[Federal Register Volume 71, Number 208 (Friday, October 27, 2006)]
[Rules and Regulations]
[Pages 63066-63138]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-8612]



[[Page 63065]]

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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; Final 
Rule

  Federal Register / Vol. 71, No. 208 / Friday, October 27, 2006 / 
Rules and Regulations  

[[Page 63066]]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 227 and 229

[Docket No. FRA 2002-12357, Notice No. 2]
RIN 2130-AB56


Occupational Noise Exposure for Railroad Operating Employees

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

ACTION: Final rule.

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SUMMARY: FRA is amending its occupational noise standards for railroad 
employees whose predominant noise exposure occurs in the locomotive 
cab. FRA's previous standard (issued in 1980) limited cab employee 
noise exposure to certain levels based on the duration of their 
exposure. This rule modifies that standard and also sets out additional 
requirements.
    FRA is requiring 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 (TWA) of 85 decibels. FRA is also establishing design, 
build, and maintenance standards for new locomotives and maintenance 
requirements for existing locomotives. FRA expects that this rule will 
reduce the likelihood of noise-induced hearing loss for railroad 
operating employees.

DATES: This final rule is effective February 26, 2007. The 
incorporation by reference of certain publications listed in the rule 
is approved by the Director of the Federal Register as of February 26, 
2007. Any petitions for reconsideration with this final rule must be 
submitted no later than December 26, 2006.

ADDRESSES: 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: Alan Misiaszek, Senior Industrial 
Hygienist, Office of Safety, Federal Railroad Administration, 1120 
Vermont Avenue, NW., Mail Stop 25, Washington, DC 20590 (e-mail: 
[email protected] and telephone: 202-493-6002); Jeffrey Horn, 
Economist, Office of Safety, Federal Railroad Administration, 1120 
Vermont Avenue, NW., Mail Stop 25, Washington, DC 20590 (e-mail: 
[email protected] and telephone: 202-493-6283); or Jennifer Schwab, 
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: 202-493-6349).

SUPPLEMENTARY INFORMATION: Note that for brevity, all references to CFR 
parts will be to parts in Title 49 of the Code of Federal Regulations 
(49 CFR), unless otherwise noted.

Table of Contents for Supplementary Information

I. Background
    A. Statutory and Regulatory Framework
    1. Railroad Safety, In General
    2. FRA-OSHA Jurisdiction for Occupational Safety and Health 
Issues
    3. Federal Occupational Noise Standards
    B. History of FRA's Treatment of Occupational Noise
    1. FRA's Past Noise Standard
    2. Studies of Noise
    C. Fundamental Principles of Sound
    D. Occupational Noise in the Railroad Industry
II. The Railroad Safety Advisory Committee (RSAC) Process
    A. RSAC
    B. Working Group
III. FRA's Noise Standard
    A. FRA's Approach to Cab Noise
    B. Responsibilities of Railroads and Employees
    C. Compliance
IV. Summary of Comments
    A. In General
    B. Approaches Other Than the OSHA HCA
    C. Hierarchy of Controls
    D. Triggering Criteria
    E. Weighting Filter
    F. Electronic Communication Headsets
    G. Location of the Train Horn
    H. Report to Congress
    I. Regulatory Impact Analysis
V. Section-by-Section Analysis
VI. 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

I. Background

A. Statutory and Regulatory Framework

1. 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 of the United States Code). 
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.

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.\1\ That policy statement is located in Appendix A to part 
209.
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    \1\ See 65 FR 42529 (July 2, 2000).
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    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

[[Page 63067]]

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).
2. FRA-OSHA Jurisdiction for Occupational Safety and Health Issues
    FRA and the U.S. Occupational Safety and Health Administration \2\ 
(OSHA) have a complementary relationship 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 working conditions in all 
types of employment, except where another Federal agency exercises 
statutory authority to prescribe or enforce standards or regulations 
covering the working conditions pursuant to Sec.  4(b)(1) of the OSH 
Act. See 29 U.S.C. 653(b)(1). Section 4(b)(1) preempts OSHA's 
jurisdiction where another federal agency issues its own regulations or 
standards or articulates a formal position that a particular working 
condition should go unregulated.
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    \2\ 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 workplace hazards, including noise.
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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. See 43 FR 10583 (March 14, 1978). 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. See 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.
    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. See 67 FR 16032 (April 4, 
2002). There, FRA promulgated regulations that address toilet and 
washing facilities for employees who work in locomotive cabs. See 49 
CFR Sec. Sec.  229.137 through 139.
    FRA has also exercised this jurisdiction with regard to 
occupational noise in the locomotive cab. FRA issued its current 
standard for locomotive cab noise in 1980. While OSHA, in general, 
regulates occupational noise in the workplace,\3\ 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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    \3\ 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 
in light of overall safety considerations. 43 FR 10588.
3. Federal Occupational Noise Standards
    OSHA's occupational noise standard was promulgated under the Walsh-
Healey Public Contracts Act of 1969 \4\ 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. OSHA adopted the Walsh-Healey standard 
as an OSHA standard pursuant to section 6(a) of the OSH Act.
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    \4\ See 41 U.S.C. 35, et seq.
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    In January 1981, OSHA promulgated a Hearing Conservation Amendment 
(HCA) to its occupational noise exposure standard. See 46 FR 4078 
(January 16, 1981). The amendment consisted of requirements for noise 
measurements, audiometric testing, the use and care of hearing 
protectors, employee training, employee education, and recordkeeping. 
Portions of the amendment were subsequently stayed for reconsideration 
and clarification. See 46 FR 42622 (August 21, 1981). In 1983, OSHA 
finalized the provisions of its Hearing Conservation Amendment by 
revoking various stayed provisions, lifting the stay on other 
provisions, and making other technical corrections.\5\ OSHA's revised 
regulation included a detailed hearing conservation program (HCP).\6\ 
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 standard is quite similar to OSHA's standard.
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    \5\ See 48 FR 9738 (March 8, 1983).
    \6\ Throughout the rule, FRA uses ``hearing conservation 
program'' and HCP interchangeably.
    \7\ 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, in addition to FRA, regulate specific 
occupational settings. FRA regulates employee noise exposure 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. See

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64 FR 49548 (September 13, 1999). 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 49550.

B. History of FRA's Treatment of Occupational Noise

1. FRA's Past 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 (49 CFR 
229.121).\9\
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    \9\ 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 occupants and to facilitate crew communication. It provided that 
noise level exposure in the cab may not exceed specific prescribed 
levels. The provision limited employee noise exposure to an eight-hour 
time-weighted average (TWA) of 90 dB(A) with a doubling rate of 5 
dB(A). It also provided for an absolute upper noise limit of 115 dB(A). 
In addition, it established 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 1980 
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.'' See 45 FR 21092, 21106 (March 31, 1980). 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.'' See 
45 FR 21092, 21106 (March 31, 1980).
    The then-existing Sec.  229.121 did 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 general industry workplaces within its jurisdiction.
    In 1992, Congress enacted section 10 of The Rail Safety Enforcement 
and Review Act (RSERA) (Pub. L. 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 required 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.\10\ 
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.
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    \10\ See document 4 of docket number 12357 on DOT's Docket Web 
site (http://dms.dot.gov">dms.dot.gov).
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2. Studies of Noise
    In the proposed rule, FRA provided an extensive discussion on 
studies related to noise in the locomotive cab. This includes a 1971 
study on highway-rail grade crossings \11\ and an addendum on the sound 
environment in the locomotive cab,\12\ a 1980 study on in-cab 
occupational noise exposure,\13\ an FRA Report to Congress on cab 
working conditions,\14\ the Wyle Report (the Association of American 
Railroads' (AAR) review of FRA's Report to Congress),\15\ a 1997 
Technical Memorandum on the FRA Report to Congress and subsequent 
review,\16\ and an FRA Administrator's Roundtable Discussion on Noise. 
Copies of these documents are included in the docket. In the interest 
of space, FRA is not republishing its discussion here. See 69 FR 35145, 
35148-35151; June 23, 2004.
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    \11\ John Aurelius and Norman Korebor, ``The Visibility and 
Audibility of Trains Approaching Rail-Highway Grade Crossings,'' 
Report No. FRA-RP-71-2, May 1971.
    \12\ John P. Aurelius, ``The Sound Environment in Locomotive 
Cabs,'' Report No. FRA-RP-71-2A, July 1971.
    \13\ Roger D. Kilmer, ``Assessment of Locomotive Crew In-Cab 
Occupational Noise Exposure,'' National Bureau of Standards. Report 
No. FRA-ORD-80/91, December 1980.
    \14\ FRA Report to Congress, ``Locomotive Crashworthiness and 
Cab Working Conditions.'' September 1996.
    \15\ Eric Stusnick for Wyle Laboratories, ``A Review of the 
Noise and Vibration Sections of the Federal Railroad 
Administration's Report to Congress Entitled `Locomotive 
Crashworthiness and Cab Working Conditions.' '' December 1996. See 
document 6 of docket number 12357 on DOT's Docket Web site 
(http://dms.dot.gov">dms.dot.gov).
    \16\ Technical Memorandum from Hugh J. Saurenman and Lance D. 
Meister of Harris Miller, Miller & Hanson, Inc., ``Comments on AAR 
Review of Chapter 6, FRA Report to Congress ``Locomotive 
Crashworthiness and Cab Working Conditions.'' June 1997. See 
document 7 of docket number 12357 on DOT's Docket Web site 
(http://dms.dot.gov">dms.dot.gov).
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C. Fundamental Principles of Sound

    FRA provided an extensive discussion in the proposed rule on 
fundamental principles of sound. The topics covered include sound, 
hearing, hearing loss, and instrumentation. See 69 FR 35145, 35152-
35154.

D. Occupational Noise in the Railroad Industry

    Noise is one of the most pervasive hazardous agents in the American

[[Page 63069]]

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.\17\ 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.\18\ Noise is also one of the most 
intrusive aspects of locomotive operations.\19\
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    \17\ 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).
    \18\ NIOSH, ``National Occupational Research Agenda,'' National 
Institute for Occupational Safety and Health, DHHS (NIOSH), Pub. No. 
96-115, Cincinnati, OH (1996).
    \19\ Human Factors Guidelines for Locomotive Cabs, DOT/FRA/ORD-
93/03 (November 1998).
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    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 started 
venting the exhaust below the cab floor. FRA noted this change in its 
1980 locomotive cab noise rule. See 45 FR 21092 (March 31, 1980). 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. See 45 FR 
21092, 21015 (March 31, 1980). Manufacturers continued to re-design 
locomotives accordingly, and today the vast majority of locomotives 
have their air brake exhaust 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.
    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.

II. 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 (ATDD)
Association of American Railroads (AAR)
Association of Railway Museums (ARM)
Association of State Rail Safety Managers (ASRSM)
Brotherhood of Locomotive Engineers and Trainmen (BLET)
Brotherhood of Maintenance of Way Employes Division (BMWED)
Brotherhood of Railroad Signalmen (BRS)
Federal Transit Administration (FTA)*
High Speed Ground Transportation Association
International Association of Machinists and Aerospace Workers
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 Railroad Passenger Corporation (AMTRAK)
National Transportation Safety Board (NTSB)*
Railway Supply Institute (RSI)
Safe Travel America
Secretaria de Communicaciones y Transporte (Mexico)*
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.

    When appropriate, FRA assigns a task to the RSAC, and after 
consideration and debate, the RSAC may accept or reject the task. If 
the RSAC accepts the task, 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 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.

[[Page 63070]]

    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 the 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
BLET
BMWED*
IBEW
AMTRAK
RSI (formerly Railway Progress Institute)
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 Noise 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 Noise 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 Noise 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, FRA frequently discusses issues that the Noise Task Force and 
Working Group raised and views that they shared. FRA discusses 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 Noise Task 
Force, developed recommendations for reducing the likelihood of hearing 
loss for cab employees. In June 2003, the Working Group reached 
consensus on recommendations for the proposed rule and forwarded these 
recommendations to the RSAC. On June 27, 2003, the RSAC accepted these 
recommendations, which had been reviewed and accepted by FRA.
    On June 23, 2004, FRA published an NPRM containing the 
recommendations of the Working Group and the full RSAC. See 69 FR 
35146. The NPRM provided for a 90-day comment period and provided 
interested parties the opportunity to request a public hearing. The 
comment period closed on September 21, 2004. FRA received comments from 
approximately 50 interested parties. There were a wide variety of 
commenters, including individual locomotive engineers; professional, 
scientific, and credentialing associations; congressmen; individual 
audiologists; an acoustical consulting firm; a commuter railroad; and a 
manufacturing company.
    FRA reconvened the Task Force on March 1, 2005 and the Working 
Group on March 2-3, 2005 to discuss the comments that FRA received 
about the NPRM. The Task Force and the Working Group considered all the 
comments and again reached consensus on recommendations for a final 
standard. These recommendations were presented to the RSAC and on May 
18, 2005, the RSAC accepted these recommendations. The RSAC voted to 
forward these recommendations to FRA as the basis for a final 
occupational noise standard. FRA has reviewed the RSAC's 
recommendations and has adopted the recommendations in this final rule.
    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 final rule. 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 rule.

III. FRA's Noise Standard

A. 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

[[Page 63071]]

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 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 rule has taken into account these unique characteristics 
of the railroad operating environment and has modified OSHA's standard 
to fit the railroad industry.
    Since FRA's rule is based on OSHA's rule, it is helpful to review 
OSHA's standard before explaining FRA's 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 places engineering and 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 at the 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. An example of Administrative Controls would be 
schedules for rotation of employees from tasks that are near noisy 
machinery to quieter areas. The objective is employee exposures with 
lower time weighted average levels of exposure. FRA's standard on 
locomotive cab noise is based very heavily on OSHA's standard. In this 
final rule, FRA requires railroads to limit employee noise exposure to 
an 8-hour TWA of 90 dB(A).\20\ 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).
---------------------------------------------------------------------------

    \20\ 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, an increase of 3 dB represents a doubling of sound 
energy.\21\ 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.
---------------------------------------------------------------------------

    \21\ 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.\22\ In its final 
rule, MSHA concluded that
---------------------------------------------------------------------------

    \22\ 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 Working Group that 5 dB is most appropriate. 
Taking all of those factors into account, FRA has decided to use a 
doubling rate of 5 dB. Thus, a 5 dB increase in the time weighted 
average level reduces the permitted time of exposure duration by half.
    FRA recognizes the same noise control measures 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 railroads and manufacturers must take when designing, building, 
and maintaining locomotives.
    FRA's overall approach toward controls differs from that of OSHA. 
FRA does not explicitly 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 obtain and maintain locomotives built to meet the 
performance standard for maximum noise level in the cab defined by the 
standards in Sec.  229.121. (This is somewhat equivalent to OSHA's 
``engineering controls''). FRA mandates that railroads require 
employees to use hearing protectors when employees are exposed to noise 
levels that exceed an 8 hour-TWA of 90 dB(A). (This is equivalent to 
OSHA's hearing protector requirement). 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. (This is 
equivalent to OSHA's ``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. Using noise operational controls as an option 
rather than a requirement was done in recognition of

[[Page 63072]]

the nature of railroad operations and the impact of other federal laws, 
specifically the Hours of Service law. This law limits crew working 
hours to 12 hours, thus also permitting work shifts of up to 12 hours. 
Given the fact that administrative controls use periods of time removed 
from exposure to reduce the dose, and the fact that the only way to be 
removed from exposure on a train (except passenger trains) would be to 
leave the train, mandating administrative controls to reduce noise 
exposure would have the effect of changing the operating practices of 
the entire industry without regard to other issues such as where and 
how to get the exposed crews off the trains and how to get replacement 
crews on them.
    The RSAC Working Group 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 
feasibility of engineering controls. Among its findings, 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.
    In developing the proposed and final rules, the RSAC Working Group 
participants noted that since the early 1990s, the industry has taken 
delivery of thousands of newer locomotives engineered to reduce noise 
levels. Original equipment manufacturers used a variety of strategies 
to sharply reduce the portion of noise dose derived from the prime 
mover and to filter out other noise sources. The cabs of most of these 
locomotives provide an environment where, for the great majority of 
operating circumstances, employees will not experience 8 hour TWA 
exposures approaching 90 dB(A), and under most circumstances, exposures 
are not expected to reach the action level. Railroads have also 
specified placement of horns in the center of the locomotive, rather 
than immediately over the cab, further reducing noise levels 
experienced by employees. Finally, as noted below, the practice of 
venting the airbrake system into the cab has been largely abandoned.
    Accordingly, the challenges in this proceeding have principally to 
do with management of noise exposure in older locomotives, at least 
minimal standardization of hearing conservation programs that have 
grown up without regulation, ensuring the progress in engineering of 
locomotives is maintained, and addressing the needs of employees of 
smaller railroads by providing basic guidance regarding noise 
monitoring, hearing conservation, training, and recordkeeping. To the 
extent that many comments filed by non-railroad parties assume a much 
more dire situation, those comments have missed the mark and, in many 
cases, have called for measures not warranted by the facts.
    The RSAC Working Group also 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 recognizes that there are many benefits to using engineering 
and maintenance controls. First, they do not interfere with crew and 
radio communication, which personal Hearing Protection (HP) devices 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 may present. Engineering controls block out 
noise at its source, or along its transmission path, 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 don and wear the devices properly. 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. The burden was 
recognized when it was made clear by experts in locomotive noise 
reduction engineering that imposing the requirement to first use 
engineering controls to reduce exposure would require re-engineering 
the cab structure, the suspension and other elements of the locomotive 
to achieve the required noise reduction at a cost approaching that of 
buying a new locomotive. As a compromise, rather than imposing a 
general engineering controls requirement on railroads, FRA identified 
limited and 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.

B. Responsibilities of Railroads and Employees

    The primary responsibility for compliance with this regulation lies 
with employers, i.e., railroads. As such, railroads have several 
enumerated responsibilities. This regulation requires 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 operational 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 obtain and maintain locomotives that meet specified 
standards for limiting in-cab noise.
    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 employees \23\ 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

[[Page 63073]]

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 hearing 
conservation program will not succeed, and so FRA is identifying an 
employee's audiometric testing obligation as a primary responsibility.
---------------------------------------------------------------------------

    \23\ In their comments, the AAR pointed out that the preamble 
inaccurately used the term ``employers'' in place of ``employees.'' 
FRA has corrected that typo in this final rule.
---------------------------------------------------------------------------

    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 \24\ for an employee who does not report for 
audiometric testing. Overall, FRA expects that employees will fully 
comply with all of 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.
---------------------------------------------------------------------------

    \24\ Under the railroad safety laws, civil penalties may be 
assessed against individuals only for willful violations. See 49 
U.S.C. 21304.
---------------------------------------------------------------------------

C. 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.

IV. Summary of Comments

A. In General

    Overwhelmingly, the commenters to this rule applauded FRA for 
amending its noise standard. They commended FRA for taking the 
initiative to prevent noise-related hearing loss among railroad 
workers. They also expressed their support for FRA's effort to 
establish a uniform noise exposure rule for railroad operating 
employees, explaining that a uniform noise standard for the railroad 
industry will facilitate understanding of, and compliance with, 
regulatory requirements. One commenter was pleased to see that FRA had 
addressed both noise control (part 229 requirements) and hearing 
conservation (part 227 requirements) in this rule, because, based on 
their observations, the most successful hearing loss prevention 
programs are those that include both noise control and hearing 
conservation components.
    The commenters acknowledged that FRA's rule would bring about some 
significant improvements in certain areas of hearing conservation and 
would significantly improve the health and safety conditions for cab 
occupants. However, several commenters felt that the proposed rule 
still fell short of an effective hearing conservation program. Chief 
among that concern, commenters felt that FRA was relying too heavily on 
OSHA's standard. Commenters agreed that OSHA's standard was a good 
starting point, but explained that OSHA's standard could use some 
updating.
    They explained that OSHA's rule is over 20 years old and rooted in 
even older data. One commenter explained that the OSHA standard was 
based largely on the NIOSH recommended criteria from 1972, which was 
based on research in the 1950s and 1960s. The commenters went on to 
explain that, since that time, there have been new scientific findings 
(including advances in the fields of acoustics and bioacoustics), 
technological advancements, and years of field experience. The 
commenters felt that FRA should make more efforts to incorporate these 
advances into its standard. They explained that their comments tended 
to reflect this viewpoint. Along these lines, some commenters 
encouraged FRA to consider incorporating components of ``stronger'' 
standards such as MSHA's recent rule and the 1998 NIOSH revised 
criteria.
    FRA was very cognizant of these issues in drafting the rule. While 
FRA modeled its rule after OSHA's standard and not after an alternative 
standard such as NIOSH's 1998 revised criteria, FRA notes that FRA did 
not adopt each one of OSHA's provisions without question. FRA 
incorporated several new changes into its revised noise standard, 
including some changes at this final rule stage. Throughout the 
process, FRA has tried to strike a balance between deferring to OSHA, 
the lead federal agency in the field of occupational safety and health, 
and incorporating changes based on scientific advances, technological 
improvements, recognition of some of the unique circumstances present 
in the railroad operating environment, and field experiences. FRA 
believes that this rule strikes the proper balance at this time.
    In the paragraphs below, FRA discusses several overarching 
comments. FRA discusses comments specific to the rule text in the 
section-by-section analysis.

B. Approaches Other Than the OSHA HCA

    FRA modeled this rule after OSHA's Hearing Conservation Amendment 
(HCA). Several commenters strongly encouraged FRA to rewrite this rule 
based on the 1998 Revised Criteria for a Recommended Standard. They 
noted that NIOSH's more stringent standards, such as an exposure limit 
of 85 dB(A) or an exchange rate of 3 dB, will better protect railroad 
workers by significantly reducing their risk of noise-induced hearing 
loss. Once commenter wrote that FRA, by choosing the OSHA model, had 
proposed what amounts to a watered down ``hearing loss documentation 
program.''
    Another commenter, the doseBusters Company,\25\ questioned why FRA 
gave little ``consideration'' to other prevention strategies. The 
doseBusters Company argued that OSHA's HCA is a flawed approach to the 
prevention of hearing loss and cited several reasons why it believes 
that FRA should have considered other prevention strategies: (1) The 
HCA is based on information, analyses, thinking, and technology that is 
25 years old; (2) At the time of its adoption, the HCA represented a 
compromised approach; and (3) The prescriptive approach of the HCA may 
preclude more effective and/or conservative alternatives and stifle 
future innovation in prevention efforts.
---------------------------------------------------------------------------

    \25\ FRA notes that the doseBusters Company Web site no longer 
exists and that FRA has been unable to find the doseBusters Company 
through any other means on the Internet.
---------------------------------------------------------------------------

    The doseBusters Company suggested that FRA provide a performance-
oriented framework for the prevention

[[Page 63074]]

of noise-induced hearing loss by either adopting, or at least allowing, 
alternative strategies. As one of those alternate strategies, the 
doseBusters Company advocated for its own solution--a program of 
continuous monitoring using a proprietary device that also serves as a 
hearing protector. The Exposure Smart Protector (ESP) system 
simultaneously measures a workers's actual noise exposure and provides 
protection to the worker. This allows the employer to routinely 
determine the efficacy of the personal HP for individual users in real 
workplaces. It also provides the employee with individual feedback on 
his or her own daily noise exposure.
    After discussion with the RSAC Working Group, FRA decided that it 
would not specify such alternate prevention strategies and that it 
would instead continue to model its rule after OSHA's HCA. FRA has 
chosen to follow OSHA's lead in this matter, because OSHA is the lead 
agency in the field of occupational safety and health. Presumably OSHA 
used its expertise and resources to determine that the HCA is the most 
appropriate method for hearing conservation. Moreover, the HCA approach 
is a proven and effective method in the work place environment.
    With respect to the doseBuster Company's ESP System, FRA is unaware 
of any peer review or other scientific evaluation of that approach. As 
the doseBuster Company pointed out, the approach is still undergoing 
testing and review. In addition, there are several fundamental issues 
that the doseBusters Company did not address and would need to be 
addressed before FRA could employ this alternate prevention strategy. 
Among those issues are: Under what circumstances does the railroad 
decide to equip the employees with these devices? Should the railroad 
equip all potentially exposed employees or only a predefined group? 
What criteria would the railroad use to identify the predefined group? 
Furthermore, these devices have the potential to create an unsafe 
operating environment. Railroad employees need to focus their attention 
on their jobs and the safe operation of trains. These devices, which 
depend on significant employee attention, would prevent employees from 
focusing all their attention on their jobs. Finally, FRA does not 
believe it is appropriate to identify a single commercial product as a 
means of meeting the requirements of the rule. This is of even greater 
concern given that the use of the ESP devices would impose a 
significant, increased burden on railroads in complying with other 
requirements of the rule (i.e., noise exposure monitoring and the 
associated recordkeeping requirements). While the doseBuster Company's 
concept is interesting, FRA does not believe that there is sufficient 
evidence that the device would be effective in increasing the 
protection of employees or that the system would be either practical or 
affordable for employers.
    As explained above, FRA modeled this rule after the OSHA HCA. FRA 
chose not to use alternate prevention strategies such as NIOSH's 
Recommended Standard \26\ or the doseBuster Company's ESP system. While 
FRA has not chosen to use these alternate strategies, there is nothing 
in the rule that precludes a railroad employer from using any 
individual components of these strategies, as long as the components 
are consistent with the requirements of FRA's rule. For example, if a 
railroad wished to use doseBuster Company's ESP hearing protectors, the 
railroad is free to do so, as long as the railroad satisfies all the 
requirements of this rule.
---------------------------------------------------------------------------

    \26\ Please note that while FRA has not adopted NIOSH's standard 
in whole (e.g., exposure limit based on 85 dB(A) limit and a 3 dB 
exchange rate, or annual training), FRA notes that it has adopted 
some components of the NIOSH standard (e.g., integrating sound 
levels up to 140 dB and conducting audiometric tests at 8000 Hz).
---------------------------------------------------------------------------

    Finally, an individual engineer suggested that FRA consider another 
issue as part of its approach to hearing conservation. Specifically, 
the commenter wrote that FRA should mandate the use of air ride seats 
to address the problem of bone conduction whole body vibration. He 
asserted that vibration has an impact on hearing. FRA is not mandating 
the use air ride seats in this final rule, because the issue of 
vibration in locomotives is out of the scope of this rulemaking. It is 
possible that FRA will address this issue in the future. Vibration is 
listed as item number 3 on RSAC Task Statement 97-2 on Locomotive Cab 
Working Conditions and is discussed in Chapter 10 of FRA's September 
1996 Report to Congress. However, FRA is not issuing regulations on the 
issue of vibration at this time.

C. Hierarchy of Controls

    As explained above in section III(A), OSHA and FRA differ with 
respect to the controls each employs. OSHA identifies a hierarchy of 
controls that should be used to limit noise exposure--engineering 
controls and/or, administrative controls, and then hearing protection. 
FRA recognizes the same controls but utilizes a specific strategy to 
ensure cost effective implementation of the controls in the railroad 
industry.
    Several members of Congress submitted comments about the hierarchy 
of controls. Each of them expressed concern that FRA was using an 
approach different than OSHA and MSHA with respect to engineering 
controls. They explained that the primary tool under the OSHA and MSHA 
scheme is the elimination of noise from the workplace through 
engineering controls. They also pointed out that both OSHA and MSHA 
require the use of engineering controls only if they are commercially 
viable and economically feasible. In urging FRA to follow the lead of 
the other Federal agencies, one Congressman wrote that ``OSHA is well-
versed in the scientific and technical capabilities of engineering 
controls.'' He also wrote that ``the OSHA standard has been proven to 
successfully protect the hearing of workers and the adoption of the 
OSHA standards will allow our nation's workplaces to have a consistent 
standard across all industries.'' These Congressmen and Senators urged 
FRA to consider revising the proposed rule so that, consistent with the 
other Federal noise standards, FRA's rule would require employers to 
use engineering controls as the primary method of reducing employee 
noise exposure.
    Other commenters also expressed concern about FRA's approach. 
Several organizations wrote that FRA should base its rule on the 
``widely accepted concept of a hierarchy of controls.'' Cooper Tire and 
Rubber Company (``Cooper Tire''), which specializes in the 
manufacturing of transportation industry products, likewise disagreed 
with FRA's decision not to mandate the use of engineering controls as 
the primary strategy to combat workplace noise. Cooper Tire noted that 
FRA failed to follow OSHA's and MSHA's lead ``due to unspecified 
concerns about the burden engineering controls would impose on 
railroads.'' Cooper Tire felt that it was ``unclear how the FRA came to 
the conclusion regarding the costs of engineering controls.'' Cooper 
Tire explained that it has scientific and technological expertise in 
the area of noise reduction and control and that it is aware of 
current, off-the-shelf technology that will adequately address low-
frequency locomotive noise. As a result, Cooper Tire believes that 
railroads can implement engineering controls at modest cost with 
maximum benefit to employees.
    Cooper Tire also felt that FRA's approach to engineering controls 
(i.e., specific prescriptive requirements)

[[Page 63075]]

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

    \27\ For a more detailed discussion, see the preamble to 
proposed rule at 69 FR 35145, 35155.
---------------------------------------------------------------------------

    OSHA places controls in a hierarchy and mandates their use 
according to that hierarchy--first engineering controls, and/or 
administrative controls, and finally hearing protectors. (Occupational 
noise exposure standard, administrative controls and engineering 
controls are on equal footing. See 29 CFR 1910.95(b)(1).) FRA has no 
such hierarchy. FRA expects that railroads will comply with the 
requirements in Sec.  229.121 (equivalent to OSHA's engineering 
controls) and that railroads will comply with the requirements 
regarding hearing protectors. FRA gives railroads the option of using 
noise operational controls (OSHA's equivalent of administrative 
controls).
    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.
    Rather than impose the general requirement to ``use engineering 
controls,'' FRA has identified the specific engineering controls which 
railroads must use. Specifically, railroads must buy locomotives 
manufactured such that they do not

[[Page 63076]]

exceed a certain decibel level (see Sec.  229.121(a)(1)), must maintain 
those ``new'' locomotives in such a way that alterations do not cause 
the sound level to increase beyond certain decibel levels (see Sec.  
229.121(a)(2)), and must maintain all pre-existing locomotives so that 
they do not reach excessive noise levels (see Sec.  229.121(b)(1)). In 
maintaining locomotives, railroads must be cognizant of items, 
including but 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 outside of the cab (see 
Sec.  229.121(b)(2)).
    In addition to the items unique to this rulemaking, FRA has several 
other pre-existing maintenance requirements that reduce cab noise 
levels. Conditions that can contribute to the noise dose, such as 
leaking manifolds, flat spots on wheels, insecurely attached 
components, and general conditions addressed in Sec.  229.45 are 
already required to be maintained properly under FRA's regulations or 
the Locomotive Inspection Act itself for other safety reasons.
    In practice, all of these items, both the maintenance items listed 
in the final rule and pre-existing maintenance requirements in part 
229, function like engineering controls, because they modify or replace 
equipment at the noise source so that it reduces the noise level at the 
employee's ear. So, while FRA does not use the term ``engineering 
controls,'' FRA still employs engineering controls. Indeed, over the 
past decade and a half, the locomotive fleet has come to be dominated 
by cabs that are sufficiently quieter such that hearing protection is 
not required under most conditions of operation.
    Finally, FRA's standard is different from OSHA's in the following 
way. OSHA imposes a general requirement that their regulated industries 
must use engineering controls where they are technically and 
economically feasible. By contrast, FRA imposes specific requirements 
with which railroads absolutely must comply. Railroads have much less 
leeway when it comes to these controls than do OSHA's regulated 
industries.

D. Triggering Criteria

    The rule has two triggering criteria levels. The first one, which 
is located in Sec.  227.107, delineates when a railroad should place an 
employee in a hearing conservation program. It requires railroads to 
place employees in a hearing conservation program if employees are 
exposed to noise at or above the action level (i.e., an 8-hour-TWA of 
85 dB(A) with a 5dB exchange rate). The second one, which is located in 
Sec.  227.105, delineates when a railroad should actively protect 
employee hearing. It requires railroads to provide appropriate 
protection to employees whose noise exposure exceeds the permissible 
limit of an 8-hour-TWA of 90 dB(A) with a 5 dB exchange rate.
    Several commenters were displeased with these triggering criteria. 
They recommended that FRA lower the exchange rate to 3 dB and the 
criterion level to an 8-hour-TWA of 85 dB(A) and that FRA use this as 
the sole trigger for compliance. The commenters asserted that an 
exposure limit based on 90 dB(A) and a 5 dB exchange rate is not 
protective enough for employees. The National Hearing Conservation 
Association (NHCA) wrote that these limits ``will expose workers to an 
unacceptably high risk of noise induced hearing loss.'' Similarly, 
NIOSH wrote that the 90 dB(A) limit exposes ``workers to a 
statistically significant increase in the risk of occupational hearing 
loss.'' Likewise, a locomotive engineer wrote that ``90 dBA over 8 
hours is a ridiculously high amount of noise. Anyone exposed to this 
day in and day out will certainly suffer hearing loss * * *. The one 
thing I was hoping you would do was lower the allowable noise level in 
all of our locomotive cabs and you have not done that.''
    NIOSH pointed to statistics, which show that there is a increased 
risk to employees exposed to noise at higher levels. NIOSH quoted a 
1997 article by Stayner Prince and Gilbert Smith, which explained that, 
with at least 10 years of occupational noise exposure, eight percent of 
65-year old workers would develop a material hearing impairment at 85 
dB(A), twenty-two percent at 90 dB(A), thirty-eight percent at 95 
dB(A), and forty-four percent at 100 dBA. A Minnesota audiologist with 
a 20-year career in audiology, Ted Madison, cited additional NIOSH 
statistics, in his attempt to show that FRA's proposed standard would 
result in noise-induced hearing loss for an ``unacceptably high 
percentage of railroad workers.'' Mr. Madison wrote that the estimated 
excess risk of incurring material hearing impairment over a 40-year 
working lifetime with average daily noise exposure of 90 dB(A) is 20% 
while the estimated excess risk with an average daily noise exposure of 
85 dB(A) is only 15%.
    In addition, a number of commenters pointed out that many 
government, scientific, and professional organizations recommend (and 
in some cases, mandate the use of) an 85 dB(A) permissible exposure 
limit and a 3 dB exchange rate. This includes organizations such as the 
U.S. Department of Defense, U.S. Environmental Protection Agency, and 
the National Institute for Occupational Safety and Health. The 
commenters also pointed out that most European countries use 85 dB(A) 
or less and that both the International Organization for Standards 
(ISO) and the American National Standards Institute (ANSI) have adopted 
standards that rely on a 3 dB exchange rate. One commenter asserted 
that ``virtually all other industrialized countries use a 3 dB exchange 
rate.''
    In suggesting a 3 dB exchange rate, commenters made several other 
arguments. American Speech-Language-Hearing Association (ASHA) and the 
American Industrial Hygiene Association (AIHA) asserted that a 3 dB 
exchange rate was ``more appropriate and protective for railroad 
employees.'' They rejected FRA's decision to follow MSHA, arguing that 
the ``noise exposure conditions, legacy of engineering controls, and 
other criteria surrounding MSHA's adoption of the 5 dB rule are not 
necessarily germane to the railroad industry.'' Theresa Schulz, who has 
spent more than 20 years as a hearing conservation audiologist in the 
U.S. military, wrote that the 3 dB exchange rate is ``based on 
scientific principle and the physics of sound.'' Cooper Tire explained 
that ``US and international regulatory agencies have eschewed the 5 dB 
exchange rate because of certain inherent deficiencies * * * [and] have 
embraced a more scientifically-sound, worker-friendly 3 dB exchange 
rate that is based on much better data than existed in the 1970s when 
the 5 dB exchange rate was first utilized.''
    Commenters proposed various alternatives. NHCA recommended that FRA 
revise the rule to include the Threshold Limit Values (TLVs) for noise 
established by the ACGIH. The TLVs are based on an 8-hour TLV of 85 
dB(A) and a 3 dB exchange rate. NIOSH suggested that if FRA ultimately 
decided to retain the 90 dB(A) exposure limit and the 5 dB exchange 
rate, then FRA should include a non-mandatory appendix containing 
tables from the 1998 NIOSH revised criteria document. Those tables 
would be analogous to the existing OSHA/FRA tables, however, they would 
calculate the numbers with a 85 dB(A) exposure limit/3 dB exchange rate 
(LNIOSH) in addition to calculating the numbers with a 90 
dB(A) exposure limit/5 dB exchange rate (LOSHA). Commenters 
explained that, by having both sampling protocols, railroad safety and 
health professionals would be able

[[Page 63077]]

to better understand the spectrum of hearing risks faced by railroad 
employees and could better choose the most relevant method for 
protecting employee hearing. Overwhelmingly, though, the commenters 
advocated for FRA to ``follow the NIOSH expert advice'' and adopt an 85 
dB(A) exposure limit and a 3 dB exchange rate.
    For several reasons, FRA has decided to leave the triggering 
criteria as proposed. First, with respect to the exchange rate, many 
commenters argue that the 3 dB rate is much more protective than the 5 
dB rate that FRA proposed and now adopts. The issue, however, is not as 
clear as the commenters suggest. There are two major approaches that 
have been taken in attempts to develop a simple scheme for determining 
the appropriate level of protection: the equal-energy approach and the 
equal-TTS approach. ``The equal-energy approach is an example of 
attempts to equate exposures on the basis of their physical 
characteristics directly, while the equal-TTS method is based on an 
assumed correlation between permanent and temporary effects of noise 
exposure.'' \28\
---------------------------------------------------------------------------

    \28\ Berger, E.H. (2000). ``Auditory and Non-auditory Effects of 
Noise'' in The Noise Manual, 5th Edition, edited by E.H. Berger, 
L.H. Royster, J.D. Royster, D.P. Driscoll, and M. Layne, Am. Ind. 
Hyg. Assoc., Fairfax, VA, 137.
---------------------------------------------------------------------------

    The equal energy approach ``makes the assumption that damage 
depends only on the daily amount of A-weighted sound energy that enters 
the ear of the worker, and that the temporal pattern during the day is 
irrelevant.'' \29\ This approach ultimately leads to the ``3 dB rule,'' 
which is that one should reduce the permissible time of exposure by 
half for every 3 dB increase in dose level. Thus, the argument for a 3 
dB exchange rate assumes that since 3 dB represents a doubling in the 
acoustical energy, it also represents a doubling of the damage risk 
based on the daily exposure rate. However, this is not necessarily 
true. A doubling in energy does not necessarily represent a doubling of 
the damage risk, because there is a serious shortcoming with this 
theory. This theory only applies to single steady uninterrupted 
exposures. This theory does not account well for exposures to noise 
environments where the noise levels vary widely in intensity and 
throughout the work shift. Where exposures vary widely in intensity and 
over time, there is an opportunity for some auditory recovery and so 
the damage risk is not equivalent to exposures to steady state noise. 
The second theory is the equal-TTS theory. It ``is based on the 
hypothesis that daily exposures that produce the same temporary effects 
will eventually produce the same permanent effects.'' \30\ This theory 
does not have the same problem as the equal-energy theory, for it does 
not make the mistake of ignoring temporal patterns.
---------------------------------------------------------------------------

    \29\ Berger, E.H. (2000). ``Auditory and Non-auditory Effects of 
Noise'' in The Noise Manual, 5th Edition, edited by E.H. Berger, 
L.H. Royster, J.D. Royster, D.P. Driscoll, and M. Layne, Am. Ind. 
Hyg. Assoc., Fairfax, VA, 137.
    \30\ Id. at 138.
---------------------------------------------------------------------------

    Neither of these approaches, however, are well-suited for the 
locomotive cab noise environment. FRA experience has shown that 
exposures for crews of older and relatively ``noisy'' locomotive cabs 
are a mixture of periods of generally steady state noise at low to 
medium levels (80-90 dB(A)) interspersed with short periods with high 
noise levels (e.g., horn blowing, operations through tunnels and 
underpasses, and other relatively short term events). Given that crew 
exposures vary in intensity and over time, the equal energy approach 
(which ignores these temporal patterns) is not appropriate. As for the 
equal-TTS approach, it might be a seemingly more accurate method of 
assessing damage risk, but it is not suitable for regulatory compliance 
purposes, because its criteria are extremely complicated to apply.
    During the development of the OSHA HCA, OSHA was likewise faced 
with the practical reality of these approaches. OSHA wanted a 
simplified approach to establishing an equivalent exposure, but one 
that would account for the intermittence of exposures inherent in many 
occupational noise settings. Accordingly, OSHA came up with the 5 dB 
exchange rate. They ``decided that the best way to take into account 
the reduction of hazard associated with intermittence was to use a 
trading relation of 5 dB per halving of exposure time.'' \31\ FRA, like 
OSHA, believes that the 5 dB exchange rate is the most appropriate one 
to use at this time.
---------------------------------------------------------------------------

    \31\ Id. at 139.
---------------------------------------------------------------------------

    Second, FRA does not feel comfortable changing the triggering 
criteria, since it would be a radical departure from the existing 
leading federal regulation on occupational noise exposure. The leading 
federal regulatory authority for occupational hearing loss is OSHA, and 
the leading federal regulation on occupational noise exposure is OSHA's 
general industry standard. See 29 CFR 1910.95. The current OSHA 
permissible exposure limit, action level, and exchange rate are the 
same as those that FRA is using in this final rule. During this 
rulemaking proceeding, FRA sent a letter dated January 11, 2005 to OSHA 
and asked whether OSHA's position had changed since the issuance of the 
HCA and whether OSHA had any plans in the near future to modify its 
exchange rate. In referring to scientific and technical issues 
including the exchange rate, OSHA replied in a March 16, 2005 letter 
that ``OSHA has not re-addressed these issues since [the issuance of 
the HCA] and our position remains essentially unchanged.'' (Copies of 
the letters are included in the docket). In addition, FRA notes that in 
a 1999 rulemaking, MSHA adopted hearing conservation requirements for 
miners, using the same limits and exchange rate as OSHA. See 64 FR 
49548 (September 13, 1999).
    Third, FRA notes that the data supported by several of the 
commenters (to support a 3 dB exchange rate) fails to take into account 
the actual nature of employee exposure. Studies cited in the comments 
(that compare the risk of hearing loss over time based on the level of 
the employee's noise exposure) presume that employees experience these 
exposures without any protective measures. That is not necessarily 
true. Employees who are included in a hearing conservation program are 
presumably educated about the risk of noise, have been offered HP at 
certain noise levels, and have been required to wear HP at certain 
levels. Thus, employees in a HCP are a ``protected'' population and 
their hearing loss will be less than that of the ``unprotected 
populations'' (that are cited in the studies). And so the risk of 
hearing loss with a 5 dB exchange rate is not as high as commenters 
suggest.
    Fourth, even if FRA were to accept the argument that the 3 dB 
exchange rate is more protective and appropriate for the noise 
experienced by locomotive crews, FRA cannot adopt the lower limit given 
the implications that would result. While the railroads are subject to 
FRA's noise standard for their noise-exposed employees in the 
locomotive cab, railroads are subject to OSHA's noise standard for 
noise-exposed employees in areas outside of the locomotive cab. See 
Sec.  227.101. If FRA adopted a 3 dB exchange rate and OSHA continued 
with its 5 dB exchange rate, railroads would have to comply with two 
different regulatory criteria for their employees. That would be overly 
burdensome, difficult, and costly. For example, it would most likely 
substantially increase the railroad's recordkeeping burden and the 
railroad's cost for medical services. There are limits to what 
technology permits and what the regulated industry can afford. FRA 
would be pushing those limits by imposing the 3 dB exchange rate.

[[Page 63078]]

    Fifth, the use of the 3 dB exchange rate is not as widespread as 
some commenters suggest. FRA believes there is a marked distinction 
between professional organizations that recommend a 3 dB exchange rate 
and Federal agencies that actually enforce a 3 dB exchange rate on a 
regulated community. Most of the entities that recommend the use of the 
3 dB exchange rate are professional organizations like NIOSH, ACGIH, 
NHCA, ASHA, and the American Academy of Audiology (AAA), as well as 
standards organizations like ANSI and ISO. Few Federal regulatory 
agencies actually enforce a 3 dB exchange rate standard on a regulated 
community. OSHA and MSHA use a 5 dB exchange rate. DOD is one of the 
few federal agencies that has a 3 dB exchange rate, but even DOD is in 
an unique position, for they have internal guidelines, as opposed to 
regulations in the Code of Federal Regulations. (In addition, the Air 
Force is an especially unique situation since the Air Force's employees 
face unusually high noise levels, and so the 3 dB exchange rate is 
warranted). For the reasons listed above, FRA believes that the adopted 
triggering criteria is the best approach currently available to achieve 
the regulatory and occupational health objectives of this rule. 
Accordingly, in this final rule, FRA is using the same triggering 
criteria as proposed in the NPRM.

E. Weighting Filter

    FRA used the A-weighted scale throughout the proposed rule. FRA 
explicitly acknowledges its use in Sec.  227.105(a), where FRA writes 
``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.'' (A weighting filter is an electronic device 
in the sound measuring instrument that changes the way the instrument 
detects the intensity of different frequencies of sound. The A-
weighting filter is designed to approximate the sensitivity of the 
human ear to the different sound frequencies.) Two commenters, Cooper 
Tire and an individual railroad employee, suggested that FRA should use 
the C-weighted scale instead of the A-weighted scale.
    Cooper Tire asserts that the A-weighting scale is not appropriate 
for the locomotive cab noise environment. Cooper Tire explains that the 
noise generated by a locomotive is radically different than the noise 
found in other industrial environments (i.e., of a lower frequency), 
and so FRA should use a weighting scale that appropriately measures 
low-frequency noise (i.e., the C-weighted scale). Cooper Tire explains 
that ``A-weighted noise measurements filter out low-frequency noise 
content characteristic of locomotive noise prior to the noise 
measurement, giving an artificially low measure of an environment's 
likelihood of causing harm to the locomotive employee.'' By contrast, 
Cooper Tire believes that the C-weighted scale will better measure the 
low-frequency noise and thus ``will afford railroad workers better 
protection against the negative hearing and health effects that low 
frequency noise can cause.'' Similarly, an individual BLET member 
submitted comments, requesting that FRA use a C-scale instead of an A-
scale in order to better measure low frequency noise.
    Consistent with its position in the proposed rule and OSHA's 
position in its general industry standard, FRA will require railroads 
to use the A-weighted scale for measuring occupational noise in the 
workplace. Not only is the A-weighted scale the most appropriate 
weighing filter for this purpose, but it is also the most widely 
accepted. According to the AIHA Noise Manual, ``As a result of 
investigations in which a variety of weighing filters have been 
compared, it has been concluded that empirically derived measures using 
A-weighting gives a better estimation of the threat to hearing * * * 
than do the other weightings. Because of simplicity and substantiated 
results, A-weighting has continued to receive wide acceptance.'' \32\ 
The Working Group members agreed with this position, as does FRA. 
Accordingly, FRA has not changed the weighting scale it uses in this 
rule.
---------------------------------------------------------------------------

    \32\ Earshen, John J. (2000). ``Sound Measurement: 
Instrumentation and Noise Descriptors'' 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, 54.
---------------------------------------------------------------------------

F. Electronic Communication Headsets

    During pre-NPRM Working Group meetings, the matter of electronic 
communication headsets generated extensive discussions. Railroad 
representatives strongly disfavor the use of these devices. They 
maintain that they 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 them. 
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 with the resulting heat 
build-up under the headsets causing 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.
    In the NPRM, FRA sought comment from the public on the use of 
different types of hearing protection, including electronic 
communication headsets. Several commenters, all of whom appear to be 
railroad operating employees, questioned why FRA did not require the 
railroad industry to use noise canceling headsets with built-in 
communication microphones. The commenters explained that the headsets 
work well for airline pilots, and so would probably also work well for 
locomotive engineers. Another commenter explained that these headsets 
would keep out the locomotive noise and make it easier to hear the 
dispatcher. Overall, these commenters felt strongly that these headsets 
would make a significant difference and would decrease the noise level 
in locomotives. One individual, in particular, wrote that ``[these 
headsets] would not be inexpensive, but [these headsets] are worth 
their weight in gold in an aircraft environment and would likely be the 
same in a locomotive.''
    The AAR, however, disagreed as to the value of these headsets when 
used as hearing protection. The AAR noted that several of their members 
have had extensive experience with radio headsets and have found that 
their use is limited. The AAR explained that the headsets have been 
poorly received by most crews and that many employees found the 
headsets to be uncomfortable. The AAR also explained that many 
employees lost their headsets or left them at home. The consensus of 
the AAR members is that ``the disadvantages and cost of radio headsets 
far outweigh any benefits they might offer.''
    FRA considered this issue and decided to leave this provision the 
same as in the proposed rule. As noted above, the Working Group had 
discussed this issue at length in past meetings and reached the same 
conclusion. Absent any new information or justification to support a 
change, neither FRA nor the Working Group saw any reason to change its 
position. FRA thinks, at this time, that it is most appropriate that 
FRA allow the use of the electronic headset technology but not require 
it.

[[Page 63079]]

    FRA has previously examined the issue of temperature control in 
locomotive cabs and came to the conclusion that it was not possible to 
mandate use of air conditioning during hot periods of the year. In 
reporting these findings to the RSAC, FRA did call attention to the 
importance of temperature control and urge railroads to include full 
temperature control in its specifications for new locomotives and to 
maintain the systems in service. Absent firm requirements that 
temperature control be provided, and given the long hours that 
employees work in the cab setting, FRA agrees it is not practical to 
require use of headsets in the normal course of business.\33\
---------------------------------------------------------------------------

    \33\ See Pilcher, J., Nadler, E., and Busch, C., ``Effects of 
Hot and Cold Temperature Exposure on Performance: A Meta-Analytic 
Review,'' Ergonomics, vol. 45, no. 10, 682-688.
---------------------------------------------------------------------------

    In sum, FRA will not require a railroad to offer electronic (or 
radio) communication headsets (wired or wireless), however FRA does not 
intend to discourage railroads from using this technology. Railroads 
are welcome to use this technology if they so wish. Of course, 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. Because of the safety need attendant to good 
intra-crew communication, this is an accommodation that would be 
particularly appropriate where one member of the crew has known hearing 
loss and the locomotive is an older model known to have significant 
background noise. In this case, all crew members should cooperate in 
utilization of the technology. As a related aside, FRA notes that, with 
respect to crew members with documented hearing loss, this rule does 
not vary or add to the railroad's duties under the Americans with 
Disabilities Act.

G. Location of the Train Horn

    Several individual commenters, all railroad employees, expressed 
concern about the location of the train horn. One commenter asserted 
that the location of the train horn was unsafe with respect to hearing 
protection for personnel on the train. Another commenter suggested that 
railroads with cab-roof-mounted horns should relocate their horns to 
the back of the cab on the engine compartment hood. This commenter also 
stated that cab-mounted horns create a greater safety risk, because 
they reduce the communication between the engineer and conductor in the 
cab and because they decrease the crew's ability to hear the radio. Yet 
another asserted that the ``biggest cause of cab noise [is] the horns 
mounted on top of the locomotive cab on all the older engines'' and 
recommended that the new rule ``include mandatory relocation of the 
roof mounted horns to the long hood area where all new locomotive horns 
are mounted.''
    FRA has a long history of working with the railroad industry on the 
issue of locomotive horn noise, both in the context of locomotive cab 
working conditions and of unwanted noise in communities through which 
active railroad lines pass. FRA has addressed train horn issues in 
depth through the rulemaking proceedings for its Final Rule on the Use 
of Locomotive Horns at Highway-Rail Grade Crossings (``Train Horn 
Rule.'') \34\ The issues ranged from setting maximum horn sound output 
levels to limiting horn sound (emanating to the side of the locomotive) 
to relocating the horn on locomotives. In order to fully consider these 
issues, FRA held a Technical Conference on Locomotive Horns during the 
comment period to the NPRM (for the Train Horn Rule), conducted tests 
through the Volpe National Transportation Systems Center, and reviewed 
the results of Transport Canada tests.
---------------------------------------------------------------------------

    \34\ See FRA Docket No. 1999-6439, including 65 FR 2230 (January 
13, 2000), 68 FR 70586 (December 18, 2003), and 70 FR 21844 (April 
27, 2005).
---------------------------------------------------------------------------

    Research in support of the Train Horn Rule confirmed that placing 
the horn in the middle of the locomotive results in the need to have 
louder output from the source in order to achieve adequate warning to 
motorists, which, in turn, causes concern in communities along the rail 
line. However, the placement of the horn in the middle of the 
locomotive clearly reduces the impact on crews. Research conducted in 
Canada suggests that front-mounted horns may be more effective (than 
center-mounted horns) in providing warning under dynamic conditions.
    In the Train Horn Rule, FRA decided not to mandate the relocation 
of the train horn. FRA explained that further research would be 
necessary before making any further regulatory changes. FRA continues 
to research these issues. For purposes of this rulemaking, the issue is 
whether employee hearing is adequately protected. The provisions of 
this rule will achieve that result. Accordingly, FRA, with the 
agreement of the RSAC Working Group, is not mandating that railroads 
locate the train horn in any particular location.

H. FRA Report to Congress

    In the NPRM, FRA discussed the noise chapter of its 1996 Report to 
Congress.\35\ The AAR commented on the data relied upon for the Report 
to Congress. The AAR asserted that there were problems with that data, 
that is ``that FRA made time weighted measurements using an eight hour 
metric, but then reported the results as a percent of dose using a 
twelve hour metric as a reference. This resulted in overstating the 
percentage of exposures that exceeded the permissible exposure limit 
and also overstating the percentage of exposures that exceeded the OSHA 
threshold for hearing conservation programs.'' The AAR believes that it 
``could lead to overestimating the degree to which train crews are 
exposed to sound levels.''
---------------------------------------------------------------------------

    \35\ See 69 FR 35146, 35149 (June 23, 2004).
---------------------------------------------------------------------------

    The AAR noted that FRA had acknowledged in the preamble discussion 
to the NPRM that the Report to Congress was ``not rigorous.'' However, 
the AAR wants FRA to publicly correct the averages and percentages in 
the Report to Congress that were affected by these errors. The 
information that FRA endeavored to summarize in the Report is now more 
than a decade old and could not, even if drawn from a representative 
sample of assignments (which it was not), and even if re-characterized 
as AAR suggests, be used to describe current industry conditions in any 
quantitative way. However, the Report to Congress provides data 
supporting the proposition that excessive noise doses are possible in 
the worst of the older locomotives. And, industry representatives 
themselves pointed out during RSAC Working Group deliberations that 
occasional excessive doses are possible in new locomotives under 
challenging conditions of operations (e.g., windows open, many grade 
crossings, heavy loading). Industry noise monitoring has confirmed 
these points (see data reported in Appendix C to the Regulatory Impact 
Analysis for this final rule), and all parties agree that a hearing 
conservation approach is warranted to address potential exposures. 
Accordingly, FRA, having responded repeatedly and candidly to 
criticisms of the Report, sees no purpose relevant to this rulemaking 
for revisiting the details of the Report.

I. Regulatory Impact Analysis

    The doseBusters Company submitted comments on the Regulatory Impact 
Analysis (RIA) that FRA prepared to

[[Page 63080]]

accompany the NPRM. FRA has responded to these comments in the final 
economic analysis, of which a copy can be found in the docket. FRA is 
addressing one comment here, however, because it is related to the 
reasons that FRA issued this rule and not just the RIA.
    The doseBusters Company commented on Appendix C of the RIA. 
Appendix C of the RIA cited railroad data that FRA had reviewed before 
issuing the rule. A Class 1 railroad has gathered and submitted to FRA 
data on employee noise exposure in the locomotive cab. FRA reviewed 
that data, as described in Appendix C to the RIA. The doseBusters 
Company felt that the data readings from the dosimeter were flawed 
because of the placement of the dosimeter microphones during testing 
(i.e., the microphones were placed at different locations--at the 
collar lapel, ball cap, or shoulder). The doseBusters Company asserted 
that using different microphone locations could cause substantial 
errors in the data.
    The doseBusters Company also disagreed with FRA's conclusions from 
the testing about the risk of NIHL. The doseBusters Company stated that 
the results from the noise sampling represented the average number of 
workers overexposed to noise on any particular day, not the actual 
number of workers that may be overexposed over time. The doseBusters 
Company explained that, based on similar exposure data that they 
collected on underground coal miners, they estimate that nearly twice 
the number of railroad workers (than FRA identifies) are overexposed to 
noise.
    FRA does not believe that the dosimeter data is flawed, and FRA 
believes that it can rely on this data which it received from a Class 1 
railroad. FRA believes that the primary objective of this data 
collection was met placing the microphone near the employee's ear. It 
is widely accepted that, as long as the dosimeter microphone is located 
in the employee's hearing sphere (i.e., a sphere with a two-foot 
diameter surrounding the head),\36\ the tester will get a reasonable 
representation of the employee's noise exposure. In addition, FRA notes 
that this data was collected from field surveys, not a controlled 
laboratory study. As such, small variations in the microphone testing 
location may be expected. FRA also notes that, out of 512 valid 
samples, 17 samples included a comment about the microphone location. 
In addition, no structural errors were observed in the data. As the 
variance in microphone location appears to be small from the comments, 
the error introduced by this variance is likely to be small as well. A 
small amount of error would not invalidate the study results.
---------------------------------------------------------------------------

    \36\ This definition comes from Appendix III(A), ``Instruments 
Used to Conduct a Noise Survey'' of OSHA's Technical Manual. See 
http://www.osha.gov/dts/osta/otm/noise/exposure/instrumentation.html#dosimeter.
---------------------------------------------------------------------------

    The data displayed in the two tables in Appendix C to the RIA, 
Locomotive Cab TWA(80) Measurements and Locomotive Cab TWA(90) 
Measurements, were a simple count of the number of employees that fell 
below or above the OSHA standards. The TWA or number of employees was 
not arithmetically averaged. FRA agrees that a longitudinal study would 
have provided additional information on which employees were 
overexposed to noise and how their noise exposure changed over time. 
FRA notes that no new data was gathered for the analysis in Appendix C; 
rather, a previously-conducted study provided a cost effective source 
of data. FRA feels that the data review provides a good indication of 
the number of employees overexposed to noise in those environments in 
which the noise sampling was conducted, given that railroad routes and 
schedules tend to stay fairly constant. With similar work activities 
performed over time, the noise exposure can be expected to approximate 
the noise exposure measured in the study.
    Without further information, FRA is uncertain whether the coal 
mining example cited by the doseBusters Company applies to the 
railroading environment. There are likely many differences between the 
coal mining environment and the railroading environment. For example, 
the noise sources, noise duration, sound frequencies, and reflective 
characteristics of the surroundings may all be different. Although FRA 
finds the coal mining comparison to be interesting anecdotally, there 
is no information presented that indicates how noise exposure in an 
underground coal mine correlates with noise exposure in a railroad cab.

V. Section-by-Section Analysis

    This section-by-section analysis explains the provisions of the 
final rule. A number of the issues and provisions of the final rule 
have been discussed and addressed 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. Section 227.1(a) provides that the purpose of this 
part is to protect the occupational health and safety of employees 
involved in specified 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 rule is to protect individuals over the span of 
their railroad career. Section 227.1(b) states that this part 
prescribes minimum Federal health and safety noise standards for 
locomotive cab occupants.
    FRA did not receive any comments on this section, and so FRA did 
not make any changes based on public comments or RSAC Working Group 
discussions. However, FRA did make a few minor changes in order to 
clarify this section. FRA revised the language in Sec.  227.1(b) to 
reflect the fact that the rule provides ``noise standards for 
locomotive cab occupants,'' not general ``health and safety standards 
for specified workplace safety subjects.''

Section 227.3 Application

    This section identifies the applicability of this part and states 
that part 227 will apply to all railroads and contractors to railroads. 
This section identifies five 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. Aside from the exception noted below, this part will 
apply to rapid transit operations in an urban area that are connected 
to the general railroad system.
    Third, this part will not apply to rapid transit (light rail) 
operations in an urban area that are connected to the general system 
and operate under a shared use waiver. This exception is a departure 
from the proposed rule, and one that was decided upon after the RSAC 
consensus. These operations are provided using electrical powered or 
diesel powered light rail vehicles. Most of these systems operate as 
street-running trolleys and over track segments shared with 
conventional railroads using the approach referred to

[[Page 63081]]

as temporal separation. FRA has attempted to maintain consistency in 
sorting out those matters that FRA should regulate (because of 
interface with conventional railroads) and those that the Federal 
Transit Administration should regulate (under their State Safety 
Oversight program). FRA has used the waiver process to implement this 
arrangement, following the general principles set forth in FRA's 
relevant policy statements. See 49 CFR part 209, Appendix A ``Statement 
of Agency Policy Concerning Enforcement of the Federal Railroad Safety 
Laws'' and 49 CFR part 211, Appendix A ``Statement of Agency Policy 
Concerning Waivers Related to Shared Use Trackage or Rights-of-Way by 
Light Rail and Conventional Operations.''
    With the passage of time, FRA and the affected transit authorities 
have found this complex of issues increasingly unwieldy. FRA believes 
that where FRA is issuing or revising a regulation, matters are greatly 
simplified both for the regulated entity and for FRA, if FRA provides 
for appropriate exceptions outright. This is such a case. Light rail 
operations are typically conducted using equipment designed for 
passenger and operator comfort, and FRA has received no information 
that any shared use light rail operation is affected by a serious noise 
exposure problem. Further, to the extent a transit authority needs to 
address hearing conservation issues among its employees, there is no 
reason to single out just the employees operating on the general rail 
system. Finally, from a practical standpoint, most shared use 
operations involve line segments not under FRA jurisdiction, and it 
would make no sense to bifurcate hearing conservation between the time 
the trolley operator is on the shared use segment and the time the 
trolley operator is on the street running segment. Accordingly, FRA has 
provided for an appropriate exception in this final rule.
    Fourth, 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 those operations, FRA has considered 
that they are often seasonal and generally use older or historic 
equipment.
    In the NPRM, FRA solicited public comment on how to handle the 
employees covered in these types of operations but did not receive any 
comments. FRA has no evidence that employees and volunteers providing 
this service are at serious risk of hearing loss. Accordingly, FRA will 
continue to exempt these operations from this regulation. FRA notes, 
however, that operations utilizing steam locomotives with extended duty 
periods for locomotive engineers and firemen should make vigorous use 
of hearing protection to reduce crew doses to acceptable levels.
    Fifth, this part will not apply to certain foreign railroad 
operations. Specifically, it will not apply to operations where 
employees of foreign railroads have a primary reporting point outside 
the U.S. but are operating in the U.S., and they satisfy the following 
requirements: (1) The government of the country in which the foreign 
railroad is based 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 will determine whether the foreign 
government's requirements are consistent with the purpose and scope of 
this part, specifically that the purpose of the foreign government's 
requirements are ``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 and that 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.
    FRA did not receive any comments on this section, and so FRA did 
not make any changes based on public comments or RSAC Working Group 
discussions. However, FRA did make two minor changes on its own. FRA 
realized that it had failed to state in Sec.  227.3(a) that the rule 
covers contractors in addition to railroads. While the preamble to the 
NPRM included such a statement,\37\ the regulatory text did not. The 
regulatory text now indicates that this rule covers railroad 
contractors. FRA also realized that there was a drafting inconsistency 
in Sec.  227.3(b)(4) and corrected it. In order to provide for 
consistency within the section, FRA started Sec.  227.3(b)(4) with the 
term ``railroad operations'' instead of the term ``employees.'' \38\
---------------------------------------------------------------------------

    \37\ See 69 FR 35157.
    \38\ The language in the NPRM had provided: ``This part does not 
apply to * * * 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 * * *''
---------------------------------------------------------------------------

Section 227.5 Definitions

    This section contains definitions for key terms. The definitions 
are set forth alphabetically. FRA intends these definitions to clarify 
the meaning of terms as they are used in the text of the final rule.
    Many of these definitions have been taken from the standards issued 
by OSHA and MSHA and the recommendations issued by 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

[[Page 63082]]

``Administrator,'' ``FRA,'' ``Person,'' ``Railroad,'' and ``Tourist, 
scenic, historic, or excursion operations.'' Several of the 
definitions, however, are new or fundamental concepts that are 
discussed below.
    The term ``Action Level'' has been revised since the proposed rule. 
FRA, with the agreement of the RSAC, changed the upper limit for noise 
measurements from 130 dB(A) to 140 dB(A). FRA also made this change in 
Sec.  227.103(c)(1). See Sec.  227.103(c)(1) for a discussion of the 
revision.
    The term ``Audiogram'' has been added to the final rule. The 
Council for Accreditation in Occupational Hearing Conservation (CAOHC) 
and AAA recommended that FRA add this definition. Since FRA uses this 
term throughout the rule, FRA decided, and the RSAC Working Group 
agreed, that it is appropriate for FRA to provide a definition.
    The term ``Audiologist'' has been revised from the proposed rule. 
Several commenters suggested that FRA revise the definition, and most 
suggested alternative definitions. ASHA suggested a revised definition 
and explained it would be consistent with that contained in ASHA's 
Scope of Practice in Audiology (2004). An individual commenter 
suggested an almost identical definition, except that it contained a 
different certification and licensing requirement. AAA also submitted a 
revised definition, explaining that their recommended definition came 
from the Social Security Act \39\ and by using it, FRA would foster 
uniformity among Federal health programs. Finally, an individual ASHA 
member requested that FRA ensure that the audiologists are fully 
educated and trained. In particular, she suggested that an audiologist 
should have at least a master's degree (or Ph.D. or Au.D), experience 
and training in hearing conservation, and certification from a national 
organization (and state licensure).
---------------------------------------------------------------------------

    \39\ See 42 U.S.C. 1395x(ll)(3)(b).
---------------------------------------------------------------------------

    RSAC Working Group members expressed concerns about certain aspects 
of the comments. One member was concerned that it might be unreasonable 
to expect audiologists to have masters or doctoral degrees, however the 
other members pointed out that the vast majority of audiologists 
already have either masters or doctoral degrees. Another member was 
concerned about linking audiologist certification to a single 
organization. (In the NPRM, FRA had required ASHA certification for 
audiologists). Members were concerned that this might present problems 
if that organization went out of existence or if a new licensing 
organization was created. As a result, the Working Group members 
decided not to link licensing to any one organization.
    In addition, one railroad representative explained that he had 
reservations about AAA's recommendation that the audiologist be 
licensed in the state in which the audiologist furnishes service. The 
railroad representative explained that since railroads operate through 
several states, railroad audiologists will provide services in many 
states. It would be impracticable to expect railroad audiologists to 
become licensed in each state in which the railroad operates. FRA 
agrees that it would be impracticable to impose such a burden on 
railroads, and thus FRA did not adopt AAA's recommendation. OSHA's rule 
did not require licensure in the state in which the audiologist 
furnishes service. FRA also does not have such a requirement. Moreover, 
FRA does not expect that this will present any problems. As a general 
matter, FRA expects that audiologists will perform broad duties 
associated with the hearing conservation program. Presumably, the 
audiologist will perform such duties from the state in which the 
railroad is headquartered and where the audiologist is licensed. 
Furthermore, FRA's experience has indicated that most railroad 
audiometric testing tends to be conducted by contractor technicians 
hired by the railroad. As such, audiologists are unlikely to travel 
into the field in mobile vans (i.e., potentially other states) and 
provide audiological services.
    As a related matter, one Working Group member suggested that FRA 
remove the provision in the second half the definition of audiologist, 
which sets the parameters for states which do not license audiologists. 
The Task Force member asserted that the provision was unnecessary, 
since the revised rule only requires audiologists to be licensed in any 
one state, and so therefore there was no need to make provisions for 
states without audiologist licensing requirements. The Task Force, as a 
whole, however, decided that removing this provision could create a 
problem for shortlines. A shortline operating in only one state which 
did not have licensing requirements for audiologists might have 
difficulty finding audiologists. With the provision removed, the rule 
would require audiologists to have a state license, and yet if the 
state didn't require audiologists to get licensed, it would be likely 
that most, if not all, the audiologists near the shortline operations 
would not have state licenses. Accordingly, FRA decided to retain in 
the definition of audiologist a provision for states which do not 
license audiologists.
    The definition in the final rule is a hybrid of the above 
recommendations. It combines the description of the tasks from the ASHA 
(i.e., ``a professional who provides comprehensive diagnostic and 
treatment/rehabilitative services for auditory, vestibular, and related 
impairments'') with the qualification requirements from AAA (i.e., 
requires (1) a masters or doctoral degree and (2) a state license or 
alternate state certification). (Note also that FRA has formatted the 
qualification requirements slightly different than AAA.) This hybrid 
definition addresses both commenters' concerns that audiologists are 
adequately qualified, as well as Working Group members' concerns that 
railroads are able to comply with the rule.
    The term ``Audiometry'' has been added to the final rule. The 
Council for Accreditation in Occupational Hearing Conservation (CAOHC) 
and AAA recommended that FRA add this definition. Since FRA uses this 
term throughout the rule, FRA decided, and the RSAC Working Group 
agreed, that it is appropriate for FRA to provide a definition.
    The term ``Continuous Noise'' is intended to clarify the use of the 
word in Sec.  227.105. The term is used in OSHA's standard,\40\ though 
OSHA does not include a definition in its definition section. FRA 
decided to add a definition for the sake of clarity.
---------------------------------------------------------------------------

    \40\ See 29 CFR Sec.  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 
preventing hearing loss. FRA holds no position 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

[[Page 63083]]

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. As previously discussed, both OSHA and MSHA also use a 5 dB 
exchange rate. Regarding this definition and the definition of ``Time-
Weighted Average,'' several commenters suggested that FRA instead adopt 
a 3 dB exchange rate. For a discussion of those comments, see section 
IV(D) above.
    The term ``Hearing Protector'' refers to ``any device or material, 
which is capable of being worn on the head, covering the ear canal or 
inserted 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.'' At the suggestion of NHCA and 
with the consensus of the RSAC Working Group, FRA added the words 
``covering the ear canal opening'' after the phrase ``worn on the 
head'' and ``inserted'' before ``in the ear canal.'' FRA believes that 
these words make the definition more clear.
    In the NPRM, FRA sought comment on inclusion of the phrase ``has a 
scientifically accepted indicator of its noise reduction value.'' The 
RSAC Working Group had discussed this phrase during the proposed rule 
stage and had considered several variations. Certain Working Group 
members had, at one point, thought the phrase was too general and 
provided too much leeway. They wanted that phrase replaced with a 
requirement to use a specific indicator, the Noise Reduction Rating 
(NRR). FRA sought comment from the public, asking whether FRA should 
use a general description for an indicator, the NRR, or some other 
specific indicator.
    A few commenters, including Aearo Company, ASHA, and Theresa 
Schulz, responded to FRA's request for comments, explaining that they 
felt that the phrase was too vague. Aearo Company and ASHA suggested 
that FRA should mandate the use a specific rating(s) for enforcing 
hearing protector attenuation and include that rating(s) in this 
definition. They noted that there were several options, including NRR, 
NRR (SF), and Method B, though did not assert a preference for any 
individual one. Similarly, Theresa Schulz noted that there are new 
products and testing methods, including Fit Testing, Method B and 
Predicted Personal Attenuation Rating (P-PAR), that have been accepted 
scientifically and that provide real-world testing of attenuation.
    The AAR also responded to FRA's request for comments, noting its 
support for the proposed definition of HP. The AAR wrote that railroads 
should not be limited to the NRR for evaluating HP attenuation, because 
it does not provide the flexibility to employ current science. The AAR 
explained that there is current technology, such as in-the-ear 
microphones, which measure actual attenuation, and that technology 
would not be available if railroads were limited only to the NRR.
    The Working Group discussed these comments and expressed concern 
that replacing that phrase with the NRR (or any other specific 
indicator) would ultimately be limiting. It would prevent the industry 
from availing themselves of advances in science and technology. By not 
listing any particular indicator, FRA leaves it open for the 
development of new standards. This is particularly important, since the 
EPA is currently working to develop a new standard. Given that there 
are several possible indicators that FRA could use and given that there 
is not widespread public support for any particular one, as well as the 
fact that listing a particular indicator might ultimately preclude the 
use of new technology, FRA will not mandate the use of any particular 
indicator in the definition of hearing protector.
    The term ``Noise Operational Controls'' is the functional 
equivalent of OSHA's term ``administrative controls.'' \41\ MSHA \42\ 
and NIOSH \43\ also use the term. FRA proposed the use of this term in 
the NPRM and has decided to retain it in this final rule.
---------------------------------------------------------------------------

    \41\ See 29 CFR Sec.  1910.95(b)(1) and 29 CFR Sec.  1926.52(a).
    \42\ See 30 CFR Sec.  62.130.
    \43\ See www.cdc.gov/niosh/hpterms.html for NIOSH Common Hearing 
Loss Prevention Terms.
---------------------------------------------------------------------------

    A few commenters, including the ASHA, Teresa Schulz, and Aearo 
Company, recommended that FRA use the term ``administrative controls'' 
instead of ``noise operational controls.'' They acknowledged that FRA 
enforces noise operational controls differently than OSHA, MSHA and 
NIOSH; however, they thought that FRA should use the same term as the 
others since the terms are functionally equivalent. The commenters 
explained that FRA should be consistent and uniform with other Federal 
agencies in order to minimize confusion. They thought that it was 
particularly important for FRA to be clear, since OSHA and FRA share 
jurisdiction over certain aspects of the rail industry. Aearo Company 
also felt that the term itself could be potentially confusing; a 
newcomer might question whether the term applies to worker schedules 
since those could be thought of as ``noise operations.''
    FRA developed the term ``noise operational controls'' in 
conjunction with the RSAC Working Group during the NPRM stage. FRA re-
opened the discussion on this matter during the comment period, and 
FRA, with the RSAC Working Group's input, has re-affirmed its decision 
to use this term. FRA uses a different term to distinguish it from 
OSHA's term. While the definition of the two terms is identical, the 
application of the two terms is different. Administrative controls are 
mandatory in OSHA's hierarchy, whereas noise operational controls are 
optional in FRA's hierarchy-free scheme. FRA is using this different 
term to make it clear that FRA treats noise operational controls 
differently than the way OSHA treats administrative controls.
    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 rule in Sec.  227.101. Theresa Schulz 
commented on this definition, noting that it is an ``important but 
previously unrecognized element for a noise standard.'' She explained 
that this provision ensures that the focus of the HCP is on employees 
who are routinely exposed to noise and therefore at higher risk for 
noise-induced hearing loss.
    The term ``Periodic Audiogram'' has been revised in the final rule. 
The new definition states that a periodic audiogram is ``a record of 
follow-up audiometric testing conducted at regular intervals after the 
baseline audiometric test.'' FRA made this change in response to 
commenters who explained that the NPRM incorrectly referred to 
audiograms as something that is ``done'' or ``conducted.'' CAOHC, for 
example, explained that an audiogram is a document or report of 
audiometric testing, and so it is not something that is ``done'' or 
``conducted.'' This new definition corrects that inaccuracy.
    The term ``Professional Supervisor of the Audiometric Monitoring 
Program'' was added to the final rule. This definition arose in the 
context of qualifications for individuals who perform audiometric 
tests. See Sec.  227.109(c) for a discussion of this term and of 
qualifications, in general.
    The term ``Qualified Technician'' was added to the final rule. This 
definition was not a product of the RSAC consensus. FRA added this 
definition in order to simplify the rule. Rather than restate the 
definition several times in the rule, FRA states it in this definition 
section once and then uses the term throughout the rule. For a 
discussion of the comments that FRA received about

[[Page 63084]]

technicians, see the section-by-section analysis for Sec.  227.109(c).
    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, S1.4-1971 
(R1976). FRA updated that standard with the current standard, ANSI 
S1.43-1997 (R2002), ``Specifications for Integrating-Averaging Sound 
Level Meters.''\44\
---------------------------------------------------------------------------

    \44\ For a general discussion on the use of ANSI standards in 
this rule, see the section-by-section analysis for Sec.  
227.103(c)(2).
---------------------------------------------------------------------------

    The term ``Time-weighted-average eight-hour (or 8-hour TWA)'' 
includes a reference to the 5 dB exchange rate. Regarding this 
definition and the definition of ``Exchange Rate,'' several commenters 
suggested that FRA instead adopt a 3 dB exchange rate. For a discussion 
of those comments, see section IV(D) above.

Section 227.7 Preemptive Effect

    This section informs the public of FRA's intention and views on the 
preemptive effect of the rule. The preemptive effect of this rule is 
broad, as its purpose is to create a uniform national standard. 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. Exceptions would be rare. In general, 49 U.S.C. 
20106 will preempt any State law--whether statutory or common law--and 
any state regulation, rule, or order, that concerns the same subject 
matter as the regulations in this rule. FRA received no comments on 
this section and it remains the same as proposed in the NPRM.

Section 227.97 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 that FRA has 
issued.
    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 $550, 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 
$27,000 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. FRA 
received no comments on this section and it remains the same as 
proposed in the NPRM.
    With respect to the penalty amounts contained in this section, the 
Federal Civil Penalties Inflation Adjustment Act of 1990 (Inflation 
Act), 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, requires agencies to periodically adjust by regulation each 
maximum civil monetary penalty or range of minimum and maximum civil 
monetary penalties. By final rule effective June 28, 2004,\45\ FRA 
adjusted its civil monetary penalties. In this final rule, FRA has 
included those adjusted penalty amounts.
---------------------------------------------------------------------------

    \45\ See 69 FR 30591 (May 28, 2004).
---------------------------------------------------------------------------

Section 227.11 Responsibility for Compliance

    This section clarifies FRA's position that the requirements 
contained in this rule are applicable not only to any ``railroad'' 
subject to this part but also to any ``person'' (as defined in Sec.  
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 same manner as required of a railroad or 
be subject to FRA enforcement action. FRA received no comments on this 
section and it remains the same as proposed in the NPRM.

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. FRA 
received no comments on this section and so FRA left it the same as 
proposed in the NPRM.

Section 227.15 Information Collection

    This section notes the provisions of this part that will be 
submitted to 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 and Applicability

    This section identifies the individuals to whom this rule will 
apply. FRA did not receive any comments on this section, and so FRA did 
not make any changes based on public comments or RSAC discussions. 
However, FRA did make a few minor changes in order to clarify this 
section. FRA changed the name of this section, from ``scope'' in the 
NPRM to ``scope and applicability'' in the final rule. FRA believes 
that the revised name more accurately reflects the content of this 
section. In Sec.  227.101(a), FRA added the words ``noise-related,'' to 
clarify that this subpart applies to noise-related working conditions, 
not just working conditions in general. Additionally, at the end of 
Sec.  227.101(a)(1), FRA added the clause ``subject to a railroad's 
election in paragraph (3) of this section.'' This clarifies the 
interplay between paragraphs (a)(1) and (a)(3) of this section. FRA 
believes these changes make the rule more clear and accurate.
    Section 227.101(a)(1) provides that this rule covers 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

[[Page 63085]]

testing programs in this section to address the exposure that these 
employees experience.
    With respect to the term ``regularly'' in Sec.  227.101(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 scope provision that the RSAC Working Group 
considered at the NPRM stage, OSHA's regulations would have applied to 
these employees when they were outside the cab, and FRA's regulations 
would have applied to these employees when they were inside the cab. 
The employee would have had to switch back and forth between OSHA's and 
FRA's hearing conversation programs throughout the year. FRA believes 
this would have been both illogical and unworkable.
    This section identifies groups of employees to whom this subpart 
does not apply. 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 to use the 
hearing protection while operating the historic equipment. (See Sec.  
227.101(a)(1)(iii)). 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 only on steam locomotives; 
however, FRA instead used the term ``historic equipment,'' thereby 
encompassing in the definition diesel locomotives and other antiquated 
equipment typically used in tourist and scenic operations, in addition 
to steam locomotives.
    FRA added this historic equipment exception as a result of a 
Working Group member's comment during a pre-NPRM 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. At the recommendation of the Working 
Group, FRA decided to include this 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 rule have discussed 
historic operations. In particular, Sec.  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.
    Section 227.101(a)(2) provides that this rule covers any direct 
supervisor of the persons described in Sec.  227.101(a)(1) whose duties 
require frequent work in the locomotive cab.
    Section 227.101(a)(3) provides that this rule covers, at the 
election of the railroad, any other person 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). Note that, pursuant to Sec.  
227.101(a)(3), a railroad can elect to cover an employee that would 
otherwise be excluded by Sec. Sec.  227.101(a)(1).
    Section 227.101(b) provides that all other railroad employees who 
are exposed to noise hazards but are outside the scope of this 
regulation will continue to be covered by OSHA's noise standard, which 
is located at 29 CFR 1910.95. The MTA/Long Island Railroad (LIRR) 
submitted comments on this provision. LIRR believes that this rule will 
cause them to administer a hearing conservation program to a much 
larger percentage of their workforce than they currently do and that it 
will have a significant monetary cost and with a greatly increased 
administrative burden. They explained that they would probably be 
forced to reallocate resources to the detriment to other aspects of 
operations, which in turn, could affect the service it provides to the 
general public.
    FRA believes the scope of this rule is appropriate and is leaving 
it as proposed in the NPRM. LIRR provided no reason why the rule would 
necessitate inclusion of a much larger portion of their workforce in a 
HCP. Based upon the typical cab environment on LIRR and similar 
commuter railroads, FRA does not believe that will

[[Page 63086]]

be the case. To the extent LIRR employees are exposed above the action 
level, as a Federal grantee and public benefits corporation of the 
state of New York, LIRR bears at least the same responsibility to its 
employees as other railroads. Finally, FRA notes that this rule is the 
product of the RSAC, of which railroad representatives including APTA, 
were members. The railroad representatives on the RSAC Working Group 
noted that most railroads already had HCPs and so as a practical 
matter, this rule would not be overly burdensome on railroads.

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 rule requires railroads to develop and implement a noise 
monitoring program by a specific date; the date varies depending on the 
size of the railroad. The noise monitoring program is 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 indicate that 
railroad should initiate a monitoring program.
    FRA's noise monitoring requirements cover noise in cabs and noise 
in exterior environments in which employees work during their work 
shifts. FRA's rule involves 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 who are within the scope of 
this rule.
    Section 227.103(a) provides the general requirement that all 
railroads must develop and implement a noise monitoring program. FRA 
used the provision from OSHA's rule as a starting point and then 
tailored it to suit FRA's needs. FRA identifies dates by which 
railroads must develop their programs. The dates are staggered based on 
railroad size, giving smaller railroads more time and larger railroads 
less time to develop a noise monitoring program.\46\ FRA provides 
railroads with a defined purpose for the noise monitoring program--that 
is, ``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).'' Note that FRA has changed the organization of this 
section since the proposed rule in order to make the rule easier to 
understand, however, the substance of the section remains the same. FRA 
received several comments about the phase-in implementation dates found 
in Sec.  227.103(a). The comments fell on both side of the issue. 
Several of the commenters, including ASHA, AIHA, NHCA, and Theresa 
Schulz, suggested that FRA has given railroads too much time with these 
implementation dates. AHSA and several individual ASHA members 
suggested that all aspects of the rule be phased in within 12 months of 
the effective date of the rule. They explained that the Small Business 
Regulatory Enforcement Fairness Act \47\ (``SBREFA'') supports phase-in 
dates, but only where there is no immediate safety risk. They believe 
there is an immediate safety risk for railroad operating employees. 
Theresa Schulz wrote that there is significant evidence showing that 
excessive noise levels ``can impair mental processes, increase fatigue, 
and increase the number of errors, while simultaneously decreasing 
vigilance.'' NHCA suggested that FRA give railroads 12 to 18 months to 
comply with the rule. NHCA stated that 18 to 30 months appears to be an 
``indulgence,'' given that ``the equipment, procedures, trained 
personnel, and reporting techniques of a noise-monitoring program have 
existed for decades.'' By contrast, LIRR, indicated that the 12-month-
period is a short time frame and recommended that FRA allow for 24 
months instead.
---------------------------------------------------------------------------

    \46\ 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 annual employee hours, but 
that are not a class I, passenger, or commuter railroad have 18 
months to comply. Railroads with fewer than 400,000 annual employee 
hours have 30 months to comply.
    \47\ Pub. L. No. 104-121, 110 Stat. 857 (codified at 5 U.S.C. 
Sec.  601 et seq.).
---------------------------------------------------------------------------

    FRA has decided to retain the phase-in dates that FRA proposed in 
the NPRM. FRA is providing smaller operations with extra time to 
comply, because FRA understands that they are in a unique situation. 
Smaller operations lack the resources, manpower, and money of larger 
operations. In addition, FRA is required, by law, to consider the 
impact of its regulations on smaller entities. SBREFA requires agencies 
to employ communication, enforcement, and regulatory systems that 
consider the unique aspects of small entities. SBREFA 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 SBREFA'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 done 
here.
    The specific dates in this rule are based on FRA's assessment of 
the current resources and abilities of the railroad industry, as well 
as FRA's assessment of employee safety. FRA believes these phase-in 
dates are the most appropriate since they strike a balance between 
employee safety and the practical realities of current railroad 
operations. As a practical matter, too, many, if not most, railroads 
already have hearing conservation programs in place, and so employees 
will not be completely unprotected during the phase-in months. 
Furthermore, these dates are based upon the consensus agreement of the 
affected parties (e.g., union and railroad representatives) as part of 
the RSAC. For all the reasons discussed here, FRA has 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) 
(training).
    Also of note regarding the phase-in implementation dates is FRA's 
use of an alternate size standard. Rather than use the size standard 
promulgated by the Small Business Administration \48\ or the size 
standard adopted in FRA's ``Final Policy Statement Concerning Entities

[[Page 63087]]

Subject to the Railroad Safety Laws,''\49\ FRA is using an alternate 
size standard that implicitly defines a small business as a railroad 
with fewer than 400,000 annual employee work hours. Accordingly, FRA 
has identified three categories of railroads and given the smaller 
railroads more time to comply. FRA sought approval from the SBA in a 
January 11, 2005 letter for the use of this alternate size standard and 
received that approval from SBA Administrator Hector V. Barreto in a 
May 12, 2005 letter. (Copies of the letters are included in the 
docket).
---------------------------------------------------------------------------

    \48\ The SBA Table of Size Standards specifices that line-haul 
railroads with 1,500 or fewer employees and short-line railroads 
with 500 fewer employees are considered small businesses. 13 CFR 
121.201.
    \49\ 68 FR 24, 891 (May 9, 2003). This Policy Statement defines 
a ``small entity'' as a railroad that meets the line haulage revenue 
requirements of a Class III railroad (i.e., a railroad with annual 
oeprating revenue of $20 million or less).
---------------------------------------------------------------------------

    FRA has decided to use this alternate size standard for several 
reasons. First, the specific safety problem at issue here is employee 
health and specifically employee hearing. An employee hours definition 
is most appropriate given that the nature of the safety issue is 
protecting employee hearing. Second, FRA can more readily identify a 
railroad's size according to annual employee hours, because FRA 
collects data related to annual employee hours. See 49 CFR part 225. 
Furthermore, FRA's safety inspectors and industrial hygienists have 
easy access to this data through FRA's safety data Web site. By 
contrast, FRA does not maintain updated information identifying 
railroads by class. Third, FRA has successfully used this definition in 
its regulations in the past. See 49 CFR 217.9 and 49 CFR 220.11. 
Fourth, FRA believes that the SBA size standard, which would encompass 
650 railroads, would be over inclusive. FRA's alternate size standard 
encompasses 634 railroads. Section 227.103(b) discusses sampling 
strategy. Aside from some minor language changes, it is identical to 
OSHA's provision, which is found in 29 CFR 1910.95(d)(i) and (ii). 
Cooper Tire commented on FRA's statistical approach, advocating that 
FRA employ a 100 percent monitoring program. Cooper Tire noted that 
100% monitoring technology, which did not exist when FRA began 
proceedings for this rule seven years ago, is now available and can 
provide continuous weighted eight hour noise data. Cooper Tire 
explained that new technology permits the capturing and transmitting of 
data continuously. They also noted that railroads could measure all 
locomotives for compliance automatically, thereby relieving the 
railroads from having to collect the data as proposed in the rule.
    Cooper Tire's comment is similar to the doseBuster Company's 
comment about alternative prevention strategies. As discussed above in 
section IV(B), the doseBusters Company advocated the use of their ESP 
system, which includes continuous monitoring. FRA does not believe it 
is necessary to mandate continuous monitoring. Sampling is a well-
established and widely-accepted statistical principle. In addition, FRA 
does not believe it is appropriate to link any requirement (e.g., 
continuous monitoring) to individual commercial products. Finally, FRA 
believes that the costs of continuous monitoring would outweigh any 
benefits. If railroads were to employ continuous monitoring, their 
compliance with other portions of the regulation (e.g., recordkeeping) 
could be very burdensome.
    Please note that while FRA does not require the use of continuous 
monitoring, FRA also does not prohibit its use. Railroads are free to 
employ continuous monitoring if they so wish.
    Section 227.103(c) specifies how railroads should conduct noise 
measurements. Section 227.103(c)(1) requires all continuous, 
intermittent, and impulsive sound levels from 80 dB to 140 dB to be 
integrated into the noise measurements. FRA has changed this provision 
in the final rule by increasing the upper limit from 130 dB to 140 dB.
    In the proposed rule, FRA used an 130 dB upper limit. FRA had 
adopted that limit from OSHA though with reservation. In the NPRM, FRA 
explained that, while OSHA's 1981 general industry noise standard used 
a 130 dB upper limit, OSHA wrote in the preamble that its intent was to 
increase the upper limit to 140 dB as dosimeters were improved and 
became readily available.\50\ According to OSHA in the preamble to the 
1981 standard, the decision to use the 130 dB upper limit was the 
result of technological limitations on sound level meters and 
dosimeters. In addition, FRA explained in the NPRM that it had looked 
to OSHA's 2002 Advance Notice of Proposed Rulemaking (ANPRM) for a 
Hearing Conservation Program for Construction Workers,\51\ in which 
OSHA noted 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.'' 52-53
---------------------------------------------------------------------------

    \50\ See 29 CFR 1910.95(d)(2)(i).
    \51\ See 67 FR 50610 (August 5, 2002).
    \52-53\ See 67 FR 50610, 50605 (August 5, 2002).
---------------------------------------------------------------------------

    FRA sought comment on whether 130 dB or 140 dB was the appropriate 
upper limit for calculating railroad operating employee noise dose. 
Several commenters responded in support of the 140 dB upper limit, all 
of whom explained that technology has improved considerably since OSHA 
promulgated its general industry standard and that technology now 
supports the 140 dB upper limit. ASHA explained that ``today's 
dosimeters and integrating sound level meters are capable of dynamic 
ranges from 80 dB to 140 dB,'' and AAA explained that ``modern sound 
level measurement systems now routinely integrate noise levels to 140 
dB(A).'' NIOSH made an additional point, explaining that ``impulsive-
type noise may frequently exceed 130 dB peak SPL'' and so ``limiting 
measurements to 130 dB may exclude the most harmful events in a given 
exposure and seriously underestimate a worker's risk of hearing loss.'' 
Wilson, Ihrig, & Associates, an acoustical consulting firm, responded 
that the upper limit should be at least 140 dB.
    Only one commenter, the AAR, did not support the 140 dB upper 
limit. The AAR explained that ``most AAR members already own equipment 
that was purchased to comply with existing OSHA rules. Some of this 
equipment is old enough that it will not have the increased range.'' 
Without evidence that the expanded range would yield benefits 
outweighing the costs, the AAR thought FRA should not increase the 
range.
    At the RSAC Working Group meeting, the members discussed the 
capabilities of railroads with respect to this equipment. Members 
acknowledged that this change would impose neither an administrative 
nor an economic burden. Given OSHA's statement in its 2002 ANPRM, the 
RSAC consensus, and the widespread belief among commenters that modern 
technology supports this change, FRA raised the upper limit to 140 dB. 
FRA notes that noise monitoring data conducted prior to this rulemaking 
(i.e., with the upper limit of 130 dB(A)) is still good data.
    On a related matter, Wilson, Ihrig, & Associates submitted comments 
on the lower limit. Wilson, Ihrig, & Associates asserted that there 
should be no lower limit. They explained that ``there is no practical 
reason for limiting the lower range to 80 dB(A), as the levels below 
this range contribute little to the total noise dose.'' FRA has decided 
not to remove the lower limit. FRA does not believe there is any 
justification supporting such a change. Given that there is little 
contribution to dose by levels below 80 dB(A), given that eliminating 
the lower level is not a commonly accepted practice, and given that it 
could potentially result in a

[[Page 63088]]

heavy financial burden (e.g., complying with this provision might 
require the re-design of dosimeters, SLMs, and iSLMs), FRA sees no 
reason to mandate such a change.
    Section 227.103(c)(2) specifies that railroads shall take noise 
measurements under typical operating conditions using a sound level 
meter (SLM), integrating-averaging sound level meter (iSLM), or noise 
dosimeter. The instrumentation should meet the appropriate standard set 
forth by ANSI; these standards set performance and accuracy tolerances. 
An SLM used to comply with this part shall meet ANSI S1.4-1983 
(Reaffirmed 2001), ``Specification for Sound Level Meters.'' An iSLM 
used to comply with this part shall meet ANSI S1.43-1997 (Reaffirmed 
2002). A noise dosimeter used to comply with this part shall meet ANSI 
S1.25-1991 (Reaffirmed 2002), ``Specification for Personal Noise 
Dosimeters.'' Each instrument should be set to an A-weighted SLOW 
response.
    Section 227.103(c)(2), for the most part, is adopted from FRA's 
previous noise standard (i.e., the previous Sec.  229.121(d)). Note, 
however, that FRA has added the ANSI standard for noise dosimeters, 
updated the ANSI standard for SLMs (from ANSI S1.4-1971 to ANSI S1.4-
1983 (Reaffirmed 2001)), and included a reference and citation to 
iSLMs. In doing so, FRA has made this regulation more current and 
comprehensive.
    In conformance with Office of Management and Budget (OMB) Revised 
Circular A-119 (February 10, 1998), FRA is using voluntary national 
consensus standards here and in several other locations throughout the 
rule. FRA's use of standards established by other organizations such as 
ANSI is a means of establishing technical requirements without 
increasing the volume of the Code of Federal Regulations. See 1 CFR 
part 51. In this final rule, FRA has used the most current version of 
each ANSI standard, however FRA understands that over time, ANSI will 
revisit these standards and likely update them. FRA intends to 
regularly update the rule, most likely through the use of technical 
amendments, in order to incorporate ANSI's newer standards. Note that 
in the NPRM, FRA had proposed to adopt successor standards. Given the 
Federal law requires that a publication incorporated by reference be 
identified by its title, date, edition, author, publisher, and 
identification number, FRA amended this final rule to incorporate the 
current standards only. See 1 CFR 51.9(b)(2).
    While the rule provides that a railroad may use either a noise 
dosimeter, SLM, or iSLM to conduct noise measurements, it also permits 
a railroad 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.
    Section 227.103(c)(3) specifies that all instruments used to 
measure employee noise exposure shall be calibrated to ensure accurate 
measurements. This paragraph is the same as OSHA's provision, which is 
found in 29 CFR 1910.95(d)(2)(ii). FRA received no comments on this 
section and it remains the same as proposed in the NPRM.
    Section 227.103(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. This paragraph is the same as 
OSHA's provision, which is located at 29 CFR 1910.95(d)(3). FRA 
received no comments on this section and it remains the same as 
proposed in the NPRM.
    Section 227.103(e) provides that, in administering the monitoring 
program, a railroad shall take into consideration the identification of 
work environments where the use of hearing protectors may be omitted. 
This provision is unique to FRA's rule; no comparable provision exists 
in OSHA's standard. The purpose of this provision is to 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.
    Aearo Company commented on Sec.  227.103(e), asserting that it is 
redundant with Sec. Sec.  227.103(b) and 227.115. FRA does not believe 
these provisions are redundant, for they serve different purposes. 
Section 227.103(b) addresses the sampling strategy for the noise 
monitoring program, Sec.  227.103(e) identifies one of the factors that 
employers need to consider when administering the noise monitoring 
program, and Sec.  227.115 identifies the levels at which railroads 
must require HP use.
    In the proposed rule, FRA listed several benefits that accrue when 
employees refrain from over-using hearing protectors. That list 
included the following: reducing the danger of infection from the 
misuse of HP; strengthening overall employee compliance with HP use by 
focusing requirements where it makes a difference; and maximizing the 
availability of auditory cues associated with the movement of equipment 
among ground personnel, which results in improved personal safety.
    Aearo Company commented on this preamble discussion, asserting that 
some of those items, specifically a reduction in the danger of 
infection and a strengthening of overall compliance, were not benefits 
of refraining from overuse of HP. Regarding infections, Aearo Company 
cited a 1985 monograph that found that regular wearing of HP does not 
normally increase the likelihood of contracting an ear infection. 
Regarding compliance, Aearo Company explained that compliance improves, 
not by ``having less people wear [HPs] in less applications,'' but by 
developing a hearing conservation culture and empowering employees to 
believe they can make a difference in protecting their hearing.

[[Page 63089]]

    Aearo's comments generated a great deal of discussion at the post-
NPRM RSAC Working Group meeting. Aearo Company had presented data which 
shows it will not cause an infection. Several members presented 
information at the RSAC Working Group meeting suggesting that overuse 
of HP can cause an infection. Overuse of HP may or may not cause ear 
infections. Without further study or more conclusive data, FRA is 
unable to reach any conclusions about the danger of ear infections from 
HP.
    With respect to compliance, FRA, in conjunction with the RSAC 
Working Group, has determined that there are compliance benefits from 
refraining from overuse of HP. Overprotection can erode compliance. 
Where an employee is instructed to wear HP at all times and in all 
circumstances, it creates the impression for the employee that the HP 
requirement is just a pro forma requirement, not part of a larger 
program designed to protect their hearing. With that mindset, the 
employee is less likely to wear HP. This is particularly significant 
for transportation employees who are not subject to direct supervision 
during most of their work shift.
    In short, FRA has included Sec.  227.103(e) to ensure that 
railroads do not overuse HP. FRA wants to ensure that there is not an 
excessive reduction in hearing from the use of HP such that it 
interferes with employee communication and with auditory cues related 
to job duties.
    Section 227.103(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 part. This parallels 
OSHA's provision, which is found at 29 CFR 1910.95(f). FRA received no 
comments on this section and it remains the same as proposed in the 
NPRM.
    Section 227.103(g) identifies a railroad's obligation for reporting 
monitoring results to employees and their representatives. There are 
two components to this reporting provision. The first component is 
Sec.  227.103(g)(1), which requires railroads to notify each monitored 
employee of the results of the monitoring. This is similar, but not 
identical, to OSHA's notification provision located at 29 CFR 
1910.95(e). Whereas 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, FRA requires a railroad to notify each monitored 
employee, irrespective of his or her exposure.
    The second component of this reporting provision, which is found at 
Sec.  227.103(g)(2), requires railroads to post 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 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. Theresa Schulz commented on this provision, commending FRA 
for requiring railroads to post noise measurements results ``in an 
`understandable way' so that employees are aware of the hazard and what 
they can do to protect themselves.''
    In order to make the posting meaningful and understandable to 
crews, railroads should include information on the following types of 
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). 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 Working Group 
discussions. It reflects a compromise of labor and management concerns. 
To reach this compromise, the RSAC Working Group considered numerous 
proposals concerning monitoring observations and reporting. The RSAC 
Working Group'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 Working Group recommended, and FRA adopted, 
this provision which retains the observation provision contained in 
OSHA's provision located at 29 CFR 1910.95(f). In addition, the RSAC 
Working Group recommended, and FRA adopted, the requirement that 
railroads shall notify monitored employees of the results of monitoring 
(irrespective of the TWA) and shall post monitoring results at 
appropriate crew origination points. FRA believes this provision is the 
most effective one, because it 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. FRA did not receive any comments recommending that FRA 
revise this section and so it remains the same as proposed in the NPRM.

Section 227.105 Protection of Employees

    In this section, FRA establishes the permissible noise exposures 
for railroad employees. These limits are the same as

[[Page 63090]]

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

[[Page 63091]]

very brief exposures to continuous noise (which is defined as noise 
that exceeds one second) between 115 dB(A) and 120 dB(A) as long as the 
total daily duration does not exceed 5 seconds.
    Wilson, Ihrig, & Associates commented on this provision, stating 
that there is no practical reason for relaxing the standard. Wilson, 
Ihirg, & Associates believes that ``it results in a lax standard and 
one that does not encourage railroads to reduce the noise levels that 
their employees are exposed to.'' They explained that this provision 
might be acceptable if FRA were to adopt a 3 dB exchange rate, but that 
is not the case. Wilson, Ihirg, & Associates believe that FRA's logic 
for relaxing the standard is faulty--i.e., that FRA has no technical 
justification for this change ``other than the fact that these noise 
levels occur, so these levels can be allowed to exist.''
    RSAC Working Group discussions on this matter had revealed that 
some members did not wish to penalize the railroads for these brief 
unavoidable 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 Working 
Group members expressed the view that there may be health effects 
associated with longer exposures over 115 dBA, while other RSAC Working 
Group members contended that health effects will not occur until much 
higher noise levels.
    At the proposed rule stage, FRA determined that it was necessary to 
relax OSHA's standard because of the operational realities of 
railroading and the resulting safety implications. FRA stands by those 
reasons and thus is leaving this provision as proposed. As explained in 
the proposed rule, in the railroad industry, it is generally recognized 
that very brief excursions 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. 
FRA has concluded 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 the tables found in Appendix 
A and without regard to any attenuation provided by the use of hearing 
protectors. Since the RSAC consensus, FRA made some drafting changes to 
better clarify the provisions of this section. FRA divided the section 
into two separate paragraphs. FRA added an explanatory clause 
(``required by Sec.  227.103'') when referring to the noise monitoring 
program. FRA revised Sec.  227.107(a) to reflect the fact that the 
hearing conservation program is set forth in Sec. Sec.  227.109 through 
227.121, not just in Sec.  227.121. In addition, since FRA has removed 
Table 1, FRA removed the reference to Table 1 in this section. The 
drafting changes aside, Sec.  227.107 is the same as the comparable 
provision found in OSHA's standard at 29 CFR 1910.95(c).
    FRA received one comment on this section. The doseBusters Company 
requested that FRA clarify the meaning of the last sentence in Sec.  
227.107. The doseBusters Company asked: ``Is the intent to prohibit any 
adjustment to the dose measurement, based on the hearing protector 
manufacturer's published attenuation data? FRA believes that the 
language (which is the identical language which OSHA uses) speaks for 
itself. The relevant portion of the last sentence of Sec.  227.107 
provides that: ``Noise exposure shall be computed * * * without regard 
to any attenuation provided by the use of hearing protectors.'' This 
means that a professional reviewer should not adjust an employee's 
exposure dose based on any attenuation provided by the employee's 
hearing protection. Or as the Working Group answered the question, 
``You do not adjust the dose based on the hearing protection worn by 
the employee.'' In short, the answer to the doseBuster Company's 
question is, yes.

Section 227.109 Audiometric Testing Program

    This section sets out the requirements for railroad audiometric 
testing programs. Section 227.109(a) sets out the general requirement 
that each railroad shall establish and maintain an audiometric testing 
program as set forth in this section and include employees who are 
required to be included in a hearing conservation program pursuant to 
Sec.  227.107. FRA has made one clarifying change to this section. 
Section 227.109(a) of the NPRM had contained the phrase ``by making 
audiometric tests available to all of its employees.'' Because one of 
the paragraphs in this section (see Sec.  227.109(f)) specifically 
addressed this issue, FRA thought it was confusing and unnecessary to 
include this phrase here, and so FRA removed this phrase. In place of 
that phrase, FRA included language clarifying that the railroad shall 
include in the audiometric testing program all employees who are 
required to be included in the HCP.
    Section 227.109(b) provides that audiometric tests shall be 
provided for employees, at no cost to employees. This paragraph refers 
only to the audiometric test itself. It does not refer to additional 
costs that an employee might incur, e.g., missed trips or missed work 
time as a result of the test. FRA received no comments on this section 
and it remains the same as proposed in the NPRM.
    Section 227.109(c) requires that appropriate professionals or 
qualified technicians administer the audiometric test. FRA received 
several comments on this provision. Commenters included ASHA, AAA, 
AIHA, CAOHC, NHCA, Aearo Company, and Theresa Schulz. The comments were 
very similar in nature.
    With respect to physician qualifications, the commenters stated 
that it is unwise to let any physician administer or supervise 
audiometric testing. Because there is a wide range of medical 
specialities, and because hearing testing and hearing conservation 
program management are not usually part of medical training programs, 
most physicians are not well-informed on the details of hearing, its 
measurement, and its impairment. Theresa Schulz went further, 
suggesting that FRA require physicians to attend training on how to 
supervise the audiometric testing portion of a hearing conservation 
program.
    With respect to technician competency, all of the commenters shared 
the same basic concern. They disagreed with the second method that FRA 
permitted in the NPRM for qualifying technicians (i.e., allowing 
technicians to demonstrate their competence to a audiologist, 
otolaryngologist, or physician). The commenters think it contributes to 
the

[[Page 63092]]

weakening of the competence of the personnel conducting the audiometric 
tests. They questioned whether a technician who had merely 
``satisfactorily demonstrated competence'' would be skilled enough to 
perform some of the necessary duties, e.g., problem solving for 
judgment calls encountered during testing or serving as a resource for 
employees with questions.
    As an alternative, the commenters suggested that the rule only 
allow technicians to be qualified by the first method (i.e., successful 
completion of the CAOHC certification requirements). They explained 
that CAOHC has a board of multi-disciplinary professionals that 
collectively strive to maintain and increase the minimum standard of 
competency. By requiring railroads to use only CAOHC-certified 
technicians, FRA would assure a high level of quality for this 
component of the HCP.
    Also, regarding technician qualifications, there were a few 
comments about FRA's decision in the NPRM to allow a technician to be 
qualified by CAOHC or any equivalent organization. This differs from 
OSHA's standard, which only allows technicians to be certified by 
CAOHC. CAOHC strongly opposed this provision, explaining that CAOHC is 
the only national accreditation program of its kind for Occupational 
Hearing Conservationists. CAOHC further explained that Sec.  
227.109(c)(2) should not include the words ``equivalent organization, 
because there is no equivalent to CAOHC's unique capabilities.'' CAOHC 
pointed out that MSHA recognized CAOHC's uniqueness in its 1999 
rule.\54\
---------------------------------------------------------------------------

    \54\ In contrast, Aearo Company and CAOHC asserted that MSHA 
recognized the uniqueness of CAOHC ``(with no equivalent 
organization).'' That does not appear to be the case. In 29 CFR 
62.101, MSHA defines a ``qualified technician'' as ``a technician 
who has been certified by the Council for Accreditation in 
Occupational Hearing Conservation (CAOHC), or by another recognized 
organization offering equivalent certification.'' (Italics added).
---------------------------------------------------------------------------

    Finally, regarding technician qualifications, Theresa Schulz 
commended FRA for removing OSHA's ``unsupportable exemption [from CAOHC 
certification] for technicians using microprocessors.''
    FRA made three changes to this provision. Two were the product of 
RSAC consensus, and one was a drafting clarification that FRA added on 
its own. First, with RSAC consensus, FRA added a qualification 
requirement for physicians. According to Sec.  227.109(c)(1), 
audiometric tests shall be performed by an audiologist, 
otolaryngologist, or other physician who has experience and expertise 
in hearing and hearing loss. (Italics indicate revised language). 
``Experience and expertise'' means that the individual has the 
knowledge and skills to conduct audiometric tests, has experience 
conducting audiometric tests, and has demonstrated success in 
audiometric conducting tests.
    FRA did not, however, add a provision requiring physicians to 
attend training on how to supervise the audiometric testing portion of 
a HCP. FRA did not think it was necessary to require that training, 
especially given the addition of the ``experience and expertise'' 
requirement. By requiring that physicians have ``experience and 
expertise,'' FRA ensures that the doctors are knowledgeable about 
hearing conservation and so there is no point to also require those 
doctors to attend training.
    Second, subsequent to the RSAC consensus, FRA added a definition 
for ``qualified technician'' to Sec.  227.5 . FRA used language from 
Sec.  227.109(c)(2) of the proposed rule for the definition (though 
with some modifications, which are discussed below). FRA believes this 
change simplifies the rule. Rather than repeat the definition 
throughout the rule, FRA states it once in the beginning. According to 
Sec.  227.5, audiometric tests shall be performed by a qualified 
technician who can become qualified in one of two ways: (1) By 
successfully completing a course designed for the training and 
certification of audiometric technicians, or (2) by satisfactorily 
demonstrating competence to the Professional Supervisor of the 
Audiometric Monitoring Program in administering audiometric exams and 
in the use and care of audiometers. Qualified technicians might include 
trained technicians as well as hearing aid specialists, industrial 
hygienists, and nurses who have the appropriate qualifications. A 
technician (of either qualification type) must be responsible to the 
Professional Supervisor of the Audiometric Monitoring Program.
    Third, with RSAC consensus, FRA modified the qualification 
requirement for technicians. Technicians must be responsible to a 
Professional Supervisor of the Audiometric Program, instead of simply 
an ``audiologist, otolaryngologist, or a physician.'' A Professional 
Supervisor of the Audiometric Monitoring Program is ``an audiologist, 
an otolaryngologist, or a physician with experience and expertise in 
hearing and hearing loss.'' As explained above, ``experience and 
expertise'' means that the individual has the knowledge and skills to 
conduct audiometric tests, has experience conducting audiometric tests, 
and has demonstrated success in audiometric conducting tests. 
Consistent with this change, FRA added a definition of Professional 
Supervisor to the Definitions section (Sec.  227.5). However, FRA used 
a different definition than that suggested by commenters. Several 
commenters had suggested that FRA define a Professional Supervisor as 
``an audiologist, an otolaryngologist, or a physician who supervises 
the audiometric testing program, reviews audiograms, and reviews 
audiometric tests.'' Rather than focus on the tasks involved in being 
an audiologist, FRA instead chose to focus on the qualifications of an 
audiologist.
    Despite several commenters' suggestions, FRA did not eliminate the 
second method for qualifying technicians (i.e., satisfactorily 
demonstrating competence). FRA adopted this provision from OSHA's rule. 
FRA does not know of any problems with weakened competence among 
technicians performing under OSHA's rule, and so FRA believes it is 
appropriate to use it here. Furthermore, if FRA were to remove this 
provision at this point in time, FRA would potentially disqualify an 
entire group of individuals who have been performing these tasks (and 
presumably well) under OSHA's rule for years. However, acknowledging 
that technicians must be adequately qualified, FRA revised this second 
method. As explained above, FRA now requires a technician to be 
responsible to a Professional Supervisor who must have experience and 
expertise in hearing and hearing loss. FRA anticipates that this will 
ensure that technicians are fully qualified.
    FRA also retained the provision allowing technicians to be 
certified by an ``equivalent organization.'' FRA wants the rule to be 
forward looking. At the time of this final rule, CAOHC is the only 
national accreditation program for hearing conservationists, however, 
in coming years, there may be additional organizations comparable to 
CAOHC. FRA wants to ensure that the rule has the flexibility to 
accommodate such changes. FRA notes that MSHA included a comparable 
phrase in its Final Rule on occupational noise exposure of miners.\55\
---------------------------------------------------------------------------

    \55\ See 29 CFR 62.101 and footnote 54 supra.
---------------------------------------------------------------------------

    Section 227.109(d) is intentionally left blank. The proposed Sec.  
227.109(d) had addressed audiometric instrumentation, providing that 
instruments used for audiometric testing must meet the requirements of 
the Appendix C ``Audiometric Testing Requirements.''

[[Page 63093]]

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

[[Page 63094]]

matter, FRA expects that many railroad employees will already have been 
tested as part of existing railroad hearing conservation programs. 
Accordingly, FRA did not adopt the commenters' suggestions.
    Sections 227.109(e)(2)(ii) and (iii) cover existing employees who 
have had a baseline audiogram as of the effective date of the rule. FRA 
has decided to grandfather many of these baseline audiograms. This is 
in line with OSHA, which had adopted a lenient policy on accepting 
baseline audiograms that were produced before the promulgation of the 
hearing conservation amendment. OSHA had noted that it was flexible in 
grandfathering old baseline audiograms, because in most cases, this 
would be more protective of employees.
    For the same reasons, FRA is grandfathering baseline audiograms. 
FRA believes that the grandfathered baseline audiograms will provide a 
more accurate picture of an individual's hearing ability. A 
grandfathered baseline audiogram will show an employee's initial 
hearing level and so, when compared with subsequent audiograms, it will 
be possible to determine the extent of an employee's hearing loss. 
Also, by allowing railroads to grandfather baseline audiograms, FRA 
eliminates unnecessary costs for the railroad, because railroads do not 
need to re-test employees that have already been tested. Whether or not 
a railroad can grandfather a particular baseline audiogram depends on 
how the railroad conducted that baseline audiogram.
    Per Sec.  227.109(e)(2)(ii), 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 satisfied 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 similar to the 
requirements that are now found in FRA's rule at Sec.  227.109.
    FRA notes that many locomotive engineers will have baseline 
audiograms that were obtained as part of the hearing acuity \56\ 
testing for FRA's Locomotive Engineer Qualification. See 49 CFR 
240.121. FRA expects that the majority of these audiograms will have 
met OSHA's 29 CFR 1910.95(h) requirements. FRA notes that railroads 
must accept these baseline audiograms if they were obtained in 
compliance with the requirements found in 29 CFR 1910.95(h)(1)-(5).
---------------------------------------------------------------------------

    \56\ Aearo Company commented that FRA used the term ``hearing 
acuity'' incorrectly in the preamble and suggested that FRA use 
``sensitivity'' instead. FRA used the term ``hearing acuity'' in the 
preamble, and again in this final rule, to refer to an existing 
regulatory provision that contains the term. See Sec.  240.121 
``Criteria for vision and hearing acuity data.'' Moreover, FRA's use 
is consistent with OSHA's use. See 66 FR 52031, 52032 (October 12, 
2001).
---------------------------------------------------------------------------

    Per Sec.  227.109(e)(2)(iii), 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 satisfied 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 Professional Supervisor of the Audiometric 
Monitoring 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.
    At the suggestion of AAA and CAOHC, FRA revised this section by 
replacing the phrase ``individual administering the Hearing 
Conservation Program'' (which was used in the NPRM) with ``Professional 
Supervisor of the Audiometric Monitoring Program.'' Professional 
Supervisor of the Audiometric Monitoring Program is defined in Sec.  
227.5. While the RSAC Working Group agreed to add a definition in the 
final rule for ``Professional Supervisor of the Audiometric Monitoring 
Program,'' the RSAC Working Group did not specifically address the 
substitution in this situation. FRA has made this change, because it 
ensures that the determination in Sec.  227.109(e)(2)(iii) is made by a 
qualified professional who understands hearing loss. FRA made a similar 
change in Sec.  227.109(i).
    ASHA, AIHA, and Theresa Schulz commended FRA for grandfathering 
these pre-existing baseline audiograms. They also agreed with FRA that 
it should be the responsibility of the professional supervising the 
hearing conservation program to determine which pre-existing audiograms 
are acceptable and which should be chosen as the baseline.
    An issue closely related to grandfathering baseline audiograms is 
recordkeeping. During pre-NPRM Working Group meetings, many railroad 
representatives 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 plus 
thirty years. 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. 
At the NPRM stage, railroads explained that they will not be able to 
provide all the required information for grandfathered baseline 
audiograms.
    FRA is fully aware of the railroads' concerns and so FRA reiterates 
in this final rule what FRA explained in the proposed rule. 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.
    Section 227.109(e)(3) addresses one of the details of baseline 
audiogram tests, specifically, that baseline audiograms must be 
preceded by a 14-hour quiet period and that HP may be used in place of 
the 14-hour quiet period. Aearo Company submitted comments on the 
second part of this subparagraph. Aearo Company has concerns about 
allowing employees to substitute hearing protection in place of a 14-
hour quiet period. Aearo Company asserts that hearing protectors do not 
provide high levels of protection and do not always prevent noise-
induced hearing loss. They explain that hearing protectors fail to 
prevent permanent threshold shifts, and so they must also fail to 
prevent temporary threshold shifts. In essence, then, Aearo Company 
doesn't think hearing protectors are an effective substitute for a 
quiet period. However, Aearo Company recognizes that it would be 
impossible and impracticable to require employees to rely solely on the 
14-hour quiet period, because, for example, it is not always possible 
for an employer to obtain an audiogram prior to a workshift.
    Aearo Company proposes that FRA continue to allow the use of the 
14-hour quiet period, but with stipulations. An employee would be able 
to use hearing protectors as long as, within 5 days prior to the 
audiogram: (1) The employee received individual refresher training on 
the use of his or her hearing protector, (2) the condition of the 
employee's hearing protector is checked

[[Page 63095]]

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

[[Page 63096]]

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

[[Page 63097]]

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.\57\
---------------------------------------------------------------------------

    \57\ OSHA Interpretation Letter from OSHA to Mr. J. Christopher 
Nutter dated May 9, 1994.
---------------------------------------------------------------------------

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

[[Page 63098]]

lead and veered from it only when FRA thought it was necessary to 
accommodate the unique aspects of the rail industry or when there have 
been advances in technology that warranted a change. As OSHA is the 
lead agency in this area and FRA does not see any compelling reason to 
veer from OSHA's rule in this case, FRA is leaving this provision as 
proposed.
    Section 227.109(i) identifies the methods which railroads should 
use to revise baseline audiograms. The first method, which is provided 
in Sec.  227.109(i)(1), should be used by railroads for the two years 
immediately following the effective date of this rule. It states that 
there are two situations where a Professional Supervisor of the 
Audiometric Monitoring Program 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, or 
(2) the hearing threshold shown in the periodic audiogram indicates 
significant improvement over the baseline audiogram. FRA adopted this 
concept from OSHA's general industry noise standard. See 29 CFR 
1910.95(g)(9).
    At the suggestion of AAA and CAOHC, FRA revised this section by 
replacing the phrase ``audiologist, otolaryngologist, or physician'' 
(which was used in the NPRM) with the more specific phrase 
``Professional Supervisor of the Audiometric Monitoring Program.'' 
Professional Supervisor of the Audiometric Monitoring Program is 
defined in Sec.  227.5. While the RSAC Working Group agreed to add a 
definition in the final rule for ``Professional Supervisor of the 
Audiometric Monitoring Program,'' the RSAC Working Group did not 
discuss the substitution in this situation. FRA has made this change, 
because it ensures that the substitution in Sec.  227.109(i) is made by 
a qualified professional who understands hearing loss. FRA made a 
similar change in Sec.  227.109(e)(2)(iii).
    The second method, which is provided in Sec.  227.109(i)(2), should 
be used by railroads for the period of time after the date that this 
rule has been in effect for two years. This method is virtually 
identical to the NHCA Professional Guide for Audiometric Baseline 
Revision (NHCA Guidelines).
    NHCA recommended that FRA adopt the NHCA Guidelines and use it to 
better explain what OSHA meant in 29 CFR 1910.95(g) and what FRA now 
means in Sec.  227.109(i). AAA, CAOHC, and Aearo Company also endorsed 
the use of the NHCA Guidelines. According to the commenters, NHCA 
developed these guidelines in 1996 in response to frustrations among 
hearing conservationists who wanted clarification of what OSHA intended 
for baseline audiograms in its general industry standard.\58\ The 
commenters explained that the OSHA guidelines lack precision. They 
explained that the NHCA Guidelines, in contrast, provide specific 
recommendations concerning when audiometric baselines should be 
revised. The NHCA Guidelines offer a standardized method of determining 
when baselines will be revised, and so they assure consistency and 
uniformity among professional reviewers. Several commenters also noted 
that these guidelines ``have been commonly accepted.''
---------------------------------------------------------------------------

    \58\ The Executive Council of the National Hearing Conservation 
Association approved these guidelines on February 24, 1996.
---------------------------------------------------------------------------

    FRA agrees with the commenters that, from a technical and 
programmatic point of view, the information contained in the NHCA 
Guidelines is very useful information. OSHA is silent on this issue, 
and these NHCA Guidelines provide much-needed guidance in this area. 
The NHCA Guidelines create a consistent methodology for revising 
baselines and in the process, make FRA's rule more clear. They fill the 
gap that has developed since OSHA issued its rule. And it fills the gap 
with a document created by and widely supported by the hearing 
conservation community.
    Accordingly, with the consensus of the RSAC Working Group, FRA 
added the NHCA Guidelines as Appendix C to this final rule: 
``Audiometric Baseline Revision.'' FRA has made some edits to the 
document to tailor them for FRA's use (e.g., changing ``OSHA'' to 
``FRA'' and changing the ``30-day retest'' to a ``90-day retest''). The 
appendix is initially non-mandatory, but the appendix will become 
mandatory two years from the effective date of the final rule. The RSAC 
Working Group agreed that this two-year period is a fair and reasonable 
amount of time. It should provide railroads with sufficient time to 
make any necessary administrative changes.
    Section 227.109(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.''
    Appendix F is a non-mandatory appendix that employers can use to 
calculate and apply age correction to audiograms. Consistent with their 
1998 criteria document, NIOSH submitted comments, recommending that FRA 
should not provide employers with the option of using age-corrected 
hearing levels to determine the presence or absence of a STS. NIOSH 
explained that ``it is statistically inappropriate to apply aggregate 
data to individuals.'' In addition, NIOSH asserted that the Appendix F 
tables are racially biased and are discriminatory against persons older 
than 60 years old. NIOSH explained that the data sources for the age 
correction tables in Appendix F were surveys conducted in the late 
1960s and early 1970s. The tables are representative of Caucasian male 
and female hearing thresholds from age 20 to 60 and therefore not of 
people of other races and above 60 years old.
    NIOSH went on to suggest that FRA should make some changes to the 
age-correction charts if FRA decides to use age correction tables. 
Specifically, NIOSH suggested that FRA make the following adjustments--
compute age corrections based on hearing levels of the 84th or 98th 
percentiles, i.e., mean minus 1 or 2 standard deviations; use tables 
that have representative age-related changes for both genders of all 
major ethnic groups; and use tables that accurately represent age-
related hearing changes for workers over age 60. NIOSH also recommended 
that, if FRA wishes to use age correction tables, FRA should use tables 
derived from the National Health and Nutrition Examination Survey 
(NHANES), a joint National Institutes of Health (NIH)-Centers for 
Disease Control (CDC) effort, in order to ensure that the racial, 
gender, and age specific corrections are valid.
    AAA and NHCA also submitted comments on this matter. Similar to 
NIOSH, AAA and NHCA do not support the use of the tables in Appendix F, 
because they are racially biased and discriminatory against persons 
greater than 60 years old. AAA raised a separate issue too. AAA asserts 
that the OSHA method for permitting use of age corrections (when 
computing STSs) is not a best practice for identifying meaningful 
changes in hearing. AAA believes that age correction of individual 
audiograms is counterproductive to the goal of detecting temporary 
hearing changes before they become permanent hearing losses. AAA 
asserts that a STS should be a sentinel for identifying significant 
changes in hearing.
    On one hand, FRA understands that there are problems with the 
historical

[[Page 63099]]

data used to create the tables in Appendix F. It is older data that 
fails to take into account racial differences or the fact that people 
now have longer life spans. On the other hand, FRA does not have a 
viable alternative to use in place of the tables in Appendix F.
    NIOSH did not present FRA with a viable alternative option. NIOSH 
did recommend that FRA use data from NHANES, but the NHANES effort is 
still pending, so there is nothing conclusive to use. There is no good 
scientific data available yet. NIOSH also offered that its scientists 
could provide technical assistance to FRA. However, that is not a 
feasible option for FRA either. FRA has neither the resources nor the 
expertise to conduct its own studies, obtain the new data, and create 
new age correction tables, even with NIOSH's technical assistance.
    Since there is no viable replacement for the Appendix F tables, FRA 
considered the option of removing the age correction charts completely. 
Essentially, the age correct decision would be left up to the 
professional judgment of the Professional Supervisor of the Audiometric 
Monitoring Program. However, FRA decided that might do more harm than 
good. Without these tables, there would be absolutely no guidance for 
Professional Supervisors, and FRA would have created a gap.
    Finally, OSHA, not FRA, is the lead federal agency on this matter 
and OSHA continues to use age correction charts. FRA is reluctant to 
make such a radical departure from OSHA at this time. Given the above 
reasons and the fact that these tables are non-mandatory, FRA and the 
Working Group decided to leave these tables as proposed in the NPRM. 
When, and if, OSHA decides to change these tables, FRA will consider a 
change.

Section 227.111 Audiometric Test Requirements

    This section sets out the requirements for audiometric tests. FRA 
used OSHA's standard at 29 CFR 1910.95(h) as a starting point and then 
tailored the provisions for FRA's use.
    Section 227.111(a) provides that audiometric tests shall be pure 
tone, air conduction, hearing threshold examinations with test 
frequencies including 500, 1000, 2000, 3000, 4000, 6000, and 8000 Hz. 
Tests at each frequency shall be taken separately for each year.
    In the proposed rule, FRA sought comment on whether FRA should add 
the 8000 Hz frequency. Several commenters, including AAA, CAOHC, Aearo 
Company, NHCA, and NIOSH recommended that FRA require audiometric 
testing at the 8000 Hz frequency. They explained that the information 
provided by the 8000 Hz threshold is valuable in determining the 
classic ``noise notch'' pattern. It enhances clinical decisions about 
the probable etiology of hearing losses. In order to determine that 
hearing loss is related to noise exposure and is a ``work-related 
hearing loss,'' clinicians must observe an audiometric notch at 4000 Hz 
or 6000 Hz. This notch cannot be calculated without observing hearing 
thresholds at 8000 Hz. In addition, commenters noted that the cost, 
time, and effort of adding one frequency per test is negligible, 
particularly when compared to the reviewer time lost when a case's 
status regarding work-related, noise-induced hearing loss is unclear.
    Accordingly, FRA has decided, and the RSAC Working Group has 
agreed, to require audiometric testing at the 8000 Hz frequency. It is 
important to include this frequency, because it will allow employers to 
identify hearing loss sooner. It is possible to include this frequency 
because the technology to test it is available while the time and 
effort necessary to test it is negligible. Moreover, railroads with 
hearing conservation programs are probably already testing at this 
frequency. It is important to note that all existing tests (i.e., tests 
conducted prior to this rule and which did not include the 8000 Hz 
frequency) are still considered to be valid tests.
    Section 227.111(b) provides that audiometric tests shall be 
conducted with audiometers that meet the specifications of and are 
maintained and used in accordance with ANSI S3.6-2004, ``Specification 
for Audiometers.'' \59\ Aearo Company brought to FRA's attention the 
fact that FRA had published an outdated ANSI standard in the proposed 
rule (i.e., ANSI S3.6-1996), FRA has since updated the standard.
---------------------------------------------------------------------------

    \59\ For a general discussion on the use of ANSI standards in 
this rule, see the section-by-section analysis for Sec.  
227.103(c)(2).
---------------------------------------------------------------------------

    Section 227.111(b)(1) addresses the requirements for pulsed-tone 
audiometers. In the proposed rule, the requirement for pulsed-tone 
audiometers was found in Sec.  227.111(c). FRA has substantially 
revised this requirement since the proposed rule. For a discussion of 
the changes, see the section-by-section analysis for Appendix C to this 
part.
    Section 227.111(b)(2) is new to this final rule. This provision 
allows railroads to use insert earphones while conducting audiometric 
testing. Some commenters asserted that FRA had allowed for the use of 
insert earphones by adopting the updated ANSI standard for audiometers 
(ANSI S3.6-2004) in Sec.  227.111(b). They explained that ANSI S3.6-
2004 includes, among other things, requirements for the use of insert 
earphones and so therefore, FRA must implicitly be allowing for the use 
of insert earphones in Sec.  227.111(b).
    The commenters also discussed OSHA's position on insert earphones. 
OSHA does not explicitly permit the use of insert earphones in its 
standard (although, as one commenter pointed out, that is probably 
because this technology did not exist at the time OSHA promulgated its 
standard). In fact, as indicated in a August 31, 1993 interpretation 
letter, OSHA considers the use of insert earphones to be a violation, 
albeit a de minimis one. Employers who wish to use insert earphones 
under OSHA standards can do so and avoid a citation , however, if they 
satisfy specified conditions (which are listed in the August 31, 1993 
letter). Commenters concurred that OSHA's position on insert earphones 
is difficult with which to contend. One commenter specifically wrote 
that OSHA has made the use of insert earphones difficult in industrial 
settings.
    Overwhelmingly, commenters praised the idea of permitting the use 
of insert earphones. Commenters pointed out that insert earphones are 
increasingly used in hospital-based and clinical practices, and so it 
is logical to permit their use in the regulation. Aearo Company wrote 
that insert earphones not only provide the same level of test validity 
and reliability as supra-aural headphones but eliminate several of the 
most vexing limitations of supra-aural earphones. AAA noted that it is 
desirable to use insert earphones since they provide better isolation 
of the stimulus (than supra-aural headphones) from the ambient room 
noise. AAA also wrote that insert earphones provide significant 
advantages in testing patients with background noise levels, with 
asymmetrical hearing loss, and with collapsing canals, and for reducing 
cross-contamination in cases of external ear canal infections.
    The RSAC Working Group considered the issue of insert earphones. 
The members felt strongly that FRA should not require the use of insert 
earphones. The Working Group members explained that there were 
logistical problems with their required use. Railroad contractors who 
perform hearing tests do not generally use insert earphones, because, 
among other things, they have to keep several different types of tips 
and that becomes too difficult when they are

[[Page 63100]]

operating out of mobile vans. As well, there are data problems with 
using insert earphones. The data from tests with insert earphones and 
tests with supra-aural headphones would not be comparable since the 
testing conditions for each vary. Despite these problems, the Working 
Group agreed that insert earphones are a useful and emerging technology 
and wanted to provide railroads with the option of using them. The 
Working Group recommended that FRA permit their use but left it to FRA 
to work out the details.
    Consistent with the Working Group's recommendation, FRA is allowing 
railroads to avail themselves of this new technology. FRA could have 
relied on the implication in Sec.  227.111(b) that permits the use of 
insert earphones, but FRA believes that is too ambiguous. To avoid 
ambiguity, Sec.  227.111(b)(2) of this rule explicitly permits the use 
of insert earphones. Although FRA is not mandating the use of insert 
earphones, when they are in fact used, they must be used consistent 
with the requirements listed in Appendix E: ``Use of Insert Earphones 
for Audiometric Testing.'' In drafting the requirements for Appendix E, 
FRA used the conditions from OSHA's August 31, 1993 letter as a 
starting point and tailored them to meet FRA's needs. Of note are the 
background sound level requirements for insert earphones. They are 
discussed below in the section-by-section analysis for Sec.  
227.111(c).
    Section 227.111(c) provides that railroads should administer 
audiometric examinations in rooms that meet the requirements listed in 
Appendix D: ``Audiometric Test Rooms.'' Appendix D specifies that 
employers shall use rooms that do not have background sound pressure 
levels that exceed the levels in Table D-1 of Appendix D. Railroads are 
required to measure sound pressure levels with equipment conforming to 
at least Type 2 requirements of ANSI S1.4-1983 (Reaffirmed 2001), 
``Specification for Sound Level Meters'' and to the Class 2 
requirements of ANSI S1.11-2004, ``Specification for Octave-Band and 
Fractional-Octave-Band Analog and Digital Filters.'' \60\ Note that FRA 
has updated the octave-band filter ANSI standard from the outdated 
standard used in the proposed rule, ANSI S1.11-1971 (R1976) 
``Specification for Octave, Half-Octave, and Third-Octave Band Filter 
Sets.''
---------------------------------------------------------------------------

    \60\ For a general discussion on the use of ANSI standards in 
this rule, see the section-by-section analysis for Sec.  
227.103(c)(2).
---------------------------------------------------------------------------

    Several commenters asserted that the background noise levels in 
Table D-1 of Appendix D are too high. The commenters explained that 
excessive background noise levels in the room can interfere with an 
individual's ability to detect stimuli. As a result, clinicians do not 
know whether hearing shifts are valid or are caused by interfering 
background noise. In addition, Aearo Company explained that the 
Appendix D levels, which FRA adopted from OSHA, are outdated. Aearo 
Company explained that the OSHA requirements were based on a 1960 ANSI 
standard and its values were based on audiometric zero as defined in 
1951. The 1951 threshold values are about 10 dB less sensitive than 
today's values, and the science behind the 1960 permissible noise 
standard was not as well developed.
    The commenters proposed various alternatives. Theresa Schulz 
recommended that FRA adopt the background noise levels specified by the 
DOD in their Instruction 6055.12 (DOD, 1996). AAA, NHCA, ASHA, and 
Aearo Company recommended that FRA adopt the compromise position 
established by NHCA--that is, adopt the latest ANSI standard on 
background noise levels, ANSI S3.1-1999, ``Maximum Permissible Ambient 
Noise Levels for Audiometric Rooms'' but with a 5 dB relaxation at 500 
Hz.\61\ NIOSH suggested that FRA adopt the ANSI S3.1-1999 standard for 
testing frequencies of 1000 to 8000 Hz but did not assert a position on 
how FRA should handle 500 Hz.
---------------------------------------------------------------------------

    \61\ This relaxes the 1991 ANSI requirements by 3.5 dB (and the 
current 1999 ANSI standard by 5 dB) to a value of 24.5 dB.
---------------------------------------------------------------------------

    With respect to the ANSI S3.1-1999 standard, the commenters were 
concerned about railroads' ``real world'' ability to comply with ANSI 
S3.1-1999, specifically the maximum noise level at 500 Hz. They pointed 
out that studies have shown that a large percentage of audiometric 
booths and test vans would fail those requirements at 500 Hz. Mobile 
facilities did not fail, however, when the requirement for 500 Hz was 
relaxed. Aearo Company also pointed out that the 5 dB relaxation has 
minimal negative effect. Aearo Company explained that ambient 
background noise is typically high at 500 Hz and at the same time, 
occupational noise exposure has little measurable effect on the hearing 
thresholds that are masked (i.e., elevated) by those background noise 
levels.
    By contrast, one commenter, Michael Fairchild and Associates 
suggested that the proposed Appendix D is a workable solution. He 
asserted that the proposals from the various professional organizations 
are ``neither workable in a real world environment nor necessary.'' He 
explained that the very low ambient sound levels suggested by the 
professional organizations are necessary for clinical diagnosis and 
research but not for occupational hearing conservation screening tests. 
He also explained that audiometric testing in a rail yard can be 
difficult under the current OSHA standards. Given the noise in the rail 
yard environment, clinicians often have to stop and re-start the test 
or move the test away from the work area. Both increase employee travel 
time and costs.
    The RSAC Working Group discussed this issue of background sound 
levels at the post-NPRM meeting. The Working Group identified three 
options: (1) Use the OSHA background sound levels found in Appendix D, 
(2) use the more stringent standards (i.e., lower levels) found in ANSI 
S3.1-1999 or (3) use a modified version of the ANSI S3.1-1999 standard 
(i.e., relax 500 Hz by 5 dB).
    Railroad representatives of the Working Group were concerned that 
they would experience substantial administrative difficulties if they 
had to comply with ANSI S3.1-1999 standard. One representative 
explained that, when this rule goes into effect, some railroad 
employees will be covered by the OSHA HCA while others will be covered 
by FRA. If FRA adopted the ANSI standard, railroads would have to test 
some employees with existing equipment that meets the OSHA standards 
and others with new equipment that meets the ANSI standard. There would 
also be difficulties with mobile test vans. Mobile test vans are 
already set to the OSHA standards, so all vans would have to be re-
worked to accommodate the ANSI standards. AAR representatives stated 
that they do not know of any vans currently available on the market 
that are set to the new ANSI standard. In addition, some Working Group 
members pointed out that, given the noise environment in a rail yard, 
it is often difficult to perform audiometric tests using OSHA's 
background sound levels. To change the requirements to ANSI's more 
stringent standard would be even more difficult. Overall, the Working 
Group felt strongly that it was difficult to expect employers to switch 
between the standards in Appendix D and the latest ANSI standard. As a 
result, FRA decided to leave the requirements as proposed--that is, 
railroads should comply with the background sound levels that FRA 
adopted from OSHA and placed in Appendix D.
    A related issue is the background sound levels for insert 
earphones. As several commenters pointed out, insert

[[Page 63101]]

earphones provide more attenuation than supra-aural headphones and so 
the background sound levels can be higher when hearing tests are 
performed with insert earphones. Accordingly, the relevant ANSI 
standard (ANSI S3.1-1999) sets higher background levels for insert 
earphones. The RSAC Working Group members discussed this issue at the 
post-NPRM meeting. The Working recommended that FRA allow the use of 
insert earphones but left it to FRA to implement the requirements for 
their use.
    FRA considered two options for background sound levels for insert 
earphones: (1) the Appendix D levels which FRA adopted from OSHA (and 
which apply to supra-aural headphones) or (2) the levels in ANSI S3.1-
1999. FRA has decided to use the background noise levels specified in 
ANSI S3.1-1999. Note, however, that FRA is not adopting ANSI S3.1-1999 
in whole (and specifically not the background noise levels for supra-
aural headphones). FRA is merely adopting the background noise levels 
from ANSI S3.1-1999 as they relate to insert earphones. FRA has placed 
the noise levels for insert earphones in a new row in Table D-1 of 
Appendix D. The background noise levels for insert earphones are higher 
than the background noise levels for supra-aural earphones. This is due 
to the fact that insert earphones provide higher attenuation.
    Section 227.111(d) addresses the calibration of audiometers. 
Section 227.111(f)(1) requires a check of the audiometer's functional 
operation before each day's use. This requirement is slightly different 
than the related provision in OSHA's standard. In OSHA's rule, the 
audiometer must be checked by testing a person with known, stable 
hearing thresholds. In FRA's rule, the audiometer can be checked by 
either a person or with an appropriate calibration device.
    Section 227.111(d)(2) requires an acoustic calibration annually. 
This section also directs railroads to perform the acoustic calibration 
in accordance with ANSI S3.6-2004.\62\ Just as FRA replaced ANSI S3.6-
1996 with ANSI S3.6-2004 in Sec.  227.111(b), so FRA has done here. FRA 
made this change at the recommendation of a couple of commenters and 
with the agreement of the RSAC Working Group.
---------------------------------------------------------------------------

    \62\ For a general discussion on the use of ANSI standards in 
this rule, see the section-by-section analysis for Sec.  
227.103(c)(2).
---------------------------------------------------------------------------

    Upon replacing the information in Appendix E with the requirement 
to comply with an ANSI standard, FRA realized that most of the 
information in the proposed Appendix E: ``Acoustic Calibration of 
Audiometers'' was outdated and unnecessary. The information in the 
proposed Appendix E had come from OSHA's Appendix E, and most of that 
information, in turn, appears to have come from ANSI S3.6-1969. FRA 
deleted that outdated information. FRA has placed in Sec.  
227.111(d)(2) the requirement that railroads comply with ANSI S3.6-
2004. FRA has also included some particularly salient parts of the ANSI 
standard and provided them in Sec.  227.111(d)(2).
    FRA notes that this updated ANSI standard includes procedures for 
the calibration of audiometers with insert earphones. FRA expects that 
railroads who elect to use insert earphones will follow those 
calibration procedures.
    Section 227.111(d)(3) requires an exhaustive calibration, performed 
in accordance with ANSI S3.6-2004, once every two years for audiometers 
not used in mobile test vans and once a year for audiometers used in 
mobile test vans. This stricter requirement for mobile vans is 
necessary because of the nature of mobile service work. Mobile vans are 
constantly in movement, and thus 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. Because of that, FRA concluded that the minimal 
cost of this stricter requirement would be easily offset by the 
assurance of more accurate test data.
    Theresa Schulz commented on this stringent mobile van requirement, 
noting that it helps to maintain quality in a difficult-to-control 
environment. She went further, suggesting that FRA require ``daily 
listening checks'' that railroads should conduct whenever they move 
equipment or turn it on or off. While FRA believes it's important to 
have more stringent standards for mobile test van audiometers, however, 
FRA does not believe it is necessary to go so far as to require daily 
listening checks. FRA believes the exhaustive annual calibration for 
mobile test vans is sufficient.

Section 227.113 Noise Operational Controls.

    This section addresses noise operational 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 
the 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 the employee to 
protect himself or herself.
    Noise operational controls are the functional equivalent of OSHA's 
term ``administrative controls.'' Unlike OSHA, FRA does not mandate the 
use of controls. This difference is rooted in practicality. In general 
industry, if an employee's noise exposure is too high, an employer can 
often simply move the employee to a different location. That option is 
not necessarily available in the railroad industry. Certain railroad 
employees, by the nature of their job, are limited as to their ability 
to be moved to a quieter location. For example, locomotive engineers 
have to work in a locomotive, which can be noisy. Management can rotate 
employees through a quieter locomotive or a quieter route, but even 
those options are limited, given that locomotives are constantly moving 
throughout the country and a quieter locomotive might not be available 
or a quieter route might not exist on a particular day for a particular 
employee. Because there are far fewer options in the railroad industry 
for employing operational controls, FRA did not mandate the use of 
noise operational controls in this rule.
    This section provides that railroads may use noise operational 
controls to reduce noise exposures to levels below those required by 
Table A-1 of Appendix A of this part and that railroads are encouraged 
to use noise operational controls when employees are exposed to sound 
exceeding an 8-hour TWA of 90 dB(A). This section has been revised 
slightly since the proposed rule. The revision does not make any 
substantive changes; it merely ensures that the regulatory language 
accomplishes what FRA had intended and what FRA had expressed in the 
preamble to the proposed rule. In particular, railroads may consider 
noise operational controls at any point in time. The proposed rule 
provision had implied that railroads should wait until sound reaches an 
8-hour TWA of 90 dB(A) before using or considering noise

[[Page 63102]]

operational controls, and that is not the case.
    As stated above, railroads have the option of using noise 
operational controls. Railroads can use noise operational controls, by 
themselves, to lower the total noise exposure (as long as the total 
noise exposure does not exceed 90 dB(A) as an 8-hour TWA, in which case 
the railroad must also require hearing protection). Railroads can also 
use noise operational controls in combination with the other controls. 
Those other controls include 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 noise 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.
    A couple of commenters, including ASHA and AIHA, submitted 
comments, supporting FRA's decision to make noise operational controls 
optional rather than mandatory. The commenters point out that 
administrative controls have proven to be problematic in general 
industry. They explain that administrative controls tend to take a 
secondary role to production requirements and that they have been 
difficult to administer and enforce.''

Section 227.115 Hearing Protectors

    This section addresses hearing protectors (HP), another measure 
that can be used to minimize employee exposure to noise in the 
locomotive cab. The term ``hearing protector'' is defined in Sec.  
227.5. Hearing protectors can be divided into three main categories: 
(1) Ear plugs that are placed in or against the entrance of the ear 
canal to form a seal and block sound; (2) ear muffs that fit over and 
around the ears to provide an acoustic seal against the head; and (3) 
helmets that encase the entire head.\63\
---------------------------------------------------------------------------

    \63\ Berger at 383.
---------------------------------------------------------------------------

    FRA has reorganized Sec.  227.115 since the proposed rule. The 
content remains the same; however, the section is structured 
differently. This was brought about by Aearo Company's comment that the 
proposed Sec. Sec.  227.115(a) and 227.115(c)(1) were redundant. By 
reorganizing the section, FRA believes it has removed the redundancy 
and also made this section more clear. Paragraph (a) contains the 
general requirements for hearing protectors, while paragraphs (b) 
through (d) address employee use of hearing protectors.
    Section 227.115(a) contains the general requirements for hearing 
protectors. Railroads are required to provide hearing protectors to 
employees at no cost (Sec.  227.115(a)(1)) and replace hearing 
protectors as necessary (Sec.  227.115(a)(2)). These requirements are 
similar to the comparable provision in OSHA's standard, which is found 
at 29 CFR 1910.95(i).
    Section 227.115(a)(3) is unique to FRA's rule; there is no 
comparable provision in OSHA's rule. This provision 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 
overuse of hearing protection may be counter-productive, especially for 
employees with existing hearing loss. For example, an employee who is 
exposed to a TWA of 85 or 86 dB(A) should not wear HP that provides 30 
dB in noise reduction, because that 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 cues is critical to avoiding train accidents 
and incidents.
    FRA specifically sought comments from the public on this issue. In 
general, commenters supported this provision. ASHA, Theresa Schulz, and 
AIHA submitted similar comments, applauding FRA's recognition of the 
potential adverse impacts of overprotection. They explained that 
overprotection is prevalent because ``purchasing authorities often * * 
* operate under the false assumption that higher noise reduction is 
better--regardless of local exposure conditions and need.'' They noted 
that a ``one size fits all'' approach for HP is inappropriate. They 
explained that employers instead need to consider several factors-
including an employee's comfort, an employee's ability to understand 
and respond to voice and radio communication, and an employee's ability 
to hear and respond to audible warnings--when selecting HP for an 
employee. Theresa Schulz noted that these two new considerations that 
FRA added (i.e., an employee's ability to hear and respond to (1) voice 
communication and (2) audible warnings) are important considerations 
that directly address the problem of overprotection.'' Overall, these 
commenters expressed their belief that employees will be safer and more 
satisfied with HP if overprotection is limited or eliminated.
    NHCA also applauded FRA for including this language. NHCA suggested 
that the use of low-attenuating devices or flat-attenuating devices may 
be an option to address the problem of employees' inability to 
understand and respond to voice radio communications and audible 
warnings. Likewise, an individual railroad operating employee with 35 
years of engine service submitted comments applauding FRA's efforts 
with this rule. While he didn't specifically link his comment to this 
provision, he raised a point directly related to it. He acknowledged 
that he sometimes has difficulty hearing the alerter when he is wearing 
his hearing protection.
    Another commenter, Aearo Company, initially explained that, based 
on their experience, the problem is usually inadequate use of HP, not 
overuse of HP. While responding to the preamble discussion on avoiding 
excessive reflexive use of HPs, Aearo Company asserted that the 
``problem is truly one of getting those in need to be protected without 
focusing undue attention on the few who may be wearing hearing 
protection that need not be.'' However, further in their comments, 
Aearo Company noted that ``FRA's interest in accommodating hearing loss 
and use of HPs in moderate noise is well founded.'' Aearo Company 
pointed to data supporting FRA's provisions; Aearo said that the 
studies have found that the use of HPs in lower-level noise increases 
the likelihood that the HPs ``will interfere with the audibility of 
warning signals and communication, especially for the hearing 
impaired.'' Similar to the comments mentioned above, Aearo Company 
noted that ``simple blanket recommendations are not possible.'' Aearo 
Company suggested that it is generally necessary to do case-by-case 
analyses for each critical communication scenario and that such an 
analysis might include speech

[[Page 63103]]

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

[[Page 63104]]

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

Section 227.117 Hearing Protector Attenuation

    Section 227.117(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: 
derating by type, Method B from ANSI S12.6-1997 (Reaffirmed 2002), and 
objective measurement.
    This is a change from the proposed rule. In the NPRM, FRA had 
adopted OSHA's Appendix B to 29 CFR 1910.95, which provided for the 
following methods: Noise Reduction Rating (NRR), and NIOSH methods 
1, 2, and 3. There were two main issues with 
respect to the changes to this section:

[[Page 63105]]

the inclusion of Method B as an acceptable method and the overall 
revision of Appendix B.
    In the NPRM, FRA had not included Method B but had sought comment 
on whether FRA should include it. Method B refers to the use of 
``subject-fit'' attenuation data measured according to Method B from 
ANSI S12.6-1997 (Reaffirmed 2002). That ANSI standard, ``Methods for 
Measuring Real-Ear Attenuation of Hearing Protectors,'' ``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.'' \64\ 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.'' 
\65\
---------------------------------------------------------------------------

    \64\ Council for Accreditation in Occupational Hearing 
Conservation ``Hearing Conservation Manual,'' Fourth Edition, 114 
(2002).
    \65\ Id.
---------------------------------------------------------------------------

    Several commenters responded to FRA's request for comment, stating 
that FRA should allow railroads to use Method B as a method for 
evaluating hearing protector noise reduction. The president and 
principal of Wilson, Ihrig, & Associates explained that, based on his 
experience as a consultant, of those individuals who had filed hearing 
loss claims, most who used HP had done so without any explicit 
training. Thus, Wilson et al. explained, ``determining the attenuation 
without training or with only verbal training would provide a very 
valuable tool with respect to the actual attenuation achieved under 
actual field conditions.''
    Similarly, ASHA and AIHA agreed with FRA's assessment that Method B 
more closely resembles the real-world performance of hearing protectors 
and supported its inclusion in Appendix B. They explained that hearing 
protector ratings included in the NRR are based on data obtained under 
optimal laboratory conditions and therefore differ greatly from the 
noise reduction that employees actually experience on the job. They 
pointed to a few studies, including one that ``demonstrated that having 
untrained subjects fit their own hearing protectors provided much 
better estimates of the hearing protectors' noise attenuation in the 
workplace than having the experimenter fit them.'' Theresa Schulz went 
further, explaining that there are other methods available to test the 
``real world'' performance of hearing protectors (e.g., the ``fit-
check'' and the Predicted Personal Attenuation Rating) and recommending 
that FRA also encourage the use of those methods.
    Other commenters, such as NHCA and Aearo Company, acknowledged that 
the Method B ``subject-fit'' attenuation data provides a better 
estimate of the average real world attenuation but expressed concern 
about using Method B. Both noted that there is ``still wide debate 
about Method B and questions about whether it will be adopted or widely 
used.'' NHCA, along with some other commenters, recommended that 
railroads have the option to follow the NIOSH recommendations for 
derating HPs for the purpose of estimating the average workplace 
protection attainable by groups of HP users. The Aearo Company 
suggested a more complex scheme, whereby the use and type of 
attenuation varies based on the employee's level of exposure.
    FRA and the Working Group considered this issue and decided to 
allow railroads to use Method B as a method of evaluating hearing 
protector attenuation. It provides railroads with an additional option, 
thereby giving railroads more flexibility to choose the method which is 
most appropriate for them.
    The other issue related to HP attenuation was the overall revision 
of Appendix B. Aearo Company had submitted comments, asserting that it 
was ``regrettable'' that FRA chose to adopt OSHA's Appendix B without 
change. Aearo Company explained that Appendix B is confusing and 
misleading and recommended that FRA rewrite and clarify it in the final 
rule. The RSAC Working Group discussed Aearo Company's comment at the 
post-NPRM meeting and decided that it was most appropriate to leave 
Appendix B as proposed, with the exception that, FRA would add Method B 
as an option for estimating the adequacy of HP attenuation. The Working 
Group also noted that Aearo Company had not provided FRA with any 
viable alternatives to use in place of Appendix B.
    As FRA attempted to incorporate Method B into Appendix B, FRA 
encountered difficulty. FRA found that the proposed appendix was, in 
fact, confusing. Given the confusion and complications, FRA is unable 
to simply add Method B, and so FRA is revising Appendix B. While the 
decision to add Method B to Appendix B was part of the RSAC Working 
Group consensus, the revision of Appendix B was not. FRA has modified 
Appendix B as explained below.
    In the interest of simplicity, FRA provides for three methods of 
estimating real world HP protection levels. Using the first method, one 
subtracts 7 dB from the published NRR and then derates based on a 
percentage of the remainder. This is similar to NIOSH recommendations 
based on type. The justification for derating by device type has to do 
with the potential effect HP fit has on the attenuation level, with 
muffs being the least prone to fitting poorly and non-formable ear 
plugs being the most prone to fitting poorly. Using the second method, 
one would derate based on ANSI S12.6-1997 (Reaffirmed 2002) Method B. 
And finally, using the third method, one uses objective measurement. 
One conducts testing in user environments that measure actual levels 
inside the users HPs. FRA wants to emphasize that it recognizes that 
all of the methods mentioned, with the possible exception of the 
objective measurements, are estimates and may not precisely reflect the 
true level of protection. FRA acknowledges that the level of protection 
is as much related to the quality of training, practice and motivation 
of the users as it is to the NRR of the devices used.
    Finally, with respect to HP attenuation, NHCA submitted further 
comments, specifically that FRA should include cautions about HP 
attenuation in the rule text. The cautions are based on conclusions of 
the NHCA Task Force on Hearing Protector Effectiveness. The Working 
Group, along with FRA, did not think it was necessary to include this 
information in the rule text but did think it was useful to include it 
here in the preamble. Accordingly, FRA encourages railroads to be 
cognizant of the following when evaluating HP attenuation:

    When comparing hearing protectors, differences between hearing 
protector ratings of less than 3 dB are not important.
    The labeled values of noise reduction are based on laboratory 
tests. It is not possible to use these data to reliably predict 
levels of protection achieved by a given individual in a particular 
environment. To ensure protection, those wearing hearing protectors 
for occupational exposures must be enrolled in a hearing 
conservation program.

    The remaining provisions in Sec.  227.117 are identical to FRA's 
proposed rule and to OSHA's standard at 29 CFR 1910.95(j). Section 
227.117(b) provides that hearing protectors shall attenuate employee 
exposure to an 8-hour TWA of 90 decibels or lower, as required by Sec.  
227.115.
    Section 227.117(c) provides that hearing protectors for employees 
who have experienced a STS must attenuate exposure to an 8-hour time-
weighted

[[Page 63106]]

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

[[Page 63107]]

provision after the RSAC Working Group meeting.
    Section 227.119(b) is new to FRA's rule; no comparable provision 
exists in OSHA's standard. Section 227.119(b) identifies the times when 
a railroad should initiate training for employees. For new employees, a 
railroad shall provide training within six months of the employee's 
first tour of duty in a position identified within the scope of this 
part. For existing employees, a railroad shall provide training within 
two years of the effective date of this rule, except for railroads with 
400,000 or less employees hours, who shall provide training in three 
years.\66\ Note that FRA has changed some of the formatting in this 
section. The substance of the provision remains the same.
---------------------------------------------------------------------------

    \66\ For a discussion on small entities, see the section-by-
section analysis for Sec.  227.103(a).
---------------------------------------------------------------------------

    FRA received several comments on this paragraph. One comment was to 
change the word ``after'' to ``of'' before the words ``employee's first 
tour of duty.'' FRA took that suggestion and changed the rule 
accordingly. The revised provision now permits an employer to provide 
the training before, in addition to after, the employee's first tour of 
duty.
    FRA sought, and received, several comments on the start date. FRA 
asked 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). ASHA, AIHA, NHCA, NIOSH, Aearo 
Company, and Theresa Schulz all responded that it is best to train 
employees and to fit hearing protection before employees enter noise-
hazardous areas. AIHA wrote that the 6-month and 2-year windows were 
``unnecessary and counterproductive.'' The commenters explained that 
there are negative consequences of allowing employees to work in noise 
hazardous environments for up to the proposed time periods in that it 
provides a substantial time frame for employees to develop bad habits 
and to experience incipient hearing loss. Theresa Schulz wrote that, at 
the very minimum, railroads should have to train new employees within 6 
months. The commenters also pointed out the importance of training. 
Aearo Company explained that HCP training should be viewed and treated 
as equally as important as the other pieces of safety information that 
a new employee receives.
    The RSAC Working Group discussed this issue and recommended to FRA 
to leave this provision as proposed. The RSAC Working Group felt that 
it was not necessary to require early training, since the important 
issue is employee protection and employees are otherwise protected 
during this interim, initial period through the operation of other 
provisions of the rule. Other provisions of the rule ensure that the 
employee is protected. Specifically, if a new employee has not yet 
received a baseline audiogram and is exposed to sound exceeding an 8-
hour TWA of 90 dB(A), the employee is required to use HP. See Sec.  
227.115(c)(2)(i). Plus, the railroad is supposed to ensure ``proper 
initial fitting and supervise the correct use of hearing protectors.'' 
See Sec.  227.115(f). Thus, a new employee, if exposed to hazardous 
noise, will receive HP and basic instructions on its use. Moreover, 
railroad members of the RSAC Working Group felt that this issue was 
moot given standard practice. They explained railroads typically 
provide new employees with initial training covering all topics when 
they start their jobs, and therefore new employees are generally 
trained before they are exposed to noise. Some employees might even 
receive their noise training as part of their pre-employment training.
    Section 227.119(c) lists the items that a railroad should address 
in its hearing conversation training program and include in its 
training materials. This is a list of the minimum items that a railroad 
should address; railroads are free to include additional items if they 
so wish. The first five items listed in Sec. Sec.  227.119(c)(1) 
through (5) are the same items that OSHA requires in its standard. See 
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 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.
    The remaining six items found in Sec. Sec.  227.119(c)(6) through 
(11) are additional items which FRA has added to its standard. and 
which do not exist in OSHA's standard.
    Given that FRA has added these additional training requirements, it 
is not sufficient for railroads to use only a ``canned'' OSHA training 
program (although a ``canned'' OSHA training program does suffice as 
training for the OSHA-related elements in the FRA training program). A 
``canned'' OSHA 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. These items were added to 
address the unique aspects of the railroad operating environment--e.g., 
the mobile nature of the employees' work, the variety of noise sources 
to which they are exposed, etc. These items are discussed in the 
following paragraphs.
    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. As originally 
conceived, this provision required railroads to provide employees with 
workplace noise exposure levels, including examples of where hearing 
protectors are, or are not, necessary; the types of equipment that emit 
excessive noise; and the types of operations that produce excessive 
noise. During meetings at the proposed rule stage, 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 RSAC Working Group recommended that 
the requirement be expressed in more general terms. FRA accepted that 
recommendation. The general language addresses the railroad's 
administrative concerns and also addresses FRA's intention that 
railroads 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 
should address railroad representatives' concerns about the timing of 
this training. Some railroad representatives asserted that this 
material was already

[[Page 63108]]

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. Railroads do not 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. Because 
FRA mandates that employees participate in the audiometric testing 
program specified in this rule, it is important that the railroads, at 
a minimum, explain this rule's requirements as they affect their 
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.
    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 excessive 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 NPRM consensus document that the RSAC 
forwarded to FRA. Rather, these two elements were added after OSHA's 
review of the NPRM during the pre-publication clearance process.
    FRA sought comment on these two items which FRA added as a result 
of OSHA's review of the proposed rule. Most commenters, including ASHA, 
AIHA, and Theresa Schulz, supported FRA's decision to include these 
additional items. One commenter wrote that the additional requirements 
were ``excellent.'' The commenters went on to explain that these 
requirements will allow an employee to recognize excessive noise and 
use HP, which will provide an early intervention to prevent hearing 
loss. The AAR requested that FRA clarify what would be adequate to 
satisfy Sec.  227.119(c)(10) (i.e., train employees on how to determine 
what can trigger an excessive noise report). During the post-NPRM RSAC 
Working Group meeting, the AAR withdrew this comment, noting that 
definition in the rule and preamble language in the NPRM (much of which 
is reproduced in this final rule) sufficiently defines excessive noise 
report. The AAR also noted that training should include the definition 
of excessive noise. FRA agrees and encourages railroads to share not 
only the definition of ``excessive noise'' with employees but also the 
information contained in the preamble discussion on ``excessive 
noise.''
    Another issue which arose in the context of training is delivery 
method. The NPRM did not specify the delivery method for training. FRA 
noted that traditional classroom training is the most beneficial, 
followed by interactive (e.g., computer) training, and then video 
training. It is FRA's understanding that most class I railroad 
employees are generally trained by viewing a video presentation or by 
operating an interactive computer program.
    Railroad representatives felt strongly that FRA should not mandate 
classroom training. They felt that any requirement that departs from a 
standardized OSHA training program might result in significantly 
increased costs with questionable additional benefit. FRA sought 
comment as to whether railroads should conduct training through the use 
of traditional classroom methods, video presentations, or computer 
training.
    The AAR replied, objecting to FRA's conclusion ``on the 
desirability of classroom training over training by video or 
computer.'' The AAR stated that there was no empirical data presented 
to the Working Group that would support the proposition that 
traditional teaching methods are more effective than video or computer 
training. The AAR pointed out that there are benefits to video and 
computer training, such as avoiding distractions inherent to teaching 
groups and potentially maximizing the attention to the training by 
allowing the employee to choose the time of the training. The AAR 
explained that computer and video training are well accepted by 
professional educators and felt that they should be maintained as 
options.
    Several other commenters, including ASHA, AAA, and AIHA, were in 
favor of interactive training. They stated that interactive training is 
usually more effective, if not the ``most effective way to communicate 
the message.'' They explained that live training permits employees to 
interact with the instructor and to ask questions. Several mentioned 
that it provides a ``teachable moment,'' where an employee is open to 
receiving information. ASHA and AIHA acknowledged, however, that face-
to-face training can be ``burdensome and costly'' and so ASHA suggested 
an alternative whereby employers would provide resources for answering 
employee questions as they arose, instead of conducting face-to-face 
training.
    In this final rule, FRA does not specify a delivery method for 
training. A railroad can provide the training information through any 
medium it chooses. Given the nature of the mobile railroad workforce 
and the cost of this type of training, FRA recognizes that traditional 
classroom/live training could be costly and administratively 
burdensome. However, FRA reiterates its belief that traditional 
classroom training (i.e., face-to-face or live) is an excellent and 
often highly effective method of training. Traditional classroom 
training is beneficial, because it allows employees to ask questions 
and receive immediate feedback. Similarly, training with interactive 
components (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 than training without those components.
    FRA recognizes that there are many creative training options, 
especially given today's technological capabilities. For example, a 
railroad could use on-

[[Page 63109]]

line interactive training. Or a railroad could supplement a computer or 
video presentation with content experts that are available through e-
mail or phone. It is FRA's belief that these methods, while not 
necessarily exactly equivalent to classroom training, can be effective 
in conveying necessary information to employees.

Section 227.121 Recordkeeping

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

[[Page 63110]]

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

    \67\ For purposes of the Sec.  227.121(f) list, a railroad must 
maintain a list of all STSs regardless of work-relatedness. For 
purposes of part 225, a railroad must report STSs that meet the 
reporting criteria (i.e., among other things, only those that are 
work-related). See Sec.  225.5 for the definition of ``occupational 
hearing loss'' and Sec.  225.19(d).
---------------------------------------------------------------------------

Appendices to Part 227

    In the proposed rule, FRA had adopted appendices A-F from OSHA's 
noise standard. For the most part, FRA's proposed appendices were 
virtually identical to the appendices for OSHA's general industry 
standard. FRA has since made a number of substantive changes to the 
appendices. Those changes are discussed below and/or in the relevant 
section-by-section analysis above. Also please note that FRA has re-
numbered much of the appendices that were carried over from the 
proposed rule so that the numbering is consistent across appendices.
    With respect to appendices in general, one commenter suggested that 
FRA add a non-mandatory appendix that contains

[[Page 63111]]

two tables, Tables 1-1 and 1-2, from the 1998 NIOSH Revised Criteria 
Document.\68\ The NIOSH tables are analogous to Tables A-1 and A-2 in 
mandatory Appendix A in FRA's rule. The difference is that the NIOSH 
tables are based on an 85 dB(A) exposure limit and a 3 dB exchange 
rate, and the FRA tables are based on a 90 dB(A) exposure limit and a 5 
dB exchange rate. NIOSH believes that the additional non-mandatory 
appendix would supply additional materials to help users make informed 
decisions about preventing hearing loss among railroad employees. FRA 
and the Working Group decided not to add these tables based on the view 
that including several conflicting tables is more likely to create 
confusion than provide assistance.
---------------------------------------------------------------------------

    \68\ See Sec.  III(D) above for a related analysis.
---------------------------------------------------------------------------

Appendix A to Part 227

    Appendix A is a mandatory appendix that provides tables with which 
an employer can compute an employee's noise dose. FRA has made some 
changes to Appendix A, most of which are discussed above in the 
section-by-section analysis for Sec.  227.105. FRA also made a purely 
cosmetic change, which is discussed here. At the suggestion of Aearo 
Company and with the agreement of the RSAC Working Group, FRA 
italicized all levels above 115 dB(A) in Table A-1. FRA (and OSHA, from 
whom FRA adopted this appendix) included these levels, not because they 
are permitted levels, but because they can be necessary for the 
computation of noise dose. The commenter pointed out that OSHA had 
written in the preamble to their 1981 Hearing Conservation Amendment 
\69\ that they were italicizing these levels, however, there were no 
italics in the regulatory text of OSHA's final rule. By italicizing 
these levels and including a footnote to Table A-1, FRA makes it clear 
that these levels are different from the others. It allows FRA to avoid 
giving the impression that these levels are permitted.
---------------------------------------------------------------------------

    \69\ 46 FR 4078-1 (January 16, 1981).
---------------------------------------------------------------------------

Appendix B to Part 227

    Appendix B is a mandatory appendix. FRA identifies the methods 
which railroads should use for estimating the adequacy of HP 
attenuation. FRA has revised this appendix since the proposed rule. For 
a discussion of the changes, see the section-by-section analysis for 
Sec.  227.117.

Appendix C to Part 227

    Appendix C is a mandatory appendix that contains procedures for 
revising baseline audiograms. Appendix C as proposed in the NPRM was 
adopted from OSHA's general industry noise standard. Proposed Appendix 
C discussed self-recording audiometers and also included one sentence 
addressing a requirement in the event that pulsed-tone audiometers are 
used. Several commenters recommended that FRA delete all references in 
the rule to self-recording audiometers. The commenters explained that 
self-recording audiometers are no longer produced, supported, or used, 
and so there is no point to reference them. Another commenter explained 
that it was unnecessary to discuss the ``possibility'' of using pulsed-
tone audiometers, since they are routinely used.
    FRA and the RSAC Working Group agreed to incorporate these 
technical changes in the final rule. FRA removed all references to 
self-recording audiometers, including references in the proposed Sec.  
227.111(c) and the proposed Appendix C. With the self-recording 
audiometer discussion removed, there was almost nothing left in 
Appendix C. FRA modified the remaining sentence to address the 
commenter's concern by removing the phrase ``in the event that pulsed-
tone audiometers are used'' and moved the modified sentence to Sec.  
227.111(b)(1).
    FRA further revised the requirement for pulsed-tone audiometers, as 
a result of CAOHC's comments. CAOHC recommended that FRA's 
specifications for pulsed stimuli should be 200 milliseconds on and 200 
milliseconds off. They explained this would be consistent with 
audiometric instrumentation. FRA agreed that requirement should be 
expanded but chose to do so in a different manner. Using the 
requirement from ANSI S3.6-2004, FRA wrote that ``Pulsed-tone 
audiometers, where used, should be used with the following on and off 
times: F-J and J-K shall each have values of 225  35 
milliseconds.''
    Because FRA had removed proposed Appendix C, FRA also removed the 
language in the proposed Sec.  227.109(d) that referred to Appendix C. 
Rather than renumber the remaining paragraphs of Sec.  227.109, FRA has 
intentionally left Sec.  227.109(d) blank in the final rule.
    In this final rule, FRA has inserted a new Appendix C. For a 
discussion of new Appendix C , please see the section-by-section 
analysis for Sec.  227.109(i).

Appendix D to Part 227

    Appendix D addresses the requirements for audiometric test rooms; 
it is a mandatory appendix. FRA has added a row to the Table in 
Appendix D. It sets the background noise levels for hearing tests 
conducted with insert earphones. For a discussion of the changes made 
in the final rule, see the section-by-section analysis for Sec.  
227.111(e).

Appendix E to Part 227

    The proposed Appendix E addressed the acoustic calibration of 
audiometers. Most of the information in that appendix was based on an 
outdated ANSI standard, and so FRA removed the appendix. FRA put the 
relevant requirements for calibration in Sec.  227.111(f)(2). For a 
discussion of the changes in the final rule, see the section-by-section 
analysis for Sec.  227.111(f)(2).
    In this final rule, FRA has placed the requirements for insert 
earphones in Appendix E. Appendix E is a mandatory appendix that 
establishes the requirements that railroads must use if they choose to 
conduct hearing tests with insert earphones. For a discussion of this 
appendix, see the section-by-section analysis for Sec.  227.111(c).

Appendix F to Part 227

    Appendix F is a non-mandatory appendix that employers can use to 
calculate and apply age correction to audiograms. For a discussion of 
the comments that FRA received related to Appendix F, see the section-
by-section analysis for Sec.  227.109(j).

Appendix G to Part 227

    In the final rule, FRA has placed in Appendix G the schedule of 
civil penalties that FRA will use in connection with part 227. This is 
different than the Appendix G that was proposed in the NPRM. The 
proposed Appendix G was an informational index that provided employers 
with basic information on complying with the noise monitoring 
provisions contained in the rule. It was the same as OSHA's Appendix G. 
In the proposed rule, FRA sought comment on whether or not FRA should 
adopt this appendix. FRA did not receive any comments on that issue. 
FRA has since removed the proposed Appendix G from this final rule. It 
addressed conventional workplaces, rather than the railroad industry. 
As such, it did not accurately characterize the noise environment in 
the locomotive cab. In addition, much of the general material in that 
appendix is also covered in the preamble discussion of this NPRM, and 
so it is unnecessary to repeat in an appendix.

[[Page 63112]]

Part 229--Railroad Locomotive Safety Standards

Section 229.4 Information Collection

    This section notes the provisions of this part that have been 
submitted to 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 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.
    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).'' \70\ 
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 or her 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.
---------------------------------------------------------------------------

    \70\ ``Speech Communications and Signal Detection in Noise,'' 
G.S. Robinson & J.G. Casali in The Noise Manual, 569 (2000).
---------------------------------------------------------------------------

    This 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 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.
    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 commends, railroads and manufacturers for their efforts in 
making locomotives quieter. In recent years, locomotive manufacturers 
have built 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: 
Horn placement in the center of the locomotive; insulation of the cab; 
insulation of the cab floor; venting the exhaust from the air brake 
system outside of the cab; and installation of 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. 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 rule, these units are not yet pervasive throughout 
the industry.
    Section 229.21(a)(1) establishes a design requirement for all 
locomotives that are manufactured by a specified date. That date is 12 
months after this rule is published in the Federal Register. The 
proposed rule had set that date at January 1, 2005. Given that time has 
passed, FRA decided to extend that date. This section 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

[[Page 63113]]

reflect current equipment and design, and, therefore, they should not 
impose a substantial burden on railroads or locomotive manufacturers. 
FRA has specifically chosen to use 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 a more complete understanding of this 
provision.
    FRA received two comments on this requirement. First, an individual 
BLET member suggested that FRA require railroads to check all 
locomotives in a fleet, not just a percentage. It is a common industry 
practice and an accepted statistical practice to use a sampling 
strategy, and FRA does not see any reason to veer from that practice. 
In this rule, FRA specifies a quality control process that is 
consistent with good practice in modern manufacturing. FRA proposed a 
99% upper confidence limit for determining that new locomotives are 
being produced in accordance with the following characteristics: Where 
the mean noise level equals 85 dB and the upper limit equals 87 dB, 
there is a 1% chance that sample of locomotives will exceed a mean 
noise level of 87 dB (1 in 100 samples of appropriate size). This 
procedure is desirable, because it allows a quality control check on 
the manufacture of the locomotives with regard to the rule without 
imposing undue expense on the manufacturer. There would surely be undue 
expense on the manufacturer if the manufacturer had to test all 
locomotives.
    Second, Wilson, Ihrig, & Associates wrote that the design 
requirement of 85 dB(A) with an upper 99% confidence limit of 87 dB(A) 
should be a minimum requirement. They assert that locomotives that have 
been tested to lower levels should be required to maintain those lower 
levels. They further explained that locomotives with isolated cabs are 
well known to achieve noise levels well below 85 dB(A), and they 
believe those locomotives should be required to maintain that lower 
level. The RSAC Working Group has recommended, and the FRA has agreed, 
to leave this provision as proposed. FRA and the Working Group is 
satisfied with the previous consensus that was achieved and do not see 
any reason at this point to revise this provision.
    Section 229.121(a)(1) also includes requirements for a build 
provision. 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.
    Section 229.121(a)(2) discusses the issue of alterations on 
locomotives 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 82 dB(A) to 85 dB(A), inclusive, 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). 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. Please note that FRA has re-formatted this section 
slightly since the proposed rule and after the post-NPRM RSAC Working 
Group meeting. The changes are intended to better clarify this 
provision and do not change the substance of this section.
    For purposes of the maintenance conducted pursuant to Sec.  
229.121(a), replacement in kind is not considered to be 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.
    In developing this provision, the RSAC Working Group 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). An alteration could not 
increase the noise level by more than 3 dB and where the noise level 
was 83 dB(A), an alteration could not increase the noise level by more 
than 2 dB. If the noise level was 84 dB(A), an alteration could not 
increase the noise level by more than 1 dB. In all cases, the maximum 
permissible noise level would be 85 dB(A). Certain railroad 
representatives of the Working Group opposed 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.
    The AAR was not pleased with this maintenance provision for newly-
built locomotives and suggested that FRA instead set the maintenance 
limit at the same level as the level for new equipment level, 85 dB(A). 
The AAR believes that 82 dB(A) is ``an artificial number that is not 
grounded in hearing science'' and that ignores other potentially 
important realities. As example, they explained that if there was a new 
technology that permitted increased safety to occupants or increased 
fuel efficiency but resulted in sound levels about 82 dB(A), railroads 
could buy this new technology on newly-built equipment but could not 
modify existing newly-built equipment to include it. The AAR stated 
that their experience has shown that ``reducing sound levels cannot be 
permitted to drive design changes focused on a single issue (in this 
case, noise) at the expense of reliability and other safety issues.''
    The AAR, an active participant in the RSAC Working Group throughout 
the entire process for this rulemaking, was present during the post-
NPRM Working Group meeting. The AAR reiterated the point above, stating 
that they believe 85 dB(A) is a ``safe level'' from a noise 
perspective, and so they believe it should be the standard for the 
design and the maintenance of locomotives. Other Working Group members 
expressed serious reservations about that change, explaining that this 
proposed rule was a compromise document, of which the 85 dB(A) 
provision represented a great deal of compromise. The Working Group had 
initially considered, among other things, setting the noise level for 
newly built locomotives at 75 dB(A), but had lowered that level as a 
result of concerns of Working Group members. To attempt to change the 
terms now would veer from the spirit of the compromise and from what 
the RSAC Working Group had decided was the most appropriate level. 
Given that background and given the fact that there was no new 
information upon which to act, the Working Group decided to leave this 
level as proposed.
    Section 229.121(a)(3) directs railroads and manufacturers to 
conduct static testing, as specified in Appendix H. Appendix H to part 
229 contains a set

[[Page 63114]]

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 must conduct 
static testing pursuant to paragraph (a)(1) and may conduct static 
testing to determine compliance with paragraph (a)(2) if they find it 
is needed. FRA did not receive any comments on this provision and 
therefore it remains as proposed in the NPRM.
(b) Maintenance of Locomotives
    Section 229.121(b) governs the noise-related maintenance 
requirements for locomotives. Please note that FRA has made some minor 
editorial changes in this section since the proposed rule and after the 
post-NPRM RSAC Working Group meeting. These changes are meant to 
clarify the language in the rule. They are minor in nature and do not 
change any of the substantive provisions.
    Upon receiving an excessive noise report pursuant to Sec.  
229.121(b)(1), 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 loose handholds that are hitting 
the car body. For all other items, the railroad can allow the 
locomotive to operate until that locomotive's next 92-day periodic 
inspection (as per Sec.  229.23). At that time, the railroad must 
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 will be held to the standard of a 
reasonably prudent and competent mechanical employee. When the railroad 
can identify that item, FRA expects that the railroad will repair and/
or replace that item. FRA understands that there might be situations in 
which 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 are discussed 
further in Sec.  229.121(b)(4)).
    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.
    A few commenters suggested that FRA should require railroads to 
perform regular, routine maintenance on locomotives (such as adding 
window seals or installing minor installation) as a means of noise 
control. One locomotive engineer wrote that he believes that 
maintenance would greatly reduce the noise levels in locomotive cabs. 
Another engineer wrote that he believes that interior noise, such as 
``worn bearing in the refrigerator'' is the most harmful to one's ears, 
followed by `` `undercarriage squeaks' '' at certain speeds and over 
certain bumps in the track.'' The RSAC Working Group, along with the 
FRA, considered this recommendation, but decided to leave the language 
as proposed. The Working Group put a great deal of time and thought 
into developing these maintenance standards. Without any new 
information upon which to act, the FRA and RSAC Working Group do not 
think it is appropriate to revise this provision.
    Section 229.121(b)(2) identifies specific conditions which might 
lead a locomotive cab occupant to file an excessive noise report. This 
list is not meant to be exhaustive; other items not on this list may 
also lead an employee to file an excessive noise report. These listed 
maintenance items, along with the design and build requirements in 
Sec.  229.121(a), FRA believes, embody the concept of OSHA's 
engineering controls. Whereas OSHA imposes a general requirement 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 RSAC Working Group.\71\ 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.
---------------------------------------------------------------------------

    \71\ See Sec.  III(C) for a discussion of the engineering 
controls task force.
---------------------------------------------------------------------------

    The task force recommended the list of 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. One of FRA's existing regulations, Sec.  229.7, addresses 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.
    While some of the other listed items might appear duplicative of 
other regulatory provisions, 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, 
and insulation--are not currently covered in this context in any of 
FRA's existing regulations.
    Section 229.121(b)(3) prescribes the railroad response to an 
excessive noise report. The rule provides that a railroad has an 
obligation to respond to an excessive noise report that a locomotive

[[Page 63115]]

cab occupant files with the railroad. This sentence, which was not 
contained in the RSAC's recommendation for the NPRM, makes explicit a 
railroad's obligation to make an appropriate response to cab occupant 
noise concerns. FRA added this sentence as a result of OSHA's review of 
the NPRM. The rest of this section was part of the consensus document 
from the RSAC.
    The rule also provides that a railroad meets its obligation to 
appropriately 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 items causing 
the noise.
    Section 229.121(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.
    Section 229.121(b)(4) contains the recordkeeping requirements for 
this section. The basic requirement is located in Sec.  
229.121(b)(4)(i). Railroads shall maintain a record of any excessive 
noise report, inspection, test, maintenance, replacement, or repair 
that occurred pursuant to Sec.  229.121(b)(1). In that record, the 
railroad shall include the date on which the employee filed the 
excessive noise report; and the date on which the railroad conducted 
the inspection, test, maintenance, replacement, and/or repair. The 
railroad shall note any attempts to identify conditions and any 
attempts to correct conditions. The railroad may maintain these records 
in written or electronic form. If a railroad elects to maintain the 
records electronically, the railroad must satisfy the conditions listed 
in Sec.  227.121(a)(2)(i) through (v). These conditions are almost 
identical to the electronic recordkeeping requirements found in FRA's 
existing track safety standards, Sec.  213.241(e). These conditions are 
intended to safeguard the integrity and authenticity of each record.
    Pursuant to Sec.  229.121(b)(4)(ii), railroads shall retain these 
records for 92 days if they are made pursuant to Sec.  229.21; or for 
one year if they are made pursuant to Sec.  229.23. During RSAC Working 
Group 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 Working Group 
discussed this two-year retention option and instead decided to 
recommend the 92 day/1 year retention proposal. FRA adopted the RSAC 
Working Group'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 locomotive inspection 
regulations at Sec.  229.21 (``Daily Inspection'') and Sec.  229.23 
(``Periodic inspection: General'').
    There were commenters on both sides of the issue regarding the 
record retention period. Wilson, Ihrig, & Associates wrote that the 
proposed retention periods were too short and that FRA should require 
railroads to keep these records for the life of the locomotive. With 
those records, railroads could then follow a trail of noise problems 
and identify locomotives with chronic noise problems. Wilson et al 
pointed out that proposed retention period is particularly inadequate 
given current computer technology.
    During RSAC Working Group discussions, some members noted that they 
do retain repair records for extended periods of times. However, 
Working Group members felt that they did not want to require railroads 
to keep records for extended periods of times. Because they believe it 
makes the most sense to treat repairs items related to noise the same 
as other related items in part 229, the RSAC Working Group, and FRA, 
decided to leave this requirement as proposed.
    On the other side of the issue, LIRR asserted that the retention 
requirement was too long and that it would result in an administrative 
burden and significant cost for their commuter railroad. In addition, 
LIRR asserted that the re-creation of potential noise reports of crews 
might be impossible during static testing, thereby resulting in an 
additional maintenance burden. For example, the crew scenario might 
include an Automatic Speed Control warning sound while the whistle is 
blowing, the bell is ringing, and the engine is in high throttle 
position, but that would not necessarily be replicable during static 
testing.
    The RSAC Working Group, with FRA, again concluded that it is best 
to retain the proposed language. Railroad interests are represented on 
the RSAC by several railroad representatives, who had agreed to this 
position. Moreover, this recordkeeping requirement is consistent with 
existing requirements under Sec. Sec.  229.21 and 229.23. Presumably, 
railroads have a framework in place for maintaining records for this 
time frame and so railroads should easily be able to add these 
excessive noise reports to that framework. Finally, FRA notes that 
there is no static testing requirement associated with the requirements 
in Sec.  229.121(b). The static testing requirements apply to Sec.  
229.121(a).
    Section 229.121(b)(4)(iii) requires railroads to establish an 
internal, auditable monitorable 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 Sec.  227.121(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 Sec.  227.121(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.

Appendix B to Part 229

    FRA has amended the existing schedule of civil penalties in 
Appendix B to Part 229 and listed the penalties that FRA will use in 
connection with Sec.  229.121.

Appendices F-G to Part 229

    Appendices F through G are being reserved for future use.

Appendix H to Part 229

    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

[[Page 63116]]

performance standards prescribed in Sec.  229.121(a). In formulating 
this protocol, FRA looked to several sources, including the procedures 
used by General Electric and General Motors' Electric Motor Division, 
other regulations concerning railroad noise measurement,\72\ and 
various measurement manuals and technical reports on transportation 
noise measurement and analysis.\73\
---------------------------------------------------------------------------

    \72\ 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.''
    \73\ 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. With the 
exception of changing the measurement metric, FRA did not make any 
changes to this appendix between the proposed rule and final rule.
    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.
    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.\74\
---------------------------------------------------------------------------

    \74\ 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 a 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 (Reaffirmed 2002), ``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. 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 the testing entity 
should use when conducting measurements. This testing entity shall use 
an integrating sound level meter (iSLM) that meets the requirements of 
ANSI S1.43-1997 (Reaffirmed 2002), ``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 
(Reaffirmed 2001), ``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 Working 
Group suggested the removal of these specific requirements. As one RSAC 
Working Group 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.\75\ At the request of an RSAC Working Group member, 
FRA removed these citations. The RSAC Working Group member had 
explained that ISO and IEC standards were unnecessary and that the ANSI 
standards were sufficient.
---------------------------------------------------------------------------

    \75\ 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).
---------------------------------------------------------------------------

    FRA sought comment from the public on whether FRA should include 
ANSI standards only or whether FRA should also include reference to 
these ISO and/or IEC standards. The AAR submitted comments, reiterating 
its support for using ANSI standards only. ASHA and AIHA also noted its 
approval of using ANSI standards only. Given that response, FRA decided 
not to add cites to the additional standards. In this final rule, FRA 
has cited only to ANSI standards.
    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

[[Page 63117]]

instruments, because they are more precise instruments and because they 
are used by other U.S. DOT modes.\76\ Some RSAC Working Group 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.\77\ After extensive discussions, the Working Group agreed to 
the proposal in its current state. The RSAC Working Group 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.
---------------------------------------------------------------------------

    \76\ 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.
    \77\ See e.g., 49 CFR 393.94(c)(4); 40 CFR 201.22(a); and 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.
    FRA had considered more specific requirements for numbers 1 and 2. 
FRA considered an initial draft listed types of large reflective 
surfaces from which the test site should be free (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 Working Group 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 drafted 
this provision with this current language.
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 meters (iSLM). FRA has made a change to this 
provision since the NPRM. FRA changed the metric here and in two other 
locations (Sec. Sec.  III(8) and (9)). In the proposed rule, FRA used 
Lav. Lav is a non-ANSI metric that was developed 
for this regulation in order to accommodate certain RSAC Working Group 
members' desire to use a 5 dB exchange rate for this measurement. In 
this final rule, FRA is using the LAeq, T. 
LAeq, T is a standardized metric defined in ANSI S1.1-1994, 
``Acoustical Terminology'' and is a commonly used acoustic metric.
    One commenter explained that the Lav was an 
inappropriate measure. He stated that most sound level meters do not 
have the capability to measure the Lav; they instead measure 
the LAeq, T. Under the requirement in the proposed rule, 
railroads would have had to purchase completely new equipment, which 
would be very costly. Another commenter wrote that use of the 
Lav was not justified technically, since the acoustical 
community would normally use LAeq, T. FRA, and the Working 
Group, agreed with these commenters and changed Appendix H accordingly.
    Numbers 2 and 3 address 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.

[[Page 63118]]

    Number 4 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 
Working Group 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 did not include those two measurement positions.
    Number 5 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 6 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 while under self-load. 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.
    After considering the RSAC Working Group recommendation, FRA 
decided to use a three decibel adjustment. However, FRA 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 was tested under self loading conditions. (See Sec.  IV, 
number 5).
    Number 7 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 8 specifies the metric, sampling rate, and measurement 
duration for in-cab static measurements. FRA has changed the metric 
from Lav to LAeq, T, as discussed in Sec.  III(1) 
above. LAeq, T 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.
    For this rulemaking, the following equation should be used to 
calculate LAeq, T.
[GRAPHIC] [TIFF OMITTED] TR27OC06.000

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), and
Li = the A-weighted sound level of the I-th interval.

    LAeq, T should be measured, either directly or by using 
a one second sampling interval, for a minimum duration of 30 seconds 
(LAeq, 30s). 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.
    The LAeq, T equation obtained from the relevant ANSI 
standard (ANSI S1.1-1994, ``Acoustical Terminology'') is a calculus 
equation while the LAeq, T equation used in FRA's rule is a 
non-calculus equation. The two equations are equivalent, as described 
below.
    The LAeq, T equation from the relevant ANSI standard is 
as follows:
[GRAPHIC] [TIFF OMITTED] TR27OC06.001

Where:

T = the total time duration of the measurement;
pA(t)= instantaneous, A-weighted sound pressure as a 
function of time (t); and
po = the reference pressure.

    This equation deals with a continuous sound pressure as a function 
of time (pA(t)), and the integral of that 
continuous sound pressure over the measurement interval divided by the 
duration represents an average of that sound pressure. When looking at 
discretely sampled sound pressure data, this average may be represented 
by a sum of the discrete samples divided by the measurement duration. 
See below.
[GRAPHIC] [TIFF OMITTED] TR27OC06.002

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);
pA i = the A-weighted sound pressure of the I-th 
interval.

    Sound pressure level is related to sound pressure by the following 
equation:
[GRAPHIC] [TIFF OMITTED] TR27OC06.003

Where: Li = the A-weighted sound level of the I-th 
interval.

    The combination of the two above equations produces the equation 
for calculating LAeq, T presented in this rulemaking.
    Number 9 specifies the standard for determining compliance with 49 
CFR 229.121(a). It provides that the highest (i.e., loudest) 
measurement of the four LAeq, 30s 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

[[Page 63119]]

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 
LAeq, 30s standard' has the advantage of requiring little 
processing. In addition, locomotive manufacturers currently use the 
`highest LAeq, 30s standard.' Please note that, as discussed 
in Sec.  III(1) above, FRA has changed the metric from Lav to 
LAeq, T.
    While drafting the NPRM, FRA had 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. Accordingly, FRA chose not to energy-average across the 
four positions.
    Number 10 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 
Working Group 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 Working Group 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 Working 
Group 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 Sec.  
IV, number 7).
IV. Recordkeeping
    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 Sec.  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 Working Group 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 microphone and acoustic measurement 
instrumentation manufacturers in their supplemental literature. Members 
of the RSAC Working Group 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 Working Group 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

[[Page 63120]]

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 Working Group 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 effected 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 Working Group's recommendation.

VI. 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 significant under both Executive 
Order 12866 and DOT policies and procedures (44 FR 11034; February 26, 
1979). FRA has prepared and placed in the docket a regulatory analysis 
addressing the economic impact of this final rule. For access to the 
docket to read the regulatory analysis, 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 am and 5 pm, Monday 
through Friday, except Federal holidays.
    As part of the regulatory impact analysis, FRA has assessed 
quantitative measurements of costs expected from the adoption of this 
final 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 for 
this final 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 final rule.
    The costs anticipated from adopting this final rule include: 
implementation of noise monitoring programs, implementation of hearing 
conservation programs, audiometric testing, hearing protection, 
provisions of hearing conservation training, and additional locomotive 
maintenance related to noise issues.
    The major benefit anticipated from implementing this final 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; 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 a review of proposed and final rules to assess their impact on 
small entities. FRA has prepared and placed in the docket a Regulatory 
Flexibility Assessment (RFA) which assesses the small entity impact. 
For access to the docket to read the RFA, 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 am and 5 pm, Monday 
through Friday, except Federal holidays.
    Executive Order No. 13272, ``Proper Consideration of Small Entities 
in Agency Rulemaking,'' requires a Federal agency, inter alia, to 
notify the Chief Counsel for Advocacy of the U.S. Small Business 
Administration (SBA) of any of its draft rules that would have a 
significant economic impact on a substantial number of small entities, 
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 including such material 
would not serve the public interest. See 67 FR 53461 (August 16, 2002).
    The SBA stipulates in its Table of Size Standards \78\ that the 
largest a ``for-profit'' railroad business firm can be, and still be 
classified as a ``small entity,'' is 1,500 employees for ``Line-Haul 
Operating'' Railroads and 500 employees for ``Switching and Terminal 
Establishments.'' ``Small entity'' is defined in 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 in consultation with the SBA and in 
conjunction with public comment. Pursuant to that authority, FRA has 
published a final policy which formally establishes ``small entities'' 
as being railroads which meet the line haulage revenue requirements of 
a Class III railroad. See 68 FR 24891 (May 9, 2003). Currently, the 
revenue requirements are $20 million or less in annual operating 
revenue. The $20 million limit is based on the Surface Transportation 
Board's (STB's) threshold of a Class III railroad carrier, which is 
adjusted by applying the railroad revenue deflator adjustment.\79\ The 
same dollar limit on revenues is established to determine whether a 
railroad shipper or contractor is a small entity. However, in this 
rule, FRA is using a different size standard. Consistent with FRA's 
proposal in the NPRM, FRA is defining small entities as those having 
``less than 400,000 annual employee hours.'' FRA has used this standard 
in the past \80\ to alleviate reporting requirements. By using this 
standard for small railroads, FRA is capturing most small entities that 
would be defined by the SBA as small businesses. Since FRA published 
this alternate standard in the NPRM, FRA has sought and received 
written permission from the SBA to use the alternative size standard 
for purposes of this rulemaking. FRA did not receive any comments 
during the public comments related to this issue or request.
---------------------------------------------------------------------------

    \78\ 13 CFR part 121.
    \79\ For further information on the calculation of the specific 
dollar limit please see 49 CFR Part 1201.
    \80\ See 49 CFR parts 217, 219, and 220.
---------------------------------------------------------------------------

    For this rulemaking there are approximately 410 small railroads 
that could potentially be affected by this

[[Page 63121]]

regulation.\81\ FRA does not expect this regulation to impose a 
significant burden on these small railroads. Tourist, Steam and 
Historic operations are not required to meet any of the requirements. 
Thus, approximately 220 very small railroad operations will incur no 
burden from this rulemaking.
---------------------------------------------------------------------------

    \81\ 680 railroads-220 (Tourist, Steam & Historic) railroads-50 
(large, medium, passenger and commuter) = 410 railroads.
---------------------------------------------------------------------------

    This final rule will also 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. Most of these type of contractors are very small businesses 
operated by self-employed current, former, or retired railroad 
employees. These operations would certainly be classified as a small 
business. FRA does not know how many of these types of operations could 
potentially be affected by this final rule. Since this regulation is 
not extending coverage to these operations, none of them would be 
impacted.
    FRA's final 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 \82\ 
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.
---------------------------------------------------------------------------

    \82\ See FRA's Regulatory Impact Analysis, Appendix C.
---------------------------------------------------------------------------

    This final rule contains a few reporting and recordkeeping 
requirements. The requirements that do exist primarily involve records 
that are needed for medical purposes, compliance assessment, and 
program evaluation.
    The impacts from this final rule are primarily a result of 
complying with the requirements for establishing hearing conservation 
programs and the elements of these programs. In general, the costs are 
proportional to the number of employees that would be affected on a 
railroad. Thus, the impacts on small entities should be relatively less 
than they would be for medium and large railroads. However, most large 
and some medium railroads currently have voluntary and/or OSHA hearing 
conservation programs, which would simplify and ease compliance with 
this final rule. FRA anticipates that the burdens would be from 
developing hearing conservation programs, conducting noise monitoring, 
providing hearing protectors, and locomotive noise maintenance related 
to responding excessive noise reports.
    The two requirements that have the greatest impact are the 
audiometric testing requirement and the training requirement. The 
purpose of FRA's audiometric testing program section is to provide 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. 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 requires railroads to conduct periodic 
audiometric testing of covered employees at least once every three 
years. FRA requires that audiograms be offered annually to all covered 
employees.
    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 anticipates that the short line 
railroad association will develop a generic program for training that 
its members can utilize.
    For compliance purposes, this final rule provides an exception for 
Tourist, Steam and Historic railroad operations. In addition, railroads 
with less than 400,000 annual 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 12 months to establish valid baseline audiograms for 
employees that have been placed in the FRA hearing conservation 
program. Third, these railroads will have an additional 12 months to 
establish hearing conservation training programs. The rulemaking 
process for this final rule included outreach to small entities. The 
proposal for the NPRM and this final rule was produced by the RSAC. 
Representation on this committee included the ASLRRA.
    This final Regulatory Flexibility Assessment (RFA) concludes that 
the rule would not have a significant economic impact on a substantial 
number of small entities. Thus, the FRA certifies that this final rule 
is not expected to have an ``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 RFA, FRA 
reviewed and considered all pertinent comments from all interested 
parties concerning the potential economic impact on small entities.
    As noted above Executive Order No. 13272 requires Federal agencies 
to notify the 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 final rule would not 
have significant impact on a substantial number of small entities, FRA 
has not provided any notification to the SBA.

C. Paperwork Reduction Act of 1995

    The information collection requirements in this final rule will be 
submitted 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:

----------------------------------------------------------------------------------------------------------------
                                 Respondent      Total annual     Average time    Total annual     Total annual
     CFR Section--49 CFR          universe        responses       per response    burden hours     burden cost
----------------------------------------------------------------------------------------------------------------
227.13--Waivers.............  460 Railroads..  5 petitions....  1 hour.........               5  $190
227.103--Noise Monitoring     460 Railroads..  460 programs...  2 hours/8 hours/          5,165  0 (incl. in
 Program.                                                        600 hours.                       RIA)
    --Notification to         460 Railroads..  905 lists......  30 minutes.....             453  17,214
     Employee of Monitoring.

[[Page 63122]]

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

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. For information or a copy of the 
paperwork package submitted to OMB, contact Mr. Robert Brogan, FRA's 
Information Clearance Officer, at 202-493-6292.
    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.
    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 this final rule. 
The OMB control number, when assigned, will be announced by separate 
notice in the Federal Register.

D. Federalism Implications

    Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999), 
requires FRA to develop an accountable process to ensure ``meaningful 
and timely input by State and local officials in the development of 
regulatory policies that have federalism implications.'' ``Policies 
that have federalism implications'' are defined in the Executive Order 
to include regulations that have ``substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government.'' Under Executive Order 13132, the agency 
may not issue a regulation with Federalism implications that imposes 
substantial direct compliance costs and that is not required by 
statute, unless the Federal government provides the funds necessary to 
pay the direct compliance costs incurred by State and local 
governments, the agency consults with State and local governments, or 
the agency consults with State and local government officials early in 
the process of developing the proposed regulation. Where a regulation 
has Federalism implications and preempts State law, the agency seeks to 
consult with State and local officials in the process of developing the 
regulation.
    This is a rule with preemptive effect. Subject to a limited 
exception for

[[Page 63123]]

essentially local safety hazards, its requirements will establish a 
uniform Federal safety standard that must be met, and State 
requirements covering the same subject are displaced, whether those 
standards are in the form of State statutes, regulations, local 
ordinances, or other forms of State law, including State common law. 
Preemption is addressed in Sec.  227.7 ``Preemptive effect,'' as it was 
in the NPRM. As stated in the corresponding preamble language for Sec.  
227.7, 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. This is consistent with past practice at FRA, and 
within the Department of Transportation.
    FRA has analyzed this final rule in accordance with the principles 
and criteria contained in Executive Order 13132. The RSAC, which 
recommended the final 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.

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 final 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 final rule will not result in 
the expenditure, in the aggregate, of $128,100,000 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 final rule is not likely to have a significant 
adverse effect on the supply, distribution, or use of energy. 
Consequently, FRA has determined that this final 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

    Incorporation by reference, Locomotives, Noise Control, 
Occupational Safety and Health, Penalties, Railroad safety, Reporting 
and recordkeeping requirements.

49 CFR Part 229

    Incorporation by reference, Locomotives, Penalties, Railroad 
safety, Reporting and recordkeeping requirements.

The Rule

0
For the reasons discussed in the preamble, the Federal Railroad 
Administration amends chapter II, subtitle B of Title 49, Code of 
Federal Regulations, as follows:
0
1. Part 227 is added to read as follows:

PART 227--OCCUPATIONAL NOISE EXPOSURE

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 and applicability.
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 Baseline Revision
Appendix D to Part 227--Audiometric Test Rooms
Appendix E to Part 227--Use of Insert Earphones for Audiometric 
Testing
Appendix F to Part 227--Calculations and Application of Age 
Corrections to Audiograms
Appendix G to Part 227--Schedule of Civil Penalties

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

Subpart A--General


Sec.  227.1  Purpose and scope.

    (a) The purpose of this part is to protect the occupational health 
and

[[Page 63124]]

safety of employees whose predominant noise exposure occurs in the 
locomotive cab.
    (b) This part prescribes minimum Federal health and safety noise 
standards for locomotive cab occupants. 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 and contractors to 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 rapid transit operation in an urban area that is connected to 
the general system and operates under a shared use waiver;
    (4) A railroad that operates tourist, scenic, historic, or 
excursion operations, whether on or off the general railroad system of 
transportation; or
    (5) Foreign railroad operations that meet the following conditions: 
Employees of the foreign railroad have a primary reporting point 
outside of the U.S. but are operating trains or conducting switching 
operations in the U.S.; and 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. A ``foreign 
railroad'' refers to a railroad that is incorporated in a place outside 
the U.S. 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 140 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.
    Audiogram means a record of audiometric testing, showing the 
thresholds of hearing sensitivity measured at discrete frequencies, as 
well as other recordkeeping information.
    Audiologist means a professional, who provides comprehensive 
diagnostic and treatment/rehabilitative services for auditory, 
vestibular, and related impairments and who
    (1) Has a Master's degree or doctoral degree in audiology and
    (2) Is licensed as an audiologist by a State; or in the case of an 
individual who furnishes services in a State which does not license 
audiologists, has successfully completed 350 clock hours of supervised 
clinical practicum (or is in the process of accumulating such 
supervised clinical experience), performed not less than 9 months of 
supervised full-time audiology services after obtaining a master's or 
doctoral degree in audiology or a related field, and successfully 
completed a national examination in audiology approved by the Secretary 
of the U.S. Department of Health and Human Services.
    Audiometry means the act or process of measuring hearing 
sensitivity at discrete frequencies. Audiometry can also be referred to 
as audiometric testing.
    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, covering the ear canal or inserted 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 record of follow-up audiometric testing 
conducted at regular intervals after the baseline audiometric test.
    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.
    Professional Supervisor of the Audiometric Monitoring Program in a 
hearing conservation program means an audiologist, otolaryngologist, or 
a physician with experience and expertise in hearing and hearing loss.
    Qualified Technician is a person who is certified by the Council 
for Accreditation in Occupational Hearing Conservation or equivalent 
organization; or who has satisfactorily demonstrated competence in 
administering audiometric examinations, obtaining valid audiograms, and 
properly using, maintaining, and checking calibration and proper 
functioning of the audiometers used; and is responsible to the 
Professional Supervisor of the Audiometric Testing Program.
    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

[[Page 63125]]

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 regulation, 
SLOW time response, in accordance with ANSI S1.43-1997 (Reaffirmed 
2002), ``Specifications for Integrating-Averaging Sound Level Meters,'' 
is required. The Director of the Federal Register approves this 
incorporation by reference of this standard in this section in 
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain a 
copy of the incorporated standard from the American National Standards 
Institute at 1819 L Street, NW., Washington, DC 20036 or http://www.ansi.org. You may inspect a copy of the incorporated standard at 
the Federal Railroad Administration, Docket Room, 1120 Vermont Ave., 
NW., Suite 700, Washington, DC 20005, or at the National Archives and 
Records Administration (NARA). For information on the availability of 
this material at NARA, call 202-741-6030, or go to http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
    Standard threshold shift (STS) 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 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 these regulations 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 $550 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 
$27,000 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 part 211 of this 
chapter.
    (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 and applicability.

    (a) This subpart shall apply to the noise-related 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, subject to a railroad's 
election in paragraph (a)(3) of this section, does not apply to:
    (i) Employees who move locomotives only within the confines of 
locomotive repair or servicing areas, as provided in Sec. Sec.  218.5 
and 218.29(a) of this chapter, 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).

[[Page 63126]]

    (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 located at 29 CFR 
1910.95.


Sec.  227.103  Noise monitoring program.

    (a) Schedule. A 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), in accordance with the following schedule:
    (1) Class 1, passenger, and commuter railroads no later than 
February 26, 2008.
    (2) Railroads with 400,000 or more annual employee hours that are 
not Class 1, passenger, or commuter railroads no later than August 26, 
2008.
    (3) Railroads with fewer than 400,000 annual employee hours no 
later than August 26, 2009.
    (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 140 decibels shall be integrated into the noise 
measurements.
    (2) Noise measurements shall be made under typical operating 
conditions using:
    (i) A sound level meter conforming, at a minimum, to the 
requirements of ANSI S1.4-1983 (Reaffirmed 2001) (incorporated by 
reference, see Sec.  227.103(h)), Type 2, and set to an A-weighted SLOW 
response;
    (ii) An integrated sound level meter conforming, at a minimum, to 
the requirements of ANSI S1.43-1997 (Reaffirmed 2002) (incorporated by 
reference, see Sec.  227.103(h)), Type 2, and set to an A-weighted slow 
response ; or
    (iii) A noise dosimeter conforming, at a minimum, to the 
requirements of ANSI S1.25-1991 (Reaffirmed 2002) (incorporated by 
reference, see Sec.  227.103(h)) 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 Sec.  227.103.
    (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.
    (h) Incorporation by reference. The materials listed in this 
section are incorporated by reference in the corresponding sections 
noted. These incorporations by reference were approved by the Director 
of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR 
part 51. You may obtain a copy of the incorporated materials from the 
American National Standards Institute at 1819 L Street, NW., 
Washington, DC 20036 or http://www.ansi.org. You may inspect a copy of 
the incorporated standards at the Federal Railroad Administration, 
Docket Room, 1120 Vermont Ave., NW., Suite 700, Washington, DC 20005, 
or at the National Archives and Records Administration (NARA). For 
information on the availability of this material at NARA, call 202-741-
6030, or go to http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
    (1) ANSI S1.4-1983 (Reaffirmed 2001), Specification for Sound Level 
Meters, incorporation by reference (IBR) approved for Sec.  
227.103(c)(2)(i).
    (2) ANSI S1.43-1997 (Reaffirmed 2002), Specifications for 
Integrating-Averaging Sound Level Meters, IBR approved for Sec.  
227.103(c)(2)(ii).
    (3) ANSI S1.25-1991 (Reaffirmed 2002), Specification for Personal 
Noise Dosimeters, IBR approved for Sec.  227.103(c)(2)(iii).


Sec.  227.105  Protection of employees.

    (a) A railroad shall provide appropriate protection for its 
employees who are exposed to noise, as measured according to Sec.  
227.103, that exceeds the limits specified in appendix A of this part.
    (b) In assessing whether exposures exceed 115 dB(A), as set forth 
in paragraph (a) of this section and appendix A to this part, the 
apparent source of the noise exposures shall be observed and documented 
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 120 dB(A) are permissible, provided that the total 
daily duration does not exceed 5 seconds.


Sec.  227.107  Hearing conservation program.

    (a) Consistent with the requirements of the noise monitoring 
program required by Sec.  227.103, the railroad shall administer a 
continuing, effective hearing conservation program, as set forth in 
Sec. Sec.  227.109 through 227.121, for all employees exposed to noise 
at or above the action level.
    (b) For purposes of the hearing conservation program, employee 
noise exposure shall be computed in accordance with the tables in 
appendix A of this part, and without regard to any attenuation provided 
by the use of hearing protectors.


Sec.  227.109  Audiometric testing program.

    (a) Each railroad shall establish and maintain an audiometric 
testing program as set forth in this section and include 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) An audiologist, otolaryngologist, or other physician who has 
experience and expertise in hearing and hearing loss; or
    (2) A qualified technician.
    (d) [Reserved]
    (e) Baseline audiogram. This paragraph (e) applies to employees who

[[Page 63127]]

are required by Sec.  227.107 to be included in a hearing conservation 
program.
    (1) New employees.
    (i) Except as provided in paragraph (e)(1)(ii), for employees hired 
after February 26, 2007, the railroad shall establish a valid baseline 
audiogram within 6 months of the new employee's first tour of duty.
    (ii) Where mobile test vans are used to meet the requirement in 
paragraph (e)(1)(i), the railroad shall establish a valid baseline 
audiogram within one year of the new employee's first tour of duty.
    (2) Existing employees.
    (i) For all employees without a baseline audiogram as of February 
26, 2007, Class 1, passenger, and commuter railroads, and railroads 
with 400,000 or more annual employee hours shall establish a valid 
baseline audiogram by February 26, 2009; and railroads with less than 
400,000 annual employee hours shall establish a valid baseline 
audiogram by February 26, 2010.
    (ii) If an employee has had a baseline audiogram as of February 26, 
2007, 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 February 
26, 2007, 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 (5), the railroad may elect to use that 
baseline audiogram provided that the Professional Supervisor of the 
Audiometric Monitoring Program makes a reasonable determination that 
the baseline audiogram is valid and is clinically consistent with 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 action level. Hearing protectors may be used as a substitute for 
the requirement that baseline audiograms be preceded by 14 hours 
without exposure to occupational 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) The railroad shall offer an audiometric test to each employee 
included in the hearing conservation program at least once each 
calendar year. The interval between the date offered to any employee 
for a test in a calendar year and the date offered in the subsequent 
calendar year shall be no more than 450 days and no less than 280 days.
    (2) The railroad shall require each employee included in the 
hearing conservation program to take an audiometric test at least once 
every 1095 days.
    (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 qualified technician.
    (2) If the periodic audiogram demonstrates a standard threshold 
shift, a railroad may obtain a retest within 90 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 review:
    (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 dB, 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 railroad shall use the following methods 
for revising baseline audiograms:
    (1) Periodic audiograms from audiometric tests conducted through 
February 26, 2009, may be substituted for the baseline measurement by 
the Professional Supervisor of the Audiometric Monitoring Program who 
is evaluating the audiogram if:
    (i) The standard threshold shift revealed by the audiogram is 
persistent; or
    (ii) The hearing threshold shown in the periodic audiogram 
indicates significant improvement over the baseline audiogram.
    (2) Baseline audiograms from audiometric tests conducted after 
February 26, 2009, shall be revised in accordance with the method 
specified in appendix C of this part: Audiometric Baseline Revision.
    (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, 6000, and 8000 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 S3.6-2004 
``Specification for Audiometers.'' The Director of the Federal Register 
approves the

[[Page 63128]]

incorporation by reference of this standard in accordance with 5 U.S.C. 
552(a) and 1 CFR part 51. You may obtain a copy of the incorporated 
standard from the American National Standards Institute at 1819 L 
Street, NW., Washington, DC 20036 or http://www.ansi.org. You may 
inspect a copy of the incorporated standard at the Federal Railroad 
Administration, Docket Room, 1120 Vermont Ave., NW., Suite 700, 
Washington, DC 20005, or at the National Archives and Records 
Administration (NARA). For more information on the availability of this 
material at NARA, call 202-741-6030, or go to http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
    (1) Pulsed-tone audiometers should be used with the following on 
and off times: F-J and J-K shall each have values of 225  
35 milliseconds (ms).
    (2) Use of insert earphones shall be consistent with the 
requirements listed in appendix E of this part: Use of Insert Earphones 
for Audiometric Testing.
    (c) Audiometric examinations shall be administered in a room 
meeting the requirements listed in appendix D of this part: Audiometric 
Test Rooms.
    (d) 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 according to the procedures described in ANSI S3.6-2004. 
Frequencies below 500 Hz and above 8000 Hz may be omitted from this 
check. The audiometer must meet the sound pressure accuracy 
requirements of section 7.2 of ANSI S3.6-2004 of 3 dB at any test 
frequency between 500 and 5000 Hz and 5 dB at any test frequency 6000 
Hz and higher for the specific type of transducer used. For air-
conduction supra-aural earphones, the specifications in Table 6 of ANSI 
S3.6-2004 shall apply. For air-conduction insert earphones, the 
specifications in Table 7 of ANSI S3.6-2004 shall apply. Audiometers 
that do not meet these requirements must undergo an exhaustive 
calibration.
    (3) Exhaustive Calibration. An exhaustive calibration shall be 
performed in accordance with ANSI S3.6-2004, according to the following 
schedule:
    (i) At least once every two years on audiometers not used in mobile 
test vans. Test frequencies below 500 Hz and above 6000 Hz may be 
omitted from this calibration.
    (ii) At least annually on audiometers used in mobile test vans.


Sec.  227.113  Noise operational controls.

    (a) Railroads may use noise operational controls at any sound level 
to reduce exposures to levels below those required by Table A-1 of 
appendix A of this part.
    (b) Railroads are encouraged to use noise operational controls when 
employees are exposed to sound exceeding an 8-hour TWA of 90 dB(A).


Sec.  227.115  Hearing protectors.

    (a) General requirements for hearing protectors.
    (1) The railroad shall provide hearing protectors to employees at 
no cost to the employee.
    (2) The railroad shall replace hearing protectors as necessary.
    (3) When offering hearing protectors, a railroad shall consider an 
employee's ability to understand and respond to voice radio 
communications and audible warnings.
    (4) 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.
    (5) The railroad shall provide training in the use and care of all 
hearing protectors provided to employees.
    (6) The railroad shall ensure proper initial fitting and supervise 
the correct use of all hearing protectors.
    (b) Availability of hearing protectors. A railroad shall make 
hearing protectors available to all employees exposed to sound levels 
that meet or exceed the action level.
    (c) Required use at action level. A railroad shall require the use 
of hearing protectors when an employee is exposed to sound levels that 
meet or exceed the action level, and the employee has:
    (1) Not yet had a baseline audiogram established pursuant to Sec.  
227.109; or
    (2) Experienced a standard threshold shift and is required to use 
hearing protectors under Sec.  227.109(h).
    (d) Required use for TWA of 90 dB(A). The railroad shall require 
the use of hearing protectors when an employee is exposed to sound 
levels equivalent to an 8-hour TWA of 90 dB(A) or greater. The hearing 
protectors should be used to reduce sound levels to within those levels 
required by appendix A of this part.


Sec.  227.117  Hearing protector attenuation.

    (a) A railroad shall evaluate hearing protector attenuation for the 
specific 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 
Protector Attenuation.''
    (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 to each employee 
included in the hearing conservation program at least once each 
calendar year. The interval between the date offered to any employee 
for the training in a calendar year and the date offered in the 
subsequent calendar year shall be no more than 450 days and no less 
than 280 days.
    (2) The railroad shall require each employee included in the 
hearing conservation program to complete the training at least once 
every 1095 days.
    (b) The railroad shall provide the training required by paragraph 
(a) of this section in accordance with the following:
    (1) For employees hired after February 26, 2007, within six months 
of the employee's first tour of duty in a position identified within 
the scope of this part.
    (2) For employees hired on or before February 26, 2007, by Class 1, 
passenger, and commuter railroads, and railroads with 400,000 or more 
annual employee hours, by no later than February 26, 2009;
    (3) For employees hired on or before February 26, 2007, by 
railroads with fewer than 400,000 annual employee hours, by no later 
than February 26, 2010.

[[Page 63129]]

    (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 Sec.  229.121(b); and
    (11) How to file an excessive noise report, pursuant to Sec.  
229.121(b).


Sec.  227.121  Recordkeeping.

    (a) General requirements.
    (1) Availability of records. Each railroad required to maintain and 
retain records under this part shall:
    (i) Make all records available for inspection and copying/
photocopying to representatives of the FRA, upon request;
    (ii) Make an employee's records available for inspection and 
copying/photocopying to that employee, former employee, or such 
person's representative upon written authorization by such employee;
    (iii) Make exposure measurement records for a given run or yard 
available for inspection and copying/photocopying to all employees who 
were present in the locomotive cab during the given run and/or who work 
in the same yard; and
    (iv) Make exposure measurement records for specific locations 
available to regional or national labor representatives, upon request. 
These reports shall 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 by the railroad. A railroad may maintain and 
transfer records through electronic transmission, storage, and 
retrieval provided that:
    (i) The electronic system be designed so that the integrity of each 
record is maintained through appropriate levels of security such as 
recognition of an electronic signature, or other means, which uniquely 
identify the initiating person as the author of that record. No two 
persons shall have the same electronic identity;
    (ii) The electronic system shall ensure that each record cannot be 
modified in any way, or replaced, once the record is transmitted and 
stored;
    (iii) Any amendment to a record shall be electronically stored 
apart from the record which it amends. Each amendment to a record shall 
be uniquely identified as to the person making the amendment;
    (iv) The electronic system shall provide for the maintenance of 
records as originally submitted without corruption or loss of data; and
    (v) Paper copies of electronic records and amendments to those 
records, that may be necessary to document compliance with this part 
shall be made available for inspection and copying/photocopying by 
representatives of the FRA.
    (3) Transfer of records. If a railroad ceases to do business, it 
shall transfer to the successor employer all records required to be 
maintained under this subpart, and the successor employer shall retain 
them for the remainder of the period prescribed in this part.
    (b) Exposure measurements records. The railroad shall:
    (1) Maintain an accurate record of all employee exposure 
measurements required by Sec.  227.103; and
    (2) Retain these records for the duration of the covered employee's 
employment plus thirty years.
    (c) Audiometric test records. 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;
    (vi) The model and serial number of the audiometer used for 
testing; and
    (2) Retain the records required by Sec.  227.107 for the duration 
of the covered employee's employment plus thirty years.
    (d) Positions and persons designated records. 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; and
    (2) Retain these records for the duration of the designation.
    (e) Training program materials records. The railroad shall:
    (1) Maintain copies of all training program materials used to 
comply with Sec.  227.119(c) and a record of employees trained; and
    (2) Retain these copies and 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; and
    (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

    A. Noise dose is computed using Table A-1 as follows:
    1. When the sound level, L, is constant over the entire work 
day, 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 
duration permitted corresponding to the measured sound level, L, as 
given in Table A-1.
    2. When the work day 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 duration permitted for that level as given by Table A-1.

    B. The eight-hour TWA in dB may be computed from the dose, in 
percent, by means of the formula: TWA = 16.61 log10 (D/100) + 90. 
For an eight-hour work day with the noise level constant over the 
entire day, the TWA is equal to the measured sound level.

[[Page 63130]]

    C. Exposure to impulsive or impact noise should not exceed 140 
dB peak sound pressure level.
    D. Any time that an employee spends deadheading shall be 
included in the calculation of the noise dose.
    E. A table relating dose and TWA is given in Section II of this 
Appendix.

                              Table A-1\1\
------------------------------------------------------------------------
                                                              Duration
            A-weighted sound level, L (decibel)             permitted  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
140.......................................................         0.078
------------------------------------------------------------------------
\1\ Numbers above 115 dB(A) are italicized to indicate that they are
  noise levels that are not permitted. The italicized numbers are
  included only because they are sometimes necessary for the computation
  of noise dose.

    In the above table the duration permitted, T, is computed by
    [GRAPHIC] [TIFF OMITTED] TR27OC06.004
    
where L is the measured A-weighted sound level.

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

    A. Compliance with subpart B of part 227 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 TWA.''
    B. In order to convert the reading of a dosimeter into TWA, see 
Table A-2, below. 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.
    C. 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

[[Page 63131]]

 
490...........................................................     101.5
500...........................................................     101.6
510...........................................................     101.8
520...........................................................     101.9
530...........................................................     102.0
540...........................................................     102.2
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.
    Employers must select one of the following three methods by 
which to estimate the adequacy of hearing protector attenuation.

I. Derate by Type

    Derate the hearing protector attenuation by type using the 
following requirements:
    A. Subtract 7 dB from the published Noise Reduction Rating 
(NRR).
    B. Reduce the resulting amount by:
    1. 20% for earmuffs,
    2. 40% for form-able earplugs, or
    3. 60% for all other earplugs.
    C. Subtract the remaining amount from the A-weighted TWA. You 
will have the estimated A-weighted TWA for that hearing protector.

II. Method B From ANSI S12.6-1997 (Reaffirmed 2002)

    Use Method B, which is found in ANSI S12.6-1997 (Reaffirmed 
2002) ``Methods for Measuring the Real-Ear Attenuation of Hearing 
Protectors.'' The Director of the Federal Register approves the 
incorporation by reference of this standard in accordance with 5 
U.S.C. 552(a) and 1 CFR part 51. You may obtain a copy of the 
incorporated standard from the American National Standards Institute 
at 1819 L Street, NW., Washington, DC 20036, or http://www.ansi.org. 
You may inspect a copy of the incorporated standard at the Federal 
Railroad Administration, Docket Room, 1120 Vermont Ave., Suite 700, 
Washington, DC 20005, or at the National Archives and Records 
Administration (NARA). For information on the availability of this 
material at NARA, call 202-741-6030, or go to http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.

III. Objective Measurement

    Use actual measurements of the level of noise exposure (as an A-
weighted SLOW response dose) inside the hearing protector when the 
employee wears the hearing protector in the actual work environment.

Appendix C to Part 227--Audiometric Baseline Revision

    This appendix is mandatory beginning on February 26, 2009.

I. General

    A. A professional reviewer (audiologist, otolaryngologist, or 
physician) shall use these procedures when revising baseline 
audiograms.
    B. Although these procedures can be programmed by a computer to 
identify records for potential revision, the final decision for 
revision rests with a human being. Because the goal of the 
guidelines is to foster consistency among different professional 
reviewers, human override of the guidelines must be justified by 
specific concrete reasons.
    C. These procedures do not apply to: The identification of 
standard threshold shifts (STS) other than an FRA STS \1\ or to the 
calculation of the 25-dB average shifts that are reportable on the 
Form FRA F 6180.55a.
---------------------------------------------------------------------------

    \1\ OSHA and FRA use the same definition for Standard Threshold 
Shift (STS). FRA's definition is located in Sec.  227.5. OSHA's 
definition is located in 29 CFR 1910.95(g)(10)(i).
---------------------------------------------------------------------------

    D. Initially, the baseline is the latest audiogram obtained 
before entry into the hearing conservation program. If no 
appropriate pre-entry audiogram exists, the baseline is the first 
audiogram obtained after entry into the hearing conservation 
program. Each subsequent audiogram is reviewed to detect improvement 
in the average (average of thresholds at 2, 3, and 4 kHz) and to 
detect an FRA STS. The two ears are examined separately and 
independently for improvement and for worsening. If one ear meets 
the criteria for revision of baseline, then the baseline is revised 
for that ear only. Therefore, if the two ears show different hearing 
trends, the baseline for the left ear may be from one test date, 
while the baseline for the right ear may be from a different test 
date.
    E. Age corrections do not apply in considering revisions for 
improvement (Rule 1). The FRA-allowed age corrections from appendix 
F of Part 227 \2\ may be used, if desired, before considering 
revision for persistent STS. Rule 2 operates in the same way, 
whether age corrections are used or not.
---------------------------------------------------------------------------

    \2\ FRA and OSHA use the same age-correction provisions. FRA's 
is found in appendix F of part 227 and OSHA's in appendix F of 29 
CFR 1910.95.
---------------------------------------------------------------------------

II. Rule 1: Revision for Persistent Improvement

    If the average of the thresholds for 2, 3, and 4 kHz for either 
ear shows an improvement of 5 dB or more from the baseline value, 
and the improvement is present on one test and persistent on the 
next test, then the record should be identified for review by the 
audiologist, otolaryngologist, or physician for potential revision 
of the baseline for persistent improvement. The baseline for that 
ear should be revised to the test which shows the lower (more 
sensitive) value for the average of thresholds at 2, 3, and 4 kHz 
unless the audiologist, otolaryngologist, or physician determines 
and documents specific reasons for not revising. If the values of 
the three-frequency average are identical for the two tests, then 
the earlier test becomes the revised baseline.

III. Rule 2: Revision for Persistent Standard Threshold Shift

    A. If the average of thresholds for 2, 3, and 4 kHz for either 
ear shows a worsening of 10 dB or more from the baseline value, and 
the STS persists on the next periodic test (or the next test given 
at least 6 months later), then the record should be identified for 
review by the audiologist, otolaryngologist, or physician for 
potential revision of the baseline for persistent worsening. Unless 
the audiologist, otolaryngologist, or physician determines and 
documents specific reasons for not revising, the baseline for that 
ear should be revised to the test which shows the lower (more 
sensitive) value for the average of thresholds at 2, 3, and 4 kHz. 
If both tests show the same numerical value for the average of 2, 3, 
and 4 kHz, then the audiologist, otolaryngologist, or physician 
should revise the baseline to the earlier of the two tests, unless 
the later test shows better (more sensitive) thresholds for other 
test frequencies.
    B. Following an STS, a retest within 90 days of the periodic 
test may be substituted for the periodic test if the retest shows 
better (more sensitive) results for the average threshold at 2, 3, 
and 4 kHz.
    C. If the retest is used in place of the periodic test, then the 
periodic test is retained in the record, but it is marked in

[[Page 63132]]

such a way that it is no longer considered in baseline revision 
evaluations. If a retest within 90 days of periodic test confirms an 
FRA STS shown on the periodic test, the baseline will not be revised 
at that point because the required six-month interval between tests 
showing STS persistence has not been met. The purpose of the six-
month requirement is to prevent premature baseline revision when STS 
is the result of temporary medical conditions affecting hearing.
    D. Although a special retest after six months could be given, if 
desired, to assess whether the STS is persistent, in most cases, the 
next annual audiogram would be used to evaluate persistence of the 
STS.

Appendix D to Part 227--Audiometric Test Rooms

    This appendix is mandatory.
    A. Rooms used for audiometric testing shall not have background 
sound pressure levels exceeding those in Table D-1 when measured by 
equipment conforming at least to the Type 2 requirements of ANSI 
S1.4-1983 (Reaffirmed 2001) and to the Class 2 requirements of ANSI 
S1.11-2004, ``Specification for Octave-Band and Fractional-Octave-
Band Analog and Digital Filters.''
    B. The Director of the Federal Register approves the 
incorporation by reference of ANSI S1.4-1983 (Reaffirmed 2001) and 
S.1.11-2004 in this section in accordance with 5 U.S.C. 552(a) and 1 
CFR part 51. You may obtain a copy of the incorporated standard from 
the American National Standards Institute at 1819 L Street, NW., 
Washington, DC 20036 or http://www.ansi.org. You may inspect a copy 
of the incorporated standard at the Federal Railroad Administration, 
Docket Room, 1120 Vermont Ave., NW., Suite 700, Washington, DC 
20005, or at the National Archives and Records Administration 
(NARA). For information on the availability of this material at 
NARA, call 202-741-6030, or go to http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.

           Table D-1.--Maximum Allowable Octave-Band Sound Pressure Levels for Audiometric Test Rooms
----------------------------------------------------------------------------------------------------------------
          Octave-band center frequency (Hz)               500        1000        2000        4000        8000
----------------------------------------------------------------------------------------------------------------
Sound pressure levels--supra-aural earphones........          40          40          47          57          62
Sound pressure levels--insert earphones.............          50          47          49          50          56
----------------------------------------------------------------------------------------------------------------

Appendix E to Part 227--Use of Insert Earphones for Audiometric Testing

    This appendix is mandatory.
    Section 227.111(d) allows railroads to use insert earphones for 
audiometric testing. Railroads are not required to use insert 
earphones, however, where they elect to use insert earphones, they 
must comply with the requirements of this appendix.

I. Acceptable Fit

    A. The audiologist, otolaryngologist, or other physician 
responsible for conducting the audiometric testing, shall identify 
ear canals that prevent achievement of an acceptable fit with insert 
earphones, or shall assure that any technician under his/her 
authority who conducts audiometric testing with insert earphones has 
the ability to identify such ear canals.
    B. Technicians who conduct audiometric tests must be trained to 
insert the earphones correctly into the ear canals of test subjects 
and to recognize conditions where ear canal size prevents 
achievement of an acceptable insertion depth (fit).
    C. Insert earphones shall not be used for audiometric testing of 
employees with ear canal sizes that prevent achievement of an 
acceptable insertion depth (fit).

II. Proper Use

    The manufacturer's guidelines for proper use of insert earphones 
must be followed.

III. Audiometer Calibration

    A. Audiometers used with insert earphones must be calibrated in 
accordance with ANSI S3.6-2004, ``Specification for Audiometers.'' 
The Director of the Federal Register approves the incorporation by 
reference of this standard in this section in accordance with 5 
U.S.C. 552(a) and 1 CFR part 51. You may obtain a copy of the 
incorporated standard from the American National Standards Institute 
at 1819 L Street, NW., Washington, DC 20036 or http://www.ansi.org. 
You may inspect a copy of the incorporated standard at the Federal 
Railroad Administration, Docket Room, 1120 Vermont Ave., NW., Suite 
700, Washington, DC 20005, or at the National Archives and Records 
Administration (NARA). For information on the availability of this 
material at NARA, call 202-741-6030, or go to http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
    B. Audiometers used with insert earphones must be calibrated 
using one of the couplers listed in Table 7 of ANSI S3.6-2004.
    C. The acoustical calibration shall be conducted annually.
    D. The functional calibration must be conducted before each 
day's use of the audiometer.

IV. Background Noise Levels

    Testing shall be conducted in a room where the background 
ambient noise octave-band sound pressures levels meet appendix D to 
this part.

V. Conversion From Supra Aural Earphones

    At the time of conversion from supra-aural to insert earphones, 
testing must be performed with both types of earphones.
    A. The test subject must have a quiet period of at least 14 
hours before testing. Hearing protectors may be used as a substitute 
for the quiet period.
    B. The supra-aural earphone audiogram shall be compared to the 
baseline audiogram, or the revised baseline audiogram if 
appropriate, to check for a Standard Threshold Shift (STS). In 
accordance with Sec.  227.109(f)(2), if the audiogram shows an STS, 
retesting with supra-aural earphones must be performed within 90 
days. If the resulting audiogram confirms the STS, then it is 
adopted as the current test instead of the prior one.
    C. If retesting with supra-aural earphones is performed, then 
retesting with insert earphones must be performed at that time to 
establish the baseline for future audiometric tests using the insert 
earphones.

VI. Revised Baseline Audiograms

    A. If an STS is confirmed by the re-test with supra-aural 
earphones, the audiogram may become the revised baseline audiogram 
per the requirements of Sec.  227.109(i) for all future hearing 
tests with supra-aural earphones. The insert-earphone audiogram will 
become the new reference baseline audiogram for all future hearing 
tests performed with insert earphones.
    B. If an STS is not indicated by the test with supra-aural 
earphones, the baseline audiogram remains the reference baseline 
audiogram for all future supra-aural earphone tests, until such time 
as an STS is observed. In this case, the insert-earphone audiogram 
taken at the same time will become the new reference baseline 
audiogram for all future hearing tests performed with insert 
earphones.
    C. Transitioning Employees with Partial Shifts. Employers must 
account for the workers who are in the process of developing an STS 
(e.g., demonstrate a 7 dB average shift), but who at the time of the 
conversion to insert earphones do not have a 10 dB average shift. 
Employers who want to use insert earphones must enter the 7 dB shift 
information in the employee's audiometric test records although it 
is not an ``STS''. When the next annual audiogram using insert 
earphones shows an average threshold shift at 2000, 3000 and 4000 Hz 
of 3 dB, completing the full shift (7 dB + 3 dB), employers must 
then label that average shift as an STS. This triggers the follow-up 
procedures at Sec.  227.109(h).

VII. Records

    All audiograms (including both those produced through the use of 
insert earphones and supra-aural headsets), calculations, pure-tone 
individual and average threshold shifts, full STS migrations, and 
audiometric acoustical calibration records, are to be preserved as 
records and maintained according to Sec.  227.121(c).

[[Page 63133]]

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 below. 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 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
----------------------------------------------------------------------------------------------------------------

    a. 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.
    b. (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:
    c. Go to Table F-1 and find the age correction values (in dB) 
for 4000 Hz at age 27 and age 32.

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

    d. The difference represents the amount of 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

[[Page 63134]]

 
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
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

[[Page 63135]]

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

Appendix G to Part 227--Schedule of Civil Penalties

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

[[Page 63136]]

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

PART 229--[AMENDED]

0
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.


0
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.

0
4. Section 229.5 is amended by adding, in alphabetical order, the 
following definitions.


Sec.  229.5  Definitions.

* * * * *
    dB(A) means the sound pressure level in decibels measured on the A-
weighted scale.
* * * * *
    Decibel (dB) means a unit of measurement of sound pressure levels.
* * * * *
    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.
* * * * *

0
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 October 29, 2007, 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 of 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:
    (i) 82 dB(A) if the average sound level for a locomotive design or 
model is less than 82 dB(A); or
    (ii) 85 dB(A) if the average sound level for a locomotive design or 
model is 82 dB(A) to 85 dB(A), inclusive,
    (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) Maintenance of Locomotives.
    (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 part 229, the railroad shall maintain a record of the 
report, and repair or replace the item identified as substantially 
contributing to the noise:
    (i) on or before the next periodic inspection required by Sec.  
229.23; or
    (ii) if the railroad determines that the repair or replacement of 
the item requires significant shop or material resources that are not 
readily available, at the time of the next major equipment repair 
commonly used for the particular type of maintenance needed.
    (2) Conditions 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) A railroad has an obligation to respond to an excessive noise 
report that a locomotive cab occupant files. The railroad meets its 
obligation to respond to an excessive noise report, as set forth in 
paragraph (b)(1) of this section, 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 items cause the noise.
    (4) Recordkeeping.
    (i) A railroad shall maintain a written or electronic record of any 
excessive noise report, inspection, test, maintenance, replacement, or 
repair completed pursuant to Sec.  229.121(b) and the date on which 
that inspection, test, maintenance, replacement, or repair occurred. If 
a railroad elects to maintain an electronic record, the railroad must 
satisfy the conditions listed in Sec.  227.121(a)(2)(i) through (v).
    (ii) The railroad shall retain these records for 92 days if they 
are made pursuant to Sec.  229.21, or for one year if they are made 
pursuant to Sec.  229.23.
    (iii)The railroad shall establish an internal, auditable, 
monitorable system that contains these records.

0
6. Appendix B to part 229 is amended by revising the entry related to 
Sec.  229.121 to read as follows:

Appendix B to Part 229--Schedule of Civil Penalties

* * * * *

------------------------------------------------------------------------
                                                               Willful
                    Section                      Violation    violation
------------------------------------------------------------------------
 
                              * * * * * * *
229.121 Locomotive Cab Noise:
    (a) Performance Standards

[[Page 63137]]

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

* * * * *
0
7. Appendices F and G are added to part 229 and reserved.

0
8. 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 (Reaffirmed 2002), ``Specifications 
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 (Reaffirmed 2001), ``Specification for Acoustical 
Calibrators.'' The Director of the Federal Register approves the 
incorporation by reference of ANSI S1.43-1997 (Reaffirmed 2002) and 
ANSI S1.40-1984 (Reaffirmed 2001) in this section in accordance with 
5 U.S.C. 552(a) and 1 CFR part 51. You may obtain a copy of the 
incorporated standards from the American National Standards 
Institute at 1819 L Street, NW., Washington, DC 20036 or http://www.ansi.org. You may inspect a copy of the incorporated standards 
at the Federal Railroad Administration, Docket Room, 1120 Vermont 
Ave., NW., Suite 700, Washington, DC 20005, or at the National 
Archives and Records Administration (NARA). For information on the 
availability of this material at NARA, call 202-741-6030, or go to 
http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html

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) LAeq, T is defined as the A-weighted, equivalent 
sound level for a duration of T seconds, 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] TR27OC06.005

    (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,

[[Page 63138]]

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, LAeq, T shall be measured, either 
directly or using a 1 second sampling interval, for a minimum 
duration of 30 seconds at each measurement position 
(LAeq, 30s).
    (9) The highest LAeq, 30s 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 regulation 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.
    (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 Sec.  III(9) of this appendix, the suspected reason(s) 
for the failure.

    Issued in Washington, DC, on September 29, 2006.
Joseph H. Boardman,
Federal Railroad Administrator.
[FR Doc. 06-8612 Filed 10-26-06; 8:45 am]
BILLING CODE 4910-06-P