[Federal Register Volume 69, Number 120 (Wednesday, June 23, 2004)]
[Proposed Rules]
[Pages 35146-35192]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-13582]



[[Page 35145]]

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Part II





Department of Transportation





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Federal Railroad Administration



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49 CFR Parts 227 and 229



Occupational Noise Exposure for Railroad Operating Employees; Proposed 
Rule

  Federal Register / Vol. 69, No. 120 / Wednesday, June 23, 2004 / 
Proposed Rules  

[[Page 35146]]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 227 and 229

[Docket No. FRA 2002-12357, Notice No. 1]
RIN 2130-AB56


Occupational Noise Exposure for Railroad Operating Employees

AGENCY: Federal Railroad Administration (FRA), Department of 
Transportation (DOT).

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: FRA is proposing to amend its occupational noise standards for 
railroad employees whose predominant noise exposure occurs in the 
locomotive cab. FRA's existing standard (issued in 1980) limits cab 
employee noise exposure to certain levels based on the duration of 
their exposure. This proposed rule modifies that standard and also sets 
out additional requirements.
    The NPRM proposes to require railroads to conduct noise monitoring 
and to implement a hearing conservation program for railroad operating 
employees whose noise exposure equals or exceeds an 8-hour time-
weighted average of 85 decibels. The NPRM also proposes design, build, 
and maintenance standards for new locomotives and maintenance 
requirements for existing locomotives. FRA expects that this proposed 
rule will reduce the likelihood of noise-induced hearing loss for 
railroad operating employees.

DATES: (1) Written Comments: Written comments must be received on or 
before September 21, 2004. Comments received after that date will be 
considered to the extent possible without incurring additional expense 
or delay.
    (2) Public Hearing: Requests for a public hearing must be in 
writing and must be submitted to the Department of Transportation 
Docket Management System at the address below on or before August 9, 
2004. If a public hearing is requested and scheduled, FRA will announce 
the date, location, and additional details concerning the hearing by 
separate notice in the Federal Register.

ADDRESSES: You may submit comments (identified by DOT DMS Docket Number 
FRA-2002-12357) by any of the following methods:
     Web site: http://dms.dot.gov. Follow the instructions for 
submitting comments on the DOT electronic docket site.
     Fax: 202-493-2251.
     Mail: Docket Management Facility; U.S. Department of 
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, 
Washington, DC 20590-001.
     Hand Delivery: Room PL-401 on the plaza level of the 
Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
    Instructions: All submissions must include the agency name and 
docket number or Regulatory Identification Number (RIN) for this 
rulemaking. Note that all comments received will be posted without 
change to http://dms.dot.gov, including any personal information 
provided. Please see the Privacy Act heading under Regulatory Notices.
    Docket: For access to the docket to read background documents or 
comments received, go to http://dms.dot.gov at any time or to Room PL-
401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., 
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Jeffrey Horn, Economist, Office of 
Safety, Federal Railroad Administration, 1120 Vermont Avenue, NW., Mail 
Stop 25, Washington, DC 20590 (em-mail: [email protected] and 
telephone: 202-493-6283); or Christina McDonald, Trial Attorney, Office 
of Chief Counsel, Federal Railroad Administration, 1120 Vermont Avenue, 
NW., Mail Stop 10, Washington, DC 20590 (e-mail: 
[email protected] and telephone: 202-493-6032).

SUPPLEMENTARY INFORMATION: Note that for brevity, all references to CFR 
parts will be to parts in 49 CFR, unless otherwise noted.

Table of Contents for Supplementary Information

I. Statutory and Regulatory Framework
    A. Railroad Safety, In General
    B. FRA-OSHA Jurisdiction for Occupational Safety and Health 
Issues
    C. Federal Occupational Noise Standards
II. History of FRA's Treatment of Occupational Noise
    A. FRA's Noise Standard
    B. Studies of Noise
    C. FRA's Report to Congress
    D. Wyle Report
    E. FRA's Follow-Up to the Report to Congress and Wyle Report
    F. FRA's Administrator's Roundtable Discussion on Noise
III. The Railroad Safety Advisory Committee (RSAC) Process
    A. RSAC
    B. Working Group
IV. Fundamental Principles of Sound
    A. Sound
    B. Hearing and Hearing Loss
    C. Instrumentation
    1. Measuring Hearing Loss
    2. Measuring Noise Exposures
    3. Instrumentation Calibration
V. Occupational Noise in the Railroad Industry
VI. FRA's Approach to Cab Noise
VII. Responsibility of Individual Employees
VIII. Compliance
IX. Section-by-Section Analysis
X. Regulatory Impact and Notices
    A. Executive Order 12866 and DOT Regulatory Policies and 
Procedures
    B. Regulatory Flexibility Act of 1980 and Executive Order 13272
    C. Paperwork Reduction Act of 1995
    D. Federalism Implications
    E. Environmental Impact
    F. Unfunded Mandates Reform Act of 1995
    G. Energy Impact
    H. Privacy Act
List of Subjects

I. Statutory and Regulatory Framework

A. Railroad Safety, in General

    FRA has broad statutory authority to regulate railroad safety. The 
Locomotive Inspection Act (``LIA'') (formerly 45 U.S.C. 22-34, now 49 
U.S.C. 20701-20703) was enacted in 1911. It prohibits the use of unsafe 
locomotives and authorizes FRA to issue standards for locomotive 
maintenance and testing. In order to further FRA's ability to respond 
effectively to contemporary safety problems and hazards as they arise 
in the railroad industry, Congress enacted the Federal Railroad Safety 
Act of 1970 (``Safety Act'') (formerly 45 U.S.C. 421, 431 et seq., now 
found primarily in chapter 201 of Title 49). The Safety Act grants the 
Secretary of Transportation rulemaking authority over all areas of 
railroad safety (49 U.S.C. 20103(a)) and confers all powers necessary 
to detect and penalize violations of any rail safety law. This 
authority was subsequently delegated to the FRA Administrator (49 CFR 
1.49). (Until July 5, 1994, the Federal railroad safety statutes 
existed as separate acts found primarily in Title 45 of the United 
States Code. On that date, all of the acts were repealed, and their 
provisions were recodified into Title 49.)
    The term ``railroad'' is defined in the Safety Act to include:

    All forms of non-highway ground transportation that runs on 
rails or electromagnetic guideways, * * * other than rapid transit 
operations within an urban area that are not connected to the 
general railroad system of transportation.


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    This definition makes clear that FRA has jurisdiction over (1) 
rapid transit operations within an urban area that are connected to the 
general railroad system of transportation, and (2) all freight, 
intercity, passenger, and commuter rail passenger operations regardless 
of their connection to the general railroad system of transportation or 
their status as a common carrier engaged in interstate commerce. FRA 
has issued a policy statement describing how it determines whether 
particular rail passenger operations are subject to FRA's jurisdiction 
(65 FR 42529 (July 2, 2000)). The policy statement is located in 
Appendix A to parts 209 and 211.
    Pursuant to its statutory authority, FRA promulgates and enforces a 
comprehensive regulatory program to address railroad track, signal 
systems, railroad communications, rolling stock, rear-end marking 
devices, safety glazing, railroad accident/incident reporting, 
locational requirements for dispatching of U.S. rail operations, safety 
integration plans governing railroad consolidations, merger and 
acquisitions of control, operating practices, passenger train emergency 
preparedness, alcohol and drug testing, locomotive engineer 
certification, and workplace safety. In the area of workplace safety, 
the agency has issued a variety of standards designed to protect the 
health and safety of railroad employees. For instance, FRA requires 
ladders and handholds to be installed on rail equipment in order to 
prevent employee falls (part 231). FRA requires locomotive cab floors 
and passageways to remain clear of debris and oil in order to prevent 
employee slips, trips, and falls (Sec.  229.119). FRA requires blue 
signal protection in order to protect employees working on railroad 
equipment from injuries due to the unexpected movement of the equipment 
(part 218). FRA has rules that provide for the protection of railroad 
employees working on or near railroad tracks in order to decrease the 
risk of employees falling from railroad bridges and of being struck by 
moving trains (part 214).

B. FRA-OSHA Jurisdiction for Occupational Safety and Health Issues

    FRA and the U.S. Occupational Safety and Health Administration \1\ 
(OSHA) have a complementary relationship and overlapping jurisdiction 
with respect to occupational safety and health issues in the railroad 
industry. OSHA regulates conditions and hazards affecting the health 
and safety of employees in the workplace. OSHA's jurisdiction extends 
to all types of employment, except where another Federal agency 
exercises statutory authority and displaces OSHA pursuant to section 
4(b)(1) of the Occupational Safety and Health Act of 1970.\2\ Section 
4(b)(1) permits Federal agencies to oust OSHA's regulatory and 
enforcement authority where that agency pronounces its own regulations 
or standards or articulates a formal position that a particular working 
condition should go unregulated.
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    \1\ OSHA is an agency within the U.S. Department of Labor. 
Congress created OSHA with the Occupational Safety and Health Act of 
1970 (``OSH Act''). Pursuant to the OSH Act, employers have a duty 
to protect workers from all kinds of hazards, including noise.
    \2\ See 29 U.S.C. 653(b)(1). This section provides:
    Nothing in this Act shall apply to the working conditions of 
employees with respect to which other Federal agencies * * * 
exercise statutory authority to prescribe or enforce standards or 
regulations affecting occupational safety or health.
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    In 1978, FRA issued a Statement of Policy setting out the 
respective areas of jurisdiction between FRA and OSHA in the railroad 
industry.\3\ In that Policy Statement, FRA drew the jurisdictional line 
between ``occupational safety and health'' issues in the railroad 
industry and work related to ``railroad operations,'' with FRA 
exercising authority over railroad operations and OSHA over 
occupational safety and health issues. Further, the Policy Statement 
pointed to FRA's ``proper role'' as concentrating its ``limited 
resources in addressing hazardous working conditions in those 
traditional areas of railroad operations'' (i.e., movement of equipment 
over the rails'') in which FRA has special competence and expertise. 
(43 FR 10585). Often, railroad working conditions are so unique that a 
regulatory body other than FRA would not possess the requisite 
expertise to determine appropriate safety standards.
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    \3\ See 43 FR 10583 (March 14, 1978).
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    As a general rule, FRA exercises its statutory jurisdiction over 
railroad employee working conditions where employees are engaged in 
duties that are intrinsic to ``railroad operations,'' where the 
identical conditions generally do not occur in typical industrial 
settings, and where the hazard falls within the scope of FRA's 
expertise. Historically, the concept of ``railroad safety'' has 
included the health and safety of employees when they are engaged in 
railroad operations. In its 1978 Statement concerning employee 
workplace safety, FRA stated:

    The term `safety' includes health-related aspects of railroad 
safety to the extent such considerations are integrally related to 
operational safety hazards or measures taken to abate such hazards. 
43 FR 10585.

    Hazards that impact the health of railroad employees engaged in 
railroad operations may also result in adverse impacts on railroad 
safety, and so there is often a clear nexus between railroad safety and 
employee health. An example of this jurisdiction is seen in FRA's 
issuance of locomotive sanitation standards.\4\ There, FRA promulgated 
regulations that address toilet and washing facilities for employees 
who work in locomotive cabs. 49 CFR 229.137-139.
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    \4\ See 67 FR 16032 (April 4, 2002).
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    FRA has also exercised this jurisdiction with regard to 
occupational noise in the locomotive cab. FRA issued its current 
standard for locomotive standard in 1980. While OSHA, in general, 
regulates occupational noise in the workplace,\5\ FRA is the more 
appropriate entity to regulate noise in the locomotive cab, because the 
locomotive cab is so much a part of ``railroad operations.'' With 
respect to noise in the locomotive cab, FRA wrote, in its Policy 
Statement, that:
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    \5\ See 29 CFR 1910.95 and 29 CFR 1926.52 (``Occupational Noise 
Exposure'').

    FRA views the question of occupational noise exposure of 
employees engaged in railroad operations, during their involvement 
in such operations, as a matter comprehended by the regulatory 
fields over which FRA has exercised its statutory jurisdiction. FRA 
is therefore responsible for determining what exposure levels are 
permissible, what further regulatory steps may be necessary in this 
area, if any, and what remedial measures are feasible when evaluated 
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in light of overall safety considerations. 43 FR 10588.

C. Federal Occupational Noise Standards

    OSHA's occupational noise standard was promulgated under the Walsh-
Healey Public Contracts Act of 1969 \6\ for the purpose of protecting 
employees from workplace exposure to damaging noise levels. The Walsh-
Healey Act contained very limited provisions. Its noise standard 
allowed for a permissible exposure level of 90 dB(A), a 5 dB exchange 
rate, and a 90 dB(A) threshold. Pursuant to section 6(a) of the OSH 
Act, OSHA adopted the Walsh-Healey standard.
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    \6\ 41 U.S.C. 35, et seq.
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    In January 1981, OSHA promulgated a Hearing Conservation Amendment 
to its occupational noise exposure standard. The amendment consisted of 
requirements for noise measurements, audiometric testing, the use and 
care of hearing protectors, employee training, employee education, and 
recordkeeping. See 46 FR 4078 (1981). Portions of the amendment were 
subsequently stayed for reconsideration and clarification. In 1983, 
OSHA finalized the provisions of

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its Hearing Conservation Amendment by revoking various stayed 
provisions, lifting the stay on other provisions, and making other 
technical corrections. OSHA's revised regulation included a detailed 
hearing conservation program. See 48 FR 9738 (1983). OSHA's 
occupational noise standard applies, for the most part, to all industry 
engaged in interstate commerce.\7\ OSHA's noise standard can be found 
at 29 CFR 1910.95. As will be discussed in subsequent sections, FRA's 
proposed standard is quite similar to OSHA's standard.
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    \7\ OSHA has a general exclusion for the agriculture industry. 
See 29 CFR 1928.21(b). OSHA exempts oil and gas well drilling and 
servicing operations in its Hearing Conservation Amendment. See 29 
CFR 1910.95(o). OSHA has a separate occupational noise regulation 
that applies to the construction industry. See 29 CFR 1926.52.
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    While OSHA is the primary regulator of noise in the workplace, 
other federal agencies regulate specific occupational settings. FRA 
regulates the occupational noise exposure of railroad operating 
employees in the locomotive cab. The U.S. Air Force regulates the noise 
environment of Air Force personnel.\8\ The Mine Safety and Health 
Administration (MSHA) regulates the occupational noise exposure of 
miners.
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    \8\ See Air Force Occupational Safety and Health Standard 48-20, 
``Hearing Conservation Program.''
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    In 1999, MSHA issued a comprehensive rule that establishes uniform 
requirements for all miners.\9\ In that rule, MSHA adopted a 
permissible exposure level of 90 dB(A) as an 8-hour TWA. MSHA also 
requires employers to use all feasible engineering and administrative 
controls in order to reduce a miner's noise exposure to the permissible 
exposure level. Where a mine operator is unable to reduce the noise 
exposure to the permissible level, the mine operator must provide the 
miner with hearing protectors (HP) and is required to ensure that the 
miner uses them. In addition, where a miner is exposed at or above a 
TWA of 85 dB(A), the employer must place the miner in a hearing 
conservation program. The program must include exposure monitoring, the 
use of hearing protectors, audiometric testing, training, and 
recordkeeping. See 64 FR 49548, 49550 (1999).
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    \9\ See 64 FR 49548 (September 13, 1999).
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II. History of FRA's Treatment of Occupational Noise

A. FRA's Noise Standard

    In part 229, FRA establishes minimum federal safety standards for 
locomotives. These regulations prescribe inspection and testing 
requirements for locomotive components and systems. They also prescribe 
minimum locomotive cab safety requirements. In 1980, FRA issued 
standards for acceptable noise levels aboard a locomotive (Sec.  
229.121).\10\
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    \10\ For the Final Rule, see 45 FR 21092, 21105 and 21117 (March 
31, 1980). For the Notice of Proposed Rulemaking, see 44 FR 29604, 
29618 and 29627 (May 21, 1979).
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    Section 229.121 was promulgated to protect the hearing and health 
of cab employees and to facilitate crew communication. It provides that 
noise level exposure in the cab may not exceed specific prescribed 
levels. The provision limits employee noise exposure to an eight-hour 
time-weighted average (TWA) of 90 dB(A) with a doubling rate of 5dB(A). 
It also provides for an absolute upper noise limit of 115 dB(A). In 
addition, it establishes procedures for noise testing.
    At the time of the promulgation of the rule, there was discussion 
as to the proposed noise exposure limits. One commenter to the proposed 
rule took exception to the proposed 90 dB(A) 8-hour time limit and 
suggested that 85 dB(A) was more appropriate. FRA explained that, in 
selecting the proposed noise exposure limits, it attempted to ``strike 
a balance between that which is most desirable and that which is 
feasible.'' \11\ FRA acknowledged that more crew members would be at a 
lower risk at 85 dB(A), but also acknowledged that there would be 
problems with the technical feasibility of, and economic impact 
associated with, an 85 dB(A) requirement. Based on the information 
available and technology of the time, FRA determined that the 90 dB(A) 
8-hour noise exposure limit would ``provide adequate protection for the 
hearing, communication, and comfort of locomotive crews under presently 
accepted standards.'' \12\
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    \11\ 45 FR 21092, 21106 (March 31, 1980).
    \12\ 45 FR 21092, 21106 (March 31, 1980).
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    Section 229.121 does not address hearing conservation for 
locomotive cab employees, including the use of personal protective 
equipment, ongoing hearing testing, employee training on the cause and 
prevention of hearing loss, and periodic noise monitoring in the 
workplace. These are standard components of an occupational hearing 
conservation program, and OSHA requires them of other industries.
    In 1992, Congress enacted Section 10 of The Rail Safety Enforcement 
and Review Act (RSERA) (Public Law 102-365, September 3, 1992; codified 
at 49 U.S.C. 20103, note) in response to concerns raised by employee 
organizations, Congressional members, and recommendations of the 
National Transportation Safety Board (NTSB) concerning crashworthiness 
of and working conditions in locomotive cabs. Section 10 of RSERA, 
entitled Locomotive Crashworthiness and Working Conditions, required 
FRA ``to consider prescribing regulations to improve the safety and 
working conditions of locomotive cabs' throughout the railroad 
industry. In order to determine whether regulations would be necessary, 
Congress asked FRA to assess ``the extent to which environmental, 
sanitary, and other working conditions in locomotive cabs affect 
productivity, health, and the safe operation of locomotives.''
    In response to the Congressional mandate set forth in Section 10 of 
RSERA, FRA undertook steps to determine the health and safety effects 
of locomotive cab working conditions. FRA studied a variety of working 
conditions in locomotive cabs, including sanitation, noise, 
temperature, air quality, ergonomics, and vibration. FRA prepared the 
Locomotive Crashworthiness and Cab Working Conditions Report to 
Congress (``Report''), dated September 1996, which outlines the results 
of these studies. A copy of the Report is included in the docket. With 
respect to noise, FRA conducted a comprehensive survey, reviewed 
historical data on noise-related incidents and investigations, and 
gathered information on hearing protection programs.

B. Studies on Noise

    FRA first considered the sound environment in the locomotive cab in 
1971 as part of a study on highway-rail grade crossings.\13\ The study 
examined the visibility and audibility of trains approaching rail and 
highway grade crossings. An addendum to the study, authored by John 
Aurelius, examined the sound environment in locomotive cabs.\14\ 
Observing two different test runs made under diverse conditions, 
Aurelius recorded the sounds inside cabs operating in regular service. 
Aurelius concluded that the noise level in a typical locomotive cab 
approached 90 dB(A), which is the limit allowed by the Walsh-Healey 
Public Contracts Act.\15\ Given that conclusion, Aurelius recommended 
that a more detailed survey be conducted to determine whether the 
exposures exceeded the

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legal limits and if so, under what conditions.
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    \13\ John Aurelius and Norman Korebor, ``The Visibility and 
Audibility of Trains Approaching Rail--Highway Grade Crossings,'' 
Report No. FRA-RP-71-2, May 1971.
    \14\ John P. Aurelius, ``The Sound Environment in Locomotive 
Cabs,'' Report No. FRA-RP-71-2A, July 1971.
    \15\ See 41 U.S.C. 35.
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    In 1980, Roger Kilmer, under the auspices of the National Bureau of 
Standards, conducted an extensive study on the noise environment in 
locomotive cabs.\16\ Kilmer selected eighteen test runs that covered a 
wide range of operational conditions, trip lengths, and geographical 
conditions. In general, Kilmer concluded that ``based on the group of 
locomotives tested, it does not appear that overexposure to noise is a 
widespread problem for locomotive crews under the current OSHA 
standard.'' \17\ Kilmer explained that noise exposure was within 
acceptable limits for two reasons: (1) locomotives operate in such a 
way that the sources which generate high sound levels (i.e., horn and 
brakes) operate for only short periods of time, and (2) locomotives 
spend a great deal of time in idle, which involves sound levels below 
90 dB. However, the report also recognized that overexposure can, and 
does, occur. The report explained that the level of overexposure 
depends on the type of locomotive and the nature of the run. The next 
step, according to Kilmer, was to determine the type of monitoring that 
should be used to identify the cases where overexposure may occur. 
Kilmer advocated a simplified test procedure to screen locomotives.
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    \16\ Roger D. Kilmer, ``Assessment of Locomotive Crew In-Cab 
Occupational Noise Exposure,'' National Bureau of Standards. Report 
No. FRA-ORD-80/91, December 1980.
    \17\ Kilmer at 113-114.
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C. FRA's Report to Congress

    FRA conducted an extensive noise survey of actual noise levels in 
locomotive cabs. The survey sought to determine whether cab working 
conditions impaired a crew's ability to safely operate a locomotive. 
FRA field inspectors traveled aboard locomotives while the crew 
operated the locomotive in a ``normal'' fashion (i.e., as though FRA 
personnel were not present). The inspectors measured cab noise with a 
Metrosonics Db-3100 Metrologger. The inspectors conducted a total of 
350 noise measurements, all between 1992 and 1994. FRA had intended to 
run the noise tests over 8-hour time periods, but that was not possible 
due to the varying lengths of the train routes. Tests performed on the 
eastern routes tended to be shorter in length, and tests on the western 
routes tended to be longer in length. The noise tests were run, on 
average, for approximately 6.5 hours.
    The 350 measurements included 234 measurements from winter/summer 
tests and 116 measurements evaluated in response to inquiries and 
complaints. Both the complaint-based investigations and the hot summer 
tests (often conducted with windows open) represent railroad operations 
that are more likely to present unacceptable noise environments. As a 
result, the Report pointed out that measurements used in this survey 
did not constitute a random sample of locomotives or locomotive 
operating conditions. The Report directed the reader to exercise 
caution in characterizing the significance of the findings.
    FRA inspectors identified several factors as major contributors to 
high average cab noise levels and to significant peak readings of 95 
dB(A) or higher. Those major contributors were: radios; audible warning 
devices; diesel engines; tunnels, sheds, and bridges; close 
embankments; open windows; dynamic braking; loose cab sheet metal; 
loose side windows; and miscellaneous loose and/or poorly fitted cab 
equipment. While collecting the survey data, inspectors also noted the 
use of hearing protection by train crews. FRA observed that, in most 
cases, crews wore hearing protection in noise environments that 
exceeded the FRA standard.
    FRA reviewed several sources of data and information in the Report. 
FRA reviewed historical data for noise-related incidents and 
investigations. Using its accident/incident database, FRA compiled data 
on locomotive cab member injuries and illnesses attributable to 
excessive noise levels. Railroads had reported no incidents prior to 
1992, 23 incidents in 1992, and 18 incidents in 1993. FRA also reviewed 
complaints of alleged noise violations received by FRA from crew 
members or their labor organizations. In addition, FRA gathered 
information on the hearing conservation programs of several Class I 
railroads by contacting the railroads' industrial hygienists. All 
railroads stated that they had comprehensive hearing conservation 
programs, that they were conducting audiometric exams, and that they 
were providing hearing conservation training to both locomotive crews 
and ground crews that work in excessively noisy areas. Finally, FRA 
described the changing working conditions in the railroad industry, 
i.e., the various measures that had been taken to reduce the effects of 
noise in the cab. These steps included the introduction of new 
locomotives with advanced sound reduction technology, as well as the 
establishment of hearing conservation programs and the extensive use of 
personal protective equipment.
    Based on its findings, FRA concluded, among other things, that 
certain locomotive crew assignments expose crews to increased noise 
levels, thereby raising concerns of possible hearing loss and of 
impaired communication. FRA also concluded that many factors, including 
the sounding of the horn, engine noise, and radio volume, contribute to 
noise levels that are equal to or exceed 85 dB(A) for a group of 
locomotive assignments. In addition, FRA noted that human factors 
literature suggests that excessive noise levels can impair mental 
processes, increase fatigue, and increase the number of errors, while 
simultaneously decreasing vigilance.
    FRA then recommended several measures that, if implemented, might 
reduce the exposure of operating crews to excessive noise levels. After 
noting that several railroads have hearing conservation programs and 
that FRA's current noise regulation lacks a hearing conservation 
approach, FRA encouraged railroads without such programs to seriously 
consider the development and implementation of such programs. In 
addition, FRA stated that railroads should evaluate the use of sound-
insulated headsets with microphones in order to provide hearing 
protection, to help ensure effective radio communications, and to 
facilitate intra-crew communication.\18\ FRA also recommended that 
railroads implement several administrative and engineering controls 
(i.e., measures that reduce noise levels and minimize noise exposure in 
locomotive cabs).
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    \18\ See 227.115(d) and accompanying preamble language for a 
further discussion of electronic communication devices.
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D. Wyle Report

    The American Association of Railroads (AAR) commissioned Wyle 
Laboratories to review the noise and vibration sections of FRA's Report 
to Congress, as well as the 350 in-cab locomotive noise measurements 
referenced in the Report. In December 1996, Wyle Laboratories produced 
a Report entitled ``A Review of the Noise and Vibration Sections of the 
Federal Railroad Administration's Report to Congress Entitled 
`Locomotive Crashworthiness and Cab Working Conditions' '' (``Wyle 
Report.'') \19\ A copy of the Wyle Report is included in the docket. 
The Wyle Report reviewed Chapter 6 ``Locomotive Cab Noise'' and Chapter 
10 ``Other Factors Affecting Locomotive Cab Working Conditions'' of 
FRA's Report but focused most of its comments on Chapter 6. The Wyle

[[Page 35150]]

Report acknowledged that FRA's noise measurements were, at that time, 
the largest set of publicly available locomotive cab noise data and 
were a valuable resource in analyzing and understanding the in-cab 
noise environment. The Wyle Report disagreed with the two general 
conclusions that FRA reached in Chapter 6.
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    \19\ Wyle Report, WR 96-37, was prepared by Eric Stusnick, Ph.D.
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    The Wyle Report disagreed with FRA's conclusion that ``[a> 
significant minority of locomotive cabs had noise levels high enough to 
contribute to long-term hearing loss after long-term repetitive 
exposure, and in absence of personal protective equipment.'' \20\ It 
stated that FRA's statistical analyses of locomotive cab noise exposure 
measurements was flawed for three reasons.\21\ First, FRA compared its 
8-hour TWA measurements from the Report to Congress with the 12-hour 
TWA standard that is specified in 49 CFR 229.121. Second, FRA used a 
definition of noise dose (in its analysis for the Report to Congress) 
that had no lower sound level threshold, whereas 49 CFR 229.121 
provides a definition of noise dose that uses a lower threshold of 87 
dB. Third, FRA measured a sample of locomotive trips that was not 
random and thus not an accurate representation of the total population 
of trips. The Wyle report concluded that ``the result of these errors 
is that the calculated TWA values are larger than would have been 
obtained if the proper analysis were done on a properly stratified 
random-sample of locomotive trips.'' \22\
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    \20\ Wyle Report at 2-1.
    \21\ Wyle Report at 2-2.
    \22\ Wyle Report at 2-2.
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    The Wyle Report also disagreed with FRA's conclusion that ``the 
noise level in many locomotives was sufficiently high to interfere with 
normal voice communication.'' \23\ The Wyle Report explained that FRA's 
assertion was based on its statistical analysis that showed that 
thirteen percent of the measured TWAs exceeded 88 dB. Earlier in the 
Report, FRA had identified a sound level of 88 dB as the sustained 
verbal communication limit. From that, FRA inferred that, where there 
was a background sound level of 88 dB or more, crew members would need 
to use a voice sound level equal to or greater than 88 dB (i.e., the 
maximum that can be sustained to maintain verbal communication) in 
order to communicate in the cab.
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    \23\ Wyle Report at 2-12.
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    The Wyle Report disagreed with that inference for three reasons. 
First, the Wyle Report explained that a given TWA does not represent 
the background sound level at any given time, because the TWA is an 
average over a measurement period of all the sound levels that 
occurred. A measured TWA of 88 dB does not mean that the sound level in 
the cab was 88 dB for the entire trip; that TWA might result from a few 
very loud sound levels and from the remainder at sound levels lower 
than 88 dB--during which the crew could successfully communicate. 
Second, the Wyle Report asserted that it is not necessary for the 
speech sound level to be greater than or equal to the background sound 
level (in order for the speech to be understood), because the ear can 
distinguish communication from background noise based on its sound 
level and its frequency content. Third, the Wyle Report asserted that 
the sound level of radio messages usually contribute a great deal to 
the TWA value and they are communication. Thus, it is inappropriate to 
consider sound levels due to radio messages as part of the background 
noise. In addition, the Wyle Report did note that ``voice communication 
is certainly difficult'' when the horn is being sounded or the brake 
systems are being exhausted.

E. FRA's Follow-Up to the Report to Congress and Wyle Report

    FRA hired a contractor to review FRA's Report to Congress, the 
accompanying data, and the Wyle Report. In June 1997, consultants with 
Harris Miller, Miller & Hanson, Inc. prepared a Technical Memorandum 
``Comments on AAR Review of Chapter 6, FRA Report to Congress 
`Locomotive Crashworthiness and Cab Working Conditions.' '' A copy of 
the Technical Memorandum is included in the docket. The Technical 
Memorandum discussed each of the major points brought up in the AAR's 
Review (i.e., the Wyle Report).
    Harris Miller concluded that although FRA's noise measurements were 
not part of a random sample and although FRA's analysis was not the 
most rigorous, the data set used by FRA in the Report to Congress still 
provided a valuable assessment of the noise levels in locomotive cabs. 
Harris Miller also concluded that the data supported a ``general 
conclusion that hearing conservation programs are warranted for some 
locomotive crew assignments.'' In addition, while acknowledging that 
the data could not be used to make statistical inferences, Harris 
Miller explained that the data still did show that ``noise inside a 
small percentage of locomotives exceeds the FRA and OSHA permissible 
noise exposure limits.'' \24\
---------------------------------------------------------------------------

    \24\ Technical Memorandum from Hugh J. Saurenman and Lance D. 
Meister of Harris, Miller, Miller, & Hanson (June 18, 1997), 1.
---------------------------------------------------------------------------

    In the area of voice communication, Harris Miller found that FRA's 
conclusion that ``frequent high in-cab noise levels make speech 
communication difficult between crew members over two-way radios'' was 
appropriate, even if FRA's analysis of the pertinent data was not 
rigorous. In addition, Harris Miller stated that the normal background 
noise level inside locomotive cabs is high enough to make voice 
communication difficult. Harris Miller further explained that ``even 
accounting for locomotive noise being weighted toward low frequencies, 
with a background sound level of 88 dBA, crew members will need to 
shout if they are to be understood by others in the cab.'' Thus, they 
concluded that for some locomotive crew assignments, communication 
could be categorized as ``difficult.'' \25\
---------------------------------------------------------------------------

    \25\ Technical Memorandum at 5.
---------------------------------------------------------------------------

F. FRA's Administrator's Roundtable Discussion on Noise

    On April 3, 1997, FRA hosted a roundtable discussion on noise. The 
transcript from the roundtable discussion is included in the docket. 
There were 32 participants, including representatives from FRA, other 
federal agencies, railroads, labor organizations, locomotive 
manufacturers, and trade associations. The meeting provided an 
opportunity to discuss the effects of occupational noise exposure on 
railroad workers and on the industry as a whole. FRA also explained 
that the roundtable was an opportunity to understand best practices, to 
exchange information about railroad industry conservation programs, and 
to learn about educational hearing initiatives.\26\
---------------------------------------------------------------------------

    \26\ Transcript at 13-14.
---------------------------------------------------------------------------

    Several individuals made presentations to the group. A physician 
provided some historical background on hearing loss.\27\ He explained 
that hearing loss had been ``substantially neglected'' for years.\28\ 
Then, in the late 1970s, government policy makers realized that the 
emphasis should be placed on prevention, rather than treatment and 
care, and that the industry was in a position to educate its workforce 
and implement preventative measures that produce a healthier workforce. 
As a result of that sentiment, OSHA wrote and issued its noise 
regulation.
---------------------------------------------------------------------------

    \27\ Transcript at 25-29.
    \28\ Transcript at 26-27.

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[[Page 35151]]

    A union representative provided some input from the employee's 
perspective.\29\ He explained that conditions on a locomotive can be 
extremely noisy and that those noisy conditions can lead to pain, 
discomfort, and bad decisions. He acknowledged that some technological 
progress has been made on locomotives, but that a difficult situation 
remained ahead.
---------------------------------------------------------------------------

    \29\ Transcript at 29-33.
---------------------------------------------------------------------------

    A carrier representative spoke about the carrier's perspective and 
about some of the initiatives that his particular railroad had 
undertaken.\30\ He discussed the elements of a hearing conservation 
program. He also spoke about his railroad's comprehensive mobile 
medical service that traveled throughout the country and about his 
railroad's extensive training program that covers hazard communication 
in addition to the traditional audiometric testing training. In 
addition, he mentioned that his railroad uses communication tools, such 
as newsletters, pamphlets, and daily job briefings, to increase 
employee awareness about noise issues. Finally, he briefly addressed 
control measures that his railroad uses, including hearing protection, 
equipment specifications, and alterations to track equipment.
---------------------------------------------------------------------------

    \30\ Transcript at 33-44.
---------------------------------------------------------------------------

    Next, FRA presented its Report to Congress, summarizing the 
contents and noting that the Report was now a ``launching pad'' and 
``baseline'' from which to move forward.\31\ In addition, the New York 
League for the Hard of Hearing spoke to the group.\32\ The Executive 
Director addressed the importance of prevention and treatment of 
hearing loss. He also stressed the need for programs that educate 
people about the dangers of excessive noise exposure. The roundtable 
participants subsequently discussed a wide range of topics, including: 
the available scientific data related to occupational noise exposure 
and hearing loss in the railroad industry; \33\ the identification of 
the appropriate noise exposure threshold at which noise adversely 
affects railroad workers' health and job performance; a review of 
voluntary noise reduction and conservation programs that industry 
participants had already implemented; \34\ and an assessment of what 
remained to be done in addressing the noise issue.
---------------------------------------------------------------------------

    \31\ Transcript at 10, 13, 23, 50-57.
    \32\ Transcript at 69-82.
    \33\ Transcript at 92-94.
    \34\ Transcript at 33, 88-89 ?>
---------------------------------------------------------------------------

    Participants generally agreed that exposure to high levels of noise 
adversely affects workers and the industry; however, participants did 
not agree on the threshold level of noise exposure at which these 
effects occur.\35\ One individual asked what the proper damage risk 
criteria should be and what is safe noise verus unsafe noise.\36\ 
Another individual noted that there is controversy between scientists 
and regulators as to what level of protection is necessary to protect 
individuals from hearing loss.\37\
---------------------------------------------------------------------------

    \35\ Transcript at 96-97.
    \36\ Transcript at 111.
    \37\ Transcript at 42-43.
---------------------------------------------------------------------------

    As well, the potential damaging effects of noise on railroad 
workers arose on several occasions. In addition to noting the obvious 
damaging affects of noise on railroad workers' hearing abilities, many 
participants pointed out that there were several other potential 
damaging effects of noise exposure. One participant noted that it is 
more than just one's ears that respond to noise; bodies also respond to 
noise, for example, in the form of hypertension, anxiety, nausea, or 
other medical ailments.\38\ Another participant noted that there had 
been little discussion about the impact of noise on fatigue.\39\ 
Several participants also noted that they lacked full understanding of 
the effects of noise on railroad worker job performance.\40\
---------------------------------------------------------------------------

    \38\ Transcript at 93
    \39\ Transcript at 83.
    \40\ Transcript at 100-102.
---------------------------------------------------------------------------

    During the course of the discussions, the participants acknowledged 
the positive steps taken thus far, that is, that industry participants 
have implemented many voluntary noise reduction and hearing 
conservation programs. Participants also acknowledged that there have 
been technological advances that have led to the manufacture of quieter 
locomotives.\41\ Participants concluded by identifying the need for 
more current research and data on noise in the rail industry.\42\
---------------------------------------------------------------------------

    \41\ Transcript at 115-118.
    \42\ Transcript at 98-99.
---------------------------------------------------------------------------

III. The Railroad Safety Advisory Committee (RSAC) Process

A. RSAC

    In March 1996, FRA established the RSAC, which provides a forum for 
developing consensus recommendations on rulemakings and other safety 
program issues. The Committee includes representation from all of the 
agency's major customer groups, including railroad carriers, labor 
organizations, suppliers, manufacturers, and other interested parties. 
A list of member groups follows:

American Association of Private Railroad Car Owners (AARPCO)
American Association of State Highway & Transportation Officials 
(AASHTO)
American Public Transportation Association (APTA)
American Short Line and Regional Railroad Association (ASLRRA)
American Train Dispatchers Department/BLE (ATDD/BLE)
AMTRAK
Association of American Railroads
Association of Railway Museums (ARM)
Association of State Rail Safety Managers (ASRSM)
Brotherhood of Locomotive Engineers (BLE)
Brotherhood of Maintenance of Way Employes (BMWE)
Brotherhood of Railroad Signalmen (BRS)
Federal Transit Administration (FTA)*
High Speed Ground Transportation Association
Hotel Employees & Restaurant Employees International Union
International Association of Machinists and Aerospace Workers
International Brotherhood of Boilermakers and Blacksmiths
International Brotherhood of Electrical Workers (IBEW)
Labor Council for Latin American Advancement (LCLAA)*
League of Railway Industry Women*
National Association of Railroad Passengers (NARP)
National Association of Railway Business Women*
National Conference of Firemen & Oilers
National Railroad Construction and Maintenance Association
National Transportation Safety Board (NTSB)*
Railway Progress Institute (RPI)
Safe Travel America
Secretaria de Communicaciones y Transporte*
Sheet Metal Workers International Association (SMWIA)
Tourist Railway Association Inc.
Transport Canada*
Transport Workers Union of America (TWUA)
Transportation Communications International Union/BRC (TCIU/BRC)
United Transportation Union (UTU)
*Indicates associate membership.

    Where appropriate, FRA assigns a task to the RSAC, and after 
consideration and debate, the RSAC may accept or reject the task. If 
the task is accepted, the RSAC establishes a working group that 
possesses the appropriate expertise and representation of interests to 
develop recommendations to FRA for action on the task. The working 
group develops the recommendations by consensus. The working group may 
establish one or more task forces to

[[Page 35152]]

develop the facts and options on a particular aspect of a given task. 
The task force reports to the working group. If a working group reaches 
unanimous consensus on recommendations for action, the working group 
presents the package to the RSAC for a vote. If a simple majority of 
the RSAC accepts the proposal, the RSAC formally recommends the 
proposal to FRA.
    FRA then determines what action to take on the recommendation. 
Because FRA staff has played an active role at the working group level 
in discussing the issues and options and in drafting the language of 
the consensus proposal, and because the RSAC recommendation constitutes 
the consensus of some of the industry's leading experts on a given 
subject, FRA is often favorably inclined toward the RSAC 
recommendation.
    However, FRA is in no way bound to follow the recommendation, and 
the agency exercises its independent judgement on whether the 
recommended rule achieves the agency's regulatory goal, is soundly 
supported, and is in accordance with policy and legal requirements. 
Often, FRA varies in some respects from the RSAC recommendation in 
developing the actual regulatory proposal. If the working group or the 
RSAC is unable to reach consensus on recommendations for action, FRA 
moves ahead to resolve the issue through traditional rulemaking 
proceedings.
    On June 24, 1997, FRA presented the subject of locomotive cab 
working conditions to RSAC. The purpose of this task was defined as 
follows: ``To safeguard the health of locomotive crews and to promote 
the safe operation of trains.'' The RSAC accepted this task (No. 97-2) 
and formed a Locomotive Cab Working Conditions Working Group (``Working 
Group'').

B. Working Group

    Task 97-2 addressed several issues, one of which was noise 
exposure. With respect to noise exposure, RSAC asked the Working Group 
to complete two items: (1) Revise existing cab noise limits to take 
into account current requirements of the OSHA standard, specifically as 
it relates to hearing conservation programs, and (2) Continue efforts 
to evaluate engineering controls and other measures used to minimize 
noise exposure in locomotive cabs.
    The Working Group consisted of representatives of the following 
organizations, in addition to FRA:

AASHTO
APTA
ASLRRA
AAR
BLE
BMWE*
IBEW
Amtrak
RPI
SMWIA
TWUA
UTU
*Indicates associate membership

    The Working Group's goal was to produce recommendations for 
locomotive cab noise exposure standards warranted by an assessment of 
available information on hearing loss, hearing conservation programs, 
existing federal standards, and occupational injury data. The Working 
Group decided that specific expertise would be needed to analyze 
pertinent information and so it formed the Noise Task Force.
    The Noise Task Force, which was established in September 1997, was 
made up of industrial hygiene, safety, engineering, and medical staff 
from carriers, labor organizations, and FRA. The Noise Task Force met 
regularly over a period of several years to discuss several topics, 
including hearing loss and noise exposure among locomotive cab 
employees; existing railroad hearing loss prevention programs; OSHA's 
occupational noise standards; equipment changes and procedures that 
improve noise levels in the cab; hearing testing and training programs; 
and noise monitoring.
    The Task Force concluded that OSHA's standard for noise was an 
appropriate framework and starting point for an update and revision to 
FRA's existing noise regulation. The Task Force also identified several 
areas where OSHA's regulation might be modified to create a FRA 
regulation that could better address the occupational noise exposure of 
the rail industry. The Task Force forwarded these findings to the 
Working Group.
    The Working Group conducted a number of meetings and discussed each 
of the matters proposed in the NPRM. FRA has placed the minutes of 
these meetings in the docket for this proceeding. Throughout this 
preamble, we frequently discuss issues that were raised and views that 
were expressed at the task force and working group levels. We discuss 
these points to show the origin of certain important issues and the 
course of discussion on these issues at the task force and working 
group levels. FRA believes that this helps illuminate the facts FRA has 
weighed in making its regulatory decisions and the logic behind those 
decisions. The reader should keep in mind, of course, that only the 
full RSAC makes recommendations to FRA, and it is the consensus 
recommendation of the full RSAC on which FRA is acting.
    The Working Group, using the preliminary findings of the Task 
Force, developed recommendations for reducing the likelihood of hearing 
loss for cab employees. The Working Group reached full consensus in 
June 2003 and forwarded these recommendations to the RSAC. The RSAC 
accepted these recommendations and on June 27, 2003, the RSAC voted to 
forward these recommendations to FRA for rulemaking action. In large 
part, this NPRM incorporates the RSAC's recommendations.
    FRA has worked closely with the RSAC in the development of its 
recommendations and believes that the RSAC effectively addressed 
occupational noise exposure for cab employees. FRA has greatly 
benefitted from the open, informed exchange of information that has 
taken place during meetings. There is general consensus among labor, 
management, and manufacturers concerning the primary principles FRA 
sets forth in this NPRM. FRA believes that the expertise possessed by 
the RSAC representatives enhances the value of the recommendations, and 
FRA has made every effort to incorporate them in this proposal.
    The Working Group will reassemble after the comment period for this 
NPRM closes and will consider all comments received. Based on any 
recommendations RSAC receives from the Working Group, RSAC will then be 
in a position to make recommendations to FRA concerning the development 
of a final standard.

IV. Fundamental Principles of Sound

A. Sound

    Sound is a physical phenomenon brought about by oscillations in 
pressure. Oscillations or vibrations cause pressure changes in a 
medium, such as air. These pressure changes produce waves that emanate 
away from the oscillating or vibrating source. If a listener is 
present, the listener will experience these waves as an auditory 
sensation. The effect of sound on a listener depends on three physical 
characteristics of sound: amplitude, frequency, and duration.
    The amplitude (i.e., the magnitude or intensity) of the pressure 
change is measured in sound pressure level (SPL) and is perceived by 
the listener as loudness. Sound pressure level, which is expressed in 
decibels (dB), is a logarithmic measure. Because of the logarithmic 
scale, a small increase in decibels represents a large increase in

[[Page 35153]]

sound energy. Technically speaking, each increase of 3 dB represents a 
doubling of sound energy; an increase of 10 dB represents a tenfold 
increase in sound energy, and an increase of 20 dB represents a 100-
fold increase. Frequency is an objective measurement of the physical 
number of oscillations in a wave per unit of time. It is expressed in 
hertz (Hz) and is perceived by listeners as pitch. Duration usually 
refers to the amount of time per day to which an individual is exposed 
to noise. Noise exposure durations can be broadly classified into 
continuous-type noises (i.e., continuing, varying, and intermittent) 
and impulsive noises (i.e., there is a steep rise in the sound level to 
a high peak, followed by a rapid decay).

B. Hearing and Hearing Loss

    The ear is the sense organ that detects sound waves and sends those 
signals to the brain for processing. The human ear has three primary 
components--outer ear, middle ear, and inner ear. The outer ear directs 
sound into the ear, the middle ear mechanically transmits the sound 
waves from the air to the fluid-filled inner ear, and the inner ear 
changes the sound waves from mechanical energy into nerve impulses. 
This last process is completed in a small organ known as the cochlea. 
In the cochlea, sensory cells respond to the mechanical vibrations, 
change the vibrations into electrical energy, and transmit a message to 
the brain via the auditory nerve.
    Noise is essentially any unwanted or undesirable sound. Exposure to 
high levels or extended durations of noise can cause hearing loss. 
Noise-induced hearing loss (NIHL) can be temporary or permanent. 
Temporary hearing loss, also called a temporary threshold shift, 
results from short-term exposures to noise; hearing generally returns 
to its former level after a period of rest. Permanent hearing loss, 
also called a noise-induced permanent threshold shift, can result from 
prolonged exposure to high noise levels over an extended period of 
time. The extent of the damage depends on several factors: the overall 
decibel level of the sound, the duration of the noise exposure, the 
frequency spectrum of the noise source, and an individual's personal 
susceptibility to noise damage.
    A noise-induced permanent threshold shift is not reversible and 
cannot be treated medically. Once it has occurred, the only course of 
action is to prevent the further progression of hearing loss. Noise-
induced hearing loss causes difficulty in interpreting sounds and in 
perceiving the loudness and pitch of sounds. Even when sounds are 
amplified (e.g., with a hearing aid), the sounds may still remain 
indistinct.
    Noise induced hearing loss typically starts with threshold shifts 
in the higher frequencies. The loss usually appears first at 3000 Hz, 
4000 Hz, or 6000 Hz. If damaging noise exposure continues, the loss 
spreads to the lower frequencies (i.e., between 500 Hz and 3000 Hz.) 
The human voice ranges from 200 Hz to 4000 Hz, so these frequencies are 
critical to human conversation. The loss of these frequencies is 
detrimental to an individual's ability to understand speech.

C. Instrumentation

1. Measuring Hearing Levels
    An individual's hearing level (or hearing acuity) can be measured 
through the use of an audiometer. An audiometer measures an 
individual's hearing level by testing an individual's ability to hear 
various frequencies in each ear. The audiogram is a graphic 
representation of an individual's hearing and it indicates how intense 
or loud a sound must be at a given frequency before it can be detected 
by a listener.\43\
---------------------------------------------------------------------------

    \43\ 46 FR 4078 (1981).
---------------------------------------------------------------------------

    There are several different types of audiometers, including manual, 
self-recording, microprocessor, and computer-controlled. To administer 
manual audiometers, examiners operate the frequency dial (to select the 
stimulus tone, e.g., 500 Hz or 1000 Hz), the presentation level dial 
(with levels in increments of 5 dB), and the signal presentation switch 
(to turn the stimulus on or off). Then the examiner must identify and 
document the hearing levels that qualify as thresholds. With self-
recording audiometers, a pen traces a subject's response to test 
signals on a response card; a subject indicates his or her response by 
operating a hand switch. Microprocessor audiometers contain a computer 
chip that controls the audiometer. A related type, a computer-
controlled audiometer, has software in a personal computer that drives 
the audiometer.\44\
---------------------------------------------------------------------------

    \44\ Royster, Julia Doswell. (2000). ``Audiometric Monitoring 
Phase of the HCP'' in The Noise Manual, edited by Elliott H. Berger, 
Larry H. Royster, Dennis P. Driscoll, Julia Doswell Royster, and 
Martha Lane, American Industrial Hygiene Association, 470-473.
---------------------------------------------------------------------------

2. Measuring Noise Exposures
    This regulation specifies two different types of instruments that 
can be used to measure noise exposures: Sound level meters (SLM) and 
noise dosimeters. Sound level meters and noise dosimeters are small 
instruments used to measure, among other things, sound metrics and/or 
sound pressure levels. These instruments are usually equipped with 
weighting networks that adjust the instrument frequency response to 
predetermined frequency spectra of the measured sounds. The A-weighting 
network, one type of weighting network, is designed to adjust the 
instrument frequency to that which approximates the frequency response 
of human hearing.
    A SLM is a hand-held device that records the sound pressure level 
(logarithm of the ratio of the sound pressure to a reference point) at 
a given moment in time at a particular location. It consists of a 
microphone, preamplifier, electronic circuits, and a readout display. 
The microphone detects the small air pressure variations associated 
with the sound and changes them into electronic signals. These signals 
are then processed by the electric circuitry of the instrument. The 
readout displays the sound level in decibels (dB). Since SLMs provide a 
measure of sound pressure at only one point in time, it is generally 
necessary to take several measurements at many different times during 
the day to estimate noise exposure over a workday. SLMs are useful for 
measuring the noise attributable to a given process or for 
instantaneous (or spot) sound pressure level measurements.
    An integrating sound level meter (iSLM) is a specific type of SLM. 
It can be used to determine equivalent sound levels, which are the 
energy-averaged sound pressure levels over a given measurement period. 
An iSLM with data storage capabilities is useful in a noise monitoring 
program, because it records sound level data, which can be thoroughly 
analyzed later. This can be particularly useful when distinguishing 
artifactual noise measurements from actual noise exposure.
    Noise dosimeters are primarily used to assess individual noise 
exposure. A noise dosimeter measures an employee's total noise dose for 
the duration of a sampling period. A noise dosimeter stores sound level 
measurements and integrates these measurements over time, providing an 
average noise exposure reading for a given period of time (e.g., an 8-
hour workday). The noise dosimeter is designed to be worn by an 
employee and should be placed in a location that measures the 
employee's noise exposure but does not interfere with the employee's 
work. For noise dosimeter results to be meaningful, the person 
conducting the survey should maintain a log of the employee's 
activities and correlate the exposure data with different locations and

[[Page 35154]]

activities. This allows the person conducting the survey to identify 
noise sources.
    The use and design of SLMs and dosimeters vary. SLMs are used for 
measuring all types of sounds and noise, whereas noise dosimeters are 
typically used only for personal monitoring. SLMs are designed to be 
handheld or tripod-mounted instruments, whereas most noise dosimeters 
are designed to be worn by the individual that is being monitored. 
Also, the SLMs used in the industrial and scientific communities tend 
to be Type 1 and Type 2,\45\ while noise dosimeters are typically Type 
2 instruments.
---------------------------------------------------------------------------

    \45\ There are four grades of SLMs (types 0, 1, 2, and S), and 
there are design tolerances associated with each grade. Type 0 SLMs 
are used for laboratory purposes only, and type S SLMs are used for 
special purposes. Type 1 SLMs are precision instruments intended for 
noise measurements in the field and laboratory. On average, 
measurements with a Type 1 SLM will have errors not exceeding plus 
or minus 1 dB.
    Type 2 SLMs are general purpose instruments intended for general 
field use. Type 2 SLMs have design tolerances that are greater than 
Type 1 and tend to be used where high-frequency (over 10 kHz) sound 
components do not dominate. On average, measurements with a Type 2 
SLM will have errors not exceeding plus or minus 2 dB.
---------------------------------------------------------------------------

3. Instrument Calibration
    There are two types of instrument calibration that should be 
performed on SLMs and noise dosimeters: Field system (routine) and 
laboratory instrument (comprehensive). Field system calibration on a 
noise dosimeter or SLM should be conducted on the instrument before and 
after taking measurements. Field system calibration is necessary to 
ensure that the instruments provide accurate measurements and to 
establish the measurement system's sensitivity. Laboratory instrument 
calibration should be conducted according to manufacturer's 
recommendations (typically on an annual or biannual basis) and is 
traceable to a national standards laboratory. In addition, laboratory 
instrument calibration should be conducted after an instrument has been 
repaired or has experienced problems during field calibrations.
    Users should keep instruments well-maintained and should follow the 
manufacturer's instructions for maintenance. If an instrument is used 
often or is inadvertently bumped or dropped, it should be calibrated 
more frequently. In addition, if an instrument is frequently or 
extensively adjusted as a result of field calibration, it should be 
calibrated more often.

V. Occupational Noise in the Railroad Industry

    Noise is one of the most pervasive hazardous agents in the American 
workplace. In the 1980's, the National Institute for Occupational 
Safety and Health (NIOSH) identified noise-induced hearing loss (NIHL) 
as one of the ten leading work-related diseases and injuries.\46\ In 
the 1990's, NIOSH listed noise-induced hearing loss as one of the eight 
most critical occupational diseases and injuries requiring research and 
development activities within the framework of the National 
Occupational Research Agenda.\47\ Noise is also one of the most 
intrusive aspects of locomotive operations.\48\
---------------------------------------------------------------------------

    \46\ National Institute for Occupational Safety and Health 
(NIOSH), ``Criteria for a Recommended Standard: Occupational Noise 
Exposure, Revised Criteria 1998,'' National Institute for 
Occupational Safety and Health, DHHS (NOISH) Pub. No. 98-126, 
Cincinnati, OH (1998).
    \47\ NIOSH, ``National Occupational Research Agenda,'' National 
Institute for Occupational Safety and Health, DHHS (NIOSH), Pub. 96-
115, Cincinnati, OH (1996).
    \48\ Human Factors Guidelines for Locomotive Cabs, DOT/FRA/ORD-
93/03 (November 1998).
---------------------------------------------------------------------------

    There are many noise sources in a locomotive cab. The primary noise 
sources are engine noise, locomotive horns, and brake noise. The nature 
and level of noise generated by each source varies greatly. Diesel 
engine noise is continuous, but it varies according to the engine load 
and engine speed. The noise from locomotive horns (and other audible 
warning devices) is sporadic but can be very loud if the window is open 
and can be very frequent if there are many highway-rail grade 
crossings.
    Brake noise results from the air exhaust that comes from the brake 
valves when the brakes are released. Air brake exhaust is a high 
frequency sound and can be very intense. In the past, air brake exhaust 
vented directly into the locomotive cab. By 1980, locomotive 
manufacturers, maintenance facilities, and railroads had begun venting 
the exhaust below the cab floor. FRA noted that change in its 1980 
locomotive cab noise rule.\49\ FRA recognized the effectiveness of this 
redesign, noting that it reduced the cab occupant's noise dose by an 
estimated 15 to 20 percent while still providing an audible indication 
of brake performance.\50\ Manufacturers continued to re-design 
locomotives accordingly, and today the vast majority of locomotive air 
brakes are vented below the floor and away from the crew. There are 
some older locomotives, though (such as the ones used by some short 
lines), which still use the older equipment that vents air brake 
exhaust into the cab.
---------------------------------------------------------------------------

    \49\ 45 FR 21092 (March 31, 1980).
    \50\ 45 FR 21092, 21015 (March 31, 1980).
---------------------------------------------------------------------------

    Another noise source comes from vibrations which loosen cab 
components--such as loose cab sheet metal, loose cab side windows, and 
miscellaneous loose and/or poorly fitted cab equipment--and cause them 
to resonate. Other potential noise sources include fans on dynamic 
brake systems; alerters; wheel/rail contact at cruising speed; rooftop 
or retrofitted air conditioning/cooling units; bells that are sounded 
to indicate that the train is about to move; and radios that are used 
for crew communication. Noise can also result from the cab structure, 
depending on the particular design of the locomotive as it pertains to 
noise or vibration isolation. Maintenance, or the lack thereof, can 
also impact noise. Engines in less than ideal condition will run 
rougher and noisier. Mountings can wear and loosen, which can create 
new vibrations or decrease vibration damping. Also, worn engine 
components (e.g., bearings) can create noise.
    The locomotive is also subject to several external noise sources. 
Since the locomotive cab is a mobile workplace, the level of noise 
exposure varies greatly by the route traveled. Noise results from the 
sound that is reflected into the cab (especially if through open 
windows) from reflective surfaces such as tunnels, bridges, sheds, and 
close embankments. Other conditions that can also impact noise include 
the topography and grade of the work assignment and the use of 
locomotive horns to provide notice at highway-rail grade crossings.
    Predicting and addressing noise exposures in the locomotive cab is 
difficult not only because of the wide variety of possible conditions, 
but because of the mobile railroad workforce. It is a challenge to 
create and implement effective training and testing programs, because 
locomotive crews are not on the same run or same locomotive from one 
day to the next. In addition, locomotive crews can work shifts that 
last up to twelve hours.

VI. FRA's Approach to Cab Noise

    As OSHA governs workplace safety, and OSHA has already issued 
regulations in the area of occupational noise, FRA used OSHA's standard 
as a foundation for its own standard. However, there are many areas in 
which the OSHA standard differs from the FRA standard. The purpose of 
this rulemaking is to adapt the OSHA rule to the unique circumstances 
of the railroad environment. The working environment for railroad cab 
employees is quite different than that of the typical

[[Page 35155]]

American worker. Also, the noise exposure of railroad employees is not 
uniform throughout the industry. Railroad employees may work in a 
different location each day, i.e., a different locomotive and/or a 
different route. Employee assignments and actual time in the cab may 
vary significantly during a typical week. The level of noise in any 
individual locomotive cab will vary greatly, depending on the 
locomotive model, locomotive age, condition of the locomotive, length 
of the route, traffic on the route, number of highway-rail grade 
crossings on the route, physical characteristics of the route, weather 
conditions during the run, and any one or more of several other 
factors. FRA's proposed rule has taken into account these unique 
characteristics of the railroad operating environment and has modified 
OSHA's standard to suit the railroad industry.
    Since FRA's proposed rule is based on OSHA's rule, it is helpful to 
review OSHA's standard before explaining FRA's proposed standard. 
OSHA's noise standard limits employee noise exposure to an 8-hour TWA 
of 90 dB(A). OSHA identifies a hierarchy of controls that should be 
used to limit noise exposure. If employee noise exposure exceeds the 
permissible exposure level, the employer must reduce the exposure (so 
that it is within permissible exposure limits) through the use of 
feasible engineering controls, administrative controls, or a 
combination of both. Where such controls cannot reduce employee 
exposure to permissible limits, employers are to supplement the 
engineering and administrative controls with hearing protection. The 
OSHA noise standard also requires that the employer administer a 
continuing effective hearing conservation program for employees who are 
exposed to levels that equal or exceed an 8-hour TWA of 85 dB(A).
    OSHA's regulation has placed engineering controls, and then 
administrative controls, at the top of its hierarchy and takes the 
position that these controls are the best method for controlling noise 
exposure. These controls reduce employee exposure to hazardous noise 
levels by eliminating (or at least reducing) the noise source, by 
modifying the noise path or by decreasing employee exposure time to the 
noise source. Engineering controls are generally understood to be the 
modification or replacement of equipment or any other related physical 
change at the noise source or along the transmission path that reduces 
the noise level at the employee's ear (not including hearing 
protectors). They include such changes as the re-design of machinery or 
the use of different tools. Administrative controls involve efforts to 
limit worker noise exposure by modifying work schedules, work 
locations, or the operating schedule of noisy machinery. Administrative 
controls include, for example, the rotation of schedules for tasks that 
are near noisy machinery or the use of quiet areas that provide 
employees with an opportunity to recover from temporary threshold 
shifts.
    FRA's proposed standard on locomotive cab noise is based very 
heavily on OSHA's standard. In part 227, FRA requires railroads to 
limit employee noise exposure to an 8-hour TWA of 90 dB(A).\51\ Also, 
FRA requires railroads to implement a hearing conservation program for 
those employees who are exposed to noise levels that equal or exceed an 
8-hour TWA of 85 dB(A).
---------------------------------------------------------------------------

    \51\ For a complete list of the permissible noise exposures, see 
Table 1 in Sec.  227.103. According to Table 1, railroads must limit 
employee noise exposure to 85 dB(A) as a 16-hour TWA, 87 dB(A) as a 
12-hour TWA, 90 dB(A) as an 8-hour TWA, and so on.
---------------------------------------------------------------------------

    FRA's doubling, or exchange, rate is 5 dB(A). FRA's decision to use 
a 5 dB doubling rate is notable, because a 5 dB doubling rate is 
different than the scientific principle for a doubling rate. 
Technically, a increase of 3 dB represents a doubling of sound 
energy.\52\ In making its decision, FRA considered a doubling rate of 3 
dB, 4 dB, and 5 dB. FRA ultimately decided on a 5 dB doubling rate. 
NIOSH recommends a 3 dB doubling rate, the Air Force uses a 3 dB 
doubling rate, and OSHA and MSHA use a 5 dB doubling rate.
---------------------------------------------------------------------------

    \52\ See discussion in Sec.  IV(A) of the background section.
---------------------------------------------------------------------------

    In its 1999 rulemaking on occupational noise for miners, MSHA faced 
a similar decision, choosing between a 3 dB or 5 dB exchange rate. MSHA 
conducted a study and found that the exchange rate substantially 
affects the measured noise exposure; nonetheless, MSHA retained the 5 
dB exchange rate because of feasibility concerns.\53\ In its final 
rule, MSHA concluded that:
---------------------------------------------------------------------------

    \53\ 64 FR 49548, 49588-49589 (September 13, 1999).

    It would be extremely difficult and prohibitively expensive for 
the mining industry to comply with the existing permissible exposure 
level with a 3 dB exchange rate, using currently available 
engineering and administrative noise controls. MSHA therefore cannot 
demonstrate that implementation of such an exchange rate would be 
feasible. However, [MSHA] will continue to monitor the feasibility 
of adopting a 3 dB exchange rate. 64 FR 49548, 49589 (September 13, 
---------------------------------------------------------------------------
1999).

FRA, like MSHA, recognizes that the cost and feasibility of a 3 dB 
exchange rate is prohibitive. Furthermore, there was a consensus 
decision of the RSAC that 5 dB is most appropriate. Taking all of those 
factors into account, FRA proposes to use a doubling rate of 5 dB. 
Thus, a 5 dB increase in level is permitted each time the exposure 
duration is decreased by half.
    FRA recognizes the same controls as OSHA (i.e., engineering 
controls, administrative controls, and hearing protection); however, 
FRA uses different terms to describe some of those controls. OSHA uses 
the term, ``administrative controls,'' while FRA uses the term ``noise 
operational controls.'' These two terms are the functional equivalent. 
Also, OSHA uses the term ``engineering controls,'' while FRA uses no 
equivalent term--FRA instead describes the specific actions which it 
would like railroads to take.
    FRA's overall approach toward controls differs from that of OSHA. 
FRA does not adopt OSHA's hierarchy of controls. As explained above, 
OSHA places controls in a hierarchy and mandates their use according to 
that hierarchy. FRA has no such hierarchy. Rather, FRA has specific 
requirements that railroads must satisfy. FRA requires railroads to 
design and maintain locomotives according to the standards in Sec.  
229.121. (OSHA's equivalent of ``engineering controls''). FRA requires 
railroads to use hearing protectors (HP) when employees are exposed to 
noise levels that exceed an 8 hour-TWA of 90 dB(A). (OSHA's equivalent 
of HP). And, FRA gives railroads the option of using noise operational 
controls when employees are exposed to noise levels that exceed 90 
dB(A) as an 8 hour-TWA. (OSHA's equivalent of administrative controls). 
It is very important to note that FRA does not require the use of noise 
operational controls. Thus, when a railroad learns that an employee is 
exposed to noise levels that exceed an 8-hour TWA of 90 dB(A), the 
railroad must provide the employee with HP, but need only consider the 
use of noise operational controls.
    The RSAC spent a great deal of time discussing options and 
developing the recommended requirements for Sec.  229.121 and thus a 
discussion is warranted here. An Engineering Controls Task Force, a 
subgroup of the Noise Task Force, met to discuss the viability of 
engineering controls. The group reviewed OSHA and MSHA regulations and 
compliance documents and journal articles. Among its findings,

[[Page 35156]]

the group identified certain items that might help reduce noise 
exposure in the locomotive cab. In identifying these items, FRA has 
given serious consideration to those items which are feasible and those 
items which are not feasible.
    FRA believes that the specified items are feasible maintenance and 
engineering controls. The group found that certain maintenance tasks--
e.g., repair, replacement, or installation of cab insulation, door 
seals, window seals, weatherstripping, and electrical cabinet 
insulation and seals--can help reduce in-cab noise levels. The group 
also discussed other engineering controls and maintenance items which 
have been shown to reduce noise exposure in the cab, e.g., venting 
piping for air brake exhaust and power control devices out and under 
the locomotive; using air cooling devices so that windows can be 
closed; and using noise-dampening window glass which limits the 
penetration of noise and thereby limits the contribution of outside 
noise. In addition, the group discussed the location of locomotive 
horns and agreed that relocation of the horn to the center position had 
reduced crew noise exposure.
    FRA recognized that there are many benefits to using engineering 
and maintenance controls. First, they do not interfere with crew and 
radio communication, which HP can do. HP can interfere with crew and 
radio communication by blocking out necessary sounds in addition to 
unwanted noise. Second, engineering and maintenance controls do not 
present the potential hazard of overprotection that HP presents. 
Engineering controls block out noise at its source, thus there is no 
concern that necessary sounds will be blocked out too. Third, 
engineering controls put less burden on the employee and as a result, 
are easier for employees to use. With HP, railroads must ensure that 
employees are properly trained on the use of the devices, and employees 
must ensure that they wear and properly use the devices. Due to the 
benefits of engineering controls, FRA did not want to exclude their 
use. However, due to burden that it would impose on railroads if there 
was a general requirement for the use of engineering controls, FRA did 
not include the requirement as found in OSHA's rule. As a compromise, 
then, FRA identified the specific engineering controls--the design and 
build requirements in Sec.  229.121(a) and the maintenance requirements 
in Sec.  229.121(b)--which railroads must use.
    This background section has sought to provide an overview of FRA's 
rule, as well as a broad comparison to OSHA's rule. A more thorough 
discussion of the differences between OSHA's and FRA's standards is 
provided in the section-by-section analysis below.

VII. Responsibilities of Railroads and Employees

    The primary responsibility for compliance with this regulation lies 
with employers, i.e., railroads. As such, railroads would have several 
enumerated responsibilities. This regulation would require railroads 
to: develop and implement a noise monitoring program; administer a 
hearing conservation program; establish and maintain an audiometric 
testing program; make audiometric testing available to employees; 
implement noise operations controls (if desired); require the use of 
hearing protection; make hearing protection available to employees at 
no cost; train employees in the use and care of hearing protection; 
ensure proper fitting of and supervise the correct use of hearing 
protection; give employees the opportunity to select hearing protection 
from a variety of suitable hearing protection; evaluate hearing 
protection attenuation; initiate and offer a training program, maintain 
and retain records; and build and maintain locomotives according to 
specified standards.
    The responsibilities of employees derive from those of the 
railroad. Employees' responsibilities come from railroad policies, 
which are issued pursuant to this regulation. This regulation would 
require employers to: use their hearing protection when mandated by the 
railroad; care for their hearing protection as trained by the railroad; 
and complete the training program which is offered by the railroad. 
There is one additional obligation for which employees have primary 
responsibility--employees must report for audiometric testing once 
every three years. While railroads have an affirmative obligation to 
offer testing, employees have an affirmative obligation to report for 
testing. Without adequate audiometric testing, a HCP will not succeed, 
and so FRA is identifying an employee's audiometric testing obligation 
as a primary responsibility.
    Because employee responsibilities are, for the most part, 
derivative, compliance would generally take place through the railroad 
disciplinary process, rather than direct enforcement by FRA. FRA does, 
however, recognize one major exception. FRA may assess civil penalties 
for a wilful violation \54\ for an employee who does not report for 
audiometric testing. Overall, FRA expects that employees will fully 
comply with all their responsibilities. Railroads should perform 
required actions, and employees should reciprocate with their 
commensurate responsibilities. Railroads should set expectations of 
compliance, and employees should meet those expectations of compliance.
---------------------------------------------------------------------------

    \54\ Under the railroad safety laws, civil penalties may be 
assessed against individuals only for willful violations. See 49 
U.S.C. 21304.
---------------------------------------------------------------------------

VIII. Compliance

    FRA's principal method of enforcement will be through audits. With 
an industrial hygienist as team leader, an audit team will examine a 
railroad's hearing conservation program. The team will examine whether 
the railroad is adequately protecting its employees. The team will 
speak with the program manager, review records (e.g., noise monitoring 
records, audiograms, standard threshold shift records, etc.) and 
determine the extent to which the railroad is complying with the 
requirements of this regulation. If warranted, FRA will take 
enforcement action against the railroad.
    In addition, if FRA has reason to believe that certain locomotive 
crews are being exposed to high noise doses, FRA inspectors will ride 
in the locomotive cab with those crews to measure the sound levels and 
determine the crews' exposure. FRA inspectors may also review 
maintenance records to determine whether railroads have corrected 
defective conditions (e.g., loose windows, deteriorated seals). 
Additionally, FRA will investigate employee complaints of excessive 
noise.

IX. Section-by-Section Analysis

    This section-by-section analysis explains the provisions of the 
NPRM. Of course, a number of the issues and provisions of the proposed 
rule have been discussed and addressed in detail in the preceding 
discussions. Accordingly, the preceding discussions should be 
considered in conjunction with those below and will be referred to as 
appropriate.

Part 227--Occupational Noise Exposure

Subpart A--General

Section 227.1 Purpose and Scope.

    This section identifies the purpose and scope of this part. This is 
a general provision. Per paragraph (a), the purpose of this part is to 
protect the occupational health and safety of employees involved in 
specified

[[Page 35157]]

railroad activities and/or operations. More specifically stated, the 
purpose of this part is to protect the hearing of individuals who 
experience their primary noise exposure in the locomotive cab. Hearing 
loss occurs cumulatively over time and thus, the purpose of this 
proposed rule is to protect individuals over the span of their railroad 
career. Per paragraph (b), this part prescribes minimum Federal safety 
standards for the specified railroad workplace safety items (i.e., 
occupational noise).

Section 227.3 Application.

    This section identifies the applicability of this part. FRA 
proposes that this part will apply to all railroads and contractors to 
railroads. This section identifies three exceptions. First, this part 
will not apply to railroads that operate only on track inside an 
installation that is not part of the general railroad system of 
transportation.
    Second, this part will not apply to rapid transit operations in an 
urban area that are not connected to the general railroad system of 
transportation. This part will still apply to rapid transit operations 
in an urban area that are connected to the general railroad system. 
Rapid transit operations connected to the general system are a 
specialized set of operations (e.g., the Maryland Mass Transit 
Administration's Central Light Rail Line in Baltimore). FRA regulates 
at least the shared use portions these operations, because FRA has 
jurisdiction over such operations by statute.\55\ FRA realizes that 
these types of operations have already applied for and received shared 
use waivers from FRA's other regulations. FRA also recognizes that 
these types of operations might need to seek an additional waiver, 
consistent with 49 CFR part 211, in order to be exempted from the 
requirements of this part. FRA seeks comment from the public on how to 
handle these types of operations.
---------------------------------------------------------------------------

    \55\ Under the Federal railroad safety laws, FRA has 
jurisdiction over all railroads except ``rapid transit operations in 
an urban area that are not connected to the general railroad system 
of transportation.'' 49 U.S.C. 20102. For a discussion of FRA's 
jurisdiction over passenger operations, see 49 CFR part 209, 
Appendix A.
---------------------------------------------------------------------------

    Third, this part will not apply to railroads that operate tourist, 
scenic, historic, or excursion operations, whether they are on or off 
the general railroad system of transportation. The term ``tourist, 
scenic, historic, or excursion operations'' is defined in Sec.  227.5 
to mean ``railroad operations that carry passengers, often using 
antiquated equipment, with the conveyance of the passengers to a 
particular destination not being the principal purpose.'' Congress has 
directed that, in issuing safety rules, FRA take into account the 
unique financial, operational, and other factors that may apply to such 
railroads. 49 U.S.C. 20103(f). For example, these operations are often 
seasonal and generally use somewhat antiquated equipment.
    In this proposal, FRA exempts these operations from the rule; 
however, FRA is still considering this issue and invites public 
comments. FRA believes that certain circumstances, such as employee 
assignments and railroad equipment, might result in conditions that 
expose these employees to high noise levels. If that is the case, then 
these employees might also need the protection of this rule. FRA plans 
to consult with tourist and historic railroad operators and their 
associations, as well as the RSAC Working Group on tourist railroads, 
to determine the applicability of this rule to those employees. For 
now, FRA believes that this situation is best handled through such 
separate proceedings.
    Fourth, this part will not apply to employees of foreign railroads 
operating in the U.S. if they meet the following requirements: (1) The 
government of the foreign railroad must have established requirements 
for hearing conservation for railroad employees in that jurisdiction; 
(2) the foreign railroad must undertake to comply with those 
requirements while operating within the U.S.; and (3) the Associate 
Administrator for Safety must determine that the foreign government 
requirements are consistent with the purpose and scope of part 227. A 
``foreign railroad'' refers to a railroad that is incorporated in a 
place outside the United States and is operated out of a foreign 
country but operates for some distance in the U.S. (e.g., Canadian 
National Railroad). Employees excepted from application would be those 
employees of a foreign railroad whose primary reporting point is in 
Canada and Mexico.
    The Associate Administrator's evaluation and determination would 
only be made at the request of the foreign railroad. As a practical 
matter, this evaluation could be accomplished at the request of an 
association of foreign railroads (e.g., the Railway Association of 
Canada), and the exception would then be available to all railroads of 
that country entering the U.S.
    The Associate Administrator must find that the foreign government's 
requirements are consistent with the purpose and scope of the new part, 
specifically that their legitimate purpose ``is to protect the 
occupational health and safety of employees whose predominant noise 
exposure occurs in the locomotive cab.'' This standard does not require 
a finding of equivalence in terms of program effectiveness, because 
making such a finding would require an estimation of incremental 
hearing loss over the working life of specific populations (which is 
scientifically impracticable). Further, more important than precise 
equivalence is the integrity of each of the North American governments' 
programs. Employees and program managers need to know what rules apply 
and need to be able to carry out those programs without the confusion 
that would be inherent in changing the rules at international 
boundaries. FRA will request similar treatment of U.S. railroads 
operating into Canada and Mexico, in order to achieve the goal of 
harmonization.

Section 227.5 Definitions

    This section contains proposed definitions for key terms. The 
definitions are set forth alphabetically. Most of these definitions 
have been taken from the standards issued by OSHA and the Mine Safety 
and Health Administration (MSHA) and the recommendations issued by the 
National Institute of Occupational Safety and Health (NIOSH) and the 
American Conference of Governmental Industrial Hygienists (ACGIH). 
These are definitions that are widely used by noise professionals. This 
includes definitions such as ``Audiologist,'' ``Decibel,'' ``dB(A),'' 
``Hertz,'' ``Medical Pathology,'' and ``Otolaryngologist.''
    This section also contains some basic definitions that are standard 
to several of FRA's regulations. This includes definitions such as 
``Administrator,'' ``FRA,'' ``Person,'' ``Railroad,'' and ``Tourist, 
scenic, historic, or excursion operations.'' Several of the 
definitions, however, are new or fundamental concepts that require 
further discussion.
    The term ``Continuous Noise'' is being added by FRA in order to 
clarify its use in Sec.  227.105. This definition comes from OSHA. See 
29 CFR 1910.95(b)(2).
    The term ``Employee'' refers to individuals engaged or compensated 
by a railroad, as well as to contractors to a railroad. One of FRA's 
objectives in covering contractors is to promulgate standards that are 
applicable to all those individuals that are exposed to the specified 
levels of locomotive cab noise. Whether an individual is paid by a 
railroad or a contractor is irrelevant. The most important issue is the 
prevention of hearing loss. FRA holds no position

[[Page 35158]]

on the practice of a railroad contracting work out to another company, 
but FRA strongly believes that contract employees are entitled to the 
same level of safety as railroad employees. To the extent that contract 
employees work under the circumstances presenting the noise hazards 
addressed in this regulation, those contractors must be protected.
    The term ``Exchange Rate'' refers to the change in sound levels 
which would require halving or doubling the allowable exposure time to 
maintain the same noise dose. FRA has set the exchange rate for this 
regulation at 5 dB. Both OSHA and MSHA also use a 5dB exchange rate. 
See OSHA's ``Occupational Noise Exposure,'' 29 CFR 1910.95(a) and 
MSHA's ``Health Standards for Occupational Noise,'' 30 CFR 62.101.
    The term ``Hearing Protector'' is currently defined in the NPRM as 
``any device or material, capable of being worn on the head or in the 
ear canal, designed wholly or in part to reduce the level of sound 
entering the ear, and which has a scientifically accepted indicator of 
its noise reduction value.'' The RSAC discussed variations of this 
definition but ultimately agreed upon this definition. FRA adopted that 
definition.
    Despite the RSAC consensus on this definition during its 
development, several Working Group members expressed the view that the 
phrase, ``which has a scientifically accepted indicator of its noise 
reduction value,'' is too general and provides too much leeway. They 
would prefer to see that phrase replaced with a requirement to use a 
specific indicator--the Noise Reduction Rating. With such a change, the 
definition of ``hearing protector'' would read as follows: ``any device 
or material, capable of being worn on the head or in the ear canal, 
designed wholly or in part to reduce the level of sound entering the 
ear, and which has a Noise Reduction Rating.'' The Noise Reduction 
Rating (NRR) is one of several methods that exist for estimating the 
amount of sound attenuation that a hearing protector provides. The NRR 
is one of the most commonly used methods. FRA seeks comments from the 
public on the definition of hearing protector and asks whether FRA 
should use a general description for an indicator (i.e., ``which has a 
scientifically accepted indicator of its noise reduction value), the 
NRR, or some other specific type of indicator.
    The term ``Noise Operational Controls'' was developed by the RSAC 
as the functional equivalent of the term ``administrative controls.'' 
FRA has accepted the RSAC's recommended term and definition. The term 
``administrative controls'' is used by OSHA, MSHA, and NIOSH. OSHA uses 
the term in its noise regulations. See 29 CFR 1910.95(b)(1) and 29 CFR 
1926.52(a). MSHA also uses the term in its occupational noise exposure 
rule. See 30 CFR 62.130. NIOSH defines ``administrative controls'' as 
``[e]fforts, usually by management, to limit workers'' exposure by 
modifying workers' schedule or location, or by modifying the operating 
schedule of noisy machinery.'' See NIOSH's Common Hearing Loss 
Prevention Terms.\56\
---------------------------------------------------------------------------

    \56\ See www.cdc.gov/niosh/hpterms.html.
---------------------------------------------------------------------------

    The term ``Occasional Service'' refers to service of not more than 
a total of 20 days with one or more assignments in a calendar year. The 
term is used only once in this proposed regulation. This term is added 
to clarify its use in Sec.  227.101.
    The terms ``Sound Level'' and ``Sound Pressure Level'' can be used 
interchangeably. The definition comes from OSHA's regulation. See 
Appendix I to 29 CFR 1910.95. OSHA's regulation, in addressing SLOW 
time response, referenced a now-outdated ANSI standard (ANSI S1.4-1971 
R1976)). FRA changed that cite to ANSI S1.43-1997 which updates the 
citation to reflect the current ANSI standard.
    FRA invites comment from the public about all of the proposed 
definitions, as well as any other terms that the public believes should 
be defined.

Section 227.7 Preemptive Effect

    This section informs the public of FRA's views on the preemptive 
effect of the proposed rule. While the presence or absence of such a 
section does not in itself affect the preemptive effect of the rule, it 
informs the public about the statutory provision which governs the 
preemptive effect of the rule. Section 20106 of title 49 of the United 
States Code provides that all regulations prescribed by the Secretary 
related to railroad safety preempt any State law, regulation, or order 
covering the same subject matter, except a provision necessary to 
eliminate or reduce an essentially local safety hazard that is not 
incompatible with a Federal law, regulation, or order and that does not 
unreasonably burden interstate commerce. With the exception of a 
provision directed at an essentially local safety hazard, 49 U.S.C. 
20106 will preempt any State regulatory agency rule covering the same 
subject matter as the regulations in the proposed rule.

Section 227.9 Penalties

    This section identifies the civil penalties that FRA may impose 
upon any person, including a railroad or an independent contractor 
providing goods or services to a railroad, that violates any 
requirement of this part. These penalties are authorized by 49 U.S.C. 
21301, 21302, and 21304. This penalty provision parallels penalty 
provisions included in numerous other safety regulations issued by FRA.
    Essentially, any person who violates any requirement of this part 
or causes the violation of any such requirement will be subject to a 
civil penalty of at least $500, and not more than $11,000, per 
violation. Civil penalties may be assessed against individuals only for 
willful violations. Where a grossly negligent violation or a pattern of 
repeated violations creates an imminent hazard of death or injury to 
persons, or causes death or injury, a civil penalty not to exceed 
$22,000 per violation may be assessed. In addition, each day will 
constitute a separate offense. Furthermore, a person may be subject to 
criminal penalties under 49 U.S.C. 21311 for knowingly and willfully 
falsifying reports required by these regulations. FRA believes that the 
inclusion of penalty provisions for failure to comply with this 
regulation is important in ensuring that compliance is achieved.
    With respect to the penalty amounts contained in this section, the 
Federal Civil Penalties Inflation Adjustment Act of 1990, Pub. L. 101-
410 Stat. 890, 28 U.S.C. 2461 note, as amended by the Debt Collection 
Improvement Act of 1996 Pub. L. 104-134, April 26, 1996, required 
agencies to adjust for inflation the maximum civil monetary penalties 
within the agency's jurisdiction. The resulting $11,000 and $22,000 
maximum penalties were determined by applying the criteria (set forth 
in sections 4 and 5 of the statute) to the maximum penalties otherwise 
provided for in the Federal railroad safety laws.

Section 227.11 Responsibility for Compliance

    This section clarifies FRA's position that the requirements 
contained in this proposed rule are applicable not only to any 
``railroad'' subject to this part but also to any ``person'' (as 
defined in ``227.5) that performs any function required by this rule. 
Although various sections of the rule address the duties of a railroad, 
FRA intends that any person who performs any action on behalf of a 
railroad or any person who performs any action covered by this rule is 
required to perform that action in the

[[Page 35159]]

same manner as required of a railroad or be subject to FRA enforcement 
action.

Section 227.13 Waivers

    This section sets forth the procedures for seeking waivers of 
compliance with the requirements of this part. Requests for such 
waivers may be filed by any interested party. In reviewing such 
requests, FRA conducts investigations to determine if a deviation from 
the general criteria can be made without compromising or diminishing 
rail safety. This section is consistent with the general waiver 
provisions contained in other Federal regulations issued by FRA.

Section 227.15 Information Collection

    This section notes the provisions of this part that have been 
reviewed and approved by the Office of Management and Budget (OMB) for 
compliance with the Paperwork Reduction Act of 1995. See 44 U.S.C. 3501 
et seq.

Subpart B--Occupational Noise Exposure for Railroad Operating 
Employees

Section 227.101 Scope

    This section identifies the individuals to whom this rule will 
apply. In subparagraph (a)(1), FRA proposes that this rule will cover 
employees who regularly perform service subject to the provisions of 
the hours of service law governing ``train employees.'' See 49 U.S.C. 
21101(5) and 21103. This refers to employees who are engaged in 
functions traditionally associated with train, engine, and yard 
service; for example, engineers, conductors, brakemen, switchmen, and 
firemen. In general, these employees encounter their predominant 
occupational noise exposure in the locomotive cab, and therefore, FRA 
plans to appropriately tailor the noise monitoring and noise testing 
programs in this section to address the exposure that these employees 
experience.
    With respect to the term ``regularly'' in subparagraph (a)(1), FRA 
intends to cover individuals who perform some level of work in a 
locomotive cab. In making this assessment, the railroad should consider 
an employee's work over the period of a year. FRA would like railroads 
to think about how they use their workforces, i.e., take a serious look 
at the work that their employees perform, determine which employees 
will experience potentially hazardous noise exposure in the cab, and 
then place those employees in a hearing conservation program.
    Given the nature of the railroad industry, FRA is aware that some 
of these employees may not always experience their predominant noise 
exposure in the cab. Due to longstanding labor practices in the 
railroad industry concerning seniority privileges and concerning the 
ability of railroad employees to bid for different work assignments, 
these railroad employees are likely to change jobs frequently and to 
work, for extended periods of time, on assignments that involve duties 
outside the cab. For example, an employee might start the year in a job 
that involves mostly outside-the-cab work, spend three months working 
primarily inside the cab, and then return to outside-the-cab work for 
the rest of the year. In this type of situation, FRA's regulations can 
govern the noise exposure of this employee throughout the year despite 
the fact that the employee only spent three months inside the cab. This 
employee can be covered by FRA's regulations, because he spent time, no 
matter how little, in a locomotive cab.
    Under an alternative to the proposed scope provision, OSHA's 
regulations would apply to these employees when they are outside the 
cab and FRA's regulations would apply to these employees when they are 
inside the cab. The employee would switch back and forth between OSHA's 
and FRA's hearing conversation programs throughout the year. FRA 
believes this would be both illogical and unworkable.
    This rule will not extend to employees who occasionally and briefly 
enter the cab. That includes employees who move equipment only within 
the confines of locomotive repair or servicing areas protected by blue 
signals (see Sec.  227.101(a)(1)(i)) or who move locomotives for 
distances of less than 100 feet for inspection or maintenance purposes 
(see Sec.  227.101(a)(1)(ii)). The job assignments of these employees 
usually involve consistent and significant work outside the cab, such 
as moving about on the shop floor, working on the ground to connect the 
air hoses and MU cable for locomotives, and performing locomotive 
servicing (e.g., sanding or fueling). This is why these types of 
employees are being excepted from FRA's regulation. Increasingly, 
however, inside hostling duties are commingled with other mechanical 
duties involving major additional sources of noise exposure. These 
employees would remain under the authority of OSHA with respect to 
occupational noise exposure, unless the railroad elected to place them 
in the FRA program based upon their expected mix of assignments (see 
Sec.  227.103).
    In addition, this rule will not extend to contractors who operate 
historic equipment in occasional service, as long as those contractors 
have been provided with hearing protection and are required (where 
necessary) to use the hearing protection while operating the historic 
equipment. Although these contractors will not be in the railroad's 
HCP, it is still important that they use HP, because they will be 
working in noisy environments (e.g., historic locomotives). Occasional 
service is defined in Sec.  227.5 and refers to service of not more 
than a total of 20 days with one or more assignments in a calendar 
year. This exception will apply to all members of the crew responsible 
for operating the train; that includes, but is not limited to, 
engineers, conductors, firemen, and brakemen. When originally raised, 
this exception contemplated service on steam locomotives; however, FRA 
has instead used the term ``historic equipment,'' thereby encompassing 
steam locomotives as well as diesel locomotives and other antiquated 
equipment typically used in tourist and scenic operations.
    A Working Group member raised this issue during a meeting. The 
member explained that a railroad will occasionally hire a contractor 
(with special expertise) to operate a steam locomotive for one or two 
days as part of a special excursion operation. The member was concerned 
that the railroad would have to place those temporary, contract 
employees in a hearing conservation program. The Working Group 
discussed this issue and recommended this exception. FRA decided to 
include the exception. Pursuant to this provision, those contractors 
are exempted, because they provide limited service and thus will have 
limited exposure to noise in a locomotive cab. Railroads should note, 
however, that this provision will not exempt regular railroad employees 
who happen to perform this occasional service on historic equipment.
    FRA realizes that earlier provisions in this proposed rule have 
discussed historic operations. Section 227.3(b)(3) excludes from this 
part railroads that perform historic operations. Despite the apparent 
similarity, these provisions are different. The earlier provision 
excludes railroads that operate, among other things, historic 
operations, while this provision excludes contract employees who work 
for a freight railroad (such as Union Pacific Railroad or CSX Railroad) 
operating tourist, scenic, and excursion equipment.
    Pursuant to Sec.  227.101(b), all other railroad employees who are 
exposed to noise hazards but are outside the scope of this regulation 
will continue to be

[[Page 35160]]

covered by OSHA's noise standard, which is located at 29 CFR 1910.95.

Section 227.103 Noise Monitoring Program

    Railroad noise monitoring programs entail a system of monitoring 
that evaluates employee noise exposure. Noise monitoring is performed 
for one or more of the following reasons: To determine whether hearing 
hazards exist; to ascertain whether noise presents a safety hazard by 
interfering with oral communication; to ascertain whether noise 
presents a safety hazard by impairing recognition of audible warning 
signals; to identify which employees need to be included in a hearing 
conservation program; to define and establish the amount of hearing 
protection that is necessary; to evaluate specific noise sources for 
noise control purposes; and to evaluate the success of noise control 
efforts.
    FRA's proposed regulation requires railroads to develop and 
implement a noise monitoring program by a specific date, depending on 
the size of the railroad. These noise monitoring programs are intended 
to determine whether an employee's exposure to noise may equal or 
exceed an 8-hour time-weighted average of 85 dB(A). Factors which 
suggest that noise exposure in the cab may meet or exceed a TWA of 85 
dB(A) include: employee complaints about the loudness of the noise, 
indications that train employees are experiencing hearing loss, noisy 
conditions that make conversation difficult, and route-specific or 
locomotive-specific factors that suggest the possibility of an 
excessive noise dose. In addition, actual workplace noise measurements 
can suggest whether or not a monitoring program should be initiated.
    FRA's proposed noise monitoring requirements cover noise in cabs 
and noise in exterior environments in which employees work during their 
work shifts. FRA's proposal would involve the monitoring of some 
employees whose daily functions are entirely outside of the cab and 
some employees whose daily functions are both inside and outside of the 
cab. This ensures that the hearing conservation program addresses the 
full noise exposure that is experienced by employees within the scope 
of this rule.
    FRA's proposed rule text on railroad noise monitoring programs is 
nearly identical to OSHA's rule on noise monitoring programs. 
Paragraphs (a) through (d) and (f) of 227.103 are very similar to the 
provisions found in 29 CFR 1910.95(d), OSHA's ``Monitoring'' section. 
Paragraph (a) provides the general requirement that all railroads must 
develop and implement a noise monitoring program. FRA has re-worded 
OSHA's language (from 29 CFR 1910.95(d)(1)) to make the provision more 
clear.
    Also, FRA has identified dates by which railroads must develop and 
implement a noise monitoring program. The date varies based on the size 
of the railroad. Class I, passenger, and commuter railroads have 12 
months from the effective date of this rule to establish a noise 
monitoring program. Railroads with 400,000 or more employee hours, but 
that are not a class I, passenger, or commuter railroad have 18 months 
to comply. Railroads with fewer than 400,000 employee hours have 30 
months to comply.
    FRA is proposing to classify railroads by employee hours, rather 
than classes, for several reasons. First, it is a more specific and 
better-defined distinction than a class distinction. Second, FRA 
collects and maintains data on employee hours and thus FRA can more 
easily identify a railroad's category based on employee hours. Third, 
an hours distinction is probably more reflective than a class 
distinction of a railroad's ability to comply with this regulation. For 
example, all switching and terminal operations are categorized as class 
III railroads regardless of their revenue. By using a class distinction 
and staggering implementation for class III railroads, FRA would delay 
implementation for all switching and terminal operations, not just 
those that are small. But by using an hours distinction, FRA would 
delay implementation for only those switching and terminal operations 
that are small. Fourth, FRA has already used this distinction in other 
regulations, such as Sec.  217.9(d) (a recordkeeping requirement in the 
CFR part addressing railroad operating rules) and Sec.  220.11 (radio 
communication requirements for roadway workers). FRA considered 
staggering the implementation dates based on classes (class I, II, and 
III); however, for the reasons discussed in this paragraph, FRA 
proposes to stagger the implementation dates based on employee hours. 
FRA seeks comment as to which option is the most appropriate.
    FRA is adjusting the implementation dates for smaller operations 
because of their unique situation. FRA understands that they lack the 
resources, manpower, and money of larger operations, and thus FRA is 
providing them with more time to comply with the requirements of this 
part. In addition, FRA is required, by law, to consider the impact of 
its regulations on smaller entities. The Small Business Regulatory 
Enforcement and Fairness Act (SBREFA) \57\ requires agencies to employ 
communication, enforcement, and regulatory systems that consider the 
unique aspects of small entities. For the purposes of the regulation, 
small entities are defined as operations with less than 400,000 
employee hours per year. The Act specifically provides that agencies 
should avoid ``one size fits all'' enforcement and regulatory programs 
and should, to the extent possible, minimize unnecessary economic 
burdens. One of the Act's suggestions is that agencies use phase-in 
implementation dates to permit gradual compliance where no immediate 
safety risk exists, and that is what FRA has proposed here. For all the 
reasons discussed here, FRA has also provided phase-in implementation 
dates here and in two other locations in this proposed rule--in Sec.  
227.109(e)(2) (audiometric testing) and Sec.  227.119(b)(2) (training).
---------------------------------------------------------------------------

    \57\ Pub. L. 104-121, 110 Stat. 857 (codified at 5 U.S.C. 601 
et. seq.)
---------------------------------------------------------------------------

    Paragraph (b) discusses sampling strategy and is virtually 
identical to OSHA's provision. OSHA's provision is found in 29 CFR 
1910.95(d)(i) and (ii).
    Paragraph (c) specifies how railroads should conduct noise 
measurements. Paragraph (c)(1) requires that all continuous, 
intermittent, and impulsive sound levels from 80 dB to 130 dB shall be 
integrated into the measurement of noise exposure. Paragraph (c)(1) is 
identical to OSHA's comparable provision. See 29 CFR 1910.95(d)(2)(i).
    OSHA promulgated its general industry noise standards for 
occupational noise in 1981. In its preamble to that noise rulemaking, 
OSHA explained that its intent was to increase the upper limit to 140 
dB as noise dosimeters were improved and became readily available. OSHA 
further explained that its decision to adopt the 80 to 130 dB range 
(and not the 80 to 140 dB range) reflected the technological 
limitations of sound level meters and noise dosimeters at the time of 
the regulation's promulgation.\58\
---------------------------------------------------------------------------

    \58\ See 46 FR 4078, 4135 (January 16, 1981).
---------------------------------------------------------------------------

    Recently, in 2002, OSHA issued an Advance Notice of Proposed 
Rulemaking (ANPRM) for a Hearing Conservation Program for Construction 
Workers.\59\ In that ANPRM, OSHA stated that it ``believes that most, 
if not all, of today's noise dosimeters and integrating sound level 
meters are capable of dynamic ranges from 80 dB to 140 dB.'' \60\ FRA 
seeks comments on whether, in light of technological advances, the 80 
to 140 dB range is

[[Page 35161]]

more appropriate for calculating railroad operating employees noise 
doses. If so, what are the expected impacts, i.e., costs and benefits, 
associated with such a change?
---------------------------------------------------------------------------

    \59\ See 67 FR 50610 (August 5, 2002).
    \60\ See 67 FR 50610, 50605 (August 5, 2002).
---------------------------------------------------------------------------

    Paragraph (c)(2) specifies that railroads shall take noise 
measurements under typical operating conditions using a sound level 
meter, integrated sound level meter, or noise dosimeter. The 
instrumentation should meet the appropriate standard set forth by the 
American National Standard Institute (ANSI); these standards set 
performance and accuracy tolerances. A sound level meter used to comply 
with this regulation shall meet the American National Standard, ANSI 
S1.4-1983 (R2001) (or its successor). An integrating-averaging sound 
level meter (iSLM) used to comply with this part shall meet the 
American National Standard, ANSI S1.43-1997 (R2002) (or its successor). 
A noise dosimeter used to comply with this regulation shall meet the 
American National Standard, ANSI 1.25-1991 (R2002) (or its successor). 
Each instrument should be set to an A-weighted SLOW response.
    Paragraph (c)(2), for the most part, is from FRA's current noise 
regulation, Sec.  229.121(d). Note, however, that FRA has added the 
ANSI standard for noise dosimeters, updated the ANSI standard for sound 
level meters (from ANSI S1.4-1971 to ANSI S1.4-1983 (R2001)), and 
included a reference and citation to integrating-averaging sound level 
meters. In doing so, FRA has made this regulation more current and 
comprehensive.
    FRA's use of standards established by other organizations, such as 
ANSI, is a means of establishing technical requirements without 
increasing the volume of Code of Federal Regulations. This NPRM uses 
several different ANSI standards, including the ones above. In 
developing the final rule, FRA will seek the proper authority from the 
Office of the Federal Register to formally incorporate these standards 
by reference.
    While the regulation provides that a railroad may use either a 
noise dosimeter, SLM, or iSLM to conduct noise measurements, a railroad 
may choose to use any combination of those instruments. Using several 
instruments helps to develop a more complete picture of the noise 
environment, because the instruments provide different information. A 
SLM and an iSLM measure the sound levels at fixed locations in the cab 
and during transient events (e.g., application of the alerter, brakes, 
or horn). They also characterize the emissions of suspected noise 
sources (e.g., vibrating panels). A noise dosimeter and an iSLM measure 
an employee's overall noise exposure. An iSLM is particularly useful, 
because it characterizes the contribution of transient events to an 
employee's overall dose. A noise dosimeter, which is worn by the 
employee, is useful because it accumulates all the noise exposure data 
from an employee's work shift. From that, a tester can determine an 
employee's noise dose during a work shift.
    Paragraph (c)(3) specifies that all instruments used to measure 
employee noise exposure shall be calibrated to ensure accurate 
measurements. Again, this paragraph is identical to OSHA's provision, 
which is found in 29 CFR 1910.95(d)(2)(ii).
    Paragraph (d) provides that a railroad shall repeat noise 
monitoring whenever there is a change in operation, process, equipment, 
or controls that increases noise exposures to the extent that either 1) 
additional employees may be exposed at the action level, or (2) the 
attenuation provided by the hearing protectors may be inadequate to 
meet the requirements of Sec.  227.103. Once again, this paragraph is 
identical to OSHA's provision, which is located at 29 CFR 
1910.95(d)(3).
    Paragraph (f) specifies that a railroad shall provide affected 
employees or their representatives with an opportunity to observe any 
noise dose measurements conducted pursuant to this section. This 
parallels OSHA's provision, which is found in 29 CFR 1910.95(f).
    There are also some notable differences in Sec.  227.103. First, 
FRA is adding a new subsection, paragraph ``e,'' which states that, 
``In administering the monitoring program, the railroad shall take into 
consideration the identification of work environments where the use of 
hearing protectors may be omitted.'' This provision will ensure that 
railroads do not excessively rely on reflexive use of hearing 
protectors when structuring their hearing conservation programs. FRA 
believes that well managed programs already focus on this issue, 
incorporating such monitoring, as necessary, to determine general 
categories of work assignments that require hearing protectors and 
those that do not. FRA fully recognizes that no sustainable amount of 
monitoring could support a job-by-job analysis at all locations on the 
railroad. FRA also recognizes that such a level of monitoring is not 
appropriate given the objective of the hearing conservation program.
    Examples of situations where hearing protection may be omitted 
include:
    (1) Cabs designed for sound reduction. These cabs should be 
monitored over time on a sample basis to ensure that their noise-
insulating qualities continue to function as intended; and
    (2) ``Ground'' assignments where employees work around moving 
equipment but have limited exposure to loud and persistent noise 
sources such as locomotives or retarders.
    There are several benefits that accrue when employees refrain from 
over-using hearing protectors. It reduces any danger of infection from 
the misuse of hearing protectors. It strengthens overall employee 
compliance with hearing protector use by focusing requirements (to use 
hearing protectors) where it makes a difference. Among ground 
personnel, it maximizes the availability of auditory cues associated 
with the movement of equipment; this results in improved personal 
safety. In addition, among cab crews with existing hearing loss (from 
whatever source), it avoids negative impacts on the discrimination of 
voice communications, both radio and in-person. This, in turn, limits 
the noise dose of other employees in the workplace who would otherwise 
have to live with excessively high radio volume and struggle to be 
heard while calling signals and communicating other information.
    Second, FRA is also adding another new paragraph, (g) Reporting of 
Monitoring Results, which requires railroads (1) to notify each 
monitored employee of the results of the monitoring, and (2) to post 
the monitoring results at the appropriate crew origination point for a 
minimum of 30 days.
    Section 227.103(g)(1) is similar to OSHA's notification provision. 
OSHA requires an employer to notify employees of the results of the 
monitoring if the employee is exposed at or above an 8-hour time-
weighted average of 85 decibels. See 29 CFR 1910.95(e). FRA also 
requires a railroad to notify employees of the results. However, there 
is a difference. OSHA requires an employer to notify each employee that 
is exposed at or above an 8-hour TWA of 85 dB(A) of the results of his 
or her monitoring. By contrast, FRA requires a railroad to notify each 
employee that is monitored of the results of his or her monitoring.
    Section 227.103(g)(2) is a new section. There is no comparable 
provision in OSHA's rule. This section specifies that a railroad must 
post the monitoring results. The posting should include sufficient 
information to permit other crews to interpret the meaning of the 
results in the context of the operations monitored. The information is 
intended to help crews and labor officials to

[[Page 35162]]

understand the conditions under which the monitoring was conducted. 
There are a wide range of data elements that a railroad could include 
in its posting. FRA believes that the railroad should include enough 
information so that the monitored crew, as well as other crews, are 
able to understand, interpret, and assess the results of the 
monitoring.
    FRA recommends, though does not require, that a railroad include 
the following data elements: (1) A description of the monitoring event: 
The date of the monitoring, the start time and end time of the 
monitoring, the locations of the beginning and end of the monitoring; 
the assignment or train identification number or train symbol; the 
locomotive consist (including locomotive numbers, models, and dates of 
manufacture); and a train profile (including car counts, length of 
train, tonnage, and power consist details); and (2) circumstances of 
the monitoring: Number of crew members monitored, job title(s) of the 
crew members monitored, duration of crew member exposure, number of 
crew members monitored, placement of measurement equipment, results of 
the monitoring, and the equipment used for monitoring.
    These data elements are useful, because they contain information on 
items and conditions that can impact the noise level in the locomotive 
cab. The date of monitoring is important, because it indicates the time 
of year of the monitoring, which in turn indicates general weather 
conditions (e.g., it was likely that there was ice on the rail or that 
it was raining). The start and end time indicate the length of the crew 
exposure to noise. The location of the monitoring indicates the 
topography of the specific run (e.g., there were many hills, curves, or 
closed embankments). The assignment or train identification number or 
train symbol indicate the type of equipment and the make-up of the 
train. The locomotive consist provides information which can be used to 
figure out tractive effort. The train profile provides specific 
information on the particulars of that train, i.e., car counts, the 
number of loaded cars, the number of empty cars, the length of the 
train, tonnage, and power consist details. The monitoring circumstances 
are useful, as well, because they convey the specifics of the 
railroad's monitoring efforts.
    Section 227.103(g) is the product of extensive RSAC discussions and 
negotiations. It reflects a compromise of labor and railroad concerns. 
To reach this compromise, the RSAC considered numerous proposals 
concerning monitoring observations and reporting. The RSAC's initial 
proposals did not include an observation provision and instead focused 
on reporting requirements. One proposal, without an observation 
requirement, required a railroad to notify each employee exposed during 
a monitored exposure, as well as the employee's designated 
representative, of the results of the monitoring. A variation to that 
proposal required a railroad to notify each employee and employee's 
representative upon written request by the employee. Another proposal, 
also without an observation requirement, required railroads to provide 
the monitoring information to the president of each labor organization 
that represented monitored employees. In yet another proposal, 
railroads would have been required to submit to FRA an annual summary 
of its noise monitoring activity. FRA would then have made this 
information publicly available.
    In the end, the RSAC recommended to retain the observation 
provision contained in OSHA's provision. See 29 CFR 1910.95(f)). In 
addition, the RSAC recommended that railroads shall notify monitored 
employees of the results of monitoring (regardless of the TWA) and 
shall post monitoring results at appropriate crew origination points. 
FRA believes this it this is most effective proposal, because the 
proposal satisfies both labor's request for access to information and 
management's request for a reasonable and practical means of complying 
with the observation and reporting provisions. Nonetheless, FRA seeks 
comment from the public on this proposal. See proposed Sec.  
227.103(f).

Section 227.105 Protection of Employees

    In this section, FRA establishes the permissible noise exposures 
for railroad employees. In paragraph (a), FRA proposes the prescribed 
limits that noise exposure may not exceed. These standards are the same 
as FRA's current noise standard (49 CFR 229.121), OSHA's permissible 
noise exposures (29 CFR 1910.95(a), Table G-16), and OSHA's 
occupational noise exposure limits (29 CFR 1926.52(a), Table D-2). The 
standards limit employee exposure to 90 dB(A) as an 8-hour TWA, with a 
5 dB exchange rate. Where an employee is exposed to noise that exceeds 
the prescribed limits, the railroad shall provide appropriate 
protection for that employee.
    In paragraph (b), FRA addresses measurement artifacts. FRA proposes 
that railroads should note the apparent source of noise exposure and, 
if possible, remove the measurement artifacts from their noise 
measurements. Artifacts include events such as an unintentional 
brushing of the noise dosimeter microphone. Artifacts cause the noise 
level to spike, which, in turn, results in higher overall noise dose 
levels. FRA proposes to exclude these measurement artifacts from the 
calculations, because they are not experienced as noise exposure by the 
employee.
    The Working initially considered a draft provision that was based 
on OSHA's standard; it required railroads to remove measurement 
artifacts; the sentence originally provided that ``the apparent source 
of the noise exposures shall be noted and measurement artifacts shall 
be removed.'' By contrast, the proposed provision, based on the full 
RSAC recommendation, allows railroads to choose whether or not they 
want to remove the measurement artifacts. At one of its meetings, the 
Working Group discussed this issue at the request of a railroad 
representative. The representative had explained that if there is a 
measurement artifact, he will remove it, since artifacts can cause the 
overall noise levels to increase. He emphasized that not only would he 
remove the artifact, but he would want to remove it. However, he is 
concerned about a situation where he tries valiantly, but is unable to, 
identify the artifact. If he is unable to identify the artifact, he is 
going to be unable to remove the artifact. To address that practical 
concern, the proposed regulation contains this provision whereby a 
railroad has the option of removing an artifact. Practical concerns 
aside, FRA maintains that it is in the best interest of a railroad to 
remove measurement artifacts, because the inclusion of artifacts 
results in calculations that are not representative of an employee's 
noise exposure.
    Paragraph (c) provides that employee exposure to continuous noise 
shall not exceed 115 dB(A). Paragraph (c) is the same as 49 CFR 
229.121(c), FRA's current noise regulation. It merely restates an 
existing requirement.
    Paragraph (d) addresses continuous noise exposure above 115 dB(A). 
This requirement differs from OSHA's standards. OSHA prohibits 
unprotected exposures above 115 dB(A) (See 29 CFR 1910.95(a) and 29 CFR 
1926.52(a)). By contrast, FRA proposes that employees can be exposed to 
continuous noise between 115 dB(A) and 120 dB(A) as long as their total 
daily duration does not exceed 5 seconds. FRA is making this proposal 
because of the operational realities of railroading and the resulting 
safety implications.
    In the railroad industry, it is generally recognized that very 
brief excursions

[[Page 35163]]

above 115 dB(A) sometimes occur in the cab. For the most part, these 
noise exposures are brief, non-recurring events. Some of these 
excursions are due to external conditions that may be difficult, or 
unwise, to prevent. The sounding of the locomotive horn is a prime 
example. The locomotive horn is a safety device used to warn the public 
and railroad employees of oncoming train traffic. If the horn is used 
while cab windows are open or while the cab is adjacent to reflective 
surfaces, the noise level in the cab may exceed 115 dB(A). FRA would 
not want to eliminate the sounding of the horn, however, because the 
horn is very important to safe rail operations. Unfortunately, then, 
these types of noise exposures are unavoidable.
    Working Group discussions revealed that some RSAC members did not 
wish to penalize the railroads for these brief excursions above 115 
dB(A). At the same time, other RSAC members did not wish to stray, to 
any great extent, from the existing OSHA standard. It should be noted, 
however, that certain RSAC members expressed the view that there may be 
health effects associated with longer exposures over 115 dBA, while 
other RSAC members contended that health effects will not occur until 
much higher noise levels.
    Recognizing the realities of railroad work, the RSAC recommended 
this provision. The proposed regulation permits very brief exposures to 
continuous noise (which is defined as noise that exceeds one second) so 
long as the exposures do not exceed a total of 5 seconds within one day 
or work shift. FRA concludes that this short cumulative time limit will 
effectively distinguish incidental, and perhaps unavoidable and 
necessary noise exposures, from longer exposures that stem from 
undesirable noise overexposure found in deficient rolling stock that 
should not be in use.

Section 227.107 Hearing Conservation Program

    Section 227.107 sets out the requirement that railroads establish a 
hearing conservation program for all employees exposed to noise at or 
above the action level. It also provides that railroads shall compute 
employee noise exposure in accordance with Table 1 of Sec.  227.105 and 
the tables found in Appendix A and without regard to any attenuation 
provided by the use of hearing protectors. Section 227.107 is identical 
to the comparable provision in OSHA's occupational noise regulation. 
OSHA's provision is found at 29 CFR 1910.95(c).
    As for the current state of hearing conservation programs, FRA 
recognizes that most class I railroads, as well as some regional and 
commuter railroads, already have hearing conservation programs and that 
those HCPs meet the requirements of OSHA's occupational noise standard. 
Although not required, railroads have included cab employees in those 
hearing conservation programs. Thus, several railroads are already 
complying with the requirements of this proposed rulemaking, i.e., 
establishing a HCP, offering training, conducting audiometric testing, 
etc.

Section 227.109 Audiometric Testing Program

    This section sets out the requirements for railroads to establish 
and maintain an audiometric testing program for employees that are 
covered by the hearing conservation program. It requires railroads to 
establish a baseline audiogram and then to conduct periodic audiograms. 
It also specifies the requirements for conducting, evaluating, and 
following-up with the audiograms.
    Paragraph (a) notes the general requirement that each railroad 
shall establish and maintain an audiometric testing program as set 
forth below. Paragraph (b) provides that audiometric tests shall be 
provided for employees, at no cost to employees. This paragraph refers 
only to the audiogram. (An audiogram is more popularly known as a 
hearing test.) It does not refer to additional costs that might be 
incurred by employees, e.g., missed trips or missed work time that is 
incurred as a result of the audiogram.
    Paragraph (c) requires that appropriate professionals or trained 
audiometric technicians administer the audiometric tests. It specifies 
that audiometric tests be administered by a licensed or certified 
audiologist, otolaryngologist, or other qualified physician (Sec.  
227.109(c)(1)); or by a certified audiometric technician under the 
supervision of an audiologist, otolaryngologist or physician (Sec.  
227.109(c)(2)). In order to be qualified under the standard, an 
individual must be competent in the administration of hearing tests and 
in the care and use of audiometers. In addition to trained technicians, 
this can also include hearing aid specialists, industrial hygienists, 
and nurses with appropriate credentials.
    OSHA has recognized two methods by which a technician can become 
qualified in the administration of audiometric tests. (See 48 FR 9738). 
FRA, likewise, recognizes those methods. The first method, and one of 
the best methods, is for a technician to successfully complete a course 
that is designed for the training and certification of audiometric 
technicians. See Sec.  227.109(c)(2)(i). The second method is for a 
technician to demonstrate, to the satisfaction of the professional 
supervisor of the hearing conservation program, that he or she is 
competent in the administration of audiometric tests and the use and 
care of audiometers. The technician must be able to show competence in 
the proper use, maintenance, calibration, and functioning of the 
particular type of audiometer being used. See Sec.  227.109(c)(2)(ii). 
Where a technician (of either qualification type) performs an 
audiometric test, that technician must be responsible to an 
audiologist, otolaryngologist, or physician. See Sec.  
227.109(c)(2)(iii).
    Paragraph (d) addresses the instruments that should be used during 
audiometric testing; it notes that the instruments used for audiometric 
testing must meet the requirements of Appendix C ``Audiometric Testing 
Requirements.''
    Paragraphs (e) and (f) discuss audiograms. For purposes of this 
regulations, there are two types of audiograms: A baseline audiogram 
and a periodic audiogram. A baseline audiogram is the reference 
audiogram to which all future audiograms are compared. Baseline 
audiograms are necessary, because they can then be used as points of 
comparison for subsequent audiograms. Periodic audiograms are the 
subsequent audiograms that are conducted at regular intervals in the 
future. They can be used to identify deterioration in hearing ability 
and to track the effectiveness of a hearing conservation program. 
Paragraph (e) provides the requirements for baseline audiograms, and 
paragraph (f) provides the requirements for periodic audiograms. These 
provisions differ from OSHA; the differences are discussed below.
    Paragraph (g) provides the requirements for evaluation of 
audiograms. It states that each employee's periodic examination should 
be compared to that employee's baseline audiogram to determine if the 
audiogram is valid and to determine whether a standard threshold shift 
(STS) has occurred. See Sec.  227.109(g)(1). If the periodic audiogram 
demonstrates a STS, a railroad may obtain a retest within 90 days and 
use the retest as the periodic audiogram. See Sec.  227.109(g)(2). The 
audiologist, otolaryngologist, or physician shall review problem 
audiograms and shall determine whether there is a need for further 
evaluation. See Sec.  227.109(g)(3). The

[[Page 35164]]

term ``problem audiograms'' refers to audiograms that have had 
technical or administrative problems. In a general sense, it refers to 
situations where the testing equipment did not work, where there is 
evidence that the test-taker skewed the test results, or where the 
results are medically atypical. Examples of problem audiograms include 
audiograms that show large differences in hearing thresholds between 
the two ears, audiograms that show unusual hearing loss configurations 
that are atypical of noise induced hearing loss, and audiograms with 
thresholds that are not repeatable.\61\
---------------------------------------------------------------------------

    \61\ OSHA Interpretation Letter from OSHA to Mr. J. Christopher 
Nutter dated May 9, 1994.
---------------------------------------------------------------------------

    Paragraph (h) provides the follow-up procedures. Section 
227.109(h)(1) explains that a railroad shall notify an employee if the 
employee experiences a standard threshold shift (as indicated through a 
comparison of the employee's baseline audiogram and periodic 
audiogram). Section 227.109(h)(2) identifies the steps that a railroad 
should take if the railroad learns that an employee has experienced a 
standard threshold shift. Section 227.109(h)(3) specifies further 
notification procedures for subsequent audiometric testing.
    Paragraph (i) identifies two situations where an audiologist, 
otolaryngologist, or physician may substitute a periodic audiogram in 
place of the baseline audiogram. The two situations are: (1) The 
audiogram reveals that the standard threshold shift is persistent, and 
(2) the hearing threshold shown in the periodic audiogram indicates 
significant improvement over the baseline audiogram. See 227.109(i).
    Paragraph (j) addresses standard threshold shifts. It provides that 
when determining whether a standard threshold shift has occurred, the 
individual evaluating the audiogram can consider the contribution of 
age (presbycusis) to the change in hearing level. The individual 
evaluating the audiogram should use the procedure described in Appendix 
F: ``Calculation and Application of Age Correction to Audiograms.'' See 
227.109(j).
    While most of section 227.109 tracks the requirements found in 
OSHA's regulation (29 CFR 1910.95(g)), there are a few differences. 
FRA's proposed regulation differs from OSHA's regulation in three 
areas: (1) Baseline audiograms, (2) periodic audiograms, and (3) time 
frames for re-testing and for employee notification.
    First, OSHA and FRA differ with respect to baseline audiograms. 
OSHA requires employers to establish a valid baseline audiogram within 
6 months of an employee's first exposure at or above the action level. 
Like OSHA, FRA provides a railroad with 6 months from a new employee's 
first tour of duty to establish a baseline audiogram for that employee. 
See Sec.  227.109(e)(1). (A railroad has one year to establish a 
baseline audiogram if it uses mobile test vans to meet these 
requirements.) Although OSHA's regulatory text did not provide 
additional time to establish baseline audiograms for existing 
employees, OSHA, provided one year from the effective date of the rule 
for employers to establish baseline audiograms for existing employees. 
See the ``Effective Date'' of OSHA's Final Rule. See 48 FR 9738. FRA 
also provided railroads with additional time for establishing baseline 
audiograms for existing employees. However, unlike OSHA, FRA has 
several categories of existing employees and different terms for 
each.For an existing employee without a baseline audiogram, a railroad 
will have two years from the effective date of the rule to establish a 
baseline audiogram for that employee. See Sec.  227.109(e)(2). FRA is 
providing railroads with more time to establish baseline audiograms for 
employees without baseline audiograms, because FRA realizes that 
railroads will need time to ``catch up'' on testing. The decision to 
provide railroads with extra time for this category of employee 
recognizes the administrative difficulties of testing a large number of 
employees, as well as the high potential cost of testing so many 
employees in a short period of time. Railroads with 400,000 or fewer 
employee hours will have three years from the effective date of the 
rule to establish a baseline audiogram for existing employees.\62\
---------------------------------------------------------------------------

    \62\ For a further discussion on allowances for small entities, 
see the preamble discussion for Sec.  227.103(a).
---------------------------------------------------------------------------

    For existing employees who have had a baseline audiogram, a 
railroad may or may not be able to use that baseline audiogram, 
depending on how the baseline audiogram was obtained. Where an existing 
employee has already had a baseline audiogram as of the effective date 
of this rule, and it was obtained under conditions that satisfy the 
requirements found in 29 CFR 1910.95(h), the railroad must use that 
baseline audiogram. Section 1910.95(h) identifies OSHA's audiometric 
test requirements for employees who obtained audiograms as part of a 
hearing conservation program. The requirements in 29 CFR 1910.95(h) are 
the same requirements that are found in FRA's proposed regulation at 
Sec.  227.109.
    Where an existing employee has already had a baseline audiogram as 
of the effective date of this rule, and it was obtained under 
conditions that satisfy the requirements in 29 CFR 1910.95(h)(1) but 
not the requirements found in 29 CFR 1910.95(h)(2)-(5), the railroad 
may elect to use that baseline audiogram as long as the individual 
administering the Hearing Conservation Program makes a reasonable 
determination that the baseline audiogram is valid and is clinically 
consistent with the other material in the employee's medical file. This 
provision evolved out of comments made by numerous railroad hearing 
conservation individuals. Those individuals thought that it was in the 
employee's best interest to use grandfathered baseline audiograms; 
however, they were concerned that they would not be able to identify 
the information required to satisfy 29 CFR 1910.95(h)(2)-(5). To 
address those concerns, FRA has included this provision.
    Many railroad employees--locomotive engineers, specifically--will 
have baseline audiograms that were obtained as part of the hearing 
acuity testing for FRA's Locomotive Engineer Qualification.\63\ (See 49 
CFR 240.121). As part of the locomotive engineer certification process, 
many engineers will have had an audiogram that meets OSHA's 29 CFR 
1910.95(h) requirements. As stated above, railroads must accept these 
baseline audiograms if they were obtained in compliance with the 
requirements found in 29 CFR 1910.95(h).
---------------------------------------------------------------------------

    \63\ See Qualification and Certification of Locomotive Engineer, 
49 CFR part 240.
---------------------------------------------------------------------------

    In essence, then, FRA is ``grandfathering'' certain pre-existing 
baseline audiograms. FRA is grandfathering these baseline audiograms, 
because they provide a more accurate picture of an individual's initial 
hearing ability. They indicate an employee's initial hearing level and 
thus, when compared with subsequent audiograms, they will reflect the 
true extent of an employee's hearing loss (if any). In addition, 
grandfathering these baseline audiograms eliminates unnecessary costs 
for the railroad, because railroads do not need to re-test employees 
that already have baseline audiograms.
    OSHA also decided to adopt a lenient policy on accepting baseline 
audiograms that were taken before the promulgation of the hearing 
conservation amendment. OSHA noted that it would be flexible in 
accepting or grandfathering old baseline audiograms, because in most 
cases, this would be more protective of employees;

[[Page 35165]]

old baseline audiograms allow the true extent of hearing loss over the 
years to be evaluated. In its Final Rule, OSHA noted that ``this policy 
is consistent with the exercise of professional judgment. It is the 
responsibility of the professional supervising the hearing conservation 
program to determine which pre-existing audiograms are acceptable and 
which to choose as the baseline.'' \64\
---------------------------------------------------------------------------

    \64\ See 48 FR 9738.
---------------------------------------------------------------------------

    Many railroads have expressed concern about the record-keeping 
requirements associated with grandfathered baseline audiograms. Section 
227.121 requires railroads to maintain records of employee audiometric 
tests and to retain them for the duration of the employee's employment. 
Those records should include information such as the name and job 
classification of the employee, the date of the audiogram, the 
examiner's name, the date of the last acoustic or exhaustive 
calibration of the audiometer, and accurate records of the measurements 
of the background sound pressure levels in the audiometric test rooms. 
Railroads explain that they will not be able to provide all the 
required information for grandfathered baseline audiograms. FRA is 
fully aware of the railroads' concerns. FRA recognizes that, in some 
cases, railroads will not have some of that information and will not be 
able to obtain some of that information (e.g., a railroad might not 
know the examiner or the last exhaustive calibration for a baseline 
audiogram that was obtained five years ago). FRA will be cognizant of 
that fact when evaluating what records are available and when 
evaluating the adequacy of the available records. Overall, FRA will 
take a practical approach toward the audiometric test record-keeping 
requirements for grandfathered baseline audiograms.
    Second, FRA differs from OSHA with respect to periodic audiograms. 
OSHA's comparable requirement, ``Annual Audiogram,'' states that ``[a]t 
least annually after obtaining the baseline audiogram, the employer 
shall obtain a new audiogram for each employee exposed'' at or above 
the action level. See 29 CFR 1910.95(g)(6).\65\ FRA's proposed rule is 
stated in paragraph (f), ``Periodic Audiogram.'' Subparagraph (f)(1) 
requires railroads to offer audiometric testing to each covered 
employee at least once a year. FRA is aware that most large railroads 
already do this, and thus it should not impose a new burden on 
railroads. Subparagraph (f)(2) requires railroads to conduct 
audiometric testing of covered employees at least once every three 
years. This requirement mirrors part 240, in which locomotive engineers 
must receive a hearing test (as part of the engineer certification 
process) at least once every three years. See 49 CFR 240.201(c).
---------------------------------------------------------------------------

    \65\ OSHA's application of this provision may be at variance 
with the language. See OSHA's Standard Interpretations, ``Free 
audiometric testing for employees exposed over the action level,'' 
July 27, 1987. For a copy of the letter, see http://www.osha.gov/pls/oshaweb/ pls/oshaweb/ owadisp.show-- document? p-- table= INTERPRETATIONS&p--
id=19570.
---------------------------------------------------------------------------

    This provision reflects a compromise that evolved out of RSAC 
discussions. While employees often disfavor mandatory hearing testing, 
railroads generally favor mandatory hearing testing. To satisfy both 
concerns, FRA established a compromise position whereby railroads must 
test employees at least once every three years but must offer testing 
at least once a year. This provision is also important, because its 
provides additional assurances that FRA's hearing conservation efforts 
will be effective. The RSAC discussions indicate that the employee 
participation in existing railroad hearing conservation programs has 
been low. RSAC members agree that the effectiveness of a hearing 
conservation program would be improved by increased participation, and 
these provisions increase participation.
    Third, FRA's proposal differs from OSHA's regulation with respect 
to time frames. In 29 CFR 1910.95(g)(7)(ii), if an annual audiogram 
shows that an employee has experienced a standard threshold shift, OSHA 
gives an employer 30 days to obtain a re-test. By comparison, FRA 
proposes to give an employer 90 days to obtain a re-test. See Sec.  
227.109(g)(2). FRA's standard gives employers more time to obtain a re-
test, because FRA realizes that railroads can experience administrative 
difficulties in testing their employee population. The railroad 
employee population is widely dispersed, is subject to statutory Hours 
of Service limitations, and often works irregular hours.
    In 29 CFR 1910.95(g)(8)(i), OSHA's standard provides that, if a 
comparison of the annual audiogram and the baseline audiogram indicates 
that a standard threshold shift has occurred, the employer shall inform 
the employee within 21 days. By contrast, FRA's proposal states that 
the railroad shall inform the employee of the determination within 30 
days. See Sec.  227.109(h)(1). FRA's standard provides railroads with 
more time, because FRA is taking into account the mobile railroad 
workforce and railroad's difficulty in providing notice to that mobile 
workforce. Moreover, there is no substantial harm if the railroads have 
an additional nine days to notify employees.

Section 227.111 Audiometric Test Requirements

    Once again, this section is almost identical to OSHA's Audiometric 
Test Requirements. OSHA's requirements can be found at 29 CFR 
1910.95(h). FRA's proposed Sec. Sec.  227.111(a) through (d) are 
identical to OSHA's Sec. Sec.  1910.95(h)(1) through (h)(5). Section 
227.111(a) provides that audiometric tests shall be pure tone, air 
conduction hearing threshold examinations and shall test frequencies 
including 500, 1000, 2000, 3000, 4000, and 6000 Hz. Section 227.111(b) 
addresses audiometers, Sec.  227.111(c) addresses pulse-tone and self-
recording audiometers, and Sec.  227.111(d) addresses room requirements 
for audiometric testing.
    In Sec.  227.111(e), FRA's proposed rule differs from OSHA's rule 
in two ways, one minor and one substantial. The minor difference is 
found in Sec.  227.111(e)(1), where FRA adds ``or by appropriate 
calibration device.'' In OSHA's rule the audiometer shall be checked by 
testing a person with known, stable hearing thresholds. FRA's rule 
allows that method and also allows the audiometer to be tested with an 
appropriate calibration device.
    The more substantial difference is found in Sec.  227.111(e)(3). 
OSHA requires employers to perform an exhaustive calibration of the 
audiometer at least every two years. As a general rule, FRA is also 
requiring railroads to perform an exhaustive calibration at least every 
two years. However, FRA is proposing stricter requirements for mobile 
test vans. FRA proposes that railroads perform an exhaustive 
calibration of the audiometers on mobile test vans at least once a 
year.
    FRA proposes this stricter requirement for mobile vans because of 
the nature of mobile service work. Mobile vans are constantly in 
movement, and so the audiometric equipment in those mobile vans are 
subject to greater mechanical stress. An exhaustive annual calibration 
will ensure that the audiometer is continually producing accurate test 
results. Moreover, the cost of such a calibration is low. Accordingly, 
FRA concluded that the minimal cost of this stricter requirement would 
be easily offset by the assurance of more accurate test data.

[[Page 35166]]

Section 227.113 Noise Operational Controls

    This section provides for the use of noise operational controls. As 
explained in the background section of this preamble, noise operational 
controls are the functional equivalent of OSHA's term ``administrative 
controls.'' Operational controls refer to efforts to limit workers' 
noise exposure by modifying workers' schedules or locations, or by 
modifying the operating schedule of noisy machinery. Examples of 
operational controls include, but are not limited to, the following: 
Placement of a newer (i.e., quieter) locomotive in the lead; rotation 
of employees in and out of noisy locomotives; and variation of 
employee's routes, e.g., rotation of employees on routes that have many 
grade crossings (which means that horn is sounded more often). 
Operational controls are beneficial, because they help reduce the total 
daily noise exposure of employees, thereby reducing the harmful 
cumulative effects of noise. They also make the environment safer and 
take the burden off employees to protect himself or herself. FRA seeks 
comments from the public on the proposed use of this measure.
    This proposed regulation does not require railroads to use 
operational controls. (This is unlike OSHA's standard, which makes 
operational controls mandatory). Rather, this regulation gives 
railroads the option of using operational controls. Railroads can use 
operational controls, by themselves, to lower the total noise dose 
exposure (as long as the total noise dosage is not 90 dB(A) as an 8-
hour TWA, in which case the railroad must require hearing protection). 
Railroads can also use operational controls in combination with the 
other controls. Those other controls include hearing protection and 
FRA's design, build, and maintenance requirements (i.e., those items 
found in Sec.  229.121, through which FRA has embodied OSHA's concept 
of engineering controls). FRA realizes operating requirements and labor 
agreements may affect a railroad's ability to use noise operational 
controls; nevertheless, FRA would like railroads to remain open to 
their use.
    While operational controls will be an option for all railroads, FRA 
expects that the smaller railroads will be in the best position to use 
them and benefit from the flexibility that they provide. Small railroad 
work is characterized by more limited hours of operation and more 
flexible work rules, and thus it is more conducive to the use of 
operational controls. Noise operational controls are even more useful 
to small railroads since they rarely have the opportunity to implement 
engineering controls. Unlike larger railroads, small railroads 
infrequently buy new locomotives or rebuild old locomotives.
    The regulation notes that ``[w]hen employees are exposed to sound 
exceeding an 8-hour TWA of 90 dB(A), railroads may use noise 
operational controls.'' FRA would like to clarify, however, that 
railroads may consider noise operational controls at any point in time. 
In other words, railroads need not wait until sound reaches an 8-hour 
TWA of 90 dB(A) before considering and/or using operational controls.

Section 227.115 Hearing Protectors

    This section addresses another measure--hearing protectors (HP)--
that can be used to minimize employee exposure to noise in the 
locomotive cab. The term ``hearing protector'' is defined in Sec.  
227.5. However, in simpler words, a hearing protector is a ``personal 
safety product that is worn to reduce the harmful auditory and/or 
annoying effects of sound.'' \66\ Hearing protectors can be divided 
into three main categories: (1) Ear plugs are placed in or against the 
entrance of the ear canal to form a seal and block sound. (2) Ear muffs 
fit over and around the ears to provide an acoustic seal against the 
head. (3) Helmets encase the entire head.\67\
---------------------------------------------------------------------------

    \66\ Berger, Elliott H. (2000). ``Hearing Protection Devices'' 
in The Noise Manual, edited by Elliott H. Berger, Larry H. Royster, 
Dennis P. Driscoll, Julia Doswell Royster, and Martha Lane, American 
Industrial Hygiene Association, 381.
    \67\ Berger at 383.
---------------------------------------------------------------------------

    With respect to the rail industry, RSAC members noted that ear 
plugs and ear muffs are the most commonly-used forms of hearing 
protection. During Working Group discussions, a railroad representative 
of the RSAC noted that several railroads occasionally have used low 
attenuation ear muffs, electronic-assisted ear muffs, and active noise 
cancellation ear muffs. The representative also indicated that several 
railroads have tried using radio headsets. Crews have not received them 
well, and so railroads have not used them widely.\68\ FRA invites 
comments from the public on the use of these types of hearing 
protection.
---------------------------------------------------------------------------

    \68\ See the discussion below on Sec.  227.121(d) for a further 
discussion of radio headsets.
---------------------------------------------------------------------------

    Paragraph (a) proposes that railroads shall require the use of 
hearing protectors where employees are exposed to sound exceeding an 8-
hour time-weighted-average of 90 dB(A). Paragraphs (b)-(e) are modeled 
after the similar OSHA provision, which is located at 29 CFR 
1910.95(i).
    There is one significant difference between FRA's proposal and 
OSHA's provision. FRA has added subparagraph (b)(2), which requires 
railroads to consider two important factors when offering (and 
requiring) hearing protectors: (1) Employees' ability to understand and 
respond to voice communications, and (2) employees' ability to hear and 
respond to audible warnings. This requirement addresses FRA's concern 
that the use of hearing protection may be counter-productive, 
especially for employees with existing hearing loss. If, for example, 
there is a cab employee who is exposed to a TWA of 85 or 86 dB(A), the 
railroad will not want to simply put 30 dB noise reduction HP on that 
employee, because it will reduce the employee's hearing ability and 
thus the employee's ability to listen and communicate in the cab. The 
ability of these employees to discriminate speech and recognize other 
auditory clues can be critical to avoiding train accidents and 
incidents. In the transportation industry, there are important concerns 
about communication, in general, and about speech communication in 
noise, in particular. FRA seeks comment from the public on the proposal 
contained in this regulation, as well as any suggestions as to how best 
address this issue.
    During meetings, some labor members of the RSAC noted their unease 
with the hearing protector requirement located in Sec.  227.115(b)(2). 
They are concerned that some railroads might use a mandatory hearing 
protector provision as a disciplinary tool or as a means for harassing 
an employee. They also state that some employees find HP to be 
uncomfortable, and if railroads unnecessarily mandate the use of HP, 
compliance may erode and employees could encounter excessive noise 
exposure. FRA believes there are many beneficial aspects to HP, and 
thus FRA is including this section. FRA seeks comment from the public 
on these concerns.
    Paragraph (d) generated a great deal of discussion and thus is 
discussed here. Paragraph (d) states that ``The railroad shall give 
employees the opportunity to select their hearing protectors from a 
variety of suitable hearing protectors. The selection shall include 
devices with a range of attenuation levels.'' This paragraph is 
intended to help ensure that railroads offer employees suitable hearing 
protectors. Providing a choice of suitable devices increases the 
likelihood that the employee will use the device as required. The first 
sentence of this paragraph is almost identical to OSHA's

[[Page 35167]]

rule. The second sentence is an addition to FRA's rule. FRA included 
the second sentence to acknowledge the importance of having a variety 
of hearing protectors with a range of hearing attenuation levels. 
Ensuring inclusion of low or moderate attenuation devices furthers 
safety by facilitating communication and detection of audible cues in 
the workplace.
    The related matter of electronic communication headsets arose 
during Working Group meetings and generated extensive discussions. 
Railroad representatives strongly disfavor the use of these devices. 
They maintain that these types of devices are ineffective and have 
gained poor acceptance by crews. They also assert that it is expensive 
for them to purchase such devices and to apply the necessary wiring to 
locomotives to use these devices. Labor representatives, in response, 
agree that these devices have gained poor acceptance by crews, but 
assert that the poor acceptance is due to the conditions of their use, 
i.e., non-temperature controlled locomotive cabs make for a warm cab 
environment and the resulting heat build-up under the headsets causes 
discomfort. Labor representatives believe that these hearing protection 
devices enhance communication and that crews would more widely and 
readily accept these devices if the circumstances of their use were 
improved.
    For the purposes of this rule, FRA does not require a railroad to 
offer electronic communication headsets (wired or wireless), but FRA 
does not intend to discourage the use of this technology. If a railroad 
elects to accommodate an employee with hearing loss by providing that 
employee with an electronic headset, the railroad would also need to 
provide the other regularly assigned crew members with compatible 
equipment.
    There are a few other miscellaneous issues related to this 
provision. With respect to locomotive engineers, the issue of hearing 
acuity is addressed in 49 CFR Part 240. In addition, with respect to 
crew members with documented hearing loss, the proposed rule does not 
vary or add to the railroad's duties under the Americans with 
Disabilities Act.

Section 227.117 Hearing Protector Attenuation

    FRA's proposal is identical to OSHA's Hearing Protector Attenuation 
provisions. OSHA's standard is found at 29 CFR 1910.95(j). Paragraph 
(a) provides that a railroad shall evaluate HP attenuation for the 
specific noise environments in which the protector will be used and 
directs that a railroad shall use one of the methods described in 
Appendix B to this part, ``Methods for Estimating the Adequacy of 
Hearing Protector Attenuation.'' Those methods include the Noise 
Reduction Rating (NRR), NIOSH methods 1, 2, and 
3, and objective measurement.
    FRA seeks comment on an additional method, ``Method B,'' which is 
not included in Appendix B. Method B refers to the ANSI S12.6-1997 
entitled Methods for Measuring Real-Ear Attenuation of Hearing 
Protectors. This standard ``provides attenuation estimates based on the 
responses of subject who are given the manufacturer's directions and 
are told to fit the device themselves as best they can.'' \69\ Instead 
of the traditional method of obtaining attenuation estimates, which 
uses experimenters who fit highly trained subjects, this method uses 
subjects that are untrained in the fitting of hearing protectors. 
Arguably, ``the NRR derived from Method B more closely resembles the 
real-world performance of hearing protectors.'' \70\ Although this 
method is not included in Appendix B, FRA thinks that it would be a 
useful method and so seeks comment on its inclusion in the rule as yet 
one more method of measuring hearing protector attenuation.
---------------------------------------------------------------------------

    \69\ Council for Accreditation in Occupational Hearing 
Conservation ``Hearing Conservation Manual,'' Fourth Edition, 114 
(2002).
    \70\ Id.
---------------------------------------------------------------------------

    Paragraph (b) states that hearing protectors shall attenuate 
employee exposure to an 8-hour TWA of 90 decibels or lower, as required 
by Sec.  227.115 of this subpart.
    Paragraph (c) provides that hearing protectors for employees who 
have experienced a STS must attenuate exposure to an 8-hour time-
weighted average of 85 decibels or lower. During RSAC discussions, a 
railroad representative raised some practical concerns about this 
requirement. Per Sec.  227.115(d), an employee selects his hearing 
protection. The railroad representative is concerned that an employee 
might select hearing protection that is not protective enough, e.g., an 
employee might want to use HP with lower attenuation because he or she 
finds it more comfortable. FRA notes that a railroad should offer its 
employees a variety of hearing protectors with several different types 
of attenuation, all of which provide adequate protection.
    Paragraph (d) explains that the railroads should re-evaluate the 
adequacy of hearing protector attenuation whenever noise exposures 
increase to the extent that hearing protectors may no longer provide 
adequate attenuation. FRA believes it is necessary for railroads to 
conduct noise monitoring in order to know whether noise exposures have 
changed.

Section 227.119 Training Program

    This section discusses FRA's proposed training program. OSHA's 
training program provision is located at 29 CFR 1910.95(k). While FRA's 
training program, in general, is similar to OSHA's training program, 
FRA's training also contains some distinct features of its own.
    First, FRA's proposal in Sec.  227.119(a)(2) is different than the 
comparable provision in OSHA's regulation. FRA requires each employee 
to complete the hearing training program at least once every three 
years. By contrast, OSHA requires employees to complete a hearing 
training program at least once a year. FRA's triennial training 
requirement is consistent with FRA's triennial audiometric testing 
requirement; that requirement is found in Sec.  227.109(f)(ii).
    Second, FRA has added an entire subparagraph, Sec.  227.119(b). 
Subparagraph (b) identifies the times when a railroad should initiate 
training for employees. For new employees, a railroad shall provide 
training within 6 months after the employee's first tour of duty in a 
position identified within the scope of this part. See Sec.  
227.119(b)(1). FRA seeks comment on the appropriateness of this start 
time. In particular, FRA wants to know whether railroads should 
initiate training no later than six months after the employee's first 
occupational exposure or whether railroads should initiate training 
prior to the expiration of the six months (i.e., when the occupational 
exposure occurs or before the occupational exposure first occurs). For 
existing employees, a railroad shall provide training within two years 
of the effective date of this rule. Railroads with 400,000 or less 
employees hours have three years to provide training.\71\
---------------------------------------------------------------------------

    \71\ For a discussion on small entities, see the preamble 
discussion on Sec.  227.103(a).
---------------------------------------------------------------------------

    Third, in Sec.  227.119(c), FRA has added some items to the list of 
information required by OSHA for a hearing conservation training 
program. Sections 227.119(c)(1)-(5) contains the same items that are 
found in OSHA's training section, 29 CFR 1910.95(k)(3). Those items 
are: The effects of noise on hearing; the purpose of hearing 
protectors; the advantages, disadvantages, and attenuation of

[[Page 35168]]

various types of hearing protectors; instructions on selection, 
fitting, use, and case of hearing protectors; and the purpose of 
audiometric testing and an explanation of test procedures. Sections 
227.119(c)(6)-(11) contain FRA's additional training items.
    Section 227.119(c)(6) requires railroads to provide an explanation 
of noise operational controls, where used. This is most relevant for 
short lines, because they are most likely to use noise operational 
controls. Section 227.119(c)(7) requires railroads to provide employees 
with general information concerning the expected range of workplace 
noise exposure levels associated with major categories of railroad 
equipment and operations (e.g., switching and road assignments, hump 
yards proximate to retarders) and appropriate reference to requirements 
of the railroad concerning the use of hearing protectors.
    This provision, as originally conceptualized, required railroads to 
provide employees with workplace noise exposure levels, including 
examples of where hearing protectors are or are not necessary, of types 
of equipment that emit excessive noise, and of operations that produce 
excessive noise. During meetings, some Working Group members expressed 
concern that railroads would have to provide detailed information 
specific to each employee. That would have been administratively 
difficult for railroads. After discussing the issue, the Working Group, 
and ultimately the RSAC, recommended that the requirement be expressed 
in more general terms. FRA accepted that recommendation. The general 
language addresses the railroad's administrative concerns. The general 
language also captures FRA's intention that railroads should provide a 
general discussion of the ranges of noise exposure levels that an 
employee might encounter. FRA does not intend that a railroad provide 
an individualized report to each employee.
    Furthermore, FRA notes that railroads may provide details of 
requirements for the use of hearing protectors during safety or 
operating rules training, if the railroad so chooses, as long as the 
railroad retains the appropriate records required by this part. This 
provision was included to address railroad representatives' concerns 
about the timing of this training. Some railroad representatives 
asserted that this material was already covered at the time of the 
audiometric test. Others asserted that a portion of this information 
was already covered in the railroad safety rules training. Accordingly, 
FRA did not specify the delivery time for these training requirements. 
A railroad may choose to present this information at the safety rules 
training, operating rules training, during audiometric testing, and/or 
at any other time. A railroad can even present this information to an 
employee at different times, as long as an employee can reasonably 
understand the information and make sense of it.
    Section 227.119(c)(8) requires railroads to explain the purposes of 
noise monitoring and a general description of noise monitoring 
procedures. The intention of this provision is that railroads will 
provide employees with an understanding of how monitoring is conducted 
and how monitoring helps to identify potentially high exposures of 
excessive doses. FRA does not foresee that railroads will have to 
provide employees with a complex, technical discussion. Rather, 
railroads should provide employees with enough information so that they 
know what will occur and what equipment will be used during monitoring.
    Section 227.119(c)(9) requires railroads to provide information 
concerning the availability of a copy of this rule, the requirements of 
this rule as they affect the responsibilities of employees, and 
employees' rights to access records required under this part. FRA 
mandates that employees must participate in the audiometric testing 
program specified in this rule, and thus it is important that the 
railroads, at a minimum, explain this rule's requirements as they 
affect employees. This provision is not too different from OSHA's 
requirement; OSHA's rule contains a provision whereby the employer 
shall make available copies of this standard and shall also post a copy 
in the workplace. See 29 CFR 1910.95(l)(1). FRA had, at one point, 
considered a more general provision that would have broadly required 
railroads to provide information on the requirements of this subpart. 
However, FRA decided that this more narrow requirement struck a better 
balance between the need to provide employees relevant information and 
the scope of the information that railroads will have to provide.
    For the reasons discussed above, FRA believes these additional 
requirements (i.e., Sec.  227.119(c)(6)-(9)) are important. FRA's has 
included these requirements to ensure that the railroad conveys general 
knowledge to its employees. Also, FRA believes that it is important for 
employees to have an understanding of how hearing loss occurs. By 
accomplishing this, FRA believes that employees will take further steps 
to protect themselves, i.e., there will be an increase in employee 
audiograms and employee use of HP.
    Section 227.119(c)(10) requires railroads to train employees on how 
to determine what can trigger an excessive noise report, pursuant to 
Sec.  229.121(b). Section 227.119(c)(11) requires railroads to train 
employees on how to file an excessive noise report, pursuant to Sec.  
229.121(b). This information will be helpful to employees, because it 
will enable them to identify when noise exposures are loud in the 
locomotive cab. Also, it will educate employees, so that they know how 
to respond to excessive noise in the locomotive cab. These two training 
elements were not found in the consensus document which the RSAC 
forwarded to FRA. Rather, these two elements were added as a result of 
OSHA's review of this proposed rule. FRA invites comments on these two 
new training requirements.
    Some railroad representatives have explained that they use already-
established programs to satisfy their OSHA training requirements, and 
so these additional requirements will necessitate the creation of new 
programs and instructor training, as well as cost more. A ``canned'' 
OSHA training program, however, is not sufficient training for a 
railroad employee (although a ``canned'' OSHA training program does 
suffice as training for the OSHA-related elements in the FRA training 
program). Such a training program does not contemplate the unique needs 
of the railroad operating environment--e.g., the mobile nature of his 
or her work, the variety of noise sources to which he or she is 
exposed--while FRA's training program does.
    This regulation does not specify a delivery method. As currently 
written, a railroad can provide this information through any medium it 
chooses. FRA understands that employees typically receive their 
training by viewing a video presentation or by operating an interactive 
computer program. About one-half of the class I railroads uses videos, 
while the other half uses computers. As between video and computer 
training, FRA would prefer that railroads use computer training because 
of its interactive component. The interactive component (e.g., the 
ability to test employees' knowledge of the subject matter as they 
learn and the ability of employees to obtain further information during 
the session) creates a more effective learning environment.
    Video and computer training aside, traditional classroom training 
is the most beneficial, because it allows employees to ask questions 
and receive immediate feedback. Railroad representatives feel that 
classroom

[[Page 35169]]

training should not be mandated; they note that alternative forms of 
training have been successfully used in other industries, as well as in 
the railroad industry. Railroads feel that any requirement that departs 
from a standardized OSHA training program might result in significantly 
increased costs with questionable additional benefit. FRA seeks 
comments on whether railroads should conduct training through the use 
of traditional classroom methods, video presentations, or computer 
training. With respect to traditional classroom methods, is there a 
need for that kind training (for occupational noise) in the railroad 
industry?

Section 227.121 Recordkeeping

    This section contains the recordkeeping requirements for this 
regulation. This section first sets out some general recordkeeping 
provisions and then specifies which records railroads must maintain and 
retain. FRA is granted authority to inspect records from the Federal 
Railroad Safety Act (see 49 U.S.C. 20107). Pursuant to that authority, 
FRA must act within certain parameters when inspecting records. FRA 
must enter upon property and inspect records at a reasonable time and 
in a reasonable manner and must seek records that are relevant to FRA's 
investigation.
    Section 227.121(a)(1)(i) provides that a railroad shall make 
records available to FRA, or to a railroad employee, former employee, 
or employee's representative, upon written authorization of such 
employee. In general, an individual employee would not be able to 
request the individual testing records of another employee. However, 
that employee would be able to receive the records of a monitored run 
if the employee was in the cab or if the employee works in the same 
yard. Section 227.121(a)(1)(ii) provides that a regional or national 
labor representative may request copies of reports for specific 
locations. These reports should not contain identifying information of 
an employee unless an employee authorizes the release of such 
information in writing. Section 227.121(a)(2) permits records to be 
kept in written or electronic form, and Sec.  227.121(a)(3) discusses 
the transfer of records from a railroad that ceases to do business.
    The first few records requirements parallel OSHA's rule. In 
paragraph (b), FRA proposes that railroads maintain exposure 
measurement records and retain them for three years. See 29 CFR 
1910.95(m)(1). In paragraph (c), FRA proposes that railroads maintain 
employee audiometric test records and retain them for the duration of 
the employee's employment. See 29 CFR 1910.95(m)(2). FRA included a 
list of specific records; that list comes from OSHA's regulation. FRA 
has included all of OSHA's records except for one, ``the employee's 
most recent noise exposure assessment.'' FRA excluded that record from 
the list because it is impracticable. Realistically speaking, the 
individual performing the employee's audiometric test would not have 
access to this noise measurement data and thus would not be able to 
enter it on the audiogram. In that respect, this requirement will be 
impractical. Moreover, this information would already be included in 
the records maintained under Sec.  227.121(b). Railroad representatives 
support the removal of this requirement to include individual employee 
exposure data on the audiometric test record.
    For a discussion on FRA's position toward the audiometric test 
record-keeping requirements for grandfathered baseline audiograms, see 
the preamble discussion in Sec.  227.107. In short, FRA expects 
railroads to make a good faith effort in obtaining the audiometric test 
records for grandfathered baseline audiograms. At the same, FRA 
understands that, in several cases, that might be very difficult, if 
not impossible, since the baseline audiograms were presumably obtained 
years ago. Accordingly, FRA recognizes that railroads will sometimes be 
unable to provide some of the required information from the audiometric 
testing records for grandfathered baseline audiograms.
    The subsequent records requirements are new provisions that are not 
found in OSHA's regulation. FRA invites comment on the following 
proposed provisions. In paragraph (d), FRA establishes a requirement 
that railroads maintain a record of all positions and persons that are 
required to be placed in a Hearing Conservation Program. Railroads are 
to retain these records as long as the position and/or person is 
designated to be in the Hearing Conservation Program. In paragraph (e), 
FRA establishes a requirement that railroads maintain copies of the 
training materials required by Sec.  227.119.
    In paragraph (f), FRA establishes a requirement that railroads 
maintain lists of employees who have been found to have experienced a 
standard threshold shift (STS) within the prior calendar year. 
Railroads are to retain this list for five years. FRA seeks comment as 
to whether this is an appropriate amount of time for railroad to retain 
a list of STSs. A STS should be noted on the list for the year in which 
it occurred; the STS need not be re-entered on the list for subsequent 
years. FRA might review this information during an inspection or audit. 
FRA believes that this information can help to assess the effectiveness 
of a railroad's HCP over time. This information is not required to be 
reported to FRA, nor is it considered to be an accident/incident injury 
or illness report, pursuant to part 225.

Appendices A-G

    FRA proposes to adopt appendices A-F from OSHA's noise standard. 
With the exception of a minor edits (e.g., changing ``appendix A to 
Sec.  1910.95 to ``appendix A to part 227''), FRA is adopting these 
appendices in their entirety. FRA seeks comment on that proposal.
    FRA also seeks comment on whether or not it should adopt the non-
mandatory Appendix G. Appendix G addresses conventional workplaces, 
rather than the railroad industry. As such, it does not accurately 
characterize the noise environment in the locomotive cab. In addition, 
much of the general material in Appendix G is also covered in the 
preamble discussion of this NPRM, and so it is unnecessary to repeat in 
Appendix G.

Appendix H--Schedule of Civil Penalties

    This appendix is being reserved until the final rule. At that time, 
it will include a schedule of civil penalties to be used in connection 
with this part. Because such penalty schedules are statements of 
policy, notice and comment are not required prior to their issuance. 
See U.S.C. 553(b)(3)(A).
    Nevertheless, commenters are invited to submit suggestions to FRA 
describing the types of actions or omissions under each regulatory 
section that would subject a person to the assessment of a civil 
penalty. Commenters are also invited to recommend what penalties may be 
appropriate, based upon the relative seriousness of each type of 
violation.

PART 229--RAILROAD LOCOMOTIVE SAFETY STANDARDS

Section 229.4 Information Collection

    This section notes the provisions of this part that have been 
reviewed and approved by the Office of Management and Budget (OMB) for 
compliance with the Paperwork Reduction Act of 1995. See 44 U.S.C. 3501 
et seq.

Section 229.5 Definitions

    The term ``Decibel'' refers to a unit of measurement of sound 
pressure levels, and the term ``dB(A)'' refers to the

[[Page 35170]]

sound pressure levels in decibels measured on the A-weighted scale. 
These terms are commonly accepted and widely used by noise 
professionals.
    The term ``Excessive Noise Report,'' as used in Sec.  229.121(b), 
refers to a report filed by a locomotive cab occupant that indicates 
that the locomotive is producing an unusual level of noise such that 
the noise significantly interferes with normal cab communications or 
that the noise raises a concern with respect to hearing conservation.
    The term ``Upper 99% Confidence Limit'' is a statistical 
probability statement. A confidence limit refers to the lower and upper 
boundaries of a statistic confidence interval. A confidence interval 
gives an estimated range of values which is likely to include an 
unknown population parameter. The estimated range is calculated from a 
given set of sample data. For example, if the upper 99% confidence 
limit for the noise level of a population of locomotives is 87 dB(A), 
then in a sample of 100 locomotives, at least 99 will be found to have 
a noise level of 87 dB(A) or less.

Section 229.121 Locomotive Cab Noise

(a) Performance Standards for Locomotives
    FRA recognizes, and commends, railroads and manufacturers for their 
diligent efforts and work, thus far, in making locomotives quieter. In 
recent years, locomotive builders have responded to industry pressure 
to design and build new locomotives with better sound reduction 
techniques and with lower noise exposure levels. Many new locomotives 
now have several of the following features, which reduce the cab noise 
exposure level: moving the horn back to the center of the locomotive; 
insulating the inside of the cab; insulating the cab floor; piping the 
exhaust of the air brake system outside of the cab; and installing air 
conditioning in the cab to allow cab windows to be closed.
    In addition to the above features, manufacturers have developed and 
offered ``quiet cabs,'' which isolate the cab occupant from noise 
sources of both high and low frequencies. One manufacturer, in 
particular, has developed a locomotive cab that is vibrationally 
isolated from the locomotive body, thereby resulting in substantially 
less noise in the cab and arguably less vibration in the cab. The 
manufacturer has recently discontinued offering this feature as an 
option. Another manufacturer has developed a locomotive design that 
isolates the diesel engine, which decreases the transfer of noise and 
vibration throughout the locomotive. Manufacturers claim that they can 
achieve normal noise exposure levels of 75 dB(A) in these locomotive 
cabs. At the time of the issuance of this proposed rule, these units 
are not yet pervasive throughout the industry.
    Paragraph (a)(1) of proposed Sec.  229.121(a) establishes a design 
requirement for all locomotives that are manufactured after January 1, 
2005. It provides that all locomotives of each design or model shall 
average less than or equal to 85 dB(A), with an upper 99% confidence 
limit of 87 dB(A). This performance standard ensures that newly-built 
locomotives will not produce excessive noise levels. For the most part, 
this section imposes requirements that reflect current equipment and 
design, and, therefore, they should not impose a new burden on 
railroads or locomotive manufacturers. FRA, at one point, had 
considered using the average for a fleet; however, due to the 
difficulty of defining the term ``fleet,'' FRA is not using it. 
Instead, FRA is using the terms ``design'' and ``model.'' While the 
term ``model'' tends to be accepted terminology in the U.S., the term 
``design'' is used more internationally, and, therefore, the inclusion 
of both terms provides for a more complete understanding of this 
provision.
    Paragraph (a)(1) also includes some guidelines for these build 
provisions. A manufacturer may determine the average by testing a 
representative sample of locomotives or an initial series of 
locomotives, provided that there are suitable manufacturing quality 
controls and verification procedures in place to ensure product 
consistency. To determine whether the standard in this regulation is 
met, the railroad may rely on certification from the equipment 
manufacturer for a production run.
    Paragraph (a)(2) discusses the issue of alterations on locomotive 
that are manufactured in accordance with paragraph (a)(1). If the 
average sound level for a particular locomotive design or model is less 
than 82 dB(A), a railroad shall not make any alterations that cause the 
average sound level for that locomotive design or model to exceed 82 
dB(A). If the average sound level for a particular locomotive design or 
model is between, or includes, 82 dB(A) to 85 dB(A), then a railroad 
shall not make any alterations that cause the average sound level for 
that locomotive design or model to increase to 85 dB(A). For purposes 
of the maintenance conducted pursuant to Sec.  229.121(a), replacement 
in kind is not an alteration. Replacement in kind refers to a situation 
where an individual removes a part and replaces that part with the 
identical part of the same make and model. That identical part must be 
of equivalent or better quality. The purpose underlying this provision 
is FRA's desire that railroads retain equipment's essential quiet cab 
status through the life of that locomotive and especially after the 
railroad performs maintenance on the locomotive.
    In developing this recommended provision, the RSAC considered 
several other possible provisions. One of those provisions stated that 
the railroad should not alter any portion of the equipment originally 
designed to reduce interior noise unless the alteration essentially 
maintained the existing noise level or decreased the existing noise 
level. As that provision was somewhat vague, the Working Group sought 
to better define the term ``alteration.'' FRA suggested that an 
alteration would be permissible if it only resulted in a modest 
increase in noise. A ``modest increase'' referred to the lesser amount 
as between an increase of 3 dB or 85 dB(A). In other words, an 
alteration must not increase the noise level by more than 3 dB. And, 
where the noise level was 83 dB(A), the noise level could only increase 
2 dB, and where the noise level was 84 dB(A), the noise level could 
only increase 1 dB. In all cases, the maximum permissible noise level 
would be 85 dB(A). Certain railroad representatives of the Working 
Group disfavored this provision, because they felt that it limited 
their ability to conduct maintenance on equipment. To address those 
concerns and to produce a better defined standard, FRA is using the 
provision now found in the rule text, which was the provision 
ultimately recommended by the RSAC.
    Paragraph (a)(3) directs railroads and manufacturers to conduct 
static testing, as specified in Appendix H. Appendix H (to part 229) 
contains a set of procedures for conducting in-cab static test 
measurements on locomotives. Through the static test, railroads and 
manufacturers can determine whether newly-built locomotives meet the 
requirements of Sec.  229.121. The rule states that a railroad or 
manufacturer shall follow the Appendix H static test protocols to 
determine compliance with paragraph (a)(1). The rule also states that a 
railroad or manufacturer shall also follow the Appendix H static test 
protocols to determine compliance with paragraph (a)(2), but only to 
the extent reasonably necessary to evaluate the effect of alterations 
during maintenance. In sum, then, a railroad or manufacturer

[[Page 35171]]

must conduct static testing pursuant to (a)(1) and may conduct static 
testing for (a)(2) if they find it is needed.
(b) Equipment Maintenance
    This section stipulates the noise-related maintenance requirements 
for locomotives. Paragraph (b)(1) discusses the provisions concerning 
an excessive noise report. When a cab occupant in a locomotive 
operating in service experiences an unusual noise level, he or she may 
file a report with the railroad. In that report, the occupant should 
indicate those items which he or she believes are substantially 
contributing to the noise. An ``unusual level of noise'' refers to a 
noise level in the cab that is much higher or much different than that 
to which the occupant is normally accustomed; it is, for example, a 
banging or squealing sound. It is, however, not just any irritating 
noise. Not only must the noise level be excessive and unusual, but it 
must also either (1) significantly interfere with normal cab 
communications and/or (2) raise hearing conservation concerns.
    A noise level significantly interferes with normal cab 
communications if it prevents the locomotive cab occupants from safely 
and effectively conducting their job assignments. Noise can degrade job 
safety in several ways. Certain parameters, such as high noise levels, 
high-frequency noise; and intermittent, unexpected, uncontrollable, or 
continuous noise can jeopardize job safety by distracting, disrupting, 
or annoying an individual. In addition, noise can be a safety hazard if 
it ``masks'' alarm signals or warning shouts. Masking is ``an increase 
in the threshold of audibility of one sound (the masked sound) caused 
by the presence of another sound (the masking sound or masker).'' \72\ 
In the railroad operating environment, the masked sound can be an alarm 
or warning sound, speech from a coworker or over a radio, or a sound 
produced by a machine (e.g., air brake exhaust, engine noise). Masking 
becomes a problem when an intentional or incident sound that is 
conveying useful information is rendered inaudible or when speech that 
is conveying critical information is rendered unintelligible. Where 
noise masks necessary speech or other warning signals, it disrupts 
speech, interferes with the communication, and prevents a cab occupant 
from safely performing his job. As these employees operate large pieces 
of equipment and transport large quantities of (sometimes dangerous) 
materials, there are serious consequences for errors in operation.
---------------------------------------------------------------------------

    \72\ ``Speech Communications and Signal Detection in Noise,'' 
G.S. Robinson & J.G. Casali in The Noise Manual, 569 (2000).
---------------------------------------------------------------------------

    This proposed rule does not identify the precise decibel level at 
which communication is deemed to have been ``significantly 
interfered,'' because it is impossible to identify any single number 
due to the fact each individual has a different sensitivity to hearing 
and different susceptibility to hearing loss. Moreover, the 
identification of a single decibel level would be meaningless to cab 
occupants. As crew members do not have measurement instrumentation with 
them on their runs (nor do they know how to use them), the crew 
occupants would be unable to determine the precise decibel levels 
during any single run.
    A noise level raises hearing conservation concerns if, for example, 
it causes the occupant to question the effectiveness of his or her 
hearing protection or if the occupant is experiencing new noise-related 
medical conditions such as tinnitus (i.e., a ringing, buzzing, roaring, 
or other sound in the ear). This proposed rule operates under the 
assumption that the person identifying this hearing conservation 
concern is an individual who has been trained in hearing protection (as 
most employees likely will be) and understands the basic principles of 
hearing protection and attenuation--that is why this person is informed 
enough to determine that there is a hearing conservation concern.
    Upon receiving an excessive noise report, a railroad must 
immediately correct any conditions that are required to be immediately 
corrected under part 229. Examples are broken or missing windows or 
broken or extremely loose handholds that are hitting the car body. For 
all other items, the railroad could allow the locomotive to run until 
that locomotive's next 92 day periodic inspection (as per Sec.  
229.23). At that time, the railroad would be expected to inspect the 
locomotive and attempt to identify the item or items that it believes 
is substantially contributing to the noise. The mechanical employee 
inspecting the locomotive would be held to the standard of a reasonably 
prudent mechanical employee. Where the railroad could identify that 
item, FRA expects that the railroad would repair and/or replace that 
item. FRA understands that there might be situations where a railroad 
brings a locomotive to the shop and makes reasonable efforts to 
identify a condition but is unable to do so. FRA does not intend to 
penalize a railroad in those situations. The railroad shall maintain a 
record of the excessive noise report, as well as records of any 
maintenance or attempted maintenance. (Records will be discussed 
further in Sec.  229.121(b)(4)).
    However, if the repair of the item supposedly contributing to the 
noise requires significant shop or material resources that are not 
readily available, the railroad is not required to repair that 
locomotive at the 92 day periodic inspection. In that situation, the 
railroad shall schedule its maintenance of that item to coincide with 
other major equipments repairs commonly used for the particular type of 
maintenance needed. The types of repairs to which FRA is referring 
include difficult-to-access equipment; vibration-isolating systems such 
as bushings or elastomers; and situations where the railroad had to 
replace the insulation padding under the cab or remove the insulation 
from the inside of the cab walls.
    Paragraph (b)(2) identifies specific items which might lead a 
locomotive cab occupant to file an excessive noise report. These listed 
maintenance items, along with the design and build requirements in 
paragraph (a), embody the concept of OSHA's engineering controls. 
Whereas OSHA imposes a general requirements on employers to use 
engineering controls, FRA identifies specific items that railroads must 
address. This particular list evolved out of discussions of an 
engineering controls task force, a smaller group within the Working 
Group.\73\ This list contains items that are likely to deteriorate over 
time and thus would contribute to the noise level in the cab. This 
includes: defective cab window seals, defective cab door seals, broken 
or inoperative windows, deteriorated insulation or insulation that has 
been removed for other reasons, and unsecured panels in the cab. The 
list also notes that air brakes that vent inside the cab can be a noise 
source.
---------------------------------------------------------------------------

    \73\ See Section VI for a discussion of the engineering controls 
task force.
---------------------------------------------------------------------------

    The task force recommended these items to the Working Group, which 
in turn recommended them to the RSAC. The RSAC accepted this list and 
recommended it to FRA. FRA adopted the RSAC's list, though with one 
exception. FRA removed ``unsecured appurtenances in the cab'' from the 
list. FRA's existing regulations, 49 CFR 229.7, address this item, so 
FRA believes it is unnecessary to also include that item here. Section 
229.7 identifies prohibited acts for locomotive safety standards. It 
provides that a locomotive and its appurtenances must be in proper 
condition and safe to operate.

[[Page 35172]]

    While some of the other listed items might appear redundant, they 
are, in fact, not fully addressed by FRA's existing regulations. For 
example, cab doors are mentioned in Sec.  229.119(a); that section 
provides that ``cab doors shall be equipped with a secure and operable 
latching device.'' While a secure and operable latching device is one 
component of a door, there are several other components to a door; some 
of which could result in noisy conditions, such as door hinges, missing 
doors, or a damaged door. Another item on the list is cab windows; they 
are mentioned in Sec.  229.119(b), which provides that windows of the 
lead locomotive shall provide an undistorted view of the right-of-way 
for the crew from their normal position in the cab, and in section 223, 
which discusses window glazing. But there are other conditions that 
might exist. Worn window framing that permits a window to rattle is 
probably not viewed as a defect under FRA's existing regulations but it 
might be an unwanted noise source. The other listed items--cab window 
seals, cab door seals, insulation, and air brake venting--are not 
currently covered in this context in any of FRA's existing regulations.
    Paragraph (b)(3) addresses a railroad's response to an excessive 
noise report. The proposed rule provides that a railroad has an 
obligation to respond to an excessive noise report filed by a 
locomotive cab occupant. This sentence makes explicit a railroad's 
obligation to make an appropriate response to cab occupant noise 
concerns. This first sentence was not part of the document which the 
RSAC forwarded to FRA. Rather, this sentence was added as a result of 
OSHA's review of this proposed rule. The rest of this section was part 
of the consensus document from the RSAC.
    The proposed rule also provides that a railroad meets its 
obligation to respond to an excessive noise report if the railroad 
makes a good faith effort to identify the cause of the reported noise. 
In addition, if the railroad successfully determines the cause of the 
reported noise, then the railroad meets its obligation to respond to 
the excessive noise report if it repairs or replaces the item causing 
the noise.
    Paragraph (b)(3) addresses a concern that railroad representatives 
raised during Working Group discussions. The representatives were 
concerned that they might be cited for violations in situations where 
they had inspected a condition (in response to a excessive noise 
report) but were unable to find a problem or where they had inspected 
the locomotive, identified the problem, and repaired that problem only 
to later find out that the noise concern continued to persist. It is 
not FRA's intention to cite railroads in these situations. The purpose 
of this regulation is to address unusually noisy conditions in the cab 
and commensurate with that, to ensure that railroads make concerted, 
good faith efforts to identify and if possible, correct, such noisy 
conditions.
    Paragraph (b)(4) contains the recordkeeping requirements for this 
section. Railroads shall maintain a record of any excessive noise 
reports filed pursuant to paragraph (b)(1); and any inspection, test, 
maintenance, replacement, or repair completed pursuant to paragraph 
(b)(1). In that record, the railroad shall includes the date on which 
the excessive noise report was filed; and the date on which the 
inspection, test, maintenance, replacement, or repair occurred. The 
railroad shall note any attempts to identify conditions and any 
attempts to correct conditions.
    Railroads shall retain these records for 92 days if they are made 
pursuant to Sec.  229.21; or for 1 year if they are made pursuant to 
Sec.  229.23. During RSAC discussions, several members suggested that 
railroads retain these records for two years. Other members suggested 
that a two year retention requirement was unreasonable. The RSAC 
discussed this two year retention option and instead decided to 
recommend the 92 day/1 year retention proposal. FRA adopted the RSAC's 
recommendation. FRA believes the 92 day/1 year retention proposal is 
most appropriate, because it is consistent with the retention 
requirements in existing FRA regulations, i.e., Sec.  229.21 (``Daily 
Inspection'') and Sec.  229.23 (``Periodic inspection: General'').
    Railroads shall establish an internal, auditable monitoring system 
that tracks the above-mentioned records, i.e., the noise-related 
maintenance tasks. The system should include, at a minimum, information 
such as the locomotive number, the date of the complaint or inspection 
(from which the maintenance task arose), the items thought to have 
caused the problem, and the actions taken to correct the problem. These 
records can be maintained in writing or electronically. As this is an 
auditable system, FRA will review these records as part of compliance 
audits.
    Nothing in paragraph (b) should be read to discourage or limit the 
use of equipment improvements or innovations that arise after 
publication of the final rule. In addition, nothing in paragraph (b) 
should be read to compromise existing duties found in part 229 to make 
prompt repairs to other components and systems (e.g., to malfunctioning 
turbo chargers) that generate noise in the cab and along the wayside.

Appendices D-G

    Appendices D through G are being reserved for future use.

Appendix H

    Appendix H is a set of procedures for conducting in-cab static test 
measurements of locomotives. Railroads and locomotive manufacturers 
should use this protocol to determine whether they have built and 
(where necessary) maintained locomotives that meet the performance 
standards prescribed in 49 CFR 229.121(a). In formulating this 
protocol, FRA looked to several sources, including the procedures used 
by General Electric (GE) and the Electric Motor Division (EMD) of 
General Motors (GM), other regulations concerning railroad noise 
measurement,\74\ and various measurement manuals and technical reports 
on transportation noise measurement and analysis.\75\
---------------------------------------------------------------------------

    \74\ See 40 CFR part 201, EPA's ``Noise Emission Standards for 
Transportation Equipment; Interstate Rail Carriers,'' and 49 CFR 
part 210, FRA's ``Railroad Noise Emission Compliance Regulation.''
    \75\ See ``Railroad Noise Control: The Handbook for the 
Measurement, Analysis, and Abatement of Railroad Noise,'' Report No. 
DOT/FRA/ORD-82/02-H (1982). See also ``Measurement of Highway-
Related Noise,'' Report No. DOT/VNTSC/FHWA-96-5 (1996).
---------------------------------------------------------------------------

    FRA presented an initial draft of appendix H at a RSAC Working 
Group meeting in July 2002. At that meeting, the Working Group 
established an appendix H task force to further develop the procedures. 
The task force, which consisted of FRA, railroad, locomotive 
manufacturers, and labor representatives met several times and produced 
several drafts. The Task Force made recommendations to the Working 
Group, which in turn made recommendations to the full RSAC. RSAC 
ultimately recommended a version of appendix H to FRA that FRA found 
acceptable. FRA considered all of the factors and arguments raised in 
these extensive discussions and produced this appendix.
    Earlier drafts of the appendix set forth procedures that covered a 
wide range of topics and addressed many elements associated with 
measurement. Those drafts contained specific provisions for data 
collection, compliance, environmental criteria, test site requirements, 
and record keeping. Most notably, those drafts contained recommended 
measurement practices for each of those provisions.

[[Page 35173]]

    Some members of the Working Group expressed concern with that 
approach. They asserted that it was unnecessary to include most of 
those recommended measurement practices in the protocol, since some of 
those recommended practices are common practices already used in the 
industry, are frequently incorporated in ANSI standards, and are often 
explained in manufacturer's instructions.\76\
---------------------------------------------------------------------------

    \76\ Many of the recommended practices, which were removed from 
this appendix, are discussed in the paragraphs below. They include 
the following: The SLM should be calibrated annually, and/or the SLM 
should be used with tripod mountings or positioned with a secure 
handhold. This provision was ripe for removal, since it is often 
covered in the manufacturer's instructions and is also discussed in 
ANSI S1.43-1997 (Specifications for Integrating-Averaging Sound 
Level Meters).
---------------------------------------------------------------------------

    After discussing these concerns, the Working Group reformulated its 
approach. The RSAC ultimately agreed with this reformulated approach 
and recommended it to FRA. FRA adopted that recommendation. The overall 
goal for appendix H changed from the development of an all-encompassing 
specific, step-by-step measurement procedure for testing entities to 
the development of a minimum set of measurement requirements necessary 
for compliance with Sec.  229.121(a). The testing entities could use 
these requirements as a basis for developing their own more detailed 
measurement procedures, if they so desired. Accordingly, the 
recommended practices were revised, modified, and in some cases, 
removed. The paragraphs below will discuss many of the recommended 
practices that were found in the earlier versions of the appendix but 
have been removed from this version.
    While most of these recommended practices have been removed from 
this document, FRA still acknowledges their utility and encourages 
railroads and manufacturers to use them. FRA would like to emphasize 
that if the agency were to conduct a compliance test (or re-test), its 
representatives (i.e., inspectors) would probably employ many of these 
recommended practices, along with the minimum standards set out in 
appendix H. FRA is likely to use these measurement practices, because 
they constitute good measurement practices and add to the validity, 
accuracy, and repeatability of measurements. Also, FRA inspectors may 
not possess the extensive acoustical measurement background that some 
of the testing entities possess, and so the inspectors may need the 
additional explanation and criteria to understand the measurement 
protocol. As an aside, FRA notes that railroads and manufacturers are 
free to use procedures that are more stringent than those provided in 
this protocol.
I. Measurement Instrumentation
    This section discusses the instrumentation that should be used for 
conducting measurements. This testing entity shall use an integrating 
sound level meter (iSLM) that meets the requirements of American 
National Standard (ANSI) S1.43-1997, ``Specification for Integrating-
Averaging Sound Level Meters'' and shall calibrate the iSLM with an 
acoustic calibrator that meets the requirements of ANSI S1.40-1984 
(R1997), ``Specification for Acoustical Calibrators.'' The testing 
entity should use a Type 1 instrument, but where a Type 1 instrument is 
not available, the testing entity may use a Type 2 instrument.
    An earlier draft of the appendix included more specific calibration 
requirements, meter specifications, and mounting/orientation 
requirements. The provisions in that draft required the testing entity 
to follow the manufacturer's instruction for mounting and orienting the 
microphone; to calibrate the sound level measurement system at least 
annually (as well as conduct field/routine calibration); and to use 
iSLMs that have the capability to store for later retrieval the A-
weighted, equivalent sound level and maximum sound level. In addition, 
the draft suggested that the testing entity use an iSLM with tripod 
mountings or with a secured handhold. Some members of the RSAC 
suggested the removal of these specific requirements. As one RSAC 
member explained, these provisions are not relevant to this section 
because they apply to procedures, not instrumentation specifications. 
FRA decided that, overall, the removal of these provisions would not be 
detrimental since most of these items are already addressed within the 
ANSI standard, and many of these items would be addressed in other 
sections of this appendix. The original draft also contained citations 
to certain International Organization for Standardization (ISO) and 
International Electrotechnical Commission (IEC) standards.\77\ At the 
request of an RSAC member, FRA removed these citations. The RSAC member 
had explained that ISO and IEC standards were unnecessary and that the 
ANSI standards were sufficient. FRA seeks comment from the public on 
whether FRA should only include ANSI standards or whether FRA should 
also include reference to these ISO and/or IEC standards.
---------------------------------------------------------------------------

    \77\ For example, the relevant IEC standards were International 
Standard IEC 61672-1 (2002-05) (concerning SLMs) and International 
Standard IEC 60942 (1997-11) (concerning microphone windscreens and 
acoustic calibrators).
---------------------------------------------------------------------------

    The decision whether to require a Type 1 or Type 2 instrument 
generated a great deal of discussion. FRA had considered requiring the 
use of Type 1 instruments, because they are more precise instruments 
and because they are used by other U.S. DOT modes.\78\ Some RSAC 
members felt strongly that testing entities should not be required to 
use Type 1 instruments. They asserted that the minimal benefit derived 
from using Type 1 instruments did not justify the expensive cost of 
Type 1 instruments. They asserted that there would be little variance 
in the readings for the two instruments, yet a Type 1 instrument would 
cost $600 to $3,000 more than a Type 2 instrument. In addition, they 
pointed to other noise-related federal regulations that allow the use 
of Type 2 devices.\79\ After extensive discussions, the Working Group 
agreed to the proposal in its current state. The RSAC adopted that 
proposal, as did the FRA. The proposal reflects a compromise between 
FRA's initial preference to use Type 1 instruments and certain industry 
member's concerns about a Type 1 requirement.
---------------------------------------------------------------------------

    \78\ Federal Aviation Administration (FAA) standards require the 
use of Type 1 instruments. See 14 CFR part 36, Appendix G, Section 
G36.105(b). Federal Highway Administration (FHWA) standards 
recommend the use of Type 1 meters. See ``Measurement of Highway-
Related Noise,'' Report No. DOT/VNTSC/FHWA-96-5 (1996) for the 
specific FHWA criteria and recommendations.
    \79\ See e.g., 49 CFR 393.94(c)(4); 40 CFR 201.22(a); 49 CFR 
229.129(b).
---------------------------------------------------------------------------

II. Test Site Requirements
    This section sets forth the requirements for the testing site where 
in-cab static measurements are conducted. This section specifies the 
placement of the locomotive, the installation of locomotive 
appurtenances, the operational requirements for locomotives, and the 
condition of the testing environment. Number 1 provides that a 
locomotive should not be positioned in an area where large reflective 
surfaces are directly adjacent to or within 25 feet of the locomotive 
cab, and number 2 provides that a locomotive should not be positioned 
where other locomotives or rail cars are present on directly adjacent 
tracks next to or within 25 feet of the locomotive cab.
    In earlier drafts, FRA had considered much more specific 
requirements for numbers 1 and 2. An initial draft listed types of 
large reflective surfaces from which the test site should be free

[[Page 35174]]

(barriers, hills, signboards, parked vehicles, locomotives, or rail 
cars on adjacent tracks, bridges, or buildings); required both sides of 
the locomotive to be clear of large reflective surfaces (for a minimum 
distance of 400 feet); and excluded locomotives and rail cars directly 
in front of or behind the test locomotive from that 400 foot 
requirement. Subsequent drafts also considered minimum distances of 100 
feet, 25 feet, and zero feet. FRA decided that the 25 foot requirement 
was the most appropriate distance, because it did not impose a 
financial burden on the testing entities (as a 100 or 400 foot 
requirement would have) yet it still provided a minimum distance of 
separation between the locomotive and reflective surfaces. Also, 25 
feet is a smaller distance, so it allows for an easily-duplicated test 
area. An earlier draft also specified track conditions (tie and ballast 
track that is free of track work, bridges, and trestles) and 
recommended the removal of all unnecessary equipment from the cab. The 
intent of these more restrictive provisions for numbers 1 and 2 was to 
ensure that there was an adequate distance between the tested 
locomotive and other noise sources and/or reflective surfaces. This 
would isolate in-cab noise (due to the locomotive) from other 
contaminating noise sources, which in turn, would produce the best 
quality measurements.
    Members of the RSAC raised several concerns with these provisions. 
They felt that several of these requirements were ambiguous. They also 
explained that noise sources and reflecting objects, for the most part, 
affect measurements by making the in-cab noise levels higher, so if a 
locomotive complies with FRA's regulatory requirements when measured in 
these noisy circumstances, then the locomotive is performing better 
than expected. In addition, they stated that the creation of a 
specified test area free of large, reflecting surfaces and other noise 
sources would create an economic burden on the testing entities. 
Following lengthy discussions, Working Group consensus, and RSAC 
approval, FRA adopted the current proposal--i.e., the testing entity 
has discretion to decide whether it wants to conduct these measurements 
in a test area that is free of reflecting objects and noise sources or 
in a test area that is a less ideal environment.
    Number 3 specifies the condition of locomotive appurtenances during 
testing. It provides that ``[a]ll windows, doors, cabinets, seals, 
etc., must be installed in the locomotive and be closed.'' Numbers 4 
and 5 contain operational requirements. They specify that a locomotive 
must be warmed up to standard operating temperature and that the 
heating/ventilation/air conditioning (HVAC) system must be operating on 
high. FRA has included these operational requirements to ensure that a 
tested locomotive's performance is typical of a normally-operating 
locomotive, and to ensure that any results are replicable based on a 
standardized locomotive operational criteria.
    Number 6 provides that ``[t]he locomotive shall not be tested in 
any site specifically designed to artificially lower in-cab noise 
levels.'' For example, a site should not contain sound absorbent 
materials. This concept was originally contemplated in more specific 
terms, i.e., the ``test site railroad track shall be tie and ballast, 
free of special track work and bridges or trestles.'' The purpose of 
that concept was to ensure that testing entities did not create 
conditions that artificially lower the noise measurements. In order to 
capture this concept in broader and more generic terms, the FRA 
proposes this provision as it is expressed now in number 6.
III. Procedures for Measurement
    This section provides detailed measurement procedures to be used 
during testing. Number 1 specifies the settings for the integrating-
averaging sound level meter (iSLM), and number 2 describes the 
calibration procedure for iSLMs. Calibration is a method of validating 
the performance of the measurement equipment and is important because 
it verifies the accuracy of measurements. Both field system (routine) 
and laboratory (comprehensive) calibration should be conducted on 
iSLMs.
    Number 3 identifies the four locations at which microphones should 
be placed and measurements taken. There are four measurements in the 
cab: Above the left seat, above the right seat, between the seats, and 
near the center of the back wall. FRA had considered the inclusion of 
two additional microphone positions--one above the toilet and one in 
the front vestibule of the locomotive cab. As explained by various RSAC 
members, these positions are not representative of positions inside the 
locomotive cab where crew members spend a substantial amount of time; 
they are merely transient points through which cab employees pass 
through to enter or exit the cab or to go to the bathroom. In addition, 
these locations vary by locomotive, including some locomotives that do 
not have these positions. Accordingly, FRA has removed these two 
measurement positions.
    Number 4 specifies that the individual conducting the test should 
be as far away as possible from the measurement microphone. This is so 
that the individual does not impact the measurement, e.g., shield the 
microphone from noise sources. For the same reason, the procedure also 
specifies that only two people can be inside the locomotive cab during 
testing.
    Number 5 requires the manufacturer or railroad to test a locomotive 
under self-loading conditions if the locomotive is equipped with self-
load. The purpose of this provision is to ensure that the in-cab noise 
level during testing is representative of the in-cab noise level during 
operation (i.e., under load). Conducting the test in self-load mode 
simulates the operation of a locomotive that is pulling cars. It is 
important that the noise measurements are obtained under self-load, 
because the locomotive is under additional stress and generates more 
noise. In-cab noise levels of a locomotive that is self-loaded are 
noticeably louder than those in a locomotive that is not self-loaded 
and so this provision is necessary.
    If the locomotive is not equipped with the ability to operate in 
the self-load mode, the manufacturer or railroad shall test the 
locomotive with ``no-load'' and add three decibels to the measured 
level. ``No-load'' is defined as maximum RPM, with no electric load. 
The AAR submitted a report to FRA in June 2003. The report, 
``Locomotive Static Noise Tests,'' provided data on the noise levels 
for locomotives that are self-loading and those that are not self-
loading. The testing data showed little correlation between the 
condition of various cab features and noise levels, however, the data 
indicated a mean and median sound level difference of two decibels 
between locomotives under load and locomotives not under load. FRA had 
proposed a four decibel adjustment (i.e., the mean of approximately two 
decibels plus one standard deviation of 1.518). The Working Group, and 
ultimately the RSAC, recommended an adjustment of three decibels. FRA 
considered the RSAC recommendation. FRA decided to use a three decibel 
adjustment, however FRA also is also requiring manufacturers and 
railroads to record the load conditions during testing. The records 
requirement is located in the record keeping section; it states that a 
testing entity should maintain records of testing conditions and 
procedures, including whether or not the locomotive

[[Page 35175]]

was tested under self loading conditions. (See section IV, number 5).
    Number 6 requires manufacturers and railroads to record the sound 
level at the highest horsepower or throttle setting. These settings 
were selected, because they produce the highest noise level inside the 
locomotive cab.
    Number 7 specifies the metric, sampling rate, and measurement 
duration for in-cab static measurements. The metric is the A-weighted 
Lav; it is also referred to as LOSHA and 
Leq(5). It represents a level of continuous constant sound 
that is equivalent to the same amount of A-weighted acoustic energy of 
the actual time-varying source. Lav is defined in the 
appendix as the equivalent sound level with a 5 dB exchange rate (with 
the meter set to A-weighting and slow response). Although an equation 
is not specified in the appendix, the definition implies the following:
[GRAPHIC] [TIFF OMITTED] TP23JN04.000

Where:

N = number of time intervals over which the measurements are taken,
ti = time duration of the I-th interval,
T = the total time duration of the measurement (i.e.: = t1 + 
t2 + . . . + tN),
Li = the A-weighted sound level of the I-th interval, and
16.61 = q = [Exchange Rate] / [log10(2)]

    .The A-weighted Lav sound level should be measured using 
a one second sampling interval for a minimum duration of 30 seconds. 
The sampling rate and measurement duration rate specify how often 
samples are taken over a specified time range and are used to compute 
the equivalent sound level. FRA determined that, due to the continuous 
nature of in-cab noise, a 30 second measurement duration was sufficient 
to accurately represent in-cab noise levels.
    In addition to the Lav, FRA also considered using an A-
weighted Leq with a 3 dB exchange rate as the metric. The 
Leq provides an energy-average of the noise levels during 
the measurement interval.
    Number 8 specifies the standard for determining compliance with 49 
CFR 229.121(a). It provides that the highest (i.e., loudest) 
measurement of the four Lav measurements in the locomotive 
cab should be used as the end metric to determine whether the 
locomotive complies with Sec.  229.121(a). Although this standard uses 
a measurement that is not representative of all four measurements in 
the locomotive cab, it provides a measurement that is most 
representative of how loud it can be in a locomotive cab. It accounts 
for the worse noise levels in the locomotive cab. Also, the `highest 
Lav standard' has the advantage of requiring little 
processing. In addition, locomotive manufacturers currently use the 
`highest Lav standard.'
    Before deciding on the `highest Lav standard,' FRA also 
considered energy-averaging across the four measurement positions. 
While energy-averaging is a very good representation of the overall 
noise levels in the locomotive cab (because it averages together all 
the energy levels), averaging, in general, is not representative of the 
worst, or loudest, noise levels in the cab. FRA seeks comment on the 
appropriateness of its decision to use the `highest Lav 
standard.' Number 9 provides that if a locomotive fails to meet the 
requirements of Sec.  229.121, the locomotive may be re-tested 
according to the requirements of Section II of this appendix, ``Test 
Site Requirements.'' This concept originated as a provision allowing a 
re-test in an area free of reflective surfaces and noise sources for a 
locomotive that fails a test. That provision provided that: ``If the 
test fails under original acoustical field conditions, adverse weather, 
or other factors that may have contributed to the failure, the test may 
be repeated in an acoustic free field, fair weather, etc.'' RSAC 
members explained that railroads and manufacturers already conduct 
these types of tests, and they wanted to ensure that this appendix 
allowed them to continue doing so. As an alternative to that provision, 
the RSAC considered permitting such a test as long as the test area was 
well-defined, e.g., where the test area was defined as an area free of 
large reflecting surfaces or noise sources and that there was a minimum 
distance of 200 feet around the locomotive. That proposal was also 
rejected, because some RSAC members felt that the 200-foot minimum 
distance was too restrictive.
    Ultimately, then, FRA decided to include the provision contained 
here in number 9 (in the ``Procedures for Measurement'' section); it 
provides that a railroad or manufacturer may re-test a locomotive if 
that locomotive fails a static test. FRA also decided that the testing 
entity must record the suspected reason for the failure in its records. 
That requirement is located in the record keeping section (see section 
IV, number 7).
IV. Record Keeping
    This section requires testing entities to maintain records of their 
testing. They must retain these records for a minimum of three years 
and may keep these records in either written or electronic form. Those 
records include: the name of the person conducting the test and date of 
the test; the description of the tested locomotive; the description of 
the sound level meter and calibrator; the recorded measurement during 
calibration and for each microphone location during operating 
conditions; any other information necessary to describe the testing 
conditions and procedures (e.g., whether the locomotive was tested 
under self-loading conditions); and, where applicable, the suspected 
reason for a test failure (where a locomotive fails a test and can be 
re-tested under section III(9)).
V. Removed Sections
    There were several provisions which were considered but ultimately 
were not included in the appendix. In particular, there were two 
notable sections: Environmental Criteria and Quantities Measured, as 
well as the requirement of pre- and post-background testing.

A. Environmental Criteria

    The Environmental Criteria specified optimal meteorological 
conditions that should be followed during testing. The criteria 
provided that meteorological conditions, such as precipitation or wind, 
should not interact with the locomotive or rail car such that they are 
audible from within the cab. The purpose of specifying this criteria 
was to prevent those factors from interfering with the measurements and 
invalidating the test. In general, conducting noise measurements under 
favorable meteorological conditions is a good, and common, practice. 
However, some RSAC members believed that these conditions should be 
left up to the testing entity's best judgement. Moreover, they asserted 
that they did not believe that entities would conduct noise testing 
during severe weather conditions that would be audible in the cab. 
Because these conditions would only serve to raise the noise level 
inside the cab (and would only make it more difficult, not easier, for 
a locomotive to pass a test), this requirement was not included in the 
appendix.
    The Environmental Criteria also provided that the air temperature 
and relative humidity inside the cab should be within the 
manufacturer's recommended operational ranges for the iSLM or the 
individual measurement instrumentation. This requirement was initially 
placed in the appendix to account for the temperature and humidity 
restrictions specified by

[[Page 35176]]

microphone and acoustic measurement instrumentation manufacturers in 
their supplemental literature. Members of the RSAC acknowledged that 
these restrictions are mentioned in the ANSI standard and are part of 
the proper operation of a sound level meter. As a result, FRA decided 
that it was unnecessary to repeat these requirements in this appendix.

B. Quantities Measured

    The ``Quantities Measured'' section specified the metrics that 
should be used in the measurement procedure. It noted that all 
instances of exterior noise contamination that is audible inside the 
cab should be noted and that any noise level above 115 dB(A) would 
invalidate the noise test. All of the information contained in this 
section was already stated in other parts of the appendix and NPRM, so 
FRA decided to simplify the appendix and remove this section.

C. Pre- and Post-Background Testing

    FRA had considered pre- and post-background testing requirements. 
There was much discussion about this requirement, and ultimately, the 
RSAC recommended not to include it in this protocol. In an early 
proposal, this provision required manufacturers and railroads to 
observe the sound levels before and after the static test measurements 
(at each of the in-cab measurement locations) and ensure that those 
sound levels were at least 10 dB(A) below the sound level observed 
during the in-cab static measurements. Manufacturers and railroads were 
to measure the pre- and post-tests when the locomotive was shut down, 
and the sound level measurements were to be representative of the 
ambient noise in the cab during the test. In a later revised form, this 
provision required manufacturers and railroads to establish baseline 
noise levels in the cab (on a locomotive that has been shut down) after 
completing the testing at the high horsepower/throttle setting.
    FRA presented this requirement because of the utility of background 
noise measurements; they provide key pieces of information that can be 
vital to the procedure and the validity of the measurements. First, 
pre- and post-noise measurements ensure that ambient noise does not 
interfere with the test measurement. If the background noise is the 
same (or at least very similar) during the pre- and post-background 
noise measurement, one can infer that the background noise did not 
impact the noise measurement test. Second, pre- and post-testing, along 
with notation of extraneous noise contamination during the test 
measurement, ensures that the measurements are not affected by 
additional noise sources that are atypical of the in-cab noise 
environment. If there is a variation between the pre- and post-noise 
measurements and there are notations of extraneous noises during the 
test measurement, that might indicate that there were changes in the 
test environment (e.g., changing weather conditions, additional noise 
sources, etc.). Third, the use of pre- and post-testing ensures that 
the measurements obtained are actually from the source that is being 
measured. They ensure that the sound levels measured in the locomotive 
cab are actually due to the loaded locomotive, and not due to some 
other noise source.
    Several RSAC members did not want to include a pre- and post-
background noise measurement requirement in the appendix. They 
explained that they were not concerned with background noise if it did 
not impact the locomotive's ability to pass the test. They further 
asserted that a background noise level shift, even if it were 10 dB or 
more, is still probably below the criterion level and thus, is most 
likely irrelevant to whether or not the locomotive meets the criteria 
of this protocol. They also explained that, if there were external 
noise occurrences during the static test and those external noise 
occurrences affected the test, then the testing entity would simply 
conduct another test. Finding these arguments persuasive, FRA has 
decided to remove the pre- and post-background testing requirement, in 
accordance with RSAC's recommendation.

X. Regulatory Impact and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This rule has been evaluated in accordance with existing policies 
and procedures and determined to be non-significant according to DOT 
policies and procedures and ``other significant'' pursuant to Executive 
Order 12866 (44 FR 11034; February 26, 1979). FRA has prepared and 
placed in the docket a regulatory analysis addressing the economic 
impact of this proposed rule. Document inspection and copying 
facilities are available at Room PL-401 on the plaza level of the 
Nassif Building, U.S. Department of Transportation, 400 Seventh Street, 
SW., Washington, DC. Photocopies may also be obtained by submitting a 
written request to the Docket Management Facility; U.S. Department of 
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, 
Washington, DC 20590-001. In addition, all documents supporting this 
rule are available on-line at http://dms.dot.gov.
    As part of the regulatory impact analysis, FRA has assessed 
quantitative measurements of costs expected from this proposed rule. 
Over a twenty year period, the Present Value (PV) of the estimated 
costs is $15.4 million. The analysis also includes qualitative 
discussions and quantified examples of the benefits of this proposed 
rule. The analysis concludes that an average savings of 24 noise-
induced hearing loss cases per year would cover the average annual 
costs of the proposed rule.
    The costs anticipated for this proposed rule include: 
implementation of noise monitoring programs, implementation of hearing 
conservation programs, audiometric testing, hearing protection, hearing 
conservation training programs, and additional locomotive maintenance 
related to noise issues.
    The major benefit anticipated for this proposed rule will be the 
savings from a reduction in noise-induced hearing loss cases among 
railroad operating employees. Other quantifiable benefits include: 
reductions in employee absenteeism due to noise exposures, reductions 
in employee injuries related to noise exposures, and reductions in 
human factor caused train accidents. In addition, qualitative benefits 
should accrue from improved cab crew communications, including: 
increased employee performance due to decreased noise exposures; 
decreased vision issues related to noise exposures; and decreased 
stress and fatigue.

B. Regulatory Flexibility Act of 1980 and Executive Order 13272

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) 
requires Federal agencies to review proposed and final rules to assess 
their impact on small entities. FRA has prepared and placed in the 
docket an Initial Regulatory Flexibility Assessment (IRFA), which 
assesses the impact of this proposed rule on small entities. Document 
inspection and copying facilities are available at Room PL-401 on the 
plaza level of the Nassif Building, U.S. Department of Transportation, 
400 Seventh Street, SW., Washington, DC. Photocopies may also be 
obtained by submitting a written request to the Docket Management 
Facility; U.S. Department of Transportation, 400 Seventh Street, SW., 
Nassif Building, Room PL-401, Washington, DC 20590.
    Executive Order No. 13272, ``Proper Consideration of Small Entities 
in Agency Rulemaking,'' requires federal agencies, among other things, 
to notify the Chief Counsel for Advocacy of the

[[Page 35177]]

Small Business Administration (SBA) of any of its draft rules that will 
have a significant economic impact on a substantial number of small 
entities. The Executive Order also requires federal agencies to 
consider any comments provided by the SBA and to include in the 
preamble to the rule the agency's response to any written comments by 
the SBA, unless the agency head certifies that the inclusion of such 
material would not serve the public interest. 67 FR 53461 (Aug. 16, 
2002).
    The U.S. Small Business Administration (SBA) stipulates that the 
largest that a ``for-profit'' railroad business firm may be, and still 
be classified as a ``small entity,'' is 1,500 employees for ``Line-Haul 
Operating'' Railroads and 500 employees for ``Switching and Terminal 
Establishments.''\80\ ``Small entity'' is defined in 5 U.S.C. 601 as a 
small business concern that is independently owned and operated and is 
not dominant in its field of operation. SBA's ``size standards'' may be 
altered by Federal agencies, upon consultation with SBA and in 
conjunction with public comment. Pursuant to that authority, FRA has 
published a final policy which formally establishes ``small entities'' 
as railroads that meet the line haulage revenue requirements of a Class 
III railroad.\81\ The revenue requirements are currently $20 million or 
less in annual operating revenue. The $20 million limit (which is 
adjusted by applying the railroad revenue deflator adjustment)\82\ is 
based on the Surface Transportation Board's (STB) threshold for a Class 
III railroad carrier. FRA uses the same revenue dollar limit to 
determine whether a railroad shipper or contractor is a small entity.
---------------------------------------------------------------------------

    \80\ See ``Table of Size Standards,'' U.S. Small Business 
Administration, 13 CFR part 121.
    \81\ See ``Final Policy Statement Concerning Small Entities 
Subject to the Railroad Safety Laws'' (68 FR 24891; May 9, 2003).
    \82\ For further information on the calculation of the specific 
dollar limit please, see 49 CFR part 1201.
---------------------------------------------------------------------------

    However, in this rulemaking, FRA proposes to define small entities 
by annual employee hours. A small entity is one that has ``less than 
400,000 annual employee hours.'' FRA has used this definition in the 
past (e.g., 49 CFR parts 217, 219, and 220) to alleviate reporting 
requirements. By using this definition, FRA is capturing most small 
entities that would be defined by the SBA as small businesses. FRA 
proposes to use this alternative definition of ``small entity'' in this 
proposed rulemaking and requests comments on its use.
    FRA has identified approximately 410 small railroads that could 
potentially be affected by this proposed regulation.\83\ FRA does not 
expect this regulation to impose a significant burden on these small 
railroads. In addition, FRA does not require Tourist, Steam or Historic 
operations to meet any of the proposed requirements. As a result, 
approximately 220 very small railroad operations will incur no burden 
from this proposed rulemaking.
---------------------------------------------------------------------------

    \83\ 680 railroads--220 (tourist, steam & historic) railroads--
50 (large, medium, passenger, and commuter) railroads = 410 
railroads.
---------------------------------------------------------------------------

    Additionally, this proposed rule does not extend to contractors who 
operate historic equipment in occasional service, as long as those 
contractors have been provided with hearing protection and are required 
(where necessary) to use the hearing protection while operating the 
historic equipment. These contractors tend to work for very small 
businesses, and these contractors are likely to be current, former, or 
retired railroad employees. These operations would certainly be 
classified as small businesses. FRA does not know how many of these 
types of operations could potentially be affected by this proposed 
rule. However, since FRA's proposed regulation does not extend coverage 
to these operations, none of them will be impacted.
    FRA's proposed rule requires railroads to establish a hearing 
conservation program for railroad operating employees who have noise 
exposures that equal or exceed an 8-hour time-weighted average of 85 
dB(A), i.e., the action level. Railroad noise monitoring data \84\ 
indicates that only about 45 percent of the employee assignments would 
require inclusion in a hearing conservation program. Therefore, FRA 
expects that less than 50 percent of the affected employees on small 
railroads will be included in a hearing conservation program. FRA 
expects that after initial noise exposure monitoring, some small 
railroads will not need to establish hearing conservation programs, 
because none of their work assignments will meet or exceed the action 
level.
---------------------------------------------------------------------------

    \84\ See FRA's Regulatory Impact Analysis, Appendix C.
---------------------------------------------------------------------------

    This proposed rule contains a few reporting and recordkeeping 
requirements. The requirements primarily involve records that are 
needed for medical purposes, compliance assessment, and program 
evaluation.
    The impacts of this proposed rule result primarily from the 
requirements of the hearing conservation program. In general, the costs 
are proportional to the number of employees affected. Thus, the impact 
on small entities (which have fewer employees) should be less than that 
on medium and large railroads. In addition, most large and some medium 
railroads currently have voluntary and/or OSHA hearing conservation 
programs, which eases compliance with this proposed rule. FRA 
anticipates that the burdens will result from developing hearing 
conservation programs, conducting noise monitoring, providing hearing 
protectors, and maintaining locomotives in response to excessive noise 
reports.
    The two requirements that have the greatest impact are (1) the 
audiometric testing requirement and (2) the training requirement. FRA's 
proposed audiometric testing program section requires railroads to 
establish and maintain an audiometric testing program for employees 
that are covered by the hearing conservation program. It requires 
railroads to establish a baseline audiogram and then to conduct 
periodic audiograms. It also specifies requirements for conducting, 
evaluating, and following-up with the audiograms. FRA estimates that 
the average cost of audiograms (i.e., hearing tests) is $40 each, and 
that each audiogram will take an average of 25 minutes. FRA also 
proposes to require railroads to conduct periodic audiometric testing 
of covered employees at least once every three years. FRA requires 
railroads to offer audiograms to all covered employees annually.
    FRA's training program, in general, is similar to OSHA's hearing 
conservation training program. FRA requires each employee to complete 
the hearing training program at least once every three years. By 
contrast, OSHA requires employees to complete a hearing training 
program at least once a year. FRA's triennial training requirement is 
consistent with OSHA's triennial audiometric testing requirement. FRA 
anticipates that the American Short Line and Regional Railroad 
Association (ASLRRA) will develop a generic training program for its 
members, which will ease the burden on small entities.
    With respect to compliance, smaller railroads will have more time 
to comply. Railroads with less than 400,000 employee hours will receive 
additional time to comply with the three most significant burdens and 
costs. First, these railroads will have an additional 18 months to 
establish hearing conservation programs. Second, these railroads will 
have an additional year (12 months) to establish valid baseline 
audiograms for employees that have been placed in the FRA hearing

[[Page 35178]]

conservation program. Third, these railroads will have an additional 
year (12 months) to establish hearing conservation training programs.
    The rulemaking process for this proposed rule included outreach to 
small entities. This NPRM was produced in conjunction with the Railroad 
Safety Advisory Committee (RSAC). Representation on RSAC included the 
ASLRRA.
    The IRFA concludes that this proposed rule will not have a 
significant economic impact on a substantial number of small entities. 
In order to determine the significance of the economic impact for the 
final rule's Regulatory Flexibility Assessment (RFA), FRA will review 
the comments from all interested parties on the potential economic 
impact on small entities of this proposed rulemaking. FRA will consider 
the comments, or lack thereof, when making a decision on the RFA for 
the final rule.
    As noted above, Executive Order No. 13272 requires Federal agencies 
to notify SBA Office of Advocacy of any of its draft rules that would 
have a significant economic impact on a substantial number of small 
entities. Since FRA has determined that this proposed rule will not 
have significant impact on a substantial number of small entities, FRA 
has not provided notification to SBA.

C. Paperwork Reduction Act of 1995

    The information collection requirements in this proposed rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. 
The sections that contain the new information collection requirements 
and the estimated time to fulfill each requirement are as follows:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Total annual        Average time per     Total annual burden
          CFR Section--49            Respondent universe        responses             response                hours           Total annual burden cost
--------------------------------------------------------------------------------------------------------------------------------------------------------
227.13--Waivers...................  460 Railroads.......  5 petitions.........  1 hour..............  5...................  $175
227.103--Noise Monitoring Program.  460 Railroads.......  460 programs........  2 hours/8 hours/600   5,165...............  0 (incl in RIA)
                                                                                 hours.
    --Notification to Employee of   460 Railroads.......  905 lists...........  30 minutes..........  453.................  15,855
     Monitoring.
127.107--Hearing Conservation       460 Railroads.......  461 HCPs............  150 hrs/2 hrs/31 hrs/ 2,875...............  0 (incl. in RIA)
 Program (HCP).                                                                  7.5 hours.
227.109--Audiometric Testing Prog.- 78,000 Employees....  60,000 audiogram +    7 min/25 min........  7,000 + 7,500.......  0 (incl. in RIA)
 Existing Empl..                                           18,000 audiogram.
    --Periodic Audiograms.........  78,000 Employees....  8,000 audiograms....  25 minutes..........  3,333...............  0 (incl. in RIA)
    --Evaluation of Audiograms....  78,000 Employees....  2,000 evaluations +   6 min/2.5 hours.....  1,250...............  0 (incl. in RIA)
                                                           420 retests.
    --Problem Audiograms..........  8,000 Employees.....  450 documents.......  10 minutes..........  8...................  280
    --Follow-up Procedures--        8,000 Employees.....  280 notifications...  15 minutes..........  70..................  2,450
     Notifications.
    --Fitting/Training of           240 Employees.......  240 training sess...  2 minutes...........  8...................  0 (incl. in RIA)
     Employees: Hearing Protectors.
    --Referrals For Clinical/       240 Employees.......  20 referrals/result.  2 hours.............  40..................  4,800
     Otological Examinations.
    --Notification to Employee of   240 Employees.......  20 notifications....  5 minutes...........  2...................  70
     Need: Otological Exam.
    --New Audiometric               240 Employees.......  20 notifications....  20 notifications....  2...................  70
     Interpretation.
227.111--Audiometric Test           1,000 Mobile Vans...  1,000 tests.........  45 minutes..........  750.................  52,500
 Requirements.
227.117--Hearing Protection         460 Railroads.......  50 evaluations......  30 minutes..........  25..................  1,750
 Attenuation--Evaluation.
    --Re-Evaluations..............  460 Railroads.......  10 re-evaluations...  30 minutes..........  5...................  350
227.119--Hearing Conservation       460 Railroads.......  461 programs........  8 hours/2 hours/116   891.................  0 (incl. in RIA)
 Training Prog--Development.                                                     hours/.75 hour.
    --Employee Training...........  460 Railroads.......  18,000 trained        30 minutes..........  9,000...............  0 (incl. in RIA)
                                                           employees.
227.121--Record Keeping--           460 Railroads.......  10 requests + 10      10 min. + 15 min....  4...................  104
 Authorization: Records.                                   responses.
229.121--Locomotive Cab Noise--     3 Equipment Manuf...  700 tests/certic....  40 min. + 5 min.....  111.................  7,770
 Tests/Certifications.
    --Equipment Maintenance:        460 Railroads.......  3,000 reports +       10 min + 5min.......  750.................  21,750
     Excessive Noise Reports.                              3,000 records.
    --Maintenance Records.........  460 Railroads.......  2,250 records.......  8 minutes...........  300.................  0 (incl. in RIA)
    --Internal Auditable            460 Railroads.......  460 systems.........  36 min. +8.25 hour..  506.................  0 (incl. in RIA)
     Monitoring Systems.
Appendix H--Static Test Protocols/  700 Locomotives.....  2 retests + 2 rec...  35 min. + 5 min.....  1...................  0 (incl. in RIA)
 Records.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. Pursuant to 44 U.S.C. 
3506(c)(2)(B), FRA solicits comments concerning: Whether these 
information collection requirements are necessary for the proper 
performance of the functions of FRA, including whether the information 
has practical utility; the accuracy of FRA's estimates of the burden of 
the information collection requirements; the quality, utility, and 
clarity of the information to be collected; and whether the burden of 
collection of information on those who are to respond, including 
through the use of automated collection techniques or other forms of 
information technology, may be minimized. For information or a copy of 
the paperwork package submitted to OMB, contact Mr. Robert Brogan, 
Information Clearance Officer, at 202-493-6292.
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to Mr. Robert 
Brogan, Federal Railroad Administration, 1120 Vermont Avenue, NW., Mail 
Stop 17, Washington, DC 20590. Comments may also be submitted via e-
mail to Mr. Brogan at the following address: [email protected].
    OMB is required to make a decision concerning the collection of 
information requirements contained in this proposed rule between 30 and 
60 days after publication of this document in the Federal Register. 
Therefore, a comment

[[Page 35179]]

to OMB is best assured of having its full effect if OMB receives it 
within 30 days of publication. The final rule will respond to any OMB 
or public comments on the information collection requirements contained 
in this proposal.
    FRA is not authorized to impose a penalty on persons for violating 
information collection requirements which do not display a current OMB 
control number, if required. FRA intends to obtain current OMB control 
numbers for any new information collection requirements resulting from 
this rulemaking action prior to the effective date of a final rule. The 
OMB control number, when assigned, will be announced by separate notice 
in the Federal Register.

D. Federalism Implications

    FRA has analyzed this proposed rule in accordance with the 
principles and criteria contained in Executive Order 13132 issued on 
August 4, 1999, which directs Federal agencies to exercise great care 
in establishing policies that have federalism implications. See 64 FR 
43255.
    The RSAC, which recommended the proposed rule, has as permanent 
members two organizations representing State and local interests: the 
American Association of State Highway and Transportation Officials 
(AASHTO) and the Association of State Rail Safety Managers (ASRSM). The 
RSAC regularly provides recommendations to the FRA Administrator for 
solutions to regulatory issues that reflect significant input from its 
State members. From the absence of further comment from these 
representatives, or of any other representatives of State government, 
FRA concludes that this proposed rule has no federalism implications.

E. Environmental Impact

    FRA has evaluated these regulations in accordance with its 
procedures for ensuring full consideration of the environmental impact 
of FRA actions, as required by the National Environmental Policy Act 
(42 U.S.C. 4321 et seq.), other environmental statutes, Executive 
Orders, and DOT Order 5610.1c. This proposed rule meets the criteria 
that establish this as a non-major action for environmental purposes.

F. Unfunded Mandates Reform Act of 1995

    Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless 
otherwise prohibited by law, assess the effects of Federal regulatory 
actions on State, local, and tribal governments, and the private sector 
(other than to the extent that such regulations incorporate 
requirements specifically set forth in law).'' Section 202 of the Act 
(2 U.S.C. 1532) further requires that ``before promulgating any general 
notice of proposed rulemaking that is likely to result in the 
promulgation of any rule that includes any Federal mandate that may 
result in the expenditure by State, local, and tribal governments, in 
the aggregate, or by the private sector, of $100,000,000 or more 
(adjusted annually for inflation) in any 1 year, and before 
promulgating any final rule for which a general notice of proposed 
rulemaking was published, the agency shall prepare a written 
statement'' detailing the effect on State, local, and tribal 
governments and the private sector. This proposed rule will not result 
in the expenditure, in the aggregate, of $100,000,000 or more in any 
one year, and thus preparation of such a statement is not required.

G. Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a 
Statement of Energy Effects for any ``significant energy action.'' See 
66 FR 28355; May 22, 2001. Under the Executive Order a ``significant 
energy action'' is defined as any action by an agency that promulgates 
or is expected to lead to the promulgation of a final rule or 
regulation, including notices of inquiry, advance notices of proposed 
rulemaking, and notices of proposed rulemaking: (1)(i) That is a 
significant regulatory action under Executive Order 12866 or any 
successor order, and (ii) is likely to have a significant adverse 
effect on the supply, distribution, or use of energy; or (2) that is 
designated by the Administrator of the Office of Information and 
Regulatory Affairs as a significant energy action. FRA has evaluated 
this final rule in accordance with Executive Order 13211. FRA has 
determined that this proposed rule is not likely to have a significant 
adverse effect on the supply, distribution, or use of energy. 
Consequently, FRA has determined that this proposed rule is not a 
``significant energy action'' within the meaning of the Executive 
Order.

H. Privacy Act

    Anyone is able to search the electronic form of all comments 
received into any of DOT's dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc). You may review DOT's 
complete Privacy Act Statement published in the Federal Register on 
April 11, 2000 (Volume 65, Number 70, Pages 19477-78) or you may visit 
http://dms.dot.gov.

List of Subjects

49 CFR Part 227

    Locomotives, Noise control, Occupational safety and health, 
Penalties, Railroad safety, Reporting and recordkeeping requirements.

49 CFR Part 229

    Locomotives, Penalties, Railroad safety, Reporting and 
recordkeeping requirements.

The Proposed Rule

    In consideration of the foregoing chapter II, subtitle B of title 
49, Code of Federal Regulations is amended as follows:

PART 227--OCCUPATIONAL NOISE EXPOSURE

    1. Part 227 is added to read as follows:

Subpart A--General
Sec.
227.1 Purpose and scope.
227.3 Application.
227.5 Definitions.
227.7 Preemptive effect.
227.9 Penalties.
227.11 Responsibility for compliance.
227.13 Waivers.
227.15 Information collection.
Subpart B--Occupational Noise Exposure for Railroad Operating Employees
227.101 Scope.
227.103 Noise monitoring program.
227.105 Protection of Employees.
227.107 Hearing conservation program.
227.109 Audiometric testing program.
227.111 Audiometric test requirements.
227.113 Noise operational controls.
227.115 Hearing protectors.
227.117 Hearing protector attenuation.
227.119 Training program.
227.121 Recordkeeping.

Appendix A to Part 227--Noise Exposure Computation
Appendix B to Part 227--Methods for Estimating the Adequacy of 
Hearing Protector Attenuation
Appendix C to Part 227--Audiometric Measuring Instruments
Appendix D to Party 227--Audiometric Test Rooms
Appendix E to Part 227--Acoustic Calibration of Audiometers
Appendix F to Part 227--Calculations and Application of Age 
Corrections to Audiograms
Appendix G to Part 227--Monitoring Noise Levels
Appendix H to Part 227--Schedule of Civil Penalties [Reserved]

    Authority: 49 U.S.C. 20103, 20103 (note), 20701-20702; 49 CFR 
1.49.

[[Page 35180]]

Subpart A--General


Sec.  227.1  Purpose and scope.

    (a) The purpose of this part is to protect the occupational health 
and safety of employees whose predominant noise exposure occurs in the 
locomotive cab.
    (b) This part prescribes minimum Federal health and safety 
standards for specified workplace safety subjects. This part does not 
restrict a railroad or railroad contractor from adopting and enforcing 
additional or more stringent requirements.


Sec.  227.3  Application.

    (a) Except as provided in paragraph (b) of this section, this part 
applies to all railroads.
    (b) This part does not apply to--
    (1) A railroad that operates only on track inside an installation 
that is not part of the general railroad system of transportation;
    (2) A rapid transit operation in an urban area that is not 
connected to the general railroad system of transportation;
    (3) A railroad that operates tourist, scenic, historic, or 
excursion operations, whether on or off the general railroad system of 
transportation; or
    (4) Employees of a foreign railroad whose primary reporting point 
is outside the U.S. while operating trains or conducting switching 
operations in the U.S. if: the government of that foreign railroad has 
implemented requirements for hearing conservation for railroad 
employees; the foreign railroad undertakes to comply with those 
requirements while operating within the U.S.; and FRA's Associate 
Administrator for Safety determines that the foreign requirements are 
consistent with the purpose and scope of this part 227. A ``foreign 
railroad'' refers to a railroad that is incorporated in a place outside 
the United States and is operated out of a foreign country but operates 
for some distance in the U.S.


Sec.  227.5  Definitions.

    As used in this part--
    Action level means an eight-hour time-weighted-average sound level 
(TWA) of 85 dB(A), or, equivalently, a dose of 50 percent, integrating 
all sound levels from 80 dB(A) to 130 dB(A).
    Administrator means the Administrator of the Federal Railroad 
Administration or the Administrator's delegate.
    Artifact means any signal received or recorded by a noise measuring 
instrument that is not related to occupational noise exposure and may 
adversely impact the accuracy of the occupational noise measurement.
    Audiologist means a professional, specializing in the study and 
rehabilitation of hearing, who is certified by the American Speech-
Language-Hearing Association (ASHA), or licensed by a state board of 
examiners.
    Baseline audiogram means an audiogram, recorded in accordance with 
Sec.  227.109, against which subsequent audiograms are compared to 
determine the extent of change of hearing level.
    Class I, Class II, and Class III railroads have the meaning 
assigned by the regulations of the Surface Transportation Board (49 CFR 
part 120; General Instructions 1-1).
    Continuous noise means variations in sound level that involve 
maxima at intervals of 1 second or less.
    Decibel (dB) means a unit of measurement of sound pressure levels.
    dB(A) means the sound pressure level in decibels measured on the A-
weighted scale.
    Employee means any individual who is engaged or compensated by a 
railroad or by a contractor to a railroad to perform any of the duties 
defined in this part.
    Exchange rate means the change in sound level, in decibels, which 
would require halving or doubling of the allowable exposure time to 
maintain the same noise dose. For purposes of this part, the exchange 
rate is 5 decibels.
    FRA means the Federal Railroad Administration.
    Hearing protector means any device or material, which is capable of 
being worn on the head or in the ear canal, is designed wholly or in 
part to reduce the level of sound entering the ear, and has a 
scientifically accepted indicator of its noise reduction value.
    Hertz (Hz) means a unit of measurement of frequency numerically 
equal to cycles per second.
    Medical pathology means a condition or disease affecting the ear, 
which is medically or surgically treatable.
    Noise operational controls means a method used to reduce noise 
exposure, other than hearing protectors or equipment modifications, by 
reducing the time a person is exposed to excessive noise.
    Occasional service means service of not more than a total of 20 
days in a calendar year.
    Otolaryngologist means a physician specializing in diagnosis and 
treatment of disorders of the ear, nose, and throat.
    Periodic audiogram is a follow-up audiogram conducted at regular 
intervals after the baseline audiogram.
    Person means an entity of any type covered under 1 U.S.C. 1, 
including but not limited to the following: A railroad; a manager, 
supervisor, official, or other employee or agent of a railroad; an 
owner, manufacturer, lessor, or lessee of railroad equipment, track, or 
facilities; an independent contractor providing goods or services to a 
railroad; and any employee of such owner, manufacturer, lessor, lessee, 
or independent contractor.
    Railroad means any form of non-highway ground transportation that 
runs on rails or electromagnetic guide-ways and any entity providing 
such transportation, including:
    (1) Commuter or other short-haul railroad passenger service in a 
metropolitan or suburban area and commuter railroad service that was 
operated by the Consolidated Rail Corporation on January 1, 1979; and
    (2) High speed ground transportation systems that connect 
metropolitan areas, without regard to whether those systems use new 
technologies not associated with traditional railroads. The term 
``railroad'' is also intended to mean a person that provides 
transportation by railroad, whether directly or by contracting out 
operation of the railroad to another person. The term does not include 
rapid transit operations in an urban area that are not connected to the 
general railroad system of transportation.
    Representative personal sampling means measurement of an employee's 
noise exposure that is representative of the exposures of other 
employees who operate similar equipment under similar conditions.
    Sound level or Sound pressure level means ten times the common 
logarithm of the ratio of the square of the measured A-weighted sound 
pressure to the square of the standard reference pressure of twenty 
micropascals, measured in decibels. For purposes of this part, SLOW 
time response, in accordance with American National Standard (ANSI) 
S1.43-1997 or its successor, is required.
    Standard threshold shift means a change in hearing sensitivity for 
the worse, relative to the baseline audiogram, or relative to the most 
recent revised baseline (where one has been established), of an average 
of 10 dB or more at 2000, 3000, and 4000 Hz in either ear.
    Time-weighted-average eight-hour (or 8-hour TWA) means the sound 
level, which, if constant over 8 hours, would result in the same noise 
dose as is measured. For purposes of this part, the exchange rate is 5 
decibels.
    Tourist, scenic, historic, or excursion operations means railroad 
operations that carry passengers, often using antiquated equipment, 
with the

[[Page 35181]]

conveyance of the passengers to a particular destination not being the 
principal purpose.


Sec.  227.7  Preemptive effect.

    Under 49 U.S.C. 20106, issuance of the regulations in this part 
preempts any State law, regulation, or order covering the same subject 
matter, except an additional or more stringent law, regulation, or 
order that is necessary to eliminate or reduce an essentially local 
safety hazard; is not incompatible with a law, regulation, or order of 
the United States Government; and does not impose an unreasonable 
burden on interstate commerce.


Sec.  227.9  Penalties.

    (a) Any person who violates any requirement of this part or causes 
the violation of any such requirement is subject to a civil penalty of 
at least $500 and not more than $11,000 per violation, except that: 
Penalties may be assessed against individuals only for willful 
violations, and, where a grossly negligent violation or a pattern of 
repeated violations has created an imminent hazard of death or injury 
to persons, or has caused death or injury, a penalty not to exceed 
$22,000 per violation may be assessed. Each day a violation continues 
shall constitute a separate offense. See Appendix H to this part for a 
statement of agency civil penalty policy.
    (b) Any person who knowingly and willfully falsifies a record or 
report required by this part may be subject to criminal penalties under 
49 U.S.C. 21311.


Sec.  227.11  Responsibility for compliance.

    Although the duties imposed by this part are generally stated in 
terms of the duty of a railroad, any person, including a contractor for 
a railroad, who performs any function covered by this part must perform 
that function in accordance with this part.


Sec.  227.13  Waivers.

    (a) A person subject to a requirement of this part may petition the 
Administrator for a waiver of compliance with such requirement. The 
filing of such a petition does not affect that person's responsibility 
for compliance with that requirement while the petition is being 
considered.
    (b) Each petition for waiver under this section must be filed in 
the manner and contain the information required by 49 CFR part 211.
    (c) If the Administrator finds that a waiver of compliance is in 
the public interest and is consistent with railroad safety, the 
Administrator may grant the waiver subject to any conditions the 
Administrator deems necessary.


Sec.  227.15  Information collection.

    (a) The information collection requirements of this part were 
reviewed by the Office of Management and Budget pursuant to the 
Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.) and are 
assigned OMB control number 2130-NEW.
    (b) The information collection requirements are found in the 
following sections: Sec. Sec.  227.13, 227.103, 227.107, 227.109, 
227.111, 227.117, 227.119, and 227.121.

Subpart B--Occupational Noise Exposure for Railroad Operating 
Employees


Sec.  227.101  Scope.

    (a) This subpart shall apply to the working conditions of--
    (1) Any person who regularly performs service subject to the 
provisions of the hours of service laws governing ``train employees'' 
(see 49 U.S.C. 21101(5) and 21103), but does not apply to:
    (i) Employees who move locomotives only within the confines of 
locomotive repair or servicing areas, as provided in 49 CFR 218.5 and 
218.29(a), or
    (ii) Employees who move a locomotive or group of locomotives for 
distances of less than 100 feet and this incidental movement of a 
locomotive or locomotives is for inspection or maintenance purposes, or
    (iii) Contractors who operate historic equipment in occasional 
service, provided that the contractors have been provided with hearing 
protectors and, where necessary, are required to use the hearing 
protectors while operating the historic equipment;
    (2) Any direct supervisor of the persons described in paragraph 
(a)(1) of this section whose duties require frequent work in the 
locomotive cab; and
    (3) At the election of the railroad, any other person (including a 
person excluded by paragraph (a)(1) of this section) whose duties 
require frequent work in the locomotive cab and whose primary noise 
exposure is reasonably expected to be experienced in the cab, if the 
position occupied by such person is designated in writing by the 
railroad, as required by Sec.  227.121(d).
    (b) Occupational noise exposure and hearing conservation for 
employees not covered by this subpart is governed by the appropriate 
occupational noise exposure regulation of the U.S. Department of Labor, 
Occupational Safety and Health Administration (29 CFR part 1910).


Sec.  227.103  Noise monitoring program.

    (a) No later than [12 months after the effective date of the final 
rule] for class 1, passenger, and commuter railroads; [18 months after 
the effective date of the final rule] for railroads with 400,000 or 
more employee hours; and [30 months after the effective date of the 
final rule] for railroads with fewer than 400,000 employee hours, each 
railroad shall develop and implement a noise monitoring program to 
determine whether any employee covered by the scope of this subpart may 
be exposed to noise that may equal or exceed an 8-hour TWA of 85 dB(A).
    (b) Sampling strategy. (1) In its monitoring program, the railroad 
shall use a sampling strategy that is designed to identify employees 
for inclusion in the hearing conservation program and to enable the 
proper selection of hearing protection.
    (2) Where circumstances such as high worker mobility, significant 
variations in sound level, or a significant component of impulse noise 
make area monitoring generally inappropriate, the railroad shall use 
representative personal sampling to comply with the monitoring 
requirements of this section, unless the railroad can show that area 
sampling produces equivalent results.
    (c) Noise measurements. (1) All continuous, intermittent, and 
impulse sound levels from 80 decibels to 130 decibels shall be 
integrated into the noise measurements.
    (2) Noise measurements shall be made under typical operating 
conditions using a sound level meter conforming, at a minimum, to the 
requirements of ANSI S1.4-1983 (R2001), Type 2, and set to an A-
weighted SLOW response; or using an integrated sound level meter 
conforming, at a minimum, to the requirements of ANSI S1.43-1997 
(R2002), Type 2, and set to an A-weighted SLOW response; or using a 
noise dosimeter conforming, at a minimum, to the requirements of ANSI 
1.25-1991 (R2002), and set to an A-weighted SLOW response.
    (3) All instruments used to measure employee noise exposure shall 
be calibrated to ensure accurate measurements.
    (d) The railroad shall repeat noise monitoring, consistent with the 
requirements of this section, whenever a change in operations, process, 
equipment, or controls increases noise exposures to the extent that:
    (1) Additional employees may be exposed at or above the action 
level; or
    (2) The attenuation provided by hearing protectors being used by 
employees may be inadequate to meet the requirements of this section.

[[Page 35182]]

    (e) In administering the monitoring program, the railroad shall 
take into consideration the identification of work environments where 
the use of hearing protectors may be omitted.
    (f) Observation of monitoring. The railroad shall provide affected 
employees or their representatives with an opportunity to observe any 
noise dose measurements conducted pursuant to this section.
    (g) Reporting of monitoring results.
    (1) The railroad shall notify each monitored employee of the 
results of the monitoring.
    (2) The railroad shall post the monitoring results at the 
appropriate crew origination point for a minimum of 30 days. The 
posting should include sufficient information to permit other crews to 
understand the meaning of the results in the context of the operations 
monitored.


Sec.  227.105  Protection of employees.

    (a) A railroad shall provide appropriate protection for its 
employees who are exposed to noise that exceeds the limits of those 
shown in Table 1 of this section, as measured on the dB(A) scale as set 
forth in appendix A of this part.
    (b) In assessing whether exposures exceed 115 dB(A), as set forth 
in paragraph (a) and Table 1 of this section, the apparent source of 
the noise exposures shall be noted and measurement artifacts may be 
removed.
    (c) Except as set forth in paragraph (d) of this section, exposure 
to continuous noise shall not exceed 115dB(A).
    (d) Exposures to continuous noise greater than 115 dB(A) and equal 
to or less than 120dB(A) are permissible, so long as the total daily 
duration does not exceed 5 seconds.

                Table 1.--Permissible Noise Exposures \1\
------------------------------------------------------------------------
          Duration permitted in hours              Sound level in dB(A)
------------------------------------------------------------------------
16.............................................                       85
12.............................................                       87
8..............................................                       90
6..............................................                       92
4..............................................                       95
2..............................................                      100
1..............................................                      105
\1/2\..........................................                      110
\1/4\ or less..................................                      115
------------------------------------------------------------------------

Sec.  227.107  Hearing conservation program.

    Consistent with the requirements of the noise monitoring program, 
the railroad shall administer a continuing, effective hearing 
conservation program, as set forth in Sec.  227.121, for all employees 
exposed to noise at or above the action level. For purposes of the 
hearing conservation program, employee noise exposure shall be computed 
in accordance with Table 1 in Sec.  227.105 and with the tables in 
Appendix A of this part, and without regard to any attenuation provided 
by the use of hearing protectors.\1\
---------------------------------------------------------------------------

    \1\ When the daily dose noise exposure is composed of two or 
more periods of noise exposure of different levels, their combined 
effect should be considered, rather than the individual effect of 
each. If the sum of the following fractions: C1/T1+C2/T2 Cn/Tn 
exceeds unity, then the mixed exposure should be considered to 
exceed the limit value. Cn indicates the total time of exposure at a 
specified noise level, and Tn indicates the total time of exposure 
permitted at that level. Exposure to impulsive or impact noise 
should not exceed 140 dB peak sound pressure level.
---------------------------------------------------------------------------


Sec.  227.109  Audiometric testing program.

    (a) Each railroad shall establish and maintain an audiometric 
testing program as set forth in this section by making audiometric 
testing available to all its employees who are required to be included 
in a hearing conservation program pursuant to Sec.  227.107.
    (b) Cost. The audiometric tests shall be provided at no cost to 
employees.
    (c) Tests. Audiometric tests shall be performed by:
    (1) A licensed or certified audiologist, otolaryngologist, or other 
physician; or
    (2) By a qualified technician who is certified by the Council of 
Accreditation in Occupational Hearing Conservation or any equivalent 
organization; or has satisfactorily demonstrated competence in 
administering audiometric examinations, obtaining valid audiograms, and 
properly using, maintaining, and checking calibration and proper 
functioning of the audiometers being used. A technician who performs 
audiometric tests must be responsible to an audiologist, 
otolaryngologist or physician.
    (d) Instruments. All audiograms obtained pursuant to this section 
shall be obtained with instruments that meet the requirements of 
appendix C of this part: Audiometric Measuring Instruments.
    (e) Baseline audiogram. This paragraph applies to employees who are 
required by Sec.  227.107 to be included in a hearing conservation 
program as of [the effective date of the final rule].
    (1) New employees. Except as provided in paragraph (e)(1)(i) of 
this section, the railroad shall establish a valid baseline audiogram 
within 6 months of the new employee's first tour of duty.
    (i) Mobile test van exception. Where mobile test vans are used to 
meet the baseline audiogram requirement for new employees, the railroad 
shall obtain a valid baseline audiogram within 1 year of the new 
employee's first tour of duty.
    (ii) [Reserved]
    (2) Existing employees. (i) If the employee has not had a baseline 
audiogram as of [the effective date of the final rule], the railroad 
shall establish a valid baseline audiogram within two years of [the 
effective date of the final rule]. Railroads with less than 400,000 
employee hours shall do so within 3 years.
    (ii) If the employee has had a baseline audiogram as of [the 
effective date of the final rule] and it was obtained under conditions 
that satisfy the requirements found in 29 CFR 1910.95(h), the railroad 
must use that baseline audiogram.
    (iii) If the employee has had a baseline audiogram as of [the 
effective date of the final rule], and it was obtained under conditions 
that satisfy the requirements in 29 CFR 1910.95(h)(1), but not the 
requirements found in 29 CFR 1910.95(h)(2) through (h)(5), the railroad 
may elect to use that baseline audiogram as long as the individual 
administering the Hearing Conservation Program makes a reasonable 
determination that the baseline audiogram is valid and is clinically 
consistent with the other materials in the employee's medical file.
    (3) Testing to establish a baseline audiogram shall be preceded by 
at least 14 hours without exposure to occupational noise in excess of 
the level specified in Sec.  227.115. Hearing protectors may be used as 
a substitute for the requirement that baseline audiograms be preceded 
by 14 hours without exposure to workplace noise.
    (4) The railroad shall notify its employees of the need to avoid 
high levels of non-occupational noise exposure during the 14-hour 
period immediately preceding the audiometric examination.
    (f) Periodic audiogram. (1) At least once a year after obtaining 
the baseline audiogram, the railroad shall offer an audiometric test to 
each employee included in the hearing conservation program.
    (2) At least once every three years, the railroad shall require 
each employee included in the hearing conservation program to take an 
audiometric test.
    (g) Evaluation of audiogram. (1) Each employee's periodic audiogram 
shall be compared to that employee's baseline audiogram to determine if 
the audiogram is valid and to determine if a standard threshold shift 
has occurred. This comparison may be done by a technician.
    (2) If the periodic audiogram demonstrates a standard threshold 
shift, a railroad may obtain a retest within 90

[[Page 35183]]

days. The railroad may consider the results of the retest as the 
periodic audiogram.
    (3) The audiologist, otolaryngologist, or physician shall review 
problem audiograms and shall determine whether there is a need for 
further evaluation. A railroad shall provide all of the following 
information to the person performing this evaluation:
    (i) The baseline audiogram of the employee to be evaluated;
    (ii) The most recent audiogram of the employee to be evaluated;
    (iii) Measurements of background sound pressure levels in the 
audiometric test room as required in appendix D of this part: 
Audiometric Test Rooms; and
    (iv) Records of audiometer calibrations required by Sec.  227.111.
    (h) Follow-up procedures. (1) If a comparison of the periodic 
audiogram to the baseline audiogram indicates that a standard threshold 
shift has occurred, the railroad shall inform the employee in writing 
within 30 days of the determination.
    (2) Unless a physician or audiologist determines that the standard 
threshold shift is not work-related or aggravated by occupational noise 
exposure, the railroad shall ensure that the following steps are taken:
    (i) Employees not using hearing protectors shall be fitted with 
hearing protectors, shall be trained in their use and care, and shall 
be required to use them.
    (ii) Employees already provided with hearing protectors shall be 
refitted, shall be retrained in the use of hearing protectors offering 
greater attenuation, if necessary, and shall be required to use them.
    (iii) If subsequent audiometric testing is necessary or if the 
railroad suspects that a medical pathology of the ear is caused or 
aggravated by the wearing of hearing protectors, the railroad shall 
refer the employee for a clinical audiological evaluation or an 
otological examination.
    (iv) If the railroad suspects that a medical pathology of the ear 
unrelated to the use of hearing protectors is present, the railroad 
shall inform the employee of the need for an otological examination.
    (3) If subsequent audiometric testing of an employee whose exposure 
to noise is less than an 8-hour TWA of 90 decibels indicates that a 
standard threshold shift is not persistent, the railroad shall inform 
the employee of the new audiometric interpretation and may discontinue 
the required use of hearing protectors for that employee.
    (i) Revised baseline. A periodic audiogram may be substituted for 
the baseline measurement by the audiologist, otolaryngologist, or 
physician who is evaluating the audiogram if:
    (1) The standard threshold shift revealed by the audiogram is 
persistent; or
    (2) The hearing threshold shown in the periodic audiogram indicates 
significant improvement over the baseline audiogram.
    (j) Standard threshold shift. In determining whether a standard 
threshold shift has occurred, allowance may be made for the 
contribution of aging (presbycusis) to the change in hearing level by 
correcting the annual audiogram according to the procedure described in 
appendix F of this part: Calculation and Application of Age Correction 
to Audiograms.


Sec.  227.111  Audiometric test requirements.

    (a) Audiometric tests shall be pure tone, air conduction, hearing 
threshold examinations, with test frequencies including 500, 1000, 
2000, 3000, 4000, and 6000 Hz. Tests at each frequency shall be taken 
separately for each ear.
    (b) Audiometric tests shall be conducted with audiometers 
(including microprocessor audiometers) that meet the specifications of 
and are maintained and used in accordance with ANSI S3.6-1996 
``Specification for Audiometers'' or its successor, which is 
incorporated by reference.
    (c) Pulsed-tone and self-recording audiometers, where used, shall 
meet the requirements specified in appendix C of this part: Audiometric 
Measuring Instruments.
    (d) Audiometric examinations shall be administered in a room 
meeting the requirements listed in appendix D of this part: Audiometric 
Test Rooms.
    (e) Audiometer calibration. (1) The functional operation of the 
audiometer shall be checked before each day's use by testing a person 
with known, stable hearing thresholds or by appropriate calibration 
device, and by listening to the audiometer's output to make sure that 
the output is free from distorted or unwanted sounds. Deviations of 10 
decibels or greater require an acoustic calibration.
    (2) Audiometer calibration shall be checked acoustically at least 
annually in accordance with appendix E of this part: Acoustic 
Calibration of Audiometers. Test frequencies below 500 Hz and above 
6000 Hz may be omitted from this check. Deviations of 15 decibels or 
greater require an exhaustive calibration.
    (3) Except for audiometers used in mobile test vans, an exhaustive 
calibration shall be performed at least every two years in accordance 
with the ANSI S3.6-1996 ``Specification for Audiometers'' or its 
successor. Test frequencies below 500 Hz and above 6000 Hz may be 
omitted from this calibration. For audiometers used in mobile test 
vans, the exhaustive calibration shall be performed annually.


Sec.  227.113  Noise operational controls.

    When employees are exposed to sound exceeding an 8-hour TWA of 90 
dB(A), the railroad may use noise operational controls to reduce 
exposures below those required by Table 1 of Sec.  227.105.


Sec.  227.115  Hearing protectors.

    (a) When employees are exposed to sound exceeding an 8-hour TWA of 
90 dB(A), the railroad shall require that hearing protectors be 
utilized to reduce exposures below those required by Table 1 of Sec.  
227.105.
    (b) A railroad shall make hearing protectors available to all of 
its employees exposed to noise at or above the action level, at no cost 
to the employees.
    (1) Hearing protectors shall be replaced as necessary.
    (2) When offering hearing protectors, a railroad shall consider an 
employee's ability to understand and respond to voice radio 
communications and audible warnings.
    (c) A railroad shall require the use of hearing protectors when:
    (1) The employee is exposed to sound exceeding an 8-hour TWA of 90 
dB(A); or
    (2) The employee is exposed to sound levels that meet or exceed the 
action level, and the employee:
    (i) Has not yet had a baseline audiogram established pursuant to 
Sec.  227.109; or
    (ii) Has experienced a standard threshold shift and is required to 
use hearing protectors under Sec.  227.109(h).
    (d) The railroad shall give employees the opportunity to select 
their hearing protectors from a variety of suitable hearing protectors. 
The selection shall include devices with a range of attenuation levels.
    (e) The railroad shall provide training in the use and care of all 
hearing protectors provided to employees.
    (f) The railroad shall ensure proper initial fitting and supervise 
the correct use of all hearing protectors.


Sec.  227.117  Hearing protector attenuation.

    (a) A railroad shall evaluate hearing protector attenuation for the 
specific

[[Page 35184]]

noise environments in which the protector will be used. The railroad 
shall use one of the evaluation methods described in appendix B of this 
part: Methods for Estimating the Adequacy of Hearing Protection 
Attenuation or objective measurement.
    (b) Hearing protectors shall attenuate employee exposure to an 8-
hour TWA of 90 decibels or lower, as required by Sec.  227.115.
    (c) For employees who have experienced a standard threshold shift, 
hearing protectors must attenuate employee exposure to an 8-hour time-
weighted average of 85 decibels or lower.
    (d) The adequacy of hearing protector attenuation shall be re-
evaluated whenever employee noise exposures increase to the extent that 
the hearing protectors provided may no longer provide adequate 
attenuation. A railroad shall provide more effective hearing protectors 
where necessary.


Sec.  227.119  Training program.

    (a) The railroad shall institute an occupational noise and hearing 
conservation training program for all employees included in the hearing 
conservation program.
    (1) The railroad shall offer the training program annually; and
    (2) The railroad shall require each employee to complete the 
training at least once every three years.
    (b) The railroad shall provide the training required by paragraph 
(a) of this section:
    (1) For new employees, within six months after the employee's first 
tour of duty in a position identified as within the scope of this part.
    (2) For existing employees as of [the effective date of the final 
rule], within two years of [the effective date of the final rule]. 
Railroads with fewer than 400,000 employee hours shall do so within 3 
years.
    (c) The training program shall include and the training materials 
shall reflect, at a minimum, information on all of the following:
    (1) The effects of noise on hearing;
    (2) The purpose of hearing protectors;
    (3) The advantages, disadvantages, and attenuation of various types 
of hearing protectors;
    (4) Instructions on selection, fitting, use, and care of hearing 
protectors;
    (5) The purpose of audiometric testing, and an explanation of the 
test procedures;
    (6) An explanation of noise operational controls, where used;
    (7) General information concerning the expected range of workplace 
noise exposure levels associated with major categories of railroad 
equipment and operations (e.g., switching and road assignments, hump 
yards near retarders, etc.) and appropriate reference to requirements 
of the railroad concerning use of hearing protectors;
    (8) The purpose of noise monitoring and a general description of 
monitoring procedures;
    (9) The availability of a copy of this part, an explanation of the 
requirements of this part as they affect the responsibilities of 
employees, and employees' rights to access records under this part;
    (10) How to determine what can trigger an excessive noise report, 
pursuant to 49 CFR 229.121(b); and
    (11) How to file an excessive noise report, pursuant to 49 CFR 
229.121(b).


Sec.  227.121  Recordkeeping.

    (a) General requirements. (1) Availability of records. (i) Each 
railroad required to maintain and retain records under this part shall 
make those records available for inspection and copying/photocopying 
to: the Administrator, upon request; and/or an employee, a former 
employee, or such person's representative, upon written authorization 
by such employee.
    (ii) A regional or national labor representative may request copies 
of reports for specific locations. These reports will not contain 
identifying information of an employee unless an employee authorizes 
the release of such information in writing.
    (2) Electronic records. All records required by this part may be 
kept in electronic form, if desired, by the railroad.
    (3) Transfer of records. If a railroad ceases to do business, it 
shall transfer to the successor employer all records required to be 
maintained by this section, and the successor employer shall retain 
them for the remainder of the period prescribed in this section.
    (b) Exposure measurements. The railroad shall:
    (1) Maintain an accurate record of all employee exposure 
measurements required by Sec.  227.103; and
    (2) Retain these records for at least three years.
    (c) Audiometric tests. The railroad shall:
    (1) Maintain employee audiometric test records required by Sec.  
227.109, including:
    (i) The name and job classification of the employee;
    (ii) The date of the audiogram;
    (iii) The examiner's name;
    (iv) The date of the last acoustic or exhaustive calibration of the 
audiometer;
    (v) Accurate records of the measurements of the background sound 
pressure levels in audiometric test rooms; and
    (2) Retain these records for the duration of the covered employee's 
employment.
    (d) Positions and persons designated. The railroad shall:
    (1) Maintain a record of all positions or persons or both 
designated by the railroad to be placed in a Hearing Conservation 
Program pursuant to Sec.  227.107.
    (2) Retain these records for the duration of the designation.
    (e) Training program materials. The railroad shall:
    (1) Maintain copies of all training materials used to comply with 
Sec.  227.119(c) and a record of employees trained.
    (2) Retain these records for three years.
    (f) Standard threshold shift records. The railroad shall:
    (1) Maintain a record of all employees who have been found to have 
experienced a standard threshold shift within the prior calendar year 
and include all of the following information for each employee on the 
record:
    (i) Date of the employee's baseline audiogram;
    (ii) Date of the employee's most recent audiogram;
    (iii) Date of the establishment of a standard threshold shift;
    (iv) The employee's job code; and
    (v) An indication of how many standard threshold shifts the 
employee has experienced in the past, if any.
    (2) Retain these records for five years.

Appendix A to Part 227--Noise Exposure Computation

    This appendix is mandatory.

I. Computation of Employee Noise Exposure

    (1) Noise dose is computed using Table A-1 of this appendix as 
follows:
    (i) When the sound level, L, is constant over the entire work 
shift, the noise dose, D, in percent, is given by: D=100 C/T, where 
C is the total length of the work day, in hours, and T is the 
reference duration corresponding to the measured sound level, L, as 
given in Table A-1 or by the formula shown as a footnote to that 
table.
    (ii) When the workshift noise exposure is composed of two or 
more periods of noise at different levels, the total noise dose over 
the work day is given by: D = 100 (C1/T1+C2/T2+ . . . + Cn/Tn), 
where Cn indicates the total time of exposure at a specific noise 
level, and Tn indicates the reference duration for that level as 
given by Table A-1.
    (2) The eight-hour time-weighted average sound level (TWA), in 
decibels, may be computed from the dose, in percent, by means of the 
formula: TWA=16.61 log10 (D/

[[Page 35185]]

100)+90. For an eight-hour workshift with the noise level constant 
over the entire shift, the TWA is equal to the measured sound level.
    (3) A table relating dose and TWA is given in section II of this 
appendix.

                                Table A-1
------------------------------------------------------------------------
                                                              Reference
            A-weighted sound level, L (decibel)              duration T
                                                               (hour)
------------------------------------------------------------------------
80........................................................        32
81........................................................        27.9
82........................................................        24.3
83........................................................        21.1
84........................................................        18.4
85........................................................        16
86........................................................        13.9
87........................................................        12.1
88........................................................        10.6
89........................................................         9.2
90........................................................         8
91........................................................         7.0
92........................................................         6.1
93........................................................         5.3
94........................................................         4.6
95........................................................         4
96........................................................         3.5
97........................................................         3.0
98........................................................         2.6
99........................................................         2.3
100.......................................................         2
101.......................................................         1.7
102.......................................................         1.5
103.......................................................         1.3
104.......................................................         1.1
105.......................................................         1
106.......................................................         0.87
107.......................................................         0.76
108.......................................................         0.66
109.......................................................         0.57
110.......................................................         0.5
111.......................................................         0.44
112.......................................................         0.38
113.......................................................         0.33
114.......................................................         0.29
115.......................................................         0.25
116.......................................................         0.22
117.......................................................         0.19
118.......................................................         0.16
119.......................................................         0.14
120.......................................................         0.125
121.......................................................         0.11
122.......................................................         0.095
123.......................................................         0.082
124.......................................................         0.072
125.......................................................         0.063
126.......................................................         0.054
127.......................................................         0.047
128.......................................................         0.041
129.......................................................         0.036
130.......................................................         0.031
------------------------------------------------------------------------

    In the above table the reference duration, T, is computed by
    [GRAPHIC] [TIFF OMITTED] TP23JN04.005
    
Where L is the measured A-weighted sound level.

II. Conversion Between ``Dose'' and ``8-Hour Time-Weighted Average'' 
Sound Level

    Compliance with subpart B of this part is determined by the 
amount of exposure to noise in the workplace. The amount of such 
exposure is usually measured with a dosimeter which gives a readout 
in terms of ``dose.'' In order to better understand the requirements 
of the regulation, dosimeter readings can be converted to an ``8-
hour time-weighted average sound level.'' (TWA).
    In order to convert the reading of a dosimeter into TWA, see 
Table A-2 of this appendix. This table applies to dosimeters that 
are set by the manufacturer to calculate dose or percent exposure 
according to the relationships in Table A-1. So, for example, a dose 
of 91 percent over an eight hour day results in a TWA of 89.3 dB, 
and a dose of 50 percent corresponds to a TWA of 85 dB.
    If the dose as read on the dosimeter is less than or greater 
than the values found in Table A-2, the TWA may be calculated by 
using the formula: TWA=16.61 log10 (D/100)+90 where TWA=8-hour time-
weighted average sound level and D=accumulated dose in percent 
exposure.

  Table A-2.--Conversion From ``Percent Noise Exposure'' or ``Dose'' to
           ``8-Hour Time-Weighted Average Sound Level'' (TWA)
------------------------------------------------------------------------
         Dose or percent noise exposure                    TWA
------------------------------------------------------------------------
10.............................................                     73.4
15.............................................                     76.3
20.............................................                     78.4
25.............................................                     80.0
30.............................................                     81.3
35.............................................                     82.4
40.............................................                     83.4
45.............................................                     84.2
50.............................................                     85.0
55.............................................                     85.7
60.............................................                     86.3
65.............................................                     86.9
70.............................................                     87.4
75.............................................                     87.9
80.............................................                     88.4
81.............................................                     88.5
82.............................................                     88.6
83.............................................                     88.7
84.............................................                     88.7
85.............................................                     88.8
86.............................................                     88.9
87.............................................                     89.0
88.............................................                     89.1
89.............................................                     89.2
90.............................................                     89.2
91.............................................                     89.3
92.............................................                     89.4
93.............................................                     89.5
94.............................................                     89.6
95.............................................                     89.6
96.............................................                     89.7
97.............................................                     89.8
98.............................................                     89.9
99.............................................                     89.9
100............................................                     90.0
101............................................                     90.1
102............................................                     90.1
103............................................                     90.2
104............................................                     90.3
105............................................                     90.4
106............................................                     90.4
107............................................                     90.5
108............................................                     90.6
109............................................                     90.6
110............................................                     90.7
111............................................                     90.8
112............................................                     90.8
113............................................                     90.9
114............................................                     90.9
115............................................                     91.1
116............................................                     91.1
117............................................                     91.1
118............................................                     91.2
119............................................                     91.3
120............................................                     91.3
125............................................                     91.6
130............................................                     91.9
135............................................                     92.2
140............................................                     92.4
145............................................                     92.7
150............................................                     92.9
155............................................                     93.2
160............................................                     93.4
165............................................                     93.6
170............................................                     93.8
175............................................                     94.0
180............................................                     94.2
185............................................                     94.4
190............................................                     94.6
195............................................                     94.8
200............................................                     95.0
210............................................                     95.4
220............................................                     95.7
230............................................                     96.0
240............................................                     96.3
250............................................                     96.6
260............................................                     96.9
270............................................                     97.2
280............................................                     97.4
290............................................                     97.7
300............................................                     97.9
310............................................                     98.2
320............................................                     98.4
330............................................                     98.6
340............................................                     98.8
350............................................                     99.0
360............................................                     99.2
370............................................                     99.4
380............................................                     99.6
390............................................                     99.8
400............................................                    100.0
410............................................                    100.2
420............................................                    100.4
430............................................                    100.5
440............................................                    100.7
450............................................                    100.8
460............................................                    101.0
470............................................                    101.2
480............................................                    101.3
490............................................                    101.5
500............................................                    101.6
510............................................                    101.8
520............................................                    101.9
530............................................                    102.0
540............................................                    102.2

[[Page 35186]]

 
550............................................                    102.3
560............................................                    102.4
570............................................                    102.6
580............................................                    102.7
590............................................                    102.8
600............................................                    102.9
610............................................                    103.0
620............................................                    103.2
630............................................                    103.3
640............................................                    103.4
650............................................                    103.5
660............................................                    103.6
670............................................                    103.7
680............................................                    103.8
690............................................                    103.9
700............................................                    104.0
710............................................                    104.1
720............................................                    104.2
730............................................                    104.3
740............................................                    104.4
750............................................                    104.5
760............................................                    104.6
770............................................                    104.7
780............................................                    104.8
790............................................                    104.9
800............................................                    105.0
810............................................                    105.1
820............................................                    105.2
830............................................                    105.3
840............................................                    105.4
850............................................                    105.4
860............................................                    105.5
870............................................                    105.6
880............................................                    105.7
890............................................                    105.8
900............................................                    105.8
910............................................                    105.9
920............................................                    106.0
930............................................                    106.1
940............................................                    106.2
950............................................                    106.2
960............................................                    106.3
970............................................                    106.4
980............................................                    106.5
990............................................                    106.5
999............................................                    106.6
------------------------------------------------------------------------

Appendix B to Part 227--Methods for Estimating the Adequacy of Hearing 
Protector Attenuation

    This appendix is mandatory.
    For employees who have experienced a significant threshold 
shift, hearing protector attenuation must be sufficient to reduce 
employee exposure to a TWA of 85 dB. Employers must select one of 
the following methods by which to estimate the adequacy of hearing 
protector attenuation.
    The most convenient method is the Noise Reduction Rating (NRR) 
developed by the Environmental Protection Agency (EPA). According to 
EPA regulations, the NRR must be shown on the hearing protector 
package. The NRR is then related to an individual worker's noise 
environment in order to assess the adequacy of the attenuation of a 
given hearing protector. This appendix describes four methods of 
using the NRR to determine whether a particular hearing protector 
provides adequate protection within a given exposure environment. 
Selection among the four procedures is dependent upon the employer's 
noise measuring instruments.
    Instead of using the NRR, employers may evaluate the adequacy of 
hearing protector attenuation by using one of the three methods 
developed by the National Institute for Occupational Safety and 
Health (NIOSH), which are described in the ``List of Personal 
Hearing Protectors and Attenuation Data,'' HEW Publication No. 76-
120, 1975, pages 21-37. These methods are known as NIOSH methods 
1B1, 1B2 and 1B3. The NRR described below is a simplification of 
NIOSH method 1B2. The most complex method is NIOSH method 1B1, which 
is probably the most accurate method since it uses the largest 
amount of spectral information from the individual employee's noise 
environment. As in the case of the NRR method described below, if 
one of the NIOSH methods is used, the selected method must be 
applied to an individual's noise environment to assess the adequacy 
of the attenuation. Employers should be careful to take a sufficient 
number of measurements in order to achieve a representative sample 
for each time segment.

    Note: The employer must remember that calculated attenuation 
values reflect realistic values only to the extent that the 
protectors are properly fitted and worn.

    When using the NRR to assess hearing protector adequacy, one of 
the following methods must be used:
    (i) When using a dosimeter that is capable of C-weighted 
measurements:
    (A) Obtain the employee's C-weighted dose for the entire 
workshift, and convert to TWA (see appendix A, II).
    (B) Subtract the NRR from the C-weighted TWA to obtain the 
estimated A-weighted TWA under the ear protector.
    (ii) When using a dosimeter that is not capable of C-weighted 
measurements, the following method may be used:
    (A) Convert the A-weighted dose to TWA (see appendix A).
    (B) Subtract 7 dB from the NRR.
    (C) Subtract the remainder from the A-weighted TWA to obtain the 
estimated
    A-weighted TWA under the ear protector.
    (iii) When using a sound level meter set to the A-weighting 
network:
    (A) Obtain the employee's A-weighted TWA.
    (B) Subtract 7 dB from the NRR, and subtract the remainder from 
the A-weighted TWA to obtain the estimated A-weighted TWA under the 
ear protector.
    (iv) When using a sound level meter set on the C-weighting 
network:
    (A) Obtain a representative sample of the C-weighted sound 
levels in the employee's environment.
    (B) Subtract the NRR from the C-weighted average sound level to 
obtain the estimated A-weighted TWA under the ear protector.
    (v) When using area monitoring procedures and a sound level 
meter set to the A-weighing network.
    (A) Obtain a representative sound level for the area in 
question.
    (B) Subtract 7 dB from the NRR and subtract the remainder from 
the A-weighted sound level for that area.
    (vi) When using area monitoring procedures and a sound level 
meter set to the C-weighting network:
    (A) Obtain a representative sound level for the area in 
question.
    (B) Subtract the NRR from the C-weighted sound level for that 
area.

Appendix C to Part 227--Audiometric Measuring Instruments

    This appendix is mandatory.
    1. In the event that pulsed-tone audiometers are used, they 
shall have a tone on-time of at least 200 milliseconds.
    2. Self-recording audiometers shall comply with the following 
requirements:
    (A) The chart upon which the audiogram is traced shall have 
lines at positions corresponding to all multiples of 10 dB hearing 
level within the intensity range spanned by the audiometer. The 
lines shall be equally spaced and shall be separated by at least \1/
4\ inch. Additional increments are optional. The audiogram pen 
tracings shall not exceed 2 dB in width.
    (B) It shall be possible to set the stylus manually at the 10 dB 
increment lines for calibration purposes.
    (C) The slewing rate for the audiometer attenuator shall not be 
more than 6 dB/second except that an initial slewing rate greater 
than 6 dB/second is permitted at the beginning of each new test 
frequency, but only until the second subject response.
    (D) The audiometer shall remain at each required test frequency 
for 30 seconds (+/-3 seconds). The audiogram shall be clearly marked 
at each change of frequency and the actual frequency change of the 
audiometer shall not deviate from the frequency boundaries marked on 
the audiogram by more than 3 seconds.
    (E) It must be possible at each test frequency to place a 
horizontal line segment parallel to the time axis on the audiogram, 
such that the audiometric tracing crosses the line segment at least 
six times at that test frequency. At each test frequency, the 
threshold shall be the average of the midpoints of the tracing 
excursions.

Appendix D to Part 227--Audiometric Test Rooms

    This appendix is mandatory.
    Rooms used for audiometric testing shall not have background 
sound pressure levels exceeding those in Table D-1 of this appendix 
when measured by equipment conforming at least to the Type 2 
requirements of ANSI S1.4-1983 (R2001), ``Specification for Sound 
Level Meters'' and to the Class II requirements of ANSI S1.11-1971 
(R1976), ``Specification for Octave, Half-Octave, and Third-Octave 
Band Filter Sets.''

[[Page 35187]]



           Table D-1.--Maximum Allowable Octave-Band Sound Pressure Levels for Audiometric Test Rooms
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
Octave-band center frequency (Hz)........................        500       1000       2000       4000       8000
Sound pressure level (dB)................................         40         40         47         57         62
----------------------------------------------------------------------------------------------------------------

Appendix E to Part 227--Acoustic Calibration of Audiometers

    This appendix is mandatory.
    Audiometer calibration shall be checked acoustically, at least 
annually, according to the procedures described in this appendix. 
The equipment necessary to perform these measurements is a sound 
level meter, octave-band filter set, and a National Bureau of 
Standards 9A coupler. In making these measurements, the accuracy of 
the calibrating equipment shall be sufficient to determine that the 
audiometer is within the tolerances permitted by ANSI S3.6-1996, 
``Specification for Audiometers.''
    (1) Sound Pressure Output Check.
    A. Place the earphone coupler over the microphone of the sound 
level meter and place the earphone on the coupler.
    B. Set the audiometer's hearing threshold level (HTL) dial to 70 
dB.
    C. Measure the sound pressure level of the tones at each test 
frequency from 500 Hz through 6000 Hz for each earphone.
    D. At each frequency, the readout on the sound level meter 
should correspond to the levels in Table E-1 or Table E-2 of this 
appendix, as appropriate, for the type of earphone, in the column 
entitled ``sound level meter reading.''
    (2) Linearity Check.
    A. With the earphone in place, set the frequency to 1000 Hz and 
the HTL dial on the audiometer to 70 dB.
    B. Measure the sound levels in the coupler at each 10 dB 
decrement from 70 dB to 10 dB, noting the sound level meter reading 
at each setting.
    C. For each 10 dB decrement on the audiometer, the sound level 
meter should indicate a corresponding 10 dB decrease.
    D. This measurement may be made electrically with a voltmeter 
connected to the earphone terminals.
    (3) Tolerances.
    When any of the measured sound levels deviate from the levels in 
Table E-1 or Table E-2 by 3 dB at any test frequency between 500 and 
3000 Hz, 4 dB at 4000 Hz, or 5 dB at 6000 Hz, an exhaustive 
calibration is advised. An exhaustive calibration is required if the 
deviations are greater than 15 dB or greater at any test frequency.

      Table E-1.--Reference Threshold Levels for Telephonics--TDH-39
                                Earphones
------------------------------------------------------------------------
                                                 Reference
                                                 threshold
                                                 level for   Sound level
                 Frequency, Hz                     TDH-39       meter
                                                 earphones   reading, dB
                                                     dB
------------------------------------------------------------------------
500...........................................         11.5         81.5
1000..........................................            7           77
2000..........................................            9           79
3000..........................................           10           80
4000..........................................          9.5         79.5
6000..........................................         15.5         85.5
------------------------------------------------------------------------


Table E-2.--Reference Threshold Levels for Telephonics--TDH-49 Earphones
------------------------------------------------------------------------
                                                 Reference
                                                 threshold
                                                 level for   Sound level
                 Frequency, Hz                     TDH-49       meter
                                                 earphones   reading, dB
                                                     dB
------------------------------------------------------------------------
500...........................................         13.5         83.5
1000..........................................          7.5         77.5
2000..........................................           11         81.0
3000..........................................          9.5         79.5
4000..........................................         10.5         80.5
6000..........................................         13.5         83.5
------------------------------------------------------------------------

Appendix F to Part 227--Calculations and Application of Age Corrections 
to Audiograms

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

----------------------------------------------------------------------------------------------------------------
                                                                      Audiometric test frequency (Hz)
                      Employee's age                      ------------------------------------------------------
                                                              1000       2000       3000       4000       6000
----------------------------------------------------------------------------------------------------------------
26.......................................................         10          5          5         10          5
*27......................................................          0          0          0          5          5
28.......................................................          0          0          0         10          5
29.......................................................          5          0          5         15          5
30.......................................................          0          5         10         20         10
31.......................................................          5         10         20         15         15
*32......................................................          5         10         10         25         20
----------------------------------------------------------------------------------------------------------------

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

[[Page 35188]]



----------------------------------------------------------------------------------------------------------------
                                                                               Frequency (Hz)
                                                          ------------------------------------------------------
                                                              1000       2000       3000       4000       6000
----------------------------------------------------------------------------------------------------------------
Age 32...................................................          6          5          7         10         14
Age 27...................................................          5          4          6          7         11
                                                          ------------
    Difference...........................................          1          1          1          3          3
----------------------------------------------------------------------------------------------------------------

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

                             Table F-1.--Age Correction Values in Decibels for Males
----------------------------------------------------------------------------------------------------------------
                                                                     Audiometric Test Frequencies (Hz)
                          Years                           ------------------------------------------------------
                                                              1000       2000       3000       4000       6000
----------------------------------------------------------------------------------------------------------------
20 or younger............................................          5          3          4          5          8
21.......................................................          5          3          4          5          8
22.......................................................          5          3          4          5          8
23.......................................................          5          3          4          6          9
24.......................................................          5          3          5          6          9
25.......................................................          5          3          5          7         10
26.......................................................          5          4          5          7         10
27.......................................................          5          4          6          7         11
28.......................................................          6          4          6          8         11
29.......................................................          6          4          6          8         12
30.......................................................          6          4          6          9         12
31.......................................................          6          4          7          9         13
32.......................................................          6          5          7         10         14
33.......................................................          6          5          7         10         14
34.......................................................          6          5          8         11         15
35.......................................................          7          5          8         11         15
36.......................................................          7          5          9         12         16
37.......................................................          7          6          9         12         17
38.......................................................          7          6          9         13         17
39.......................................................          7          6         10         14         18
40.......................................................          7          6         10         14         19
41.......................................................          7          6         10         14         20
42.......................................................          8          7         11         16         20
43.......................................................          8          7         12         16         21
44.......................................................          8          7         12         17         22
45.......................................................          8          7         13         18         23
46.......................................................          8          8         13         19         24
47.......................................................          8          8         14         19         24
48.......................................................          9          8         14         20         25
49.......................................................          9          9         15         21         26
50.......................................................          9          9         16         22         27
51.......................................................          9          9         16         23         28
52.......................................................          9         10         17         24         29
53.......................................................          9         10         18         25         30
54.......................................................         10         10         18         26         31
55.......................................................         10         11         19         27         32
56.......................................................         10         11         20         28         34
57.......................................................         10         11         21         29         35
58.......................................................         10         12         22         31         36
59.......................................................         11         12         22         32         37
60 or older..............................................         11         13         23         33         38
----------------------------------------------------------------------------------------------------------------


                            Table F-2.--Age Correction Values in Decibels for Females
----------------------------------------------------------------------------------------------------------------
                                                                     Audiometric Test Frequencies (Hz)
                          Years                           ------------------------------------------------------
                                                              1000       2000       3000       4000       6000
----------------------------------------------------------------------------------------------------------------
20 or younger............................................          7          4          3          3          6
21.......................................................          7          4          4          3          6
22.......................................................          7          4          4          4          6
23.......................................................          7          5          4          4          7
24.......................................................          7          5          4          4          7

[[Page 35189]]

 
25.......................................................          8          5          4          4          7
26.......................................................          8          5          5          4          8
27.......................................................          8          5          5          5          8
28.......................................................          8          5          5          5          8
29.......................................................          8          5          5          5          9
30.......................................................          8          6          5          5          9
31.......................................................          8          6          6          5          9
32.......................................................          9          6          6          6         10
33.......................................................          9          6          6          6         10
34.......................................................          9          6          6          6         10
35.......................................................          9          6          7          7         11
36.......................................................          9          7          7          7         11
37.......................................................          9          7          7          7         12
38.......................................................         10          7          7          7         12
39.......................................................         10          7          8          8         12
40.......................................................         10          7          8          8         13
41.......................................................         10          8          8          8         13
42.......................................................         10          8          9          9         13
43.......................................................         11          8          9          9         14
44.......................................................         11          8          9          9         14
45.......................................................         11          8         10         10         15
46.......................................................         11          9         10         10         15
47.......................................................         11          9         10         11         16
48.......................................................         12          9         11         11         16
49.......................................................         12          9         11         11         16
50.......................................................         12         10         11         12         17
51.......................................................         12         10         12         12         17
52.......................................................         12         10         12         13         18
53.......................................................         13         10         13         13         18
54.......................................................         13         11         13         14         19
55.......................................................         13         11         14         14         19
56.......................................................         13         11         14         15         20
57.......................................................         13         11         15         15         20
58.......................................................         14         12         15         16         21
59.......................................................         14         12         16         16         21
60 or older..............................................         14         12         16         17         22
----------------------------------------------------------------------------------------------------------------

Appendix G to Part 227--Monitoring Noise Levels

    This appendix is non-mandatory. This appendix provides 
information to help employers comply with the noise monitoring 
obligations that are part of this hearing conservation regulation.

What Is the Purpose of Noise Monitoring?

    This regulation requires that employees be placed in a hearing 
conservation program if they are exposed to average noise levels of 
85 dB or greater during an 8 hour workday. In order to determine if 
exposures are at or above this level, it may be necessary to measure 
or monitor the actual noise levels in the workplace and to estimate 
the noise exposure or ``dose'' received by employees during the 
workday.

When Is it Necessary To Implement a Noise Monitoring Program?

    It is not necessary for every employer to measure workplace 
noise. Noise monitoring or measuring must be conducted only when 
exposures are at or above 85 dB. Factors which suggest that noise 
exposures in the workplace may be at this level include employee 
complaints about the loudness of noise, indications that employees 
are losing their hearing, or noisy conditions which make normal 
conversation difficult. The employer should also consider any 
information available regarding noise emitted from specific 
machines. In addition, actual workplace noise measurements can 
suggest whether or not a monitoring program should be initiated.

How Is Noise Measured?

    Basically, there are two different instruments to measure noise 
exposures: the sound level meter and the dosimeter. A sound level 
meter is a device that measures the intensity of sound at a given 
moment. Since sound level meters provide a measure of sound 
intensity at only one point in time, it is generally necessary to 
take a number of measurements at different times during the day to 
estimate noise exposure over a workday. If noise levels fluctuate, 
the amount of time noise remains at each of the various measured 
levels must be determined. To estimate employee noise exposures with 
a sound level meter it is also generally necessary to take several 
measurements at different locations within the workplace. After 
appropriate sound level meter readings are obtained, people 
sometimes draw ``maps'' of the sound levels within different areas 
of the workplace. By using a sound level ``map'' and information on 
employee locations throughout the day, estimates of individual 
exposure levels can be developed. This measurement method is 
generally referred to as area noise monitoring.
    A dosimeter is like a sound level meter except that it stores 
sound level measurements and integrates these measurements over 
time, providing an average noise exposure reading for a given period 
of time, such as an 8-hour workday. With a dosimeter, a microphone 
is attached to the employee's clothing and the exposure measurement 
is simply read at the end of the desired time period. A reader may 
be used to read-out the dosimeter's measurements. Since the 
dosimeter is worn by the employee, it measures noise levels in those 
locations in which the employee travels. A sound level meter can 
also be positioned within the immediate vicinity of the exposed 
worker to obtain an individual exposure estimate. Such procedures 
are generally referred to as personal noise monitoring.
    Area monitoring can be used to estimate noise exposure when the 
noise levels are relatively constant and employees are not mobile. 
In workplaces where employees move about in different areas or where 
the noise intensity tends to fluctuate over time, noise exposure is 
generally more accurately

[[Page 35190]]

estimated by the personal monitoring approach.
    In situations where personal monitoring is appropriate, proper 
positioning of the microphone is necessary to obtain accurate 
measurements. With a dosimeter, the microphone is generally located 
on the shoulder and remains in that position for the entire workday. 
With a sound level meter, the microphone is stationed near the 
employee's head, and the instrument is usually held by an individual 
who follows the employee as he or she moves about.
    Manufacturer's instructions, contained in dosimeter and sound 
level meter operating manuals, should be followed for calibration 
and maintenance. To ensure accurate results, it is considered good 
professional practice to calibrate instruments before and after each 
use.

How Often Is it Necessary To Monitor Noise Levels?

    This part requires that when there are significant changes in 
machinery or production processes that may result in increased noise 
levels, remonitoring must be conducted to determine whether 
additional employees need to be included in the hearing conservation 
program. Many companies choose to remonitor periodically (once every 
year or two) to ensure that all exposed employees are included in 
their hearing conservation programs.

Where Can Equipment and Technical Advice Be Obtained?

    Noise monitoring equipment may be either purchased or rented. 
Sound level meters cost about $500 to $1,000, while dosimeters range 
in price from about $750 to $1,500. Smaller companies may find it 
more economical to rent equipment rather than to purchase it. Names 
of equipment suppliers may be found in the telephone book (Yellow 
Pages) under headings such as: ``Safety Equipment,'' ``Industrial 
Hygiene,'' or ``Engineers--Acoustical.'' In addition to providing 
information on obtaining noise monitoring equipment, many companies 
and individuals included under such listings can provide 
professional advice on how to conduct a valid noise monitoring 
program. Some audiological testing firms and industrial hygiene 
firms also provide noise monitoring services. Universities with 
audiology, industrial hygiene, or acoustical engineering departments 
may also provide information or may be able to help employers meet 
their obligations under this part.
    Free, on-site assistance may be obtained from OSHA-supported 
state and private consultation organizations. These safety and 
health consultative entities generally give priority to the needs of 
small businesses.

Appendix H to Part 227--Schedule of Civil Penalties [Reserved]

PART 229--[AMENDED]

    2. The authority citation for part 229 continues to read as 
follows:

    Authority: 49 U.S.C. 20102-03, 20107, 20133, 20137-38, 20143, 
20701-03, 21301-02, 21304; 49 CFR 1.49.
    3. Section 229.4 is amended by revising paragraph (b) to read as 
follows:


Sec.  229.4  Information collection.

* * * * *
    (b) The information collection requirements are found in the 
following sections: Sec. Sec.  229.9, 229.17, 229.21, 229.23, 229.25, 
229.27, 229.29, 229.31, 229.33, 229.55, 229.103, 229.105, 229.113, 
229.121, 229.135, and Appendix H to part 229.
    4. Section 229.5 is amended by removing paragraph designations (a) 
through (p), by transferring the definition of Electronic air brake to 
proper alphabetical order (immediately preceding the definition of 
Event recorder), and adding, in alphabetical order, the following 
definitions.


Sec.  229.5  Definitions.

* * * * *
    Decibel (dB) means a unit of measurement of sound pressure levels.
    dB(A) means the sound pressure level in decibels measured on the A-
weighted scale.
* * * * *
    Excessive noise report means a report by a locomotive cab occupant 
that the locomotive is producing an unusual level of noise that 
significantly interferes with normal cab communications or that is a 
concern with respect to hearing conservation.
* * * * *
    Upper 99% confidence limit means the noise level below which 99% of 
all noise level measurements must lie.
* * * * *
    5. Section 229.121 is revised to read as follows:


Sec.  229.121  Locomotive cab noise.

    (a) Performance standards for locomotives. (1) When tested for 
static noise in accordance with paragraph (a)(3) of this section, all 
locomotives of each design or model that are manufactured after January 
1, 2005 shall average less than or equal to 85 dB(A), with an upper 99% 
confidence limit of 87 dB(A). The railroad may rely on certification 
from the equipment manufacturer for a production run that this standard 
is met. The manufacturer may determine the average by testing a 
representative sample of locomotives or an initial series or 
locomotives, provided that there are suitable manufacturing quality 
controls and verification procedures in place to ensure product 
consistency.
    (2) In the maintenance of locomotives that are manufactured in 
accordance with paragraph (a)(1) of this section, a railroad shall not 
make any alterations that cause the average sound level for that 
locomotive design or model to exceed 82 dB(A) if the average sound 
level for a locomotive design or model is less than 82 dB(A); and the 
railroad shall not make any alterations that cause the average sound 
level for that locomotive design or model to increase to 85 dB(A) if 
the average sound level for a locomotive design or model is between, or 
includes, 82 dB(A) to 85 dB(A),
    (3) The railroad or manufacturer shall follow the static test 
protocols set forth in appendix H of this part to determine compliance 
with paragraph (a)(1) of this section; and, to the extent reasonably 
necessary to evaluate the effect of alterations during maintenance, to 
determine compliance with paragraph (a)(2) of this section.
    (b) Equipment maintenance. (1) If a railroad receives an excessive 
noise report, and if the condition giving rise to the noise is not 
required to be immediately corrected under this part 229, the railroad 
shall maintain a record of the report, and repair or replace the item 
identified as substantially contributing to the noise and shall do so:
    (i) On or before the next periodic inspection required by Sec.  
229.23; or
    (ii) At the time of the next major equipment repairs commonly used 
for the particular type of maintenance needed, if the railroad 
determines that the repair or replacement of the item requires 
significant shop or material resources that are not readily available.
    (2) Items that may lead a locomotive cab occupant to file an 
excessive noise report include, but are not limited to: defective cab 
window seals; defective cab door seals; broken or inoperative windows; 
deteriorated insulation or insulation that has been removed for other 
reasons; broken or inoperative doors; and air brakes that vent inside 
of the cab.
    (3) The railroad has an obligation to respond to an excessive noise 
report filed by a locomotive cab occupant. The railroad meets its 
obligations to respond to an excessive noise report if the railroad 
makes a good faith effort to identify the cause of the reported noise 
and, where the railroad is successful in determining the cause, if the 
railroad repairs or replaces the item(s) causing the noise.
    (4) Recordkeeping. (i) The railroad shall maintain a record, either 
written or electronic, of any excessive noise report, inspection, test, 
maintenance, replacement, or repair completed pursuant to paragraph (b) 
of this section and the date(s) on which that inspection, test, 
maintenance, replacement, or repair occurred.

[[Page 35191]]

    (ii) The railroad shall retain these records for 92 days if they 
are made pursuant to Sec.  229.21; or for 1 year if they are made 
pursuant to Sec.  229.23.
    (iii) The railroad shall establish an internal, auditable 
monitoring system that contains these records.

Appendices D Through G--[Reserved]

    6. Appendices D through G are added to Part 229 and reserved.
    7. Appendix H is added to Part 229 to read as follows:

Appendix H to Part 229--Static Noise Test Protocols--In-Cab Static

    This appendix prescribes the procedures for the in-cab static 
measurements of locomotives.

I. Measurement Instrumentation

    The instrumentation used should conform to the following:
An integrating-averaging sound level meter shall meet all the 
requirements of ANSI S1.43-1997, ``Specification for Integrating-
Averaging Sound Level Meters'' for a Type 1 instrument. In the event 
that a Type 1 instrument is not available, the measurements may be 
conducted with a Type 2 instrument. The acoustic calibrator shall 
meet the requirement of the ANSI S1. 40-1984 (R1997), 
``Specification for Acoustical Calibrators.''

II. Test Site Requirements

    The test site shall meet the following requirements:
    (1) The locomotive to be tested should not be positioned where 
large reflective surfaces are directly adjacent to or within 25 feet 
of the locomotive cab.
    (2) The locomotive to be tested should not be positioned where 
other locomotives or rail cars are present on directly adjacent 
tracks next to or within 25 feet of the locomotive cab.
    (3) All windows, doors, cabinets seals, etc., must be installed 
in the locomotive cab and be closed.
    (4) The locomotive must be running for sufficient time before 
the test to be at normal operating temperature.
    (5) The heating, ventilation and air conditioning (HVAC) system 
or a dedicated heating or air conditioner system must be operating 
on high, and the vents must be open and unobstructed.
    (6) The locomotive shall not be tested in any site specifically 
designed to artificially lower in-cab noise levels.

III. Procedures for Measurement

    (1) Lav means the A-weighted, equivalent sound level 
using a 5 dB exchange rate, and the sound level meter shall be set 
for A-weighting with slow response.
    (2) The sound level meter shall be calibrated with the acoustic 
calibrator immediately before and after the in-cab static tests. The 
calibration levels shall be recorded.
    (3) Any change in the before and after calibration level(s) 
shall be less than 0.5 dB.
    (4) The sound level meter shall be measured at each of the 
following locations:
    (A) 30 inches above the center of the left seat;
    (B) Centered in the middle of the cab between the right and left 
seats, and 56 inches above the floor;
    (C) 30 inches above the center of the right seat; and
    (D) One foot (0.3 meters) from the center of the back interior 
wall of the cab and 56 inches above the floor. [See Figure 1]
[GRAPHIC] [TIFF OMITTED] TP23JN04.003

    (5) The observer shall stand as far from the microphone as 
possible. No more than two people (tester, observers or crew 
members) shall be inside the cab during measurements.
    (6) The locomotive shall be tested under self-loading conditions 
if so equipped. If the locomotive is not equipped with self load, 
the locomotive shall be tested with no-load (No-load defined as 
maximum RPM--no electric load) and an adjustment of 3 dB added to 
the measured level.
    (7) The sound level shall be recorded at the highest horsepower 
or throttle setting.
    (8) After the engine speed has become constant and the in-cab 
noise is continuous, the A weighted Lav sound level shall 
be measured using a 1 second sampling interval for a minimum 
duration of 30 seconds at each measurement position.
    (9) The highest Lav of the 4 measurement positions 
shall be used for determining compliance with Sec.  229.121(a).
    (10) A locomotive that has failed to meet the static test 
requirements of this part may be re-tested in accordance with the 
requirements in section II of this appendix.

IV. Recordkeeping

    To demonstrate compliance, the entity conducting the test shall 
maintain records of the following data. The records created under 
this procedure shall be retained and made readily accessible for 
review for a minimum of three years. All records may be maintained 
in either written or electronic form.
    (1) Name(s) of persons conducting the test, and the date of the 
test.
    (2) Description of locomotive being tested, including: make, 
model number, serial number, and date of manufacture.
    (3) Description of sound level meter and calibrator, including: 
make, model, type, serial number, and manufacturer's calibration 
date.

[[Page 35192]]

    (4) The recorded measurement during calibration and for each 
microphone location during operating conditions.
    (5) Other information as appropriate to describe the testing 
conditions and procedure, including whether or not the locomotive 
was tested under self-loading conditions, or not.
    (6) Where a locomotive fails a test and is re-tested under the 
provisions of section III(9) of this appendix, the suspected 
reason(s) for the failure.

    Issued in Washington, DC, on June 9, 2004.
Allan Rutter,
Federal Railroad Administrator.
[FR Doc. 04-13582 Filed 6-22-04; 8:45 am]
BILLING CODE 4910-06-P