which programs are miner, and the various types of hearing final rule provides for annual best suited to conditions at their mines. protectors offered by the mine operator; instruction to enhance awareness of The final rule requires that certain the general requirements of part 62; the noise risks, operator requirements, and topics be covered by this training, but mine operator’s and miner’s respective available controls. This training is does not specify how long the training tasks in maintaining mine noise required for any miner whose noise must last nor what qualifications the

VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00078 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.119 pfrm08 PsN: 13SER2 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations 49625 training instructors must have. Unlike the goal of providing quality training. the Secretaries of Labor and Health and part 48, the final rule does not require This is appropriate, given the fact that Human Services with access to all MSHA approval of the mine operator’s the mine operator is ultimately records required under this part. Several training plan. However, mine operators responsible for providing adequate commenters stated that confidential may satisfy the requirements of the final training to miners under this final rule. medical records should be accessible to rule and part 48 with the same training, For the same reason, the proposed government agencies only with the provided that training complies with requirement that the training provider written consent of the miner. MSHA has both sets of requirements. sign the certification has not been a statutory right to have access to MSHA intends that the training adopted. records, including medical records. required under the final rule address the Some commenters strongly urged that Section 103(h) of the Federal Mine advantages and disadvantages of the final rule allow training certification Safety and Health Act of 1977 (Mine different types of hearing protectors, to be maintained at locations other than Act) provides that: including earmuffs, earplugs, and canal the mine site, since it may be more In addition to such records as are caps as they relate to the needs of the efficient for some mine operators to specifically required by this Act, every miner and the specific conditions at the store records at a central location. operator of a coal or other mine shall mine. In addition, the mine operator MSHA agrees, particularly in light of the establish and maintain such records, make should discuss the specific advantages fact that electronic records are becoming such reports, and provide such information, and disadvantages of any special more common in the mining industry as the Secretary or the Secretary of Health, hearing protectors offered. and may be stored on computer at Education, and Welfare [now Health and MSHA recommends that mine centralized locations. The final rule Human Services] may reasonably require operators tailor the training provided from time to time to enable him to perform therefore allows mine operators to store his functions under this Act * ** under the final rule to the operations at training certifications at a location other their mines, and may choose to than the mine site. However, they must The Agency believes that access to emphasize certain topics more than be stored in sufficient proximity to the medical records is essential; the records others. Although the final rule provides mine to be produced for an MSHA will be valuable in enforcement of the a basic framework for minimum areas of inspector within a relatively short final rule, will be useful in research into instruction, the training requirements period of time. MSHA expects that in the effects of occupational noise provided here are intended to be most cases this will be no longer than exposure, and will help to evaluate the performance-oriented and allow for one business day. effectiveness of hearing conservation training to be tailored to the individual Mine operators must retain the most programs. mine’s circumstances or to individual recent training certification for as long Another commenter noted that the needs. as a miner is in the hearing conservation preamble stated that mine operators Effective training of miners serves to program and for at least 6 months would have to provide authorized enlist miner participation in hearing thereafter. There were only a few representatives of the Secretaries with conservation, which is critically comments on this issue. One commenter immediate access to all records required important for proper use of hearing suggested that the training records under this part. It was not MSHA’s protectors and compliance with should be maintained for 12 months, intent that records be provided applicable administrative noise rather than 6 months, beyond the immediately to authorized controls. Effective training of miners miner’s enrollment in a hearing representatives of the Secretaries. also helps to ensure that miners will conservation program, but did not MSHA agrees that requiring immediate submit to regular audiometric testing, explain why that would be preferable. access to records to authorized which is completely voluntary on the The final rule adopts the proposed representatives of the Secretaries might part of miners under the final rule. requirement that training records be be too restrictive or burdensome on the Studies have shown a correlation kept as long as the miner is in the mine operator. Although the preamble between instruction and the amount of hearing conservation program and for at to the proposal contained the term protection afforded a miner by the use least 6 months thereafter. As stated in ‘‘immediate,’’ the final rule does not. of hearing protectors. These include the proposed preamble, the retention Following current practice, MSHA Merry et al. (1992), Park and Casali period is short and not burdensome— intends that authorized representatives (1991), Barham et al. (1989), and Casali only the most recent certifications must of the Secretaries have access to records and Lam (1986). be retained and only for 6 months after within a reasonable amount of time that Section 62.180(b) of the final rule the miner’s enrollment in the hearing does not hinder the authorized adopts the proposed requirement that conservation program has ended. These representatives’ conduct of business. In the mine operator certify the date and records will serve to allow MSHA most cases MSHA expects that this will type of training given each miner and inspectors to verify that the required be no longer than one business day. maintain the miner’s most recent training has been provided. MSHA solicited comment on what certification for as long as the miner is actions would be required, if any, to enrolled in the hearing conservation Section 62.190 Records facilitate the maintenance of records in program and for at least 6 months The requirements of proposed electronic form by those mine operators thereafter. The final rule does not adopt §§ 62.200 and 62.210 are combined in who desire to do so, while ensuring the proposed requirement that the § 62.190 of the final rule, and address access in accordance with these person conducting the training sign the access to and transfer of records requirements. The Agency received certification, nor that the certification be required to be kept under this rule. The several comments supporting electronic maintained at the mine site. final rule defines ‘‘access’’ as the right storage of records, but no specifics A few commenters recommended that to examine and copy records. MSHA’s regarding actions required to facilitate the miner be required to sign the final rule is essentially the same as the maintenance of the records in training certificate. This comment has OSHA’s requirements. electronic form. not been adopted in the final rule. Under paragraph (a), as in the As in the proposal, paragraph (a) of MSHA does not believe that requiring proposal, the mine operator must the final rule also provides that, upon the miner to sign a certificate furthers provide authorized representatives of written request, the mine operator must

VerDate 18-JUN-99 14:57 Sep 10, 1999 Jkt 183247 PO 00000 Frm 00079 Fmt 4701 Sfmt 4700 E:\FR\FM\A13SE0.120 pfrm08 PsN: 13SER2 49626 Federal Register / Vol. 64, No. 176 / Monday, September 13, 1999 / Rules and Regulations provide, within 15 calendar days of the miners’ representative access only to to any private organizations. Under the request, access to records to miners, training records and exposure records, final rule, a private organization may former miners, miners’ designees, and not to confidential medical records, the only have access if a miner selects the representatives of miners. The first copy proposed rule language was unclear on organization as his or her designee. In must be provided at no cost, and any this distinction. Paragraph (a)(2) of this that case, the organization would have additional copies at reasonable cost. section of the final rule clarifies the access as the miner’s designee to all Several commenters supported the intent of the proposed rule that miners’ records required to be kept under this provisions of access and transfer of representatives designated under part 40 part for that individual miner. records, but suggested that MSHA have have access to training certifications One commenter maintained that the a separate standard, as OSHA does. The compiled in accordance with § 62.180(b) miner’s designee should not be required provisions in this final rule are similar of the final rule, and to notices of to have written permission to see his or to those in other health standards exposure determinations in accordance her records when no other person with proposed in recent years by MSHA and with § 62.110(d). Paragraph (a)(2) does access is required to have it. The are similar to OSHA’s. MSHA and not provide for access to medical commenter argues further that if this is NIOSH have statutory rights to access of records by the part 40 miners’ due to the confidentiality of medical records, but since MSHA does not have representative. This is consistent with records, then anyone should be required generic recordkeeping and access the requirements of the Mine Act, and to have the written permission of the requirements, including recordkeeping responds to commenters who were miner, including MSHA and NIOSH. and retention requirements in the concerned about maintaining the However, these agencies have a substantive noise regulation will confidentiality of miners’ medical statutory right to access to records and facilitate compliance. This will provide records. do not need the written consent of the the regulated community with better The final rule does not adopt the miner, but a designee does not and clarity regarding applicable provision in proposed § 62.200(a)(1) that would therefore need written requirements. would have provided former miners authorization to access records that may Paragraph (a)(1) of this section of the with access to all records that the mine contain personal, private information. final rule remains relatively unchanged operator would be required to maintain Paragraph (a)(2) requires that any from the proposal and provides that a under part 62. Instead, the final rule representative of miners designated miner, or a miner’s designee with the provides that any former miner may under part 40 of this title must have miner’s written consent, has access to have access to records which indicate access to noise training certifications all the records that the mine operator is his or her own noise exposures. This required under § 62.180(b) as well as required to maintain for that miner revision results from MSHA’s any notice of exposure determination in under this part. Several commenters recognition that the Mine Act gives accordance with § 62.110(d) of this part asked whether the term ‘‘miner’s former miners limited access to records. for the miners he or she represents. designated representative’’ used in Section 103(c) of the Mine Act explicitly Several commenters stated that the § 62.200(a)(1) of the proposal referred to provides that ‘‘[s]uch regulations [those miners’ representative should not have the representative designated by two or dealing with toxic substances and access to miners’ records unless the more miners under part 40 of MSHA’s harmful physical agents] shall also make miner has given written consent. One regulations. In fact, the term ‘‘miner’s appropriate provisions for each miner or commenter stated that MSHA should designated representative’’ used in former miner to have access to such change this section to provide access § 62.200(a)(1) of the proposal was records as will indicate his own only to the individual miner involved. intended to refer to a representative exposure to toxic materials or harmful Several commenters stated that MSHA specifically designated by the miner to physical agents.’’ Paragraph (a)(3) has should clarify that the miners’ have access to records. MSHA agrees therefore been added to the final rule to representative will only have access to that the terms used in the proposed rule make clear that a former miner may the training certificate. are imprecise; the final rule now have access to those records which MSHA intends that the miners’ substitutes the term ‘‘miner’s designee’’ indicate his or her own noise exposures, representative have access to training in paragraph (a)(1) for ‘‘miner’s but not to other records that are required certifications and exposure designated representative.’’ The term to be kept by the mine operator under determination records for miners they ‘‘miner’s designee’’ has also been this part, as would have been required defined in § 62.101 of the final rule as under the proposal. represent, without the written consent ‘‘an individual or organization to whom One commenter stated that the of individual miners. Providing access a miner gives written authorization to operator should not be responsible for to training certifications is consistent exercise a right of access to records.’’ providing access to records for anyone with the Agency’s part 48 training These changes are intended to make other than the affected employee unless regulations at §§ 48.9 and 48.29, which clear that the ‘‘miner’s designee’’ such employee is totally incapacitated, require training certificates for each referred to in this section is not a arguing that review of the preamble and miner to be available for inspection by representative of miners designated the section-by-section analysis provides the miners’ representative. Further, under part 40. no rationale for including persons other section 103(c) of the Mine Act states: Paragraph (a)(2) clarifies that the than the employee to have access to The Secretary, in cooperation with the miners’ representative referred to is the records. MSHA has determined, Secretary of Health, Education, and Welfare, representative designated under part 40 however, that miners should have the [now Health and Human Services] shall issue of the regulations. Section 62.200(a)(2) right to designate someone to access regulations requiring operators to maintain of the proposal used the ambiguous records on their behalf, if they so desire. accurate records of employee exposures to term ‘‘miners’ representative’’ and left potentially toxic materials or harmful For example, a miner who is ill can physical agents which are required to be doubt in some commenters’ minds as to authorize a designee (who may be a monitored or measured under any applicable whether this was the miners’ family member) to retrieve a copy of his mandatory health or safety standard representatives under part 40. or her records. promulgated under this Act. Such regulations Commenters expressed concern that Several commenters stated that shall provide miners or their representatives although the Mine Act gave the part 40 records should not be directly accessible with an opportunity to observe such

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Ophthalmology and Otolaryngology, The final rule does not adopt 63:236–238, March–April 1959. proposed paragraph (b) of this section, Paragraph (b)(2) is identical to proposed § 62.210(b), requiring the American Academy of Otolaryngology, which would have required an operator, Committee on Hearing and Equilibrium, upon termination of a miner’s successor operator to use the baseline and the American Council of employment, to provide the miner (at no audiogram, or revised baseline Otolaryngology Committee on the Medical cost) a copy of all records that the audiogram as appropriate, obtained by Aspects of Noise, ‘‘Guide for the operator is required to maintain for that the original operator for determining the Evaluation of Hearing Handicap,’’ Journal individual miner under this part. The existence of a standard threshold shift of the American Medical Association, or reportable hearing loss. MSHA 241(19):2055–2059, May 11, 1979. majority of commenters stated that it American Industrial Hygiene Association would be unduly burdensome to supply believes that requiring successor mine operators to maintain the prior baseline (AIHA), Letter to EEPA; ‘‘Revise Hearing records to all terminated employees, Protection Device Labeling,’’ Federal News, that the provision was redundant with audiogram will provide miners with the The Synergist, November 1995. paragraph (c), and that records should greatest possible degree of protection. American Iron and Steel Institute v. OSHA, only be provided to those employees Otherwise, if a new baseline were (AISI–I) 577 F. 2d 825, 832–835 (3d Cir. who provide a written request for them. allowed to be established by the arrival 1978). MSHA agrees that mine operators of a successor mine operator, the record American Iron and Steel Institute v. OSHA, of any existing hearing loss would be (AISI–II) 939 F. 2d 975, 980 (D.C. Cir. should not have to provide copies of 1991). records to miners unless requested to do wiped out and reporting or corrective action postponed. The Agency did not American Textile Manufacturers Institute, so. Paragraph (c) of this section of the Inc., v. Donovan, Secretary of Labor, et al., final rule, therefore, like the proposal, receive any comments on this provision, 452 U.S. 490, 508–509 (1981). allows persons who have access to and paragraph (b)(2) is adopted as Barham, T.D. et al., ‘‘Improving the records to request a copy of all records proposed. Protection Afforded by Earmuffs to from the mine operator. MSHA believes VIII. References Employees Who Are Exposed to Noise,’’ that this requirement will provide Noise Control Engineering Journal, miners necessary information about Abel, Sharon M. and Diane Rokas, ‘‘The 33(2):67–76, September–October 1989. Effect of Wearing Time on Hearing Bartsch, R. et al., ‘‘High-Frequency their health. Proposed paragraph (b) has Protector Attenuation,’’ Journal of Audiometry in the Evaluation of Critical therefore not been adopted in the final Otolaryngology, 15(5):293–297, 1986. Noise Intensity,’’ International Archives of rule. Acoustical Society of America, ‘‘American Occupational and Environmental Health, Paragraph (a)(3), which is identical to National Standard Methods for Manual 61(5):347–351, March 1989. proposed 62.200(c), states that when a Pure-Tone Threshold Audiometry,’’ ANSI Baughn, W.L., ‘‘Relation Between Daily Noise person with access to records requests a S3.21–1978 (ASA 19–1978), American Exposure and Hearing Loss Based on the copy of a record, the first copy must be Institute of Physics, New York, NY, pp. 1– Evaluation of 6,835 Industrial Noise provided without cost to that person, 7, June 7, 1978. Exposure Cases,’’ AMRL–TR–73–53 (AD and any additional copies requested by Acoustical Society of America, ‘‘American 767 204), Aerospace Medical Research National Standard Specification for Sound Laboratory, Wright-Patterson Air Force that person must be provided at Level Meters,’’ ANSI S1.4–1983 (ASA 47– Base, OH, p. 28, June 1973. reasonable cost. Several commenters 1983), American Institute of Physics, New Behar, Alberto, ‘‘Field Evaluation of Hearing suggested that MSHA define York, NY, pp. 1–18, February 17, 1983. Protectors,’’ Noise Control Engineering ‘‘reasonable cost’’ so that mine operators Acoustical Society of America, ‘‘American Journal, 24(1):13–18, January–February can properly determine whether they National Standard Specification for 1985. are complying with the requirements of Personal Noise Dosimeters,’’ ANSI S1.25– Berger, E.H., ‘‘Hearing Protector Performance: this part when charging for additional 1991 (ASA 98–1991), American Institute of How They Work—and—What Goes Wrong copies. The Agency expects mine Physics, New York, NY, pp. 1–10, October in the Real World,’’ EARLOG 5, E*A*R operators to charge reasonable copying 24, 1991. Division, Cabot Corporation, Indianapolis, Acoustical Society of America, ‘‘American IN, 1980. costs and labor rates which are generally National Standard Maximum Permissible Berger, E.H., ‘‘Responses to Questions and applicable in their geographical Ambient Noise Levels for Audiometric Test Complaints Regarding Hearing and Hearing locations for the same or similar Rooms,’’ ANSI S3.1–1991 (ASA 99–1991), Protection (Part I),’’ EARLOG 8, E*A*R services and which may vary somewhat American Institute of Physics, New York, Division, Cabot Corporation, Indianapolis, from place to place. Therefore, the final NY, pp. 1–14, December 24, 1991. IN, 1981. rule does not adopt this comment. Acoustical Society of America, ‘‘American Berger, E.H., ‘‘Attenuation of Earplugs Worn Paragraph (b)(1) is similar to proposed National Standard Specification for in Combination With Earmuffs,’’ EARLOG § 62.210(a), requiring the mine operator Audiometers,’’ ANSI S3.6–1996, American 13, E*A*R Division, Cabot Corporation, to transfer all records required to be National Standards Institute, Inc., New Indianapolis, IN, 1984. York, NY, pp. 1-33, January 12, 1996. Berger, E.H., ‘‘Ear Infection and the Use of maintained by this part, or copies of Adera, T. et al., ‘‘Assessment of the Proposed Hearing Protection,’’ EARLOG 17, E*A*R them, to a successor mine operator who Draft American National Standard Method Division, Cabot Corporation, Indianapolis, must maintain the records for the length for Evaluating the Effectiveness of Hearing IN, 1985. of time required by this part. Several Conservation Programs,’’ Journal Of Berger, E.H. et al., ‘‘Presumed Noise-Induced commenters supported the provision as Occupational Medicine, 35(6):568–573, Permanent Threshold Shift Resulting from proposed. One commenter stated that June 1993. Exposure to an A-weighted Leq of 89 dB,’’ MSHA should clarify that this AFL-CIO v. Brennan, 530 F. 2d 109 (3d Cir. Journal of the Acoustical Society of requirement does not apply to a 1975). America, 64(1):192–197, July 1978. successor operator hiring a miner who Ambasankaran, M. et al., ‘‘Occupational Berger, E.H., ‘‘Details of Real World Hearing Noise Exposure and Hearing Levels,’’ Protector Performance as Measured in the has never worked at that mine location. American Industrial Hygiene Association Laboratory,’’ Noise-Con 81 Raleigh, NC, pp. MSHA considers paragraph (b)(1) clear Journal, 42:551–555, July 1981. 147–152, June 1981. in stating that the mine operator must American Academy of Ophthalmology and Berger, E.H., ‘‘Hearing Protection Devices,’’ transfer all records required to be Otolaryngology, Committee on Ch. 10 in Noise & Hearing Conservation maintained by this part to a successor Conservation of Hearing, ‘‘Guide for the Manual (4th Edition), ed. Elliott H. Berger

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et al., American Industrial Hygiene Noise-Induced Hearing Loss: A Review of Lempert, Barry L. and Richard G. Edwards, Association, Akron, OH, 1986, pp. 319– Science and the Law, and Proposed ‘‘Field Investigations of Noise Reduction 381. Reforms,’’ Saint Louis University Law Afforded by Insert-Type Hearing Berger, E.H., ‘‘Development of a Laboratory Journal, 30:719–729, 1986. Protectors,’’ American Industrial Hygiene Procedure for the Estimation of the Field Forging Industry Association v. Secretary of Association Journal, 441(12):894–902, Performance of Hearing Protectors,’’ Labor, 773 F. 2d 1436, 1444 (4th Cir. 1985). December 1983. Proceedings, 1992 Hearing Conservation Giardino, Dennis A. and George Durkt, Lescouflair, G. et al., ‘‘Hearing Loss Among Conference, UKY BU156, University of ‘‘Evaluation of Muff-Type Hearing Miners Claiming Compensation,’’ Archives Protectors as Used in the Mining Industry,’’ Kentucky and NIOSH, Lexington, KY, p. of Otolaryngology, 106:602–609, October U.S. Department of Labor, Informational 44, April 1992. 1980. Bertrand Robert A. and Jean Zeidan, Report IR 1222, pp. 1–21, June 1994. Marraccini, Leonard C., et al., ‘‘Summary of ‘‘Retrospective Field Evaluation Of HPD Giardino, Dennis A. and George Durkt, Noise Control For Mining Machinery,’’ Based On Evolution Of Hearing,’’ ‘‘Evaluation of Muff-Type Hearing Mine Safety and Health Administration, Proceedings of the 6th International Protectors as Used in the Mining Industry,’’ Congress, Nice, France, pp. 21–24, July American Industrial Hygiene Association U.S. Department of Labor, pp. 1–183, 1986. 1993. Journal, 57:264–271, 1996. Martin, R.H. et al., ‘‘Occupational Hearing Burns, W. and D.W. Robinson, ‘‘Hearing and Goff, Richard J. and William J. Blank, ‘‘A Loss Between 85 and 90 dBA,’’ Journal of Noise in Industry,’’ Department of Health Field Evaluation of Muff-Type Hearing Occupational Medicine, 17(1):13–18, and Social Security, London: Her Majesty’s Protection Devices,’’ Sound and Vibration, January 1975. Stationary Office, 1970. 18:16–22, October 1984. Melnick, William et al., Occupational Casali, John G. and Siu T. Lam, ‘‘Effects of Green, William W. et al., ‘‘Effectiveness of Noise—Volume I, The Ohio State User Instructions on Earmuff/Earcap Insert-Type Hearing Protectors (Earplugs) University Research Foundation Final Sound Attenuation,’’ Sound and Vibration, in the Workplace,’’ Proceedings, 1989 Report, RF Project 761779/712233, for the pp. 26–27, May 1986. Industrial Hearing Conservation U.S. Department of Labor Contract No. J– Casali, John G. and James F. Grenell, ‘‘An Conference, UKY BU149, University of 9–E–9–0166, pp. 1–290, December 1980. Exploratory Study of Moderate Physical Kentucky and NIOSH, Lexington, KY, p. Melnick, William, ‘‘Damage Risk Criteria,’’ Activity and Selected Design Attribute 30, April 1989. Ch. 12 in Forensic Audiology, ed. M.B. Effects on Earmuff Attenuation,’’ American Hempstock, T.I. and E. Hill, ‘‘The Kramer and J.M. Armbruster, University Industrial Hygiene Association Journal, Attenuations of Some Hearing Protectors Park Press, Baltimore, MD, pp. 223–258, 50:480–485, September 1989. As Used In The Workplace,’’ American 1982. Occupational Hygiene Association Journal, Casali, John G. and Min-Young Park, ‘‘A Merry, Carol J. et al., ‘‘The Effect of Fitting 34(5):453–470, 1990. Regression-Based Methodology for Procedure on Hearing Protector Hodge, David C. and G. Richard Price, Efficient Prediction of Broadband ‘‘Hearing Damage Risk Criteria,’’ Ch. 6 in Attenuation,’’ Ear and Hearing, 13(1):11– Attenuation of Hearing Protectors,’’ Noise Noise and Audiology, ed. David M. 18, 1992. Control Engineering Journal, 38(3):97–108, Lipscomb, University Park Press, Mines Accident Prevention Association May-June 1992. Baltimore, MD, pp. 167–191, 1978. Ontario, ‘‘An Analysis of Occupational Chung, David Y. and Richard Hardie, ‘‘The Hopkinson, Norma T., ‘‘Prevalence of Middle Diseases In The Ontario Mining Industry Performance of Circumaural Hearing Ear Disorders in Coal Miners,’’ U.S. 1985–1989,’’ Report No. 9102, February Protectors by Dosimetry,’’ Journal of Department of Health and Human Services 1991. Occupational Medicine, 25(9):679–682, (NIOSH) Publication No. 81–101, June MSHA, Program Policy Manual, Volume IV, September 1983. 1981. Part 56/57, pp. 41–41a, April 1, 1990. Cluff, Gordon L., ‘‘Insert-Type Hearing Industrial Union Dep’t., AFL-CIO v. Hodgson, Nilsson, R. et al., ‘‘Noise Exposure and Protector Stability as a Function of 499 F. 2d 467 (D.C. 1974). Hearing Impairment in the Shipbuilding Controlled Jaw Movement,’’ American Kasden, Stephen D. and Anthony D’Aniello, Industry,’’ Scandinavian Audiology, 6:59– Industrial Hygiene Association Journal, ‘‘Changes in Attenuation of Hearing 68, 1977. 50:147–151, March 1989. Protectors During Use,’’ Noisexpo New National Institute for Occupational Safety Coleman, G.J. et al., ‘‘Communications in York, NY, March 29–31, 1976. and Health (NIOSH), ‘‘Criteria for a Noisy Environments,’’ Final Report on CEC Kasden, S.D. and A. D’Aniello, ‘‘Changes in Recommended Standard * * * Contract 7206/00/8/09, Institute of Attenuation of Hearing Protectors During Occupational Exposure to Noise,’’ HSM Occupational Medicine, pp. 1–168, June Use,’’ Audiology and Hearing Education, 73–11001, U.S. Department of Health, 1984. pp. 18–19, August–September 1978. Education, and Welfare, U.S. Government Committee on Hearing, Bioacoustics, and Kogut, Jon and Richard J. Goff, ‘‘Analysis of Printing Office, Washington, DC, pp. 1– Biomechanics (CHABA), Commission on Noise Reduction with Earmuff Hearing 142, 1972. Behavioral and Social Sciences and Protectors under Field Conditions,’’ NIOSH, ‘‘Survey of Hearing Loss in the Coal Education, National Research Council, Informational Report IR 1221, pp. 1–31, ‘‘Hazardous Exposure to Steady-State and Mining Industry,’’ HEW Publication No. 1994. (NIOSH) 76–172, June 1976. Intermittent Noise.’’ National Academy Krutt, M. A. and Marvin Mazor, ‘‘Attenuation Press, Washington, DC, 1993. NIOSH, ‘‘Compendium of Hearing Protection Changes During the Use of Mineral Down Devices,’’ Franks, John R. et al., Cincinnati, Crawford, D.R. and R.J. Nozza, ‘‘Field and Polymer Foam Insert-type Hearing OH, pp. 1–78, October 1994. Performance Evaluation of Wearer-Molded Protectors,’’ Audiology and Hearing NIOSH, Letter to James R. Petrie, from Linda Ear Inserts,’’ Presented at the American Education, pp. 13–14, Winter 1980–1981. Rosenstock, ‘‘The Development of the Industrial Hygiene Association Conference, Kryter, K.D., ‘‘Damage Risk from Exposure to Portland, OR, May 29, 1981. Noise,’’ Ch. 5 in The Effects of Noise on Noise Proposed Standard,’’ pp. 1–29, Durkt, George, Jr., ‘‘Field Evaluation of Man, Academic Press, Inc., New York, NY, NIOSH Building, Washington, DC, March Hearing Protective Devices at Surface pp. 139–205, 1970. 13, 1995. Mining Environments,’’ MSHA Kryter, K.D., ‘‘Physiological, Psychological, NIOSH, Letter to James R. Petrie, from Informational Report IR 1213, pp. 1–31, and Social Effects of Noise,’’ National Richard Niemeier, ‘‘State Worker 1993. Aeronautics and Space Administration Compensation Data Relating to Eden, David, ‘‘Australian Mining Industry (NASA), NASA Reference Publication Occupational Noise-Induced Hearing Loss Experience In Hearing Conservation,’’ 1115, N84–29465, pp. 175–341, 1984. in Miners,’’ pp. 1–6, and ‘‘A Survey of Noise & Man ’93, Noise as a Public Health Lempert, Barry L. and T.L. Henderson, States’ Workers’ Compensation Practices Problem, Proceedings of the 6th ‘‘Occupational Noise and Hearing 1968– for Occupational Hearing Loss,’’ pp. 2–8, International Congress, Nice, France, pp. 1972,’’ HEW Publication No. (NIOSH) 74– NIOSH Building, Cincinnati, OH, April 13, 47–50, July 1993. 116, U.S. Department of Health, Education, 1995. Fodor, William J. and Arthur Oleinick, and Welfare, U.S. Government Printing NIOSH, ‘‘Analysis of Audiograms for a Large ‘‘Workers’’ Compensation for Occupational Office., Washington, DC, pp. 1–51, 1973. Cohort of Noise-Exposed Miners,’’ John

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Franks, pp. 1–7, and cover letter to Davitt Royster, Larry H. et al., ‘‘Guidelines for Control,’’ Pittsburgh Research Center, Bolt, McAteer, from Linda Rosenstock, August 6, Developing an Effective Hearing Beranek, B. and Newman Inc., pp. 1–265, 1996. Conservation Program,’’ Sound and May 1980. NIOSH, Letter to James R. Petrie, from Vibration, 16(5), May 1982. United States Department of the Interior, U.S. Richard Niemeier, ‘‘Hierarchy of Controls Royster, Larry H., ‘‘Recommendations for the Bureau of Mines, ‘‘Loader Noise Control,’’ for MSHA’s Noise Standard,’’ pp. 1–3, Labeling of Hearing Protectors,’’ Sound Pittsburgh Research Center, Bolt, Beranek, December 16, 1994, and cover letter to and Vibration, pp. 16–19, July 1995. B. and Newman Inc., pp. 1–133, June 1981. Andrea Hricko from Linda Rosenstock, Sataloff, Joseph et al., ‘‘Hearing Loss and United States Department of the Interior, August 14, 1996. Intermittent Noise Exposure,’’ Journal of Bureau of Mines, Mineral Commodities NIOSH, ‘‘Prevalence of Hearing Loss for Occupational Medicine, 26(9):649–656, Summaries 1998, pp. 3–6, January 1998. Noise-Exposed Metal/Nonmetal Miners,’’ September 1984. United Steelworkers of America, AFL–CIO– John Franks, pp.1–5, and cover letter to Schmidek, Mark et al., ‘‘Evaluation of CLC v. ′′Marshall, 647 F. 2d 1189, 1266 Andrea Hricko, from Gregory Wagner, Proposed Limits Intermittent Noise (D.C. Cir. 1981). October 7, 1997. Exposures with Temporary Threshold Shift Valoski, Michael P., ‘‘The Magnitude of the Nixon, C.W. and E.H. Berger, ‘‘Hearing as a Criterion,’’ American Industrial Noise-Induced Hearing Loss Problem in the Protection Devices,’’ Ch. 21 in Handbook Hygiene Association Journal, August 1972. Mining Industries,’’ U.S. Department of of Acoustical Measurements and Noise Schwetz, F. et al., ‘‘The Critical Intensity for Labor, Informational Report IR 1220, Control (3rd edition), ed. Cyril M. Harris, Occupational Noise,’’ Acta Otolaryngol, March 1994. McGraw-Hill, Inc., pp. 1–24, 1991. 89:358–361, 1980. Wright, Mark, ‘‘Education: The Key to Office of Technology and Assessment, Scott, H.H., ‘‘Noise Measuring Techniques,’’ Preventing Hearing Loss,’’ Occupational ‘‘Preventing Illness and Injury in the Ch. 17 in Handbook of Noise Control, ed. Health and Safety, pp. 38–39, January Workplace,’’ Ch. 9. Hierarchy of Controls, C.M. Harris, McGraw-Hill Book Company, 1980. OTA Publication No. OTA–H–256, New York, NY, pp. 1–36, 1957. Washington, DC, pp. 175–185, April 1985. Secretary of Labor, Mine Safety and Health List of Subjects OSHA, Hearing Conservation Amendment, Administration (MSHA) v. Callanan January 16, 1981 [46 FR 4078–4179]. Industries, Inc., 5 FMSHRC 1900 30 CFR Parts 56 and 57 OSHA, Hearing Conservation Amendment, (November 1983). March 8, 1983 [46 FR 9738–9784]. Metals, Mine safety and health, Noise Secretary of Labor, Mine Safety and Health control. OSHA, Occupational Noise Exposure, 29 CFR Administration (MSHA) v. A. H. Smith, 6 § 1910.95. FMSHRC 199 (February 1984). Park, Min-Yong and John G. Casali, ‘‘A 30 CFR Part 62 Shaw, Edgar A.G., ‘‘Occupational Noise Controlled Investigation of In-Field Exposure and Noise-Induced Hearing Loss: Mine safety and health, Noise control. Attenuation Performance of Selected Scientific Issues, Technical Arguments and Insert, Earmuff, and Canal Cap Hearing Practical Recommendations,’’ APS 707, 30 CFR Parts 70 and 71 Protectors,’’ Human Factors, 33:693–714, NRCC/CNRC No. 25051, Prepared for the December 1991. Coal, Mine safety and health, Noise Passchier-Vermeer, W., ‘‘Hearing Loss Due Special Advisory Committee on the control. To Continuous Exposure To Steady-State Ontario Noise Regulation, National Dated: August 30, 1999. Broad-Band Noise,’’ Acoustical Society of Research Council Canada, Division of America, 56(5):1595–1593, November Physics, pp. 1–64, October 30, 1985. J. Davitt McAteer, 1974. Smith, Curtis R., Letter to Larry Rabius, Assistant Secretary for Mine Safety and Pfeiffer, Bodo H., ‘‘Real-World Effectiveness ‘‘26% of the Mining Industry Workers have Health. of Hearing Protection Devices in German Material Hearing Impairment, ‘‘Industrial Industry,’’ 1992 Hearing Conservation Hearing Conservation Services Accordingly, Chapter I of Title 30 of Conference, University of Kentucky, pp. Consultants, Auburn, Alabama, December the Code of Federal Regulations is 21–24, April 1–4, 1992. 5, 1994. amended as follows: Prince, Mary M. et al., ‘‘A Re-examination of Society of Plastics Industry v. OSHA, 509 Risk Estimates from the NIOSH F.2d 1301 (2d Cir. 1975); cert. den. 427 PART 56Ð[AMENDED] Occupational Noise and Hearing Survey U.S. 992 (1975). (ONHS),’’ Journal of the Acoustical Society Stekelenburg, M., ‘‘Noise at Work—Tolerable 1. The authority citation for part 56 of America, 101(2):950–963, February Limits and Medical Control,’’ American continues to read as follows: 1997. Industrial Hygiene Association Journal, Authority: 30 U.S.C. 811. Prout, James H. et al., ‘‘A Study of Roof 43:403–410, June 1982. Suter, Alice H., ‘‘The Relationship of the Warning Signals and the Use of Personal § 56.5050 [Removed] Hearing Protection in Underground Coal Exchange Rate to Noise-Induced Hearing Mines,’’ The Pennsylvania State Loss,’’ Final Report of JRB Associates, 2. Section 56.5050 and the University, pp. 1–239, December 15, 1973. McLean, VA, December 13, 1983. undesignated center heading preceding Regan, Donald E., ‘‘Real Ear Attenuation of Suter, Alice H., ‘‘Hearing Conservation,’’ Ch. it are removed. Personal Ear Protective Devices Worn in 1 in Noise & Hearing Conservation Manual Industry.’’ Ph.D. diss., Kent State (4th Edition), ed. Elliott H. Berger et al., PART 57Ð[AMENDED] University, 1975. American Industrial Hygiene Association, Royster, Julia D. and Larry H. Royster, Akron, OH, pp. 1–18, 1986. 3. The authority citation for part 57 ‘‘Hearing Conservation Programs, Suter, Alice H., ‘‘The Development of Federal continues to read as follows: ‘‘Practical Guidelines for Success, Lewis Noise Standards and Damage Risk Publishers, Inc., Chelsea, MI, p. 51, 1990. Criteria,’’ Ch. 5 in Hearing Conservation in Authority: 30 U.S.C. 811. Royster, Julia D. et al., ‘‘Development of a Industry, Schools, and the Military, ed. § 57.5050 [Removed] New Standard Laboratory Protocol for D.M. Lipscomb, Little, Brown, and Co., Estimating the Field Attenuation of Boston, MA, pp. 45–66, 1988. 4. Section 57.5050 and the Hearing Protection Devices. Part I. Todilto Exploration and Development undesignated center heading preceding Research of Working Group 11, Accredited Corporation v. Secretary of Labor, 5 it are removed. Standards Committee S12, Noise,’’ Journal FMSHRC 1894, 1897 (1983). of the Acoustical Society of America, United States Department of Energy, Energy PART 70Ð[AMENDED] 99(3):1506–1526, March 1996. Information Administration, Coal Industry Royster, Larry H. et al., ‘‘Potential Hearing Annual 1997, DOE/EIA–0584(97), p. 154, 5. The authority citation for part 70 Compensation Cost By Race and Sex,’’ December 1998. Journal of Occupational Medicine, 20 (12): United States Department of the Interior, U.S. continues to read as follows: 801–806, December 1978. Bureau of Mines, ‘‘Bulldozer Noise Authority: 30 U.S.C. 811 and 961.

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Subpart FÐ[Removed] Action level. An 8-hour time-weighted Qualified technician. A technician average sound level (TWA8) of 85 dBA, who has been certified by the Council 6. Subpart F (§§ 70.500 through or equivalently a dose of 50%, for Accreditation in Occupational 70.511) is removed. integrating all sound levels from 80 dBA Hearing Conservation (CAOHC), or by to at least 130 dBA. another recognized organization offering PART 71Ð[AMENDED] Audiologist. A professional, equivalent certification. 7. The authority citation for part 71 specializing in the study and Permissible exposure level. A TWA8 continues to read as follows: rehabilitation of hearing, who is of 90 dBA or equivalently a dose of 100% of that permitted by the standard, Authority: 30 U.S.C. 811, 951, 957, 961. certified by the American Speech- Language-Hearing Association (ASHA) integrating all sound levels from 90 dBA Supbart IÐ[Removed] or licensed by a state board of to at least 140 dBA. examiners. Reportable hearing loss. A change in 8. Subpart I (§§ 71.800 through Baseline audiogram. The audiogram hearing sensitivity for the worse, 71.805) is removed. recorded in accordance with § 62.170(a) relative to the miner’s baseline of this part against which subsequent audiogram, or the miner’s revised Subchapters M and NÐ[Redsignated] audiograms are compared to determine baseline audiogram where one has been 9. Subchapter M is redesignated as the extent of hearing loss. established in accordance with Subchapter I, Subchapter N is Criterion level. The sound level which § 62.170(c)(2), of an average of 25 dB or redesignated as Subchapter K, and if constantly applied for 8 hours results more at 2000, 3000, and 4000 Hz in Subchapter N is reserved. in a dose of 100% of that permitted by either ear. 10. A new Subchapter M is added, the standard. Revised baseline audiogram. An ‘‘Uniform Mine Health Regulations.’’ Decibel (dB). A unit of measure of annual audiogram designated to be used 11. A new part 62 is added to new sound pressure levels, defined in one of in lieu of a miner’s original baseline Subchapter M to read as follows: two ways, depending upon the use: audiogram in measuring changes in (1) For measuring sound pressure hearing sensitivity as a result of the PART 62ÐOCCUPATIONAL NOISE levels, the decibel is 20 times the circumstances set forth in EXPOSURE common logarithm of the ratio of the §§ 62.170(c)(1) or 62.170(c)(2) of this measured sound pressure to the part. Sec. standard reference sound pressure of 20 Sound level. The sound pressure level 62.100 Purpose and scope; effective date µ in decibels measured using the A- 62.101 Definitions micropascals ( Pa), which is the threshold of normal hearing sensitivity weighting network and a slow response, 62.110 Noise exposure assessment expressed in the unit dBA. 62.120 Action level at 1000 Hertz (Hz). 62.130 Permissible exposure level (2) For measuring hearing threshold Standard threshold shift. A change in 62.140 Dual hearing protection level levels, the decibel is the difference hearing sensitivity for the worse relative 62.150 Hearing conservation program between audiometric zero (reference to the miner’s baseline audiogram, or 62.160 Hearing protectors pressure equal to 0 hearing threshold relative to the most recent revised 62.170 Audiometric testing level) and the threshold of hearing of baseline audiogram where one has been 62.171 Audiometric test procedures the individual being tested at each test established, of an average of 10 dB or 62.172 Evaluation of audiograms more at 2000, 3000, and 4000 Hz in 62.173 Follow-up evaluation when an frequency. Dual Hearing Protection Level. A either ear. audiogram is invalid Time-weighted average–8 hour 62.174 Follow-up corrective measures TWA8 of 105 dBA, or equivalently, a (TWA8). The sound level which, if when a standard threshold shift is dose of 800% of that permitted by the detected standard, integrating all sound levels constant over 8 hours, would result in 62.175 Notification of results; reporting from 90 dBA to at least 140 dBA. the same noise dose as is measured. requirements Exchange rate. The amount of § 62.110 Noise exposure assessment. 62.180 Training increase in sound level, in decibels, 62.190 Records (a) The mine operator must establish Appendix to part 62 which would require halving of the a system of monitoring that evaluates allowable exposure time to maintain the Authority: 30 U.S.C. 811. each miner’s noise exposure sufficiently same noise dose. For the purposes of to determine continuing compliance § 62.100 Purpose and scope; effective this part, the exchange rate is 5 decibels with this part. date. (5 dB). (b) The mine operator must determine The purpose of these standards is to Hearing protector. Any device or a miner’s noise dose (D, in percent) by prevent the occurrence and reduce the material, capable of being worn on the using a noise dosimeter or by computing progression of occupational noise- head or in the ear canal, sold wholly or the formula: D=100(C1/T1+C2/T2+ . . . . induced hearing loss among miners. in part on the basis of its ability to +Cn/Tn), where Cn is the total time the This part sets forth mandatory health reduce the level of sound entering the miner is exposed at a specified sound standards for each surface and ear, and which has a scientifically level, and Tn is the reference duration of underground metal, nonmetal, and coal accepted indicator of noise reduction exposure at that sound level shown in mine subject to the Federal Mine Safety value. Table 62–1. and Health Act of 1977. The provisions Hertz (Hz). Unit of measurement of (1) The mine operator must use Table of this part become effective September frequency numerically equal to cycles 62–2 when converting from dose 13, 2000. per second. readings to equivalent TWA8 readings. Medical pathology. A condition or (2) A miner’s noise dose § 62.101 Definitions. disease affecting the ear. determination must: The following definitions apply in Miner’s designee. Any individual or (i) Be made without adjustment for this part: organization to whom a miner gives the use of any hearing protector; Access. The right to examine and written authorization to exercise a right (ii) Integrate all sound levels over the copy records. of access to records. appropriate range;

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(iii) Reflect the miner’s full work shift; (e) The mine operator must maintain operator must post the procedures for (iv) Use a 90-dB criterion level and a a copy of any such miner notification, such controls on the mine bulletin 5-dB exchange rate; and or a list on which the relevant board and provide a copy to the affected (v) Use the A-weighting and slow information about that miner’s notice is miner. response instrument settings. recorded, for the duration of the affected (b) If a miner’s noise exposure (c) Observation of monitoring. The miner’s exposure at or above the action continues to exceed the permissible mine operator must provide affected level and for at least 6 months exposure level despite the use of all miners and their representatives with an thereafter. opportunity to observe noise exposure feasible engineering and administrative monitoring required by this section and § 62.120 Action level. controls, the mine operator must must give prior notice of the date and If during any work shift a miner’s continue to use the engineering and time of intended exposure monitoring to noise exposure equals or exceeds the administrative controls to reduce the affected miners and their action level the mine operator must miner’s noise exposure to as low a level representatives. enroll the miner in a hearing as is feasible. (d) Miner notification. The mine conservation program that complies (c) The mine operator must assure operator must notify a miner of his or with § 62.150 of this part. that no miner is exposed at any time to her exposure when the miner’s exposure sound levels exceeding 115 dBA, as is determined to equal or exceed the § 62.130 Permissible exposure level. (a) The mine operator must assure determined without adjustment for the action level, exceed the permissible use of any hearing protector. exposure level, or exceed the dual that no miner is exposed during any hearing protection level, provided the work shift to noise that exceeds the § 62.140 Dual hearing protection level. mine operator has not notified the miner permissible exposure level. If during of an exposure at such level within the any work shift a miner’s noise exposure If during any work shift a miner’s prior 12 months. The mine operator exceeds the permissible exposure level, noise exposure exceeds the dual hearing must base the notification on an the mine operator must use all feasible protection level, the mine operator exposure evaluation conducted either engineering and administrative controls must, in addition to the actions required by the mine operator or by an to reduce the miner’s noise exposure to for noise exposures that exceed the authorized representative of the the permissible exposure level, and permissible exposure level, provide and Secretary of Labor. The mine operator enroll the miner in a hearing ensure the concurrent use of both an ear must notify the miner in writing within conservation program that complies plug and an ear muff type hearing 15 calendar days of: with § 62.150 of this part. When a mine protector. The following table sets out (1) The exposure determination; and operator uses administrative controls to mine operator actions under MSHA’s (2) the corrective action being taken. reduce a miner’s exposure, the mine noise standard.

Provision Condition Action required by the mine operator

§ 62.120 ...... Miner's noise exposure is less than the None. action level. § 62.120 ...... Miner's exposure equals or exceeds Operator enrolls the miner in hearing conservation program (HCP) which in- the action level, but does not exceed cludes (1) a system of monitoring, (2) voluntary, with two exceptions, use of the permissible exposure level (PEL). operator-provided hearing protectors, (3) voluntary audiometric testing, (4) training, and (5) record keeping. § 62.130 ...... Miner's exposure exceeds the PEL ...... Operator uses/continues to use all feasible engineering and administrative controls to reduce exposure to PEL; enrolls the miner in a HCP including ensured use of operator-provided hearing protectors; posts administrative controls and provides copy to affected miner; must never permit a miner to be exposed to sound levels exceeding 115 dBA. § 62.140 ...... Miner's exposure exceeds the dual Operator enrolls the miner in a HCP, continues to meet all the requirements of hearing protection level. § 62.130, ensures concurrent use of earplug and earmuff.

§ 62.150 Hearing conservation program. action level under § 62.120 of this part. subsequently precluded due to medical A hearing conservation program In addition, the mine operator must: pathology of the ear. established under this part must (1) Train the miner in accordance (b) The mine operator must ensure, include: with § 62.180 of this part; after satisfying the requirements of (a) A system of monitoring under (2) Allow the miner to choose a paragraph (a) of this section, that a § 62.110 of this part; hearing protector from at least two muff miner wears a hearing protector (b) The provision and use of hearing types and two plug types, and in the whenever the miner’s noise exposure protectors under § 62.160 of this part; event dual hearing protectors are exceeds the permissible exposure level (c) Audiometric testing under required, to choose one of each type; before the implementation of §§ 62.170 through 62.175 of this part; (3) Ensure that the hearing protector engineering and administrative controls, (d) Training under § 62.180 of this is in good condition and is fitted and or if the miner’s noise exposure part; and maintained in accordance with the continues to exceed the permissible (e) Recordkeeping under § 62.190 of manufacturer’s instructions; exposure level despite the use of all this part. (4) Provide the hearing protector and feasible engineering and administrative necessary replacements at no cost to the controls. § 62.160 Hearing protectors. miner; and (c) The mine operator must ensure, (a) A mine operator must provide a (5) Allow the miner to choose a after satisfying the requirements of hearing protector to a miner whose different hearing protector(s), if wearing paragraph (a) of this section, that a noise exposure equals or exceeds the the selected hearing protector(s) is miner wears a hearing protector when

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The mine operator must provide § 62.171 Audiometric test procedures. (2) If an annual audiogram audiometric tests to satisfy the (a) All audiometric testing under this demonstrates that the miner has requirements of this part at no cost to part must be conducted in accordance incurred a standard threshold shift or the miner. A physician or an with scientifically validated procedures. reportable hearing loss, the mine audiologist, or a qualified technician Audiometric tests must be pure tone, air operator may provide one retest within under the direction or supervision of a conduction, hearing threshold 30 calendar days of receiving the results physician or an audiologist must examinations, with test frequencies of the audiogram and may use the conduct the tests. including 500, 1000, 2000, 3000, 4000, results of the retest as the annual (a) Baseline audiogram. The mine and 6000 Hz. Each ear must be tested audiogram. operator must offer miners the separately. (c) In determining whether a standard opportunity for audiometric testing of (b) The mine operator must compile threshold shift or reportable hearing loss the miner’s hearing sensitivity for the an audiometric test record for each has occurred, allowance may be made purpose of establishing a valid baseline miner tested. The record must include: for the contribution of aging audiogram to compare with subsequent (1) Name and job classification of the (presbycusis) to the change in hearing annual audiograms. The mine operator miner tested; level. The baseline, or the revised may use an existing audiogram of the (2) A copy of all of the miner’s baseline as appropriate, and the annual miner’s hearing sensitivity as the audiograms conducted under this part; audiograms used in making the baseline audiogram if it meets the (3) Evidence that the audiograms were determination should be adjusted audiometric testing requirements of conducted in accordance with according to the following procedure: § 62.171 of this part. paragraph (a) of this section; (1) Determine from Tables 62–3 or 62– (1) The mine operator must offer and (4) Any exposure determination for 4 the age correction values for the miner provide within 6 months of enrolling the miner conducted in accordance with by: the miner in a hearing conservation § 62.110 of this part; and (i) Finding the age at which the (5) The results of follow-up program, audiometric testing which baseline audiogram or revised baseline examination(s), if any. results in a valid baseline audiogram, or audiogram, as appropriate, was taken, (c) The operator must maintain offer and provide the testing within 12 and recording the corresponding values audiometric test records for the duration months where the operator uses mobile of age corrections at 2000, 3000, and of the affected miner’s employment, test vans to do the testing. 4000 Hz; plus at least 6 months, and make the (2) The mine operator must notify the (ii) Finding the age at which the most records available for inspection by an miner to avoid high levels of noise for recent annual audiogram was obtained authorized representative of the at least 14 hours immediately preceding and recording the corresponding values Secretary of Labor. the baseline audiogram. The mine of age corrections at 2000, 3000, and operator must not expose the miner to § 62.172 Evaluation of audiograms. 4000 Hz; and (iii) Subtracting the values workplace noise for the 14-hour quiet (a) The mine operator must: period before conducting the determined in paragraph (c)(1)(i) of this (1) Inform persons evaluating section from the values determined in audiometric testing to determine a audiograms of the requirements of this baseline audiogram. The operator may paragraph (c)(1)(ii) of this section. The part and provide those persons with a differences calculated represent that substitute the use of hearing protectors copy of the miner’s audiometric test for this quiet period. portion of the change in hearing that records; may be due to aging. (3) The mine operator must not (2) Have a physician or an audiologist, (2) Subtract the values determined in establish a new baseline audiogram or a or a qualified technician who is under paragraph (c)(1)(iii) of this section from new revised baseline audiogram, where the direction or supervision of a the hearing threshold levels found in one has been established, due to physician or audiologist: the annual audiogram to obtain the changes in enrollment status in the (i) Determine if the audiogram is adjusted annual audiogram hearing hearing conservation program. The mine valid; and threshold levels. operator may establish a new baseline or (ii) Determine if a standard threshold (3) Subtract the hearing threshold revised baseline audiogram for a miner shift or a reportable hearing loss, as levels in the baseline audiogram or who is away from the mine for more defined in this part, has occurred. revised baseline audiogram from the than 6 consecutive months. (3) Instruct the physician, audiologist, adjusted annual audiogram hearing (b) Annual audiogram. After the or qualified technician not to reveal to threshold levels determined in baseline audiogram is established, the the mine operator, without the written paragraph (c)(2) of this section to obtain mine operator must continue to offer consent of the miner, any specific the age-corrected threshold shifts. subsequent audiometric tests at findings or diagnoses unrelated to the intervals not exceeding 12 months for as miner’s hearing loss due to occupational § 62.173 Follow-up evaluation when an long as the miner remains in the hearing noise or the wearing of hearing audiogram is invalid. conservation program. protectors; and (a) If a valid audiogram cannot be (c) Revised baseline audiogram. An (4) Obtain the results and the obtained due to a suspected medical annual audiogram must be deemed to be interpretation of the results of pathology of the ear that the physician a revised baseline audiogram when, in audiograms conducted under this part or audiologist believes was caused or

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(1) The mine must refer the miner for a clinical- audiologist has determined that the loss operator must transfer all records audiological evaluation or an otological is neither work-related nor aggravated required to be maintained by this part, examination, as appropriate, at no cost by occupational noise exposure. or a copy thereof, to a successor mine to the miner. operator who must maintain the records (b) If a valid audiogram cannot be § 62.180 Training. for the time period required by this part. obtained due to a suspected medical (a) The mine operator must, within 30 (2) The successor mine operator must pathology of the ear that the physician days of a miner’s enrollment into a use the baseline audiogram, or revised or audiologist concludes is unrelated to hearing conservation program, provide baseline audiogram, as appropriate, the miner’s occupational exposure to the miner with training. The mine obtained by the original mine operator noise or the wearing of hearing operator must give training every 12 to determine the existence of a standard protectors, the mine operator must months thereafter if the miner’s noise threshold shift or reportable hearing instruct the physician or audiologist to exposure continues to equal or exceed loss. the action level. Training must include: inform the miner of the need for an Appendix to Part 62 otological examination. (1) The effects of noise on hearing; (2) The purpose and value of wearing (c) The mine operator must instruct TABLE 62±1.ÐREFERENCE DURATION the physician, audiologist, or qualified hearing protectors; (3) The advantages and disadvantages technician not to reveal to the mine dBA T (hours) operator, without the written consent of of the hearing protectors to be offered; the miner, any specific findings or (4) The various types of hearing 80 ...... 32.0 diagnoses unrelated to the miner’s protectors offered by the mine operator 85 ...... 16.0 occupational exposure to noise or the and the care, fitting, and use of each 86 ...... 13.9 wearing of hearing protectors. type; 87 ...... 12.1 (5) The general requirements of this 88 ...... 10.6 § 62.174 Follow-up corrective measures part; 89 ...... 9.2 when a standard threshold shift is detected. (6) The mine operator’s and miner’s 90 ...... 8.0 91 ...... 7.0 The mine operator must, within 30 respective tasks in maintaining mine 92 ...... 6.1 calendar days of receiving evidence or noise controls; and 93 ...... 5.3 confirmation of a standard threshold (7) The purpose and value of 94 ...... 4.6 shift, unless a physician or audiologist audiometric testing and a summary of 95 ...... 4.0 determines the standard threshold shift the procedures. 96 ...... 3.5 is neither work-related nor aggravated (b) The mine operator must certify the 97 ...... 3.0 by occupational noise exposure: date and type of training given each 98 ...... 2.6 (a) Retrain the miner, including the miner, and maintain the miner’s most 99 ...... 2.3 recent certification for as long as the 100 ...... 2.0 instruction required by § 62.180 of this 101 ...... 1.7 part; miner is enrolled in the hearing 102 ...... 1.5 (b) Provide the miner with the conservation program and for at least 6 103 ...... 1.3 opportunity to select a hearing months thereafter. 104 ...... 1.1 protector, or a different hearing 105 ...... 1.0 § 62.190 Records. protector if the miner has previously 106 ...... 0.87 selected a hearing protector, from (a) The authorized representatives of 107 ...... 0.76 among those offered by the mine the Secretaries of Labor and Health and 108 ...... 0.66 operator in accordance with § 62.160 of Human Services must have access to all 109 ...... 0.57 records required under this part. Upon 110 ...... 0.50 this part; and 111 ...... 0.44 (c) Review the effectiveness of any written request, the mine operator must provide, within 15 calendar days of the 112 ...... 0.38 engineering and administrative controls 113 ...... 0.33 to identify and correct any deficiencies. request, access to records to: 114 ...... 0.29 (1) The miner, or with the miner’s 115 ...... 0.25 § 62.175 Notification of results; reporting written consent, the miner’s designee, requirements. for all records that the mine operator At no time shall any excursion exceed 115 dBA. For any value, the reference duration (T) (a) The mine operator must, within 10 must maintain for that individual miner in hours is computed by: T = 8/2(L±90)5 where working days of receiving the results of under this part; L is the measured A-weighted, slow-response an audiogram, or receiving the results of (2) Any representative of miners sound pressure level. a follow-up evaluation required under designated under part 40 of this title, to § 62.173 of this part, notify the miner in training certifications compiled under TABLE 62±2.Ð``DOSE''/TWA8 writing of: § 62.180(b) of this part and to any notice EQUIVALENT (1) The results and interpretation of of exposure determination under the audiometric test, including any § 62.110(d) of this part, for the miners Dose TWA finding of a standard threshold shift or whom he or she represents; and (percent) 8 reportable hearing loss; and (3) Any former miner, for records (2) The need and reasons for any which indicate his or her own exposure. 25 ...... 80 29 ...... 81 further testing or evaluation, if (b) When a person with access to 33 ...... 82 applicable. records under paragraphs (a)(1), (a)(2), 38 ...... 83 (b) When evaluation of the audiogram or (a)(3) of this section requests a copy 44 ...... 84 shows that a miner has incurred a of a record, the mine operator must 50 ...... 85 reportable hearing loss as defined in this provide the first copy of such record at 57 ...... 86 part, the mine operator must report such no cost to that person, and any 66 ...... 87

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TABLE 62±2.Ð``DOSE''/TWA8 TABLE 62±3.ÐAGE CORRECTION TABLE 62±4.ÐAGE CORRECTION Equivalent—Continued VALUE IN DECIBELS FOR MALES (SE- VALUE IN DECIBELS FOR FEMALES LECTED FREQUENCIES)ÐContinued (SELECTED FREQUENCIES) Dose TWA8 (percent) kHz kHz Age (years) Age (years) 76 ...... 88 2 3 4 2 3 4 87 ...... 89 100 ...... 90 26 ...... 4 5 7 20 or less ...... 4 3 3 115 ...... 91 27 ...... 4 6 7 21 ...... 4 4 3 132 ...... 92 28 ...... 4 6 8 22 ...... 4 4 4 152 ...... 93 23 ...... 5 4 4 174 ...... 94 29 ...... 4 6 8 30 ...... 4 6 9 24 ...... 5 4 4 200 ...... 95 25 ...... 5 4 4 31 ...... 4 7 9 230 ...... 96 26 ...... 5 5 4 32 ...... 5 7 10 264 ...... 97 27 ...... 5 5 5 303 ...... 98 33 ...... 5 7 10 28 ...... 5 5 5 350 ...... 99 34 ...... 5 8 11 29 ...... 5 5 5 400 ...... 100 35 ...... 5 8 11 30 ...... 6 5 5 460 ...... 101 36 ...... 5 9 12 31 ...... 6 6 5 530 ...... 102 37 ...... 6 9 12 32 ...... 6 6 6 610 ...... 103 38 ...... 6 9 13 33 ...... 6 6 6 700 ...... 104 39 ...... 6 10 14 34 ...... 6 6 6 800 ...... 105 35 ...... 6 7 7 920 ...... 106 40 ...... 6 10 14 36 ...... 7 7 7 1056 ...... 107 41 ...... 6 10 14 37 ...... 7 7 7 1213 ...... 108 42 ...... 7 11 16 38 ...... 7 7 7 1393 ...... 109 43 ...... 7 12 16 39 ...... 7 8 8 1600 ...... 110 44 ...... 7 12 17 40 ...... 7 8 8 1838 ...... 111 45 ...... 7 13 18 41 ...... 8 8 8 2111 ...... 112 46 ...... 8 13 19 42 ...... 8 9 9 2425 ...... 113 47 ...... 8 14 19 43 ...... 8 9 9 2786 ...... 114 48 ...... 8 14 20 44 ...... 8 9 9 3200 ...... 115 49 ...... 9 15 21 45 ...... 8 10 10 Interpolate between the values found in this 50 ...... 9 16 22 46 ...... 9 10 10 Table, or extend the Table, by using the for- 51 ...... 9 16 23 47 ...... 9 10 11 mula: TWA = 16.61 log (D/100) + 90. 8 10 52 ...... 10 17 24 48 ...... 9 11 11 53 ...... 10 18 25 49 ...... 9 11 11 50 ...... 10 11 12 TABLE 62±3.ÐAGE CORRECTION 54 ...... 10 18 26 VALUE IN DECIBELS FOR MALES (SE- 51 ...... 10 11 12 55 ...... 11 19 27 52 ...... 10 12 13 LECTED REQUENCIES F ) 56 ...... 11 20 28 53 ...... 10 13 13 57 ...... 11 21 29 54 ...... 11 13 14 kHz 58 ...... 12 22 31 55 ...... 11 14 14 Age (years) 2 3 4 59 ...... 12 22 32 56 ...... 11 14 15 60 or more ...... 13 23 33 57 ...... 11 15 15 20 or less ...... 3 4 5 58 ...... 12 15 16 21 ...... 3 4 5 59 ...... 12 16 16 22 ...... 3 4 5 60 or more ...... 12 16 17 23 ...... 3 4 6 24 ...... 3 5 6 [FR Doc. 99–22964 Filed 9–7–99; 8:45 am] 25 ...... 3 5 7 BILLING CODE 4510±33±P

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