Occupational Noise Exposure for Railroad Operating Employees

Federal RegisterJun 23, 2004

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 227 and 229

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

RIN 2130-AB56

Occupational Noise Exposure for Railroad Operating Employees

AGENCY:

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

ACTION:

Notice of proposed rulemaking (NPRM).

SUMMARY:

FRA is proposing to amend its occupational noise standards for railroad employees whose predominant noise exposure occurs in the locomotive cab. FRA's existing standard (issued in 1980) limits cab employee noise exposure to certain levels based on the duration of their exposure. This proposed rule modifies that standard and also sets out additional requirements.

The NPRM proposes to require railroads to conduct noise monitoring and to implement a hearing conservation program for railroad operating employees whose noise exposure equals or exceeds an 8-hour time-weighted average of 85 decibels. The NPRM also proposes design, build, and maintenance standards for new locomotives and maintenance requirements for existing locomotives. FRA expects that this proposed rule will reduce the likelihood of noise-induced hearing loss for railroad operating employees.

DATES:

(1)

Written Comments:

Written comments must be received on or before September 21, 2004. Comments received after that date will be considered to the extent possible without incurring additional expense or delay.

(2)

Public Hearing:

Requests for a public hearing must be in writing and must be submitted to the Department of Transportation Docket Management System at the address below on or before August 9, 2004. If a public hearing is requested and scheduled, FRA will announce the date, location, and additional details concerning the hearing by separate notice in the

Federal Register

ADDRESSES:

You may submit comments (identified by DOT DMS Docket Number FRA-2002-12357) by any of the following methods:

• Web site:

http://dms.dot.gov.

Follow the instructions for submitting comments on the DOT electronic docket site.

• Fax: 202-493-2251.

• Mail: Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-001.

• Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

• Federal eRulemaking Portal: Go to

http://www.regulations.gov.

Follow the online instructions for submitting comments.

Instructions:

All submissions must include the agency name and docket number or Regulatory Identification Number (RIN) for this rulemaking. Note that all comments received will be posted without change to

http://dms.dot.gov,

including any personal information provided. Please see the Privacy Act heading under Regulatory Notices.

Docket:

For access to the docket to read background documents or comments received, go to

http://dms.dot.gov

at any time or to Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Jeffrey Horn, Economist, Office of Safety, Federal Railroad Administration, 1120 Vermont Avenue, NW., Mail Stop 25, Washington, DC 20590 (em-mail:

Jeffrey.Horn@fra.dot.gov

and telephone: 202-493-6283); or Christina McDonald, Trial Attorney, Office of Chief Counsel, Federal Railroad Administration, 1120 Vermont Avenue, NW., Mail Stop 10, Washington, DC 20590 (e-mail:

Christina.McDonald@fra.dot.gov

and telephone: 202-493-6032).

SUPPLEMENTARY INFORMATION:

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

Table of Contents for Supplementary Information

I. Statutory and Regulatory Framework

A. Railroad Safety, In General

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

C. Federal Occupational Noise Standards

II. History of FRA's Treatment of Occupational Noise

A. FRA's Noise Standard

B. Studies of Noise

C. FRA's Report to Congress

D. Wyle Report

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

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

III. The Railroad Safety Advisory Committee (RSAC) Process

A. RSAC

B. Working Group

IV. Fundamental Principles of Sound

A. Sound

B. Hearing and Hearing Loss

C. Instrumentation

1. Measuring Hearing Loss

2. Measuring Noise Exposures

3. Instrumentation Calibration

V. Occupational Noise in the Railroad Industry

VI. FRA's Approach to Cab Noise

VII. Responsibility of Individual Employees

VIII. Compliance

IX. Section-by-Section Analysis

X. Regulatory Impact and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

B. Regulatory Flexibility Act of 1980 and Executive Order 13272

C. Paperwork Reduction Act of 1995

D. Federalism Implications

E. Environmental Impact

F. Unfunded Mandates Reform Act of 1995

G. Energy Impact

H. Privacy Act

List of Subjects

I. Statutory and Regulatory Framework

A. Railroad Safety, in General

FRA has broad statutory authority to regulate railroad safety. The Locomotive Inspection Act (“LIA”) (formerly 45 U.S.C. 22-34, now 49 U.S.C. 20701-20703) was enacted in 1911. It prohibits the use of unsafe locomotives and authorizes FRA to issue standards for locomotive maintenance and testing. In order to further FRA's ability to respond effectively to contemporary safety problems and hazards as they arise in the railroad industry, Congress enacted the Federal Railroad Safety Act of 1970 (“Safety Act”) (formerly 45 U.S.C. 421, 431

et seq.

, now found primarily in chapter 201 of Title 49). The Safety Act grants the Secretary of Transportation rulemaking authority over all areas of railroad safety (49 U.S.C. 20103(a)) and confers all powers necessary to detect and penalize violations of any rail safety law. This authority was subsequently delegated to the FRA Administrator (49 CFR 1.49). (Until July 5, 1994, the Federal railroad safety statutes existed as separate acts found primarily in Title 45 of the United States Code. On that date, all of the acts were repealed, and their provisions were recodified into Title 49.)

The term “railroad” is defined in the Safety Act to include:

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

This definition makes clear that FRA has jurisdiction over (1) rapid transit operations within an urban area that are connected to the general railroad system of transportation, and (2) all freight, intercity, passenger, and commuter rail passenger operations regardless of their connection to the general railroad system of transportation or their status as a common carrier engaged in interstate commerce. FRA has issued a policy statement describing how it determines whether particular rail passenger operations are subject to FRA's jurisdiction (65 FR 42529 (July 2, 2000)). The policy statement is located in Appendix A to parts 209 and 211.

Pursuant to its statutory authority, FRA promulgates and enforces a comprehensive regulatory program to address railroad track, signal systems, railroad communications, rolling stock, rear-end marking devices, safety glazing, railroad accident/incident reporting, locational requirements for dispatching of U.S. rail operations, safety integration plans governing railroad consolidations, merger and acquisitions of control, operating practices, passenger train emergency preparedness, alcohol and drug testing, locomotive engineer certification, and workplace safety. In the area of workplace safety, the agency has issued a variety of standards designed to protect the health and safety of railroad employees. For instance, FRA requires ladders and handholds to be installed on rail equipment in order to prevent employee falls (part 231). FRA requires locomotive cab floors and passageways to remain clear of debris and oil in order to prevent employee slips, trips, and falls (§ 229.119). FRA requires blue signal protection in order to protect employees working on railroad equipment from injuries due to the unexpected movement of the equipment (part 218). FRA has rules that provide for the protection of railroad employees working on or near railroad tracks in order to decrease the risk of employees falling from railroad bridges and of being struck by moving trains (part 214).

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

FRA and the U.S. Occupational Safety and Health Administration

(OSHA) have a complementary relationship and overlapping jurisdiction with respect to occupational safety and health issues in the railroad industry. OSHA regulates conditions and hazards affecting the health and safety of employees in the workplace. OSHA's jurisdiction extends to all types of employment, except where another Federal agency exercises statutory authority and displaces OSHA pursuant to section 4(b)(1) of the Occupational Safety and Health Act of 1970.

Section 4(b)(1) permits Federal agencies to oust OSHA's regulatory and enforcement authority where that agency pronounces its own regulations or standards or articulates a formal position that a particular working condition should go unregulated.

OSHA is an agency within the U.S. Department of Labor. Congress created OSHA with the Occupational Safety and Health Act of 1970 (“OSH Act”). Pursuant to the OSH Act, employers have a duty to protect workers from all kinds of hazards, including noise.

See

29 U.S.C. 653(b)(1). This section provides:

Nothing in this Act shall apply to the working conditions of employees with respect to which other Federal agencies * * * exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.

In 1978, FRA issued a Statement of Policy setting out the respective areas of jurisdiction between FRA and OSHA in the railroad industry.

In that Policy Statement, FRA drew the jurisdictional line between “occupational safety and health” issues in the railroad industry and work related to “railroad operations,” with FRA exercising authority over railroad operations and OSHA over occupational safety and health issues. Further, the Policy Statement pointed to FRA's “proper role” as concentrating its “limited resources in addressing hazardous working conditions in those traditional areas of railroad operations'' (

i.e.

, movement of equipment over the rails”) in which FRA has special competence and expertise. (43 FR 10585). Often, railroad working conditions are so unique that a regulatory body other than FRA would not possess the requisite expertise to determine appropriate safety standards.

See

43 FR 10583 (March 14, 1978).

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.

There, FRA promulgated regulations that address toilet and washing facilities for employees who work in locomotive cabs. 49 CFR 229.137-139.

See

67 FR 16032 (April 4, 2002).

FRA has also exercised this jurisdiction with regard to occupational noise in the locomotive cab. FRA issued its current standard for locomotive standard in 1980. While OSHA, in general, regulates occupational noise in the workplace,

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:

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.

C. Federal Occupational Noise Standards

OSHA's occupational noise standard was promulgated under the Walsh-Healey Public Contracts Act of 1969

for the purpose of protecting employees from workplace exposure to damaging noise levels. The Walsh-Healey Act contained very limited provisions. Its noise standard allowed for a permissible exposure level of 90 dB(A), a 5 dB exchange rate, and a 90 dB(A) threshold. Pursuant to section 6(a) of the OSH Act, OSHA adopted the Walsh-Healey standard.

41 U.S.C. 35,

et seq.

In January 1981, OSHA promulgated a Hearing Conservation Amendment to its occupational noise exposure standard. The amendment consisted of requirements for noise measurements, audiometric testing, the use and care of hearing protectors, employee training, employee education, and recordkeeping. See 46 FR 4078 (1981). Portions of the amendment were subsequently stayed for reconsideration and clarification. In 1983, OSHA finalized the provisions of

its Hearing Conservation Amendment by revoking various stayed provisions, lifting the stay on other provisions, and making other technical corrections. OSHA's revised regulation included a detailed hearing conservation program. See 48 FR 9738 (1983). OSHA's occupational noise standard applies, for the most part, to all industry engaged in interstate commerce.

OSHA's noise standard can be found at 29 CFR 1910.95. As will be discussed in subsequent sections, FRA's proposed standard is quite similar to OSHA's standard.

OSHA has a general exclusion for the agriculture industry.

See

29 CFR 1928.21(b). OSHA exempts oil and gas well drilling and servicing operations in its Hearing Conservation Amendment.

See

29 CFR 1910.95(o). OSHA has a separate occupational noise regulation that applies to the construction industry. See 29 CFR 1926.52.

While OSHA is the primary regulator of noise in the workplace, other federal agencies regulate specific occupational settings. FRA regulates the occupational noise exposure of railroad operating employees in the locomotive cab. The U.S. Air Force regulates the noise environment of Air Force personnel.

The Mine Safety and Health Administration (MSHA) regulates the occupational noise exposure of miners.

See

Air Force Occupational Safety and Health Standard 48-20, “Hearing Conservation Program.”

In 1999, MSHA issued a comprehensive rule that establishes uniform requirements for all miners.

In that rule, MSHA adopted a permissible exposure level of 90 dB(A) as an 8-hour TWA. MSHA also requires employers to use all feasible engineering and administrative controls in order to reduce a miner's noise exposure to the permissible exposure level. Where a mine operator is unable to reduce the noise exposure to the permissible level, the mine operator must provide the miner with hearing protectors (HP) and is required to ensure that the miner uses them. In addition, where a miner is exposed at or above a TWA of 85 dB(A), the employer must place the miner in a hearing conservation program. The program must include exposure monitoring, the use of hearing protectors, audiometric testing, training, and recordkeeping. See 64 FR 49548, 49550 (1999).

See

64 FR 49548 (September 13, 1999).

II. History of FRA's Treatment of Occupational Noise

A. FRA's Noise Standard

In part 229, FRA establishes minimum federal safety standards for locomotives. These regulations prescribe inspection and testing requirements for locomotive components and systems. They also prescribe minimum locomotive cab safety requirements. In 1980, FRA issued standards for acceptable noise levels aboard a locomotive (§ 229.121).

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).

Section 229.121 was promulgated to protect the hearing and health of cab employees and to facilitate crew communication. It provides that noise level exposure in the cab may not exceed specific prescribed levels. The provision limits employee noise exposure to an eight-hour time-weighted average (TWA) of 90 dB(A) with a doubling rate of 5dB(A). It also provides for an absolute upper noise limit of 115 dB(A). In addition, it establishes procedures for noise testing.

At the time of the promulgation of the rule, there was discussion as to the proposed noise exposure limits. One commenter to the proposed rule took exception to the proposed 90 dB(A) 8-hour time limit and suggested that 85 dB(A) was more appropriate. FRA explained that, in selecting the proposed noise exposure limits, it attempted to “strike a balance between that which is most desirable and that which is feasible.”

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.”

45 FR 21092, 21106 (March 31, 1980).

Section 229.121 does not address hearing conservation for locomotive cab employees, including the use of personal protective equipment, ongoing hearing testing, employee training on the cause and prevention of hearing loss, and periodic noise monitoring in the workplace. These are standard components of an occupational hearing conservation program, and OSHA requires them of other industries.

In 1992, Congress enacted Section 10 of The Rail Safety Enforcement and Review Act (RSERA) (Public Law 102-365, September 3, 1992; codified at 49 U.S.C. 20103, note) in response to concerns raised by employee organizations, Congressional members, and recommendations of the National Transportation Safety Board (NTSB) concerning crashworthiness of and working conditions in locomotive cabs. Section 10 of RSERA, entitled

Locomotive Crashworthiness and Working Conditions,

required FRA “to consider prescribing regulations to improve the safety and working conditions of locomotive cabs' throughout the railroad industry. In order to determine whether regulations would be necessary, Congress asked FRA to assess “the extent to which environmental, sanitary, and other working conditions in locomotive cabs affect productivity, health, and the safe operation of locomotives.”

In response to the Congressional mandate set forth in Section 10 of RSERA, FRA undertook steps to determine the health and safety effects of locomotive cab working conditions. FRA studied a variety of working conditions in locomotive cabs, including sanitation, noise, temperature, air quality, ergonomics, and vibration. FRA prepared the Locomotive Crashworthiness and Cab Working Conditions Report to Congress (“Report”), dated September 1996, which outlines the results of these studies. A copy of the Report is included in the docket. With respect to noise, FRA conducted a comprehensive survey, reviewed historical data on noise-related incidents and investigations, and gathered information on hearing protection programs.

B. Studies on Noise

FRA first considered the sound environment in the locomotive cab in 1971 as part of a study on highway-rail grade crossings.

The study examined the visibility and audibility of trains approaching rail and highway grade crossings. An addendum to the study, authored by John Aurelius, examined the sound environment in locomotive cabs.

Observing two different test runs made under diverse conditions, Aurelius recorded the sounds inside cabs operating in regular service. Aurelius concluded that the noise level in a typical locomotive cab approached 90 dB(A), which is the limit allowed by the Walsh-Healey Public Contracts Act.

Given that conclusion, Aurelius recommended that a more detailed survey be conducted to determine whether the exposures exceeded the

legal limits and if so, under what conditions.

John Aurelius and Norman Korebor, “The Visibility and Audibility of Trains Approaching Rail—Highway Grade Crossings,” Report No. FRA-RP-71-2, May 1971.

John P. Aurelius, “The Sound Environment in Locomotive Cabs,” Report No. FRA-RP-71-2A, July 1971.

See

41 U.S.C. 35.

In 1980, Roger Kilmer, under the auspices of the National Bureau of Standards, conducted an extensive study on the noise environment in locomotive cabs.

Kilmer selected eighteen test runs that covered a wide range of operational conditions, trip lengths, and geographical conditions. In general, Kilmer concluded that “based on the group of locomotives tested, it does not appear that overexposure to noise is a widespread problem for locomotive crews under the current OSHA standard.”

Kilmer explained that noise exposure was within acceptable limits for two reasons: (1) locomotives operate in such a way that the sources which generate high sound levels (

i.e.

, horn and brakes) operate for only short periods of time, and (2) locomotives spend a great deal of time in idle, which involves sound levels below 90 dB. However, the report also recognized that overexposure can, and does, occur. The report explained that the level of overexposure depends on the type of locomotive and the nature of the run. The next step, according to Kilmer, was to determine the type of monitoring that should be used to identify the cases where overexposure may occur. Kilmer advocated a simplified test procedure to screen locomotives.

Roger D. Kilmer, “Assessment of Locomotive Crew In-Cab Occupational Noise Exposure,” National Bureau of Standards. Report No. FRA-ORD-80/91, December 1980.

Kilmer at 113-114.

C. FRA's Report to Congress

FRA conducted an extensive noise survey of actual noise levels in locomotive cabs. The survey sought to determine whether cab working conditions impaired a crew's ability to safely operate a locomotive. FRA field inspectors traveled aboard locomotives while the crew operated the locomotive in a “normal” fashion (

i.e.

, as though FRA personnel were not present). The inspectors measured cab noise with a Metrosonics Db-3100 Metrologger. The inspectors conducted a total of 350 noise measurements, all between 1992 and 1994. FRA had intended to run the noise tests over 8-hour time periods, but that was not possible due to the varying lengths of the train routes. Tests performed on the eastern routes tended to be shorter in length, and tests on the western routes tended to be longer in length. The noise tests were run, on average, for approximately 6.5 hours.

The 350 measurements included 234 measurements from winter/summer tests and 116 measurements evaluated in response to inquiries and complaints. Both the complaint-based investigations and the hot summer tests (often conducted with windows open) represent railroad operations that are more likely to present unacceptable noise environments. As a result, the Report pointed out that measurements used in this survey did not constitute a random sample of locomotives or locomotive operating conditions. The Report directed the reader to exercise caution in characterizing the significance of the findings.

FRA inspectors identified several factors as major contributors to high average cab noise levels and to significant peak readings of 95 dB(A) or higher. Those major contributors were: radios; audible warning devices; diesel engines; tunnels, sheds, and bridges; close embankments; open windows; dynamic braking; loose cab sheet metal; loose side windows; and miscellaneous loose and/or poorly fitted cab equipment. While collecting the survey data, inspectors also noted the use of hearing protection by train crews. FRA observed that, in most cases, crews wore hearing protection in noise environments that exceeded the FRA standard.

FRA reviewed several sources of data and information in the Report. FRA reviewed historical data for noise-related incidents and investigations. Using its accident/incident database, FRA compiled data on locomotive cab member injuries and illnesses attributable to excessive noise levels. Railroads had reported no incidents prior to 1992, 23 incidents in 1992, and 18 incidents in 1993. FRA also reviewed complaints of alleged noise violations received by FRA from crew members or their labor organizations. In addition, FRA gathered information on the hearing conservation programs of several Class I railroads by contacting the railroads' industrial hygienists. All railroads stated that they had comprehensive hearing conservation programs, that they were conducting audiometric exams, and that they were providing hearing conservation training to both locomotive crews and ground crews that work in excessively noisy areas. Finally, FRA described the changing working conditions in the railroad industry,

i.e.

, the various measures that had been taken to reduce the effects of noise in the cab. These steps included the introduction of new locomotives with advanced sound reduction technology, as well as the establishment of hearing conservation programs and the extensive use of personal protective equipment.

Based on its findings, FRA concluded, among other things, that certain locomotive crew assignments expose crews to increased noise levels, thereby raising concerns of possible hearing loss and of impaired communication. FRA also concluded that many factors, including the sounding of the horn, engine noise, and radio volume, contribute to noise levels that are equal to or exceed 85 dB(A) for a group of locomotive assignments. In addition, FRA noted that human factors literature suggests that excessive noise levels can impair mental processes, increase fatigue, and increase the number of errors, while simultaneously decreasing vigilance.

FRA then recommended several measures that, if implemented, might reduce the exposure of operating crews to excessive noise levels. After noting that several railroads have hearing conservation programs and that FRA's current noise regulation lacks a hearing conservation approach, FRA encouraged railroads without such programs to seriously consider the development and implementation of such programs. In addition, FRA stated that railroads should evaluate the use of sound-insulated headsets with microphones in order to provide hearing protection, to help ensure effective radio communications, and to facilitate intra-crew communication.

FRA also recommended that railroads implement several administrative and engineering controls (

i.e.

, measures that reduce noise levels and minimize noise exposure in locomotive cabs).

See 227.115(d) and accompanying preamble language for a further discussion of electronic communication devices.

D. Wyle Report

The American Association of Railroads (AAR) commissioned Wyle Laboratories to review the noise and vibration sections of FRA's Report to Congress, as well as the 350 in-cab locomotive noise measurements referenced in the Report. In December 1996, Wyle Laboratories produced a Report entitled “A Review of the Noise and Vibration Sections of the Federal Railroad Administration's Report to Congress Entitled ‘Locomotive Crashworthiness and Cab Working Conditions’ ” (“Wyle Report.”)

A copy of the Wyle Report is included in the docket. The Wyle Report reviewed Chapter 6 “Locomotive Cab Noise” and Chapter 10 “Other Factors Affecting Locomotive Cab Working Conditions” of FRA's Report but focused most of its comments on Chapter 6. The Wyle

Report acknowledged that FRA's noise measurements were, at that time, the largest set of publicly available locomotive cab noise data and were a valuable resource in analyzing and understanding the in-cab noise environment. The Wyle Report disagreed with the two general conclusions that FRA reached in Chapter 6.

Wyle Report, WR 96-37, was prepared by Eric Stusnick, Ph.D.

The Wyle Report disagreed with FRA's conclusion that “[a> significant minority of locomotive cabs had noise levels high enough to contribute to long-term hearing loss after long-term repetitive exposure, and in absence of personal protective equipment.”

It stated that FRA's statistical analyses of locomotive cab noise exposure measurements was flawed for three reasons.

First, FRA compared its 8-hour TWA measurements from the Report to Congress with the 12-hour TWA standard that is specified in 49 CFR 229.121. Second, FRA used a definition of noise dose (in its analysis for the Report to Congress) that had no lower sound level threshold, whereas 49 CFR 229.121 provides a definition of noise dose that uses a lower threshold of 87 dB. Third, FRA measured a sample of locomotive trips that was not random and thus not an accurate representation of the total population of trips. The Wyle report concluded that “the result of these errors is that the calculated TWA values are larger than would have been obtained if the proper analysis were done on a properly stratified random-sample of locomotive trips.”

Wyle Report at 2-1.

Wyle Report at 2-2.

The Wyle Report also disagreed with FRA's conclusion that “the noise level in many locomotives was sufficiently high to interfere with normal voice communication.”

The Wyle Report explained that FRA's assertion was based on its statistical analysis that showed that thirteen percent of the measured TWAs exceeded 88 dB. Earlier in the Report, FRA had identified a sound level of 88 dB as the sustained verbal communication limit. From that, FRA inferred that, where there was a background sound level of 88 dB or more, crew members would need to use a voice sound level equal to or greater than 88 dB (

i.e.

, the maximum that can be sustained to maintain verbal communication) in order to communicate in the cab.

Wyle Report at 2-12.

The Wyle Report disagreed with that inference for three reasons. First, the Wyle Report explained that a given TWA does not represent the background sound level at any given time, because the TWA is an average over a measurement period of all the sound levels that occurred. A measured TWA of 88 dB does not mean that the sound level in the cab was 88 dB for the entire trip; that TWA might result from a few very loud sound levels and from the remainder at sound levels lower than 88 dB—during which the crew could successfully communicate. Second, the Wyle Report asserted that it is not necessary for the speech sound level to be greater than or equal to the background sound level (in order for the speech to be understood), because the ear can distinguish communication from background noise based on its sound level and its frequency content. Third, the Wyle Report asserted that the sound level of radio messages usually contribute a great deal to the TWA value and they are communication. Thus, it is inappropriate to consider sound levels due to radio messages as part of the background noise. In addition, the Wyle Report did note that “voice communication is certainly difficult” when the horn is being sounded or the brake systems are being exhausted.

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

FRA hired a contractor to review FRA's Report to Congress, the accompanying data, and the Wyle Report. In June 1997, consultants with Harris Miller, Miller & Hanson, Inc. prepared a Technical Memorandum “Comments on AAR Review of Chapter 6, FRA Report to Congress ‘Locomotive Crashworthiness and Cab Working Conditions.’ ” A copy of the Technical Memorandum is included in the docket. The Technical Memorandum discussed each of the major points brought up in the AAR's Review (

i.e.

, the Wyle Report).

Harris Miller concluded that although FRA's noise measurements were not part of a random sample and although FRA's analysis was not the most rigorous, the data set used by FRA in the Report to Congress still provided a valuable assessment of the noise levels in locomotive cabs. Harris Miller also concluded that the data supported a “general conclusion that hearing conservation programs are warranted for some locomotive crew assignments.” In addition, while acknowledging that the data could not be used to make statistical inferences, Harris Miller explained that the data still did show that “noise inside a small percentage of locomotives exceeds the FRA and OSHA permissible noise exposure limits.”

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

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

Technical Memorandum at 5.

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

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

Transcript at 13-14.

Several individuals made presentations to the group. A physician provided some historical background on hearing loss.

He explained that hearing loss had been “substantially neglected” for years.

Then, in the late 1970s, government policy makers realized that the emphasis should be placed on prevention, rather than treatment and care, and that the industry was in a position to educate its workforce and implement preventative measures that produce a healthier workforce. As a result of that sentiment, OSHA wrote and issued its noise regulation.

Transcript at 25-29.

Transcript at 26-27.

A union representative provided some input from the employee's perspective.

He explained that conditions on a locomotive can be extremely noisy and that those noisy conditions can lead to pain, discomfort, and bad decisions. He acknowledged that some technological progress has been made on locomotives, but that a difficult situation remained ahead.

Transcript at 29-33.

A carrier representative spoke about the carrier's perspective and about some of the initiatives that his particular railroad had undertaken.

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

Transcript at 33-44.

Next, FRA presented its Report to Congress, summarizing the contents and noting that the Report was now a “launching pad” and “baseline” from which to move forward.

In addition, the New York League for the Hard of Hearing spoke to the group.

The Executive Director addressed the importance of prevention and treatment of hearing loss. He also stressed the need for programs that educate people about the dangers of excessive noise exposure. The roundtable participants subsequently discussed a wide range of topics, including: the available scientific data related to occupational noise exposure and hearing loss in the railroad industry;

the identification of the appropriate noise exposure threshold at which noise adversely affects railroad workers' health and job performance; a review of voluntary noise reduction and conservation programs that industry participants had already implemented;

and an assessment of what remained to be done in addressing the noise issue.

Transcript at 10, 13, 23, 50-57.

Transcript at 69-82.

Transcript at 92-94.

Transcript at 33, 88-89

Participants generally agreed that exposure to high levels of noise adversely affects workers and the industry; however, participants did not agree on the threshold level of noise exposure at which these effects occur.

One individual asked what the proper damage risk criteria should be and what is safe noise verus unsafe noise.

Another individual noted that there is controversy between scientists and regulators as to what level of protection is necessary to protect individuals from hearing loss.

Transcript at 96-97.

Transcript at 111.

Transcript at 42-43.

As well, the potential damaging effects of noise on railroad workers arose on several occasions. In addition to noting the obvious damaging affects of noise on railroad workers' hearing abilities, many participants pointed out that there were several other potential damaging effects of noise exposure. One participant noted that it is more than just one's ears that respond to noise; bodies also respond to noise, for example, in the form of hypertension, anxiety, nausea, or other medical ailments.

Another participant noted that there had been little discussion about the impact of noise on fatigue.

Several participants also noted that they lacked full understanding of the effects of noise on railroad worker job performance.

Transcript at 93

Transcript at 83.

Transcript at 100-102.

During the course of the discussions, the participants acknowledged the positive steps taken thus far, that is, that industry participants have implemented many voluntary noise reduction and hearing conservation programs. Participants also acknowledged that there have been technological advances that have led to the manufacture of quieter locomotives.

Participants concluded by identifying the need for more current research and data on noise in the rail industry.

Transcript at 115-118.

Transcript at 98-99.

III. The Railroad Safety Advisory Committee (RSAC) Process

A. RSAC

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

American Association of Private Railroad Car Owners (AARPCO)

American Association of State Highway & Transportation Officials (AASHTO)

American Public Transportation Association (APTA)

American Short Line and Regional Railroad Association (ASLRRA)

American Train Dispatchers Department/BLE (ATDD/BLE)

AMTRAK

Association of American Railroads

Association of Railway Museums (ARM)

Association of State Rail Safety Managers (ASRSM)

Brotherhood of Locomotive Engineers (BLE)

Brotherhood of Maintenance of Way Employes (BMWE)

Brotherhood of Railroad Signalmen (BRS)

Federal Transit Administration (FTA)*

High Speed Ground Transportation Association

Hotel Employees & Restaurant Employees International Union

International Association of Machinists and Aerospace Workers

International Brotherhood of Boilermakers and Blacksmiths

International Brotherhood of Electrical Workers (IBEW)

Labor Council for Latin American Advancement (LCLAA)*

League of Railway Industry Women*

National Association of Railroad Passengers (NARP)

National Association of Railway Business Women*

National Conference of Firemen & Oilers

National Railroad Construction and Maintenance Association

National Transportation Safety Board (NTSB)*

Railway Progress Institute (RPI)

Safe Travel America

Secretaria de Communicaciones y Transporte*

Sheet Metal Workers International Association (SMWIA)

Tourist Railway Association Inc.

Transport Canada*

Transport Workers Union of America (TWUA)

Transportation Communications International Union/BRC (TCIU/BRC)

United Transportation Union (UTU)

*Indicates associate membership.

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

develop the facts and options on a particular aspect of a given task. The task force reports to the working group. If a working group reaches unanimous consensus on recommendations for action, the working group presents the package to the RSAC for a vote. If a simple majority of the RSAC accepts the proposal, the RSAC formally recommends the proposal to FRA.

FRA then determines what action to take on the recommendation. Because FRA staff has played an active role at the working group level in discussing the issues and options and in drafting the language of the consensus proposal, and because the RSAC recommendation constitutes the consensus of some of the industry's leading experts on a given subject, FRA is often favorably inclined toward the RSAC recommendation.

However, FRA is in no way bound to follow the recommendation, and the agency exercises its independent judgement on whether the recommended rule achieves the agency's regulatory goal, is soundly supported, and is in accordance with policy and legal requirements. Often, FRA varies in some respects from the RSAC recommendation in developing the actual regulatory proposal. If the working group or the RSAC is unable to reach consensus on recommendations for action, FRA moves ahead to resolve the issue through traditional rulemaking proceedings.

On June 24, 1997, FRA presented the subject of locomotive cab working conditions to RSAC. The purpose of this task was defined as follows: “To safeguard the health of locomotive crews and to promote the safe operation of trains.” The RSAC accepted this task (No. 97-2) and formed a Locomotive Cab Working Conditions Working Group (“Working Group”).

B. Working Group

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

The Working Group consisted of representatives of the following organizations, in addition to FRA:

AASHTO

APTA

ASLRRA

AAR

BLE

BMWE*

IBEW

Amtrak

RPI

SMWIA

TWUA

UTU

*Indicates associate membership

The Working Group's goal was to produce recommendations for locomotive cab noise exposure standards warranted by an assessment of available information on hearing loss, hearing conservation programs, existing federal standards, and occupational injury data. The Working Group decided that specific expertise would be needed to analyze pertinent information and so it formed the Noise Task Force.

The Noise Task Force, which was established in September 1997, was made up of industrial hygiene, safety, engineering, and medical staff from carriers, labor organizations, and FRA. The Noise Task Force met regularly over a period of several years to discuss several topics, including hearing loss and noise exposure among locomotive cab employees; existing railroad hearing loss prevention programs; OSHA's occupational noise standards; equipment changes and procedures that improve noise levels in the cab; hearing testing and training programs; and noise monitoring.

The Task Force concluded that OSHA's standard for noise was an appropriate framework and starting point for an update and revision to FRA's existing noise regulation. The Task Force also identified several areas where OSHA's regulation might be modified to create a FRA regulation that could better address the occupational noise exposure of the rail industry. The Task Force forwarded these findings to the Working Group.

The Working Group conducted a number of meetings and discussed each of the matters proposed in the NPRM. FRA has placed the minutes of these meetings in the docket for this proceeding. Throughout this preamble, we frequently discuss issues that were raised and views that were expressed at the task force and working group levels. We discuss these points to show the origin of certain important issues and the course of discussion on these issues at the task force and working group levels. FRA believes that this helps illuminate the facts FRA has weighed in making its regulatory decisions and the logic behind those decisions. The reader should keep in mind, of course, that only the full RSAC makes recommendations to FRA, and it is the consensus recommendation of the full RSAC on which FRA is acting.

The Working Group, using the preliminary findings of the Task Force, developed recommendations for reducing the likelihood of hearing loss for cab employees. The Working Group reached full consensus in June 2003 and forwarded these recommendations to the RSAC. The RSAC accepted these recommendations and on June 27, 2003, the RSAC voted to forward these recommendations to FRA for rulemaking action. In large part, this NPRM incorporates the RSAC's recommendations.

FRA has worked closely with the RSAC in the development of its recommendations and believes that the RSAC effectively addressed occupational noise exposure for cab employees. FRA has greatly benefitted from the open, informed exchange of information that has taken place during meetings. There is general consensus among labor, management, and manufacturers concerning the primary principles FRA sets forth in this NPRM. FRA believes that the expertise possessed by the RSAC representatives enhances the value of the recommendations, and FRA has made every effort to incorporate them in this proposal.

The Working Group will reassemble after the comment period for this NPRM closes and will consider all comments received. Based on any recommendations RSAC receives from the Working Group, RSAC will then be in a position to make recommendations to FRA concerning the development of a final standard.

IV. Fundamental Principles of Sound

A. Sound

Sound is a physical phenomenon brought about by oscillations in pressure. Oscillations or vibrations cause pressure changes in a medium, such as air. These pressure changes produce waves that emanate away from the oscillating or vibrating source. If a listener is present, the listener will experience these waves as an auditory sensation. The effect of sound on a listener depends on three physical characteristics of sound: amplitude, frequency, and duration.

The amplitude (

i.e.

, the magnitude or intensity) of the pressure change is measured in sound pressure level (SPL) and is perceived by the listener as loudness. Sound pressure level, which is expressed in decibels (dB), is a logarithmic measure. Because of the logarithmic scale, a small increase in decibels represents a large increase in

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

i.e.

, continuing, varying, and intermittent) and impulsive noises (

i.e.

, there is a steep rise in the sound level to a high peak, followed by a rapid decay).

B. Hearing and Hearing Loss

The ear is the sense organ that detects sound waves and sends those signals to the brain for processing. The human ear has three primary components—outer ear, middle ear, and inner ear. The outer ear directs sound into the ear, the middle ear mechanically transmits the sound waves from the air to the fluid-filled inner ear, and the inner ear changes the sound waves from mechanical energy into nerve impulses. This last process is completed in a small organ known as the cochlea. In the cochlea, sensory cells respond to the mechanical vibrations, change the vibrations into electrical energy, and transmit a message to the brain via the auditory nerve.

Noise is essentially any unwanted or undesirable sound. Exposure to high levels or extended durations of noise can cause hearing loss. Noise-induced hearing loss (NIHL) can be temporary or permanent. Temporary hearing loss, also called a temporary threshold shift, results from short-term exposures to noise; hearing generally returns to its former level after a period of rest. Permanent hearing loss, also called a noise-induced permanent threshold shift, can result from prolonged exposure to high noise levels over an extended period of time. The extent of the damage depends on several factors: the overall decibel level of the sound, the duration of the noise exposure, the frequency spectrum of the noise source, and an individual's personal susceptibility to noise damage.

A noise-induced permanent threshold shift is not reversible and cannot be treated medically. Once it has occurred, the only course of action is to prevent the further progression of hearing loss. Noise-induced hearing loss causes difficulty in interpreting sounds and in perceiving the loudness and pitch of sounds. Even when sounds are amplified (

e.g.

, with a hearing aid), the sounds may still remain indistinct.

Noise induced hearing loss typically starts with threshold shifts in the higher frequencies. The loss usually appears first at 3000 Hz, 4000 Hz, or 6000 Hz. If damaging noise exposure continues, the loss spreads to the lower frequencies (

i.e.

, between 500 Hz and 3000 Hz.) The human voice ranges from 200 Hz to 4000 Hz, so these frequencies are critical to human conversation. The loss of these frequencies is detrimental to an individual's ability to understand speech.

C. Instrumentation

1. Measuring Hearing Levels

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

46 FR 4078 (1981).

There are several different types of audiometers, including manual, self-recording, microprocessor, and computer-controlled. To administer manual audiometers, examiners operate the frequency dial (to select the stimulus tone,

e.g.

, 500 Hz or 1000 Hz), the presentation level dial (with levels in increments of 5 dB), and the signal presentation switch (to turn the stimulus on or off). Then the examiner must identify and document the hearing levels that qualify as thresholds. With self-recording audiometers, a pen traces a subject's response to test signals on a response card; a subject indicates his or her response by operating a hand switch. Microprocessor audiometers contain a computer chip that controls the audiometer. A related type, a computer-controlled audiometer, has software in a personal computer that drives the audiometer.

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

2. Measuring Noise Exposures

This regulation specifies two different types of instruments that can be used to measure noise exposures: Sound level meters (SLM) and noise dosimeters. Sound level meters and noise dosimeters are small instruments used to measure, among other things, sound metrics and/or sound pressure levels. These instruments are usually equipped with weighting networks that adjust the instrument frequency response to predetermined frequency spectra of the measured sounds. The A-weighting network, one type of weighting network, is designed to adjust the instrument frequency to that which approximates the frequency response of human hearing.

A SLM is a hand-held device that records the sound pressure level (logarithm of the ratio of the sound pressure to a reference point) at a given moment in time at a particular location. It consists of a microphone, preamplifier, electronic circuits, and a readout display. The microphone detects the small air pressure variations associated with the sound and changes them into electronic signals. These signals are then processed by the electric circuitry of the instrument. The readout displays the sound level in decibels (dB). Since SLMs provide a measure of sound pressure at only one point in time, it is generally necessary to take several measurements at many different times during the day to estimate noise exposure over a workday. SLMs are useful for measuring the noise attributable to a given process or for instantaneous (or spot) sound pressure level measurements.

An integrating sound level meter (iSLM) is a specific type of SLM. It can be used to determine equivalent sound levels, which are the energy-averaged sound pressure levels over a given measurement period. An iSLM with data storage capabilities is useful in a noise monitoring program, because it records sound level data, which can be thoroughly analyzed later. This can be particularly useful when distinguishing artifactual noise measurements from actual noise exposure.

Noise dosimeters are primarily used to assess individual noise exposure. A noise dosimeter measures an employee's total noise dose for the duration of a sampling period. A noise dosimeter stores sound level measurements and integrates these measurements over time, providing an average noise exposure reading for a given period of time (

e.g.

, an 8-hour workday). The noise dosimeter is designed to be worn by an employee and should be placed in a location that measures the employee's noise exposure but does not interfere with the employee's work. For noise dosimeter results to be meaningful, the person conducting the survey should maintain a log of the employee's activities and correlate the exposure data with different locations and

activities. This allows the person conducting the survey to identify noise sources.

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

while noise dosimeters are typically Type 2 instruments.

There are four grades of SLMs (types 0, 1, 2, and S), and there are design tolerances associated with each grade. Type 0 SLMs are used for laboratory purposes only, and type S SLMs are used for special purposes. Type 1 SLMs are precision instruments intended for noise measurements in the field and laboratory. On average, measurements with a Type 1 SLM will have errors not exceeding plus or minus 1 dB.

Type 2 SLMs are general purpose instruments intended for general field use. Type 2 SLMs have design tolerances that are greater than Type 1 and tend to be used where high-frequency (over 10 kHz) sound components do not dominate. On average, measurements with a Type 2 SLM will have errors not exceeding plus or minus 2 dB.

3. Instrument Calibration

There are two types of instrument calibration that should be performed on SLMs and noise dosimeters: Field system (routine) and laboratory instrument (comprehensive). Field system calibration on a noise dosimeter or SLM should be conducted on the instrument before and after taking measurements. Field system calibration is necessary to ensure that the instruments provide accurate measurements and to establish the measurement system's sensitivity. Laboratory instrument calibration should be conducted according to manufacturer's recommendations (typically on an annual or biannual basis) and is traceable to a national standards laboratory. In addition, laboratory instrument calibration should be conducted after an instrument has been repaired or has experienced problems during field calibrations.

Users should keep instruments well-maintained and should follow the manufacturer's instructions for maintenance. If an instrument is used often or is inadvertently bumped or dropped, it should be calibrated more frequently. In addition, if an instrument is frequently or extensively adjusted as a result of field calibration, it should be calibrated more often.

V. Occupational Noise in the Railroad Industry

Noise is one of the most pervasive hazardous agents in the American workplace. In the 1980's, the National Institute for Occupational Safety and Health (NIOSH) identified noise-induced hearing loss (NIHL) as one of the ten leading work-related diseases and injuries.

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.

Noise is also one of the most intrusive aspects of locomotive operations.

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).

NIOSH, “National Occupational Research Agenda,” National Institute for Occupational Safety and Health, DHHS (NIOSH), Pub. 96-115, Cincinnati, OH (1996).

Human Factors Guidelines for Locomotive Cabs, DOT/FRA/ORD-93/03 (November 1998).

There are many noise sources in a locomotive cab. The primary noise sources are engine noise, locomotive horns, and brake noise. The nature and level of noise generated by each source varies greatly. Diesel engine noise is continuous, but it varies according to the engine load and engine speed. The noise from locomotive horns (and other audible warning devices) is sporadic but can be very loud if the window is open and can be very frequent if there are many highway-rail grade crossings.

Brake noise results from the air exhaust that comes from the brake valves when the brakes are released. Air brake exhaust is a high frequency sound and can be very intense. In the past, air brake exhaust vented directly into the locomotive cab. By 1980, locomotive manufacturers, maintenance facilities, and railroads had begun venting the exhaust below the cab floor. FRA noted that change in its 1980 locomotive cab noise rule.

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.

Manufacturers continued to re-design locomotives accordingly, and today the vast majority of locomotive air brakes are vented below the floor and away from the crew. There are some older locomotives, though (such as the ones used by some short lines), which still use the older equipment that vents air brake exhaust into the cab.

45 FR 21092 (March 31, 1980).

45 FR 21092, 21015 (March 31, 1980).

Another noise source comes from vibrations which loosen cab components—such as loose cab sheet metal, loose cab side windows, and miscellaneous loose and/or poorly fitted cab equipment—and cause them to resonate. Other potential noise sources include fans on dynamic brake systems; alerters; wheel/rail contact at cruising speed; rooftop or retrofitted air conditioning/cooling units; bells that are sounded to indicate that the train is about to move; and radios that are used for crew communication. Noise can also result from the cab structure, depending on the particular design of the locomotive as it pertains to noise or vibration isolation. Maintenance, or the lack thereof, can also impact noise. Engines in less than ideal condition will run rougher and noisier. Mountings can wear and loosen, which can create new vibrations or decrease vibration damping. Also, worn engine components (

e.g.

, bearings) can create noise.

The locomotive is also subject to several external noise sources. Since the locomotive cab is a mobile workplace, the level of noise exposure varies greatly by the route traveled. Noise results from the sound that is reflected into the cab (especially if through open windows) from reflective surfaces such as tunnels, bridges, sheds, and close embankments. Other conditions that can also impact noise include the topography and grade of the work assignment and the use of locomotive horns to provide notice at highway-rail grade crossings.

Predicting and addressing noise exposures in the locomotive cab is difficult not only because of the wide variety of possible conditions, but because of the mobile railroad workforce. It is a challenge to create and implement effective training and testing programs, because locomotive crews are not on the same run or same locomotive from one day to the next. In addition, locomotive crews can work shifts that last up to twelve hours.

VI. FRA's Approach to Cab Noise

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

American worker. Also, the noise exposure of railroad employees is not uniform throughout the industry. Railroad employees may work in a different location each day,

i.e.

, a different locomotive and/or a different route. Employee assignments and actual time in the cab may vary significantly during a typical week. The level of noise in any individual locomotive cab will vary greatly, depending on the locomotive model, locomotive age, condition of the locomotive, length of the route, traffic on the route, number of highway-rail grade crossings on the route, physical characteristics of the route, weather conditions during the run, and any one or more of several other factors. FRA's proposed rule has taken into account these unique characteristics of the railroad operating environment and has modified OSHA's standard to suit the railroad industry.

Since FRA's proposed rule is based on OSHA's rule, it is helpful to review OSHA's standard before explaining FRA's proposed standard. OSHA's noise standard limits employee noise exposure to an 8-hour TWA of 90 dB(A). OSHA identifies a hierarchy of controls that should be used to limit noise exposure. If employee noise exposure exceeds the permissible exposure level, the employer must reduce the exposure (so that it is within permissible exposure limits) through the use of feasible engineering controls, administrative controls, or a combination of both. Where such controls cannot reduce employee exposure to permissible limits, employers are to supplement the engineering and administrative controls with hearing protection. The OSHA noise standard also requires that the employer administer a continuing effective hearing conservation program for employees who are exposed to levels that equal or exceed an 8-hour TWA of 85 dB(A).

OSHA's regulation has placed engineering controls, and then administrative controls, at the top of its hierarchy and takes the position that these controls are the best method for controlling noise exposure. These controls reduce employee exposure to hazardous noise levels by eliminating (or at least reducing) the noise source, by modifying the noise path or by decreasing employee exposure time to the noise source. Engineering controls are generally understood to be the modification or replacement of equipment or any other related physical change at the noise source or along the transmission path that reduces the noise level at the employee's ear (not including hearing protectors). They include such changes as the re-design of machinery or the use of different tools. Administrative controls involve efforts to limit worker noise exposure by modifying work schedules, work locations, or the operating schedule of noisy machinery. Administrative controls include, for example, the rotation of schedules for tasks that are near noisy machinery or the use of quiet areas that provide employees with an opportunity to recover from temporary threshold shifts.

FRA's proposed standard on locomotive cab noise is based very heavily on OSHA's standard. In part 227, FRA requires railroads to limit employee noise exposure to an 8-hour TWA of 90 dB(A).

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).

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

FRA's doubling, or exchange, rate is 5 dB(A). FRA's decision to use a 5 dB doubling rate is notable, because a 5 dB doubling rate is different than the scientific principle for a doubling rate. Technically, a increase of 3 dB represents a doubling of sound energy.

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.

See discussion in § 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.

In its final rule, MSHA concluded that:

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

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

FRA, like MSHA, recognizes that the cost and feasibility of a 3 dB exchange rate is prohibitive. Furthermore, there was a consensus decision of the RSAC that 5 dB is most appropriate. Taking all of those factors into account, FRA proposes to use a doubling rate of 5 dB. Thus, a 5 dB increase in level is permitted each time the exposure duration is decreased by half.

FRA recognizes the same controls as OSHA (

i.e.

, engineering controls, administrative controls, and hearing protection); however, FRA uses different terms to describe some of those controls. OSHA uses the term, “administrative controls,” while FRA uses the term “noise operational controls.” These two terms are the functional equivalent. Also, OSHA uses the term “engineering controls,” while FRA uses no equivalent term—FRA instead describes the specific actions which it would like railroads to take.

FRA's overall approach toward controls differs from that of OSHA. FRA does not adopt OSHA's hierarchy of controls. As explained above, OSHA places controls in a hierarchy and mandates their use according to that hierarchy. FRA has no such hierarchy. Rather, FRA has specific requirements that railroads must satisfy. FRA requires railroads to design and maintain locomotives according to the standards in § 229.121. (OSHA's equivalent of “engineering controls”). FRA requires railroads to use hearing protectors (HP) when employees are exposed to noise levels that exceed an 8 hour-TWA of 90 dB(A). (OSHA's equivalent of HP). And, FRA gives railroads the

option

of using noise operational controls when employees are exposed to noise levels that exceed 90 dB(A) as an 8 hour-TWA. (OSHA's equivalent of administrative controls). It is very important to note that FRA does

not

require the use of noise operational controls. Thus, when a railroad learns that an employee is exposed to noise levels that exceed an 8-hour TWA of 90 dB(A), the railroad

must

provide the employee with HP, but need only consider the use of noise operational controls.

The RSAC spent a great deal of time discussing options and developing the recommended requirements for § 229.121 and thus a discussion is warranted here. An Engineering Controls Task Force, a subgroup of the Noise Task Force, met to discuss the viability of engineering controls. The group reviewed OSHA and MSHA regulations and compliance documents and journal articles. Among its findings,

the group identified certain items that might help reduce noise exposure in the locomotive cab. In identifying these items, FRA has given serious consideration to those items which are feasible and those items which are not feasible.

FRA believes that the specified items are feasible maintenance and engineering controls. The group found that certain maintenance tasks—

e.g.

, repair, replacement, or installation of cab insulation, door seals, window seals, weatherstripping, and electrical cabinet insulation and seals—can help reduce in-cab noise levels. The group also discussed other engineering controls and maintenance items which have been shown to reduce noise exposure in the cab,

e.g.

, venting piping for air brake exhaust and power control devices out and under the locomotive; using air cooling devices so that windows can be closed; and using noise-dampening window glass which limits the penetration of noise and thereby limits the contribution of outside noise. In addition, the group discussed the location of locomotive horns and agreed that relocation of the horn to the center position had reduced crew noise exposure.

FRA recognized that there are many benefits to using engineering and maintenance controls. First, they do not interfere with crew and radio communication, which HP can do. HP can interfere with crew and radio communication by blocking out necessary sounds in addition to unwanted noise. Second, engineering and maintenance controls do not present the potential hazard of overprotection that HP presents. Engineering controls block out noise at its source, thus there is no concern that necessary sounds will be blocked out too. Third, engineering controls put less burden on the employee and as a result, are easier for employees to use. With HP, railroads must ensure that employees are properly trained on the use of the devices, and employees must ensure that they wear and properly use the devices. Due to the benefits of engineering controls, FRA did not want to exclude their use. However, due to burden that it would impose on railroads if there was a general requirement for the use of engineering controls, FRA did not include the requirement as found in OSHA's rule. As a compromise, then, FRA identified the specific engineering controls—the design and build requirements in § 229.121(a) and the maintenance requirements in § 229.121(b)—which railroads must use.

This background section has sought to provide an overview of FRA's rule, as well as a broad comparison to OSHA's rule. A more thorough discussion of the differences between OSHA's and FRA's standards is provided in the section-by-section analysis below.

VII. Responsibilities of Railroads and Employees

The primary responsibility for compliance with this regulation lies with employers,

i.e.

, railroads. As such, railroads would have several enumerated responsibilities. This regulation would require railroads to: develop and implement a noise monitoring program; administer a hearing conservation program; establish and maintain an audiometric testing program; make audiometric testing available to employees; implement noise operations controls (if desired); require the use of hearing protection; make hearing protection available to employees at no cost; train employees in the use and care of hearing protection; ensure proper fitting of and supervise the correct use of hearing protection; give employees the opportunity to select hearing protection from a variety of suitable hearing protection; evaluate hearing protection attenuation; initiate and offer a training program, maintain and retain records; and build and maintain locomotives according to specified standards.

The responsibilities of employees derive from those of the railroad. Employees' responsibilities come from railroad policies, which are issued pursuant to this regulation. This regulation would require employers to: use their hearing protection when mandated by the railroad; care for their hearing protection as trained by the railroad; and complete the training program which is offered by the railroad. There is one additional obligation for which employees have primary responsibility—employees must report for audiometric testing once every three years. While railroads have an affirmative obligation to offer testing, employees have an affirmative obligation to report for testing. Without adequate audiometric testing, a HCP will not succeed, and so FRA is identifying an employee's audiometric testing obligation as a primary responsibility.

Because employee responsibilities are, for the most part, derivative, compliance would generally take place through the railroad disciplinary process, rather than direct enforcement by FRA. FRA does, however, recognize one major exception. FRA may assess civil penalties for a wilful violation

for an employee who does not report for audiometric testing. Overall, FRA expects that employees will fully comply with all their responsibilities. Railroads should perform required actions, and employees should reciprocate with their commensurate responsibilities. Railroads should set expectations of compliance, and employees should meet those expectations of compliance.

Under the railroad safety laws, civil penalties may be assessed against individuals only for willful violations.

See

49 U.S.C. 21304.

VIII. Compliance

FRA's principal method of enforcement will be through audits. With an industrial hygienist as team leader, an audit team will examine a railroad's hearing conservation program. The team will examine whether the railroad is adequately protecting its employees. The team will speak with the program manager, review records (

e.g.

, noise monitoring records, audiograms, standard threshold shift records, etc.) and determine the extent to which the railroad is complying with the requirements of this regulation. If warranted, FRA will take enforcement action against the railroad.

In addition, if FRA has reason to believe that certain locomotive crews are being exposed to high noise doses, FRA inspectors will ride in the locomotive cab with those crews to measure the sound levels and determine the crews' exposure. FRA inspectors may also review maintenance records to determine whether railroads have corrected defective conditions (

e.g.

, loose windows, deteriorated seals). Additionally, FRA will investigate employee complaints of excessive noise.

IX. Section-by-Section Analysis

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

Part 227—Occupational Noise Exposure

Subpart A—General

Section 227.1 Purpose and Scope.

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

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

i.e.

, occupational noise).

Section 227.3 Application.

This section identifies the applicability of this part. FRA proposes that this part will apply to all railroads and contractors to railroads. This section identifies three exceptions. First, this part will not apply to railroads that operate only on track inside an installation that is not part of the general railroad system of transportation.

Second, this part will not apply to rapid transit operations in an urban area that are not connected to the general railroad system of transportation. This part will still apply to rapid transit operations in an urban area that are connected to the general railroad system. Rapid transit operations connected to the general system are a specialized set of operations (

e.g.

, the Maryland Mass Transit Administration's Central Light Rail Line in Baltimore). FRA regulates at least the shared use portions these operations, because FRA has jurisdiction over such operations by statute.

FRA realizes that these types of operations have already applied for and received shared use waivers from FRA's other regulations. FRA also recognizes that these types of operations might need to seek an additional waiver, consistent with 49 CFR part 211, in order to be exempted from the requirements of this part. FRA seeks comment from the public on how to handle these types of operations.

Under the Federal railroad safety laws, FRA has jurisdiction over all railroads except “rapid transit operations in an urban area that are not connected to the general railroad system of transportation.” 49 U.S.C. 20102. For a discussion of FRA's jurisdiction over passenger operations,

see

49 CFR part 209, Appendix A.

Third, this part will not apply to railroads that operate tourist, scenic, historic, or excursion operations, whether they are on or off the general railroad system of transportation. The term “tourist, scenic, historic, or excursion operations” is defined in § 227.5 to mean “railroad operations that carry passengers, often using antiquated equipment, with the conveyance of the passengers to a particular destination not being the principal purpose.” Congress has directed that, in issuing safety rules, FRA take into account the unique financial, operational, and other factors that may apply to such railroads. 49 U.S.C. 20103(f). For example, these operations are often seasonal and generally use somewhat antiquated equipment.

In this proposal, FRA exempts these operations from the rule; however, FRA is still considering this issue and invites public comments. FRA believes that certain circumstances, such as employee assignments and railroad equipment, might result in conditions that expose these employees to high noise levels. If that is the case, then these employees might also need the protection of this rule. FRA plans to consult with tourist and historic railroad operators and their associations, as well as the RSAC Working Group on tourist railroads, to determine the applicability of this rule to those employees. For now, FRA believes that this situation is best handled through such separate proceedings.

Fourth, this part will not apply to employees of foreign railroads operating in the U.S. if they meet the following requirements: (1) The government of the foreign railroad must have established requirements for hearing conservation for railroad employees in that jurisdiction; (2) the foreign railroad must undertake to comply with those requirements while operating within the U.S.; and (3) the Associate Administrator for Safety must determine that the foreign government requirements are consistent with the purpose and scope of part 227. A “foreign railroad” refers to a railroad that is incorporated in a place outside the United States and is operated out of a foreign country but operates for some distance in the U.S. (

e.g.

, Canadian National Railroad). Employees excepted from application would be those employees of a foreign railroad whose primary reporting point is in Canada and Mexico.

The Associate Administrator's evaluation and determination would only be made at the request of the foreign railroad. As a practical matter, this evaluation could be accomplished at the request of an association of foreign railroads (

e.g.

, the Railway Association of Canada), and the exception would then be available to all railroads of that country entering the U.S.

The Associate Administrator must find that the foreign government's requirements are consistent with the purpose and scope of the new part, specifically that their legitimate purpose “is to protect the occupational health and safety of employees whose predominant noise exposure occurs in the locomotive cab.” This standard does not require a finding of equivalence in terms of program effectiveness, because making such a finding would require an estimation of incremental hearing loss over the working life of specific populations (which is scientifically impracticable). Further, more important than precise equivalence is the integrity of each of the North American governments' programs. Employees and program managers need to know what rules apply and need to be able to carry out those programs without the confusion that would be inherent in changing the rules at international boundaries. FRA will request similar treatment of U.S. railroads operating into Canada and Mexico, in order to achieve the goal of harmonization.

Section 227.5 Definitions

This section contains proposed definitions for key terms. The definitions are set forth alphabetically. Most of these definitions have been taken from the standards issued by OSHA and the Mine Safety and Health Administration (MSHA) and the recommendations issued by the National Institute of Occupational Safety and Health (NIOSH) and the American Conference of Governmental Industrial Hygienists (ACGIH). These are definitions that are widely used by noise professionals. This includes definitions such as “Audiologist,” “Decibel,” “dB(A),” “Hertz,” “Medical Pathology,” and “Otolaryngologist.”

This section also contains some basic definitions that are standard to several of FRA's regulations. This includes definitions such as “Administrator,” “FRA,” “Person,” “Railroad,” and “Tourist, scenic, historic, or excursion operations.” Several of the definitions, however, are new or fundamental concepts that require further discussion.

The term “Continuous Noise” is being added by FRA in order to clarify its use in § 227.105. This definition comes from OSHA.

See

29 CFR 1910.95(b)(2).

The term “Employee” refers to individuals engaged or compensated by a railroad, as well as to contractors to a railroad. One of FRA's objectives in covering contractors is to promulgate standards that are applicable to all those individuals that are exposed to the specified levels of locomotive cab noise. Whether an individual is paid by a railroad or a contractor is irrelevant. The most important issue is the prevention of hearing loss. FRA holds no position

on the practice of a railroad contracting work out to another company, but FRA strongly believes that contract employees are entitled to the same level of safety as railroad employees. To the extent that contract employees work under the circumstances presenting the noise hazards addressed in this regulation, those contractors must be protected.

The term “Exchange Rate” refers to the change in sound levels which would require halving or doubling the allowable exposure time to maintain the same noise dose. FRA has set the exchange rate for this regulation at 5 dB. Both OSHA and MSHA also use a 5dB exchange rate.

See

OSHA's “Occupational Noise Exposure,” 29 CFR 1910.95(a) and MSHA's “Health Standards for Occupational Noise,” 30 CFR 62.101.

The term “Hearing Protector” is currently defined in the NPRM as “any device or material, capable of being worn on the head or in the ear canal, designed wholly or in part to reduce the level of sound entering the ear, and which has a scientifically accepted indicator of its noise reduction value.” The RSAC discussed variations of this definition but ultimately agreed upon this definition. FRA adopted that definition.

Despite the RSAC consensus on this definition during its development, several Working Group members expressed the view that the phrase, “which has a scientifically accepted indicator of its noise reduction value,” is too general and provides too much leeway. They would prefer to see that phrase replaced with a requirement to use a specific indicator—the Noise Reduction Rating. With such a change, the definition of “hearing protector” would read as follows: “any device or material, capable of being worn on the head or in the ear canal, designed wholly or in part to reduce the level of sound entering the ear, and which has a Noise Reduction Rating.” The Noise Reduction Rating (NRR) is one of several methods that exist for estimating the amount of sound attenuation that a hearing protector provides. The NRR is one of the most commonly used methods. FRA seeks comments from the public on the definition of hearing protector and asks whether FRA should use a general description for an indicator (

i.e.

, “which has a scientifically accepted indicator of its noise reduction value), the NRR, or some other specific type of indicator.

The term “Noise Operational Controls” was developed by the RSAC as the functional equivalent of the term “administrative controls.” FRA has accepted the RSAC's recommended term and definition. The term “administrative controls” is used by OSHA, MSHA, and NIOSH. OSHA uses the term in its noise regulations.

See

29 CFR 1910.95(b)(1) and 29 CFR 1926.52(a). MSHA also uses the term in its occupational noise exposure rule.

See

30 CFR 62.130. NIOSH defines “administrative controls” as “[e]fforts, usually by management, to limit workers” exposure by modifying workers' schedule or location, or by modifying the operating schedule of noisy machinery.” See NIOSH's Common Hearing Loss Prevention Terms.

See

www.cdc.gov/niosh/hpterms.html.

The term “Occasional Service” refers to service of not more than a total of 20 days with one or more assignments in a calendar year. The term is used only once in this proposed regulation. This term is added to clarify its use in § 227.101.

The terms “Sound Level” and “Sound Pressure Level” can be used interchangeably. The definition comes from OSHA's regulation. See Appendix I to 29 CFR 1910.95. OSHA's regulation, in addressing SLOW time response, referenced a now-outdated ANSI standard (ANSI S1.4-1971 R1976)). FRA changed that cite to ANSI S1.43-1997 which updates the citation to reflect the current ANSI standard.

FRA invites comment from the public about all of the proposed definitions, as well as any other terms that the public believes should be defined.

Section 227.7 Preemptive Effect

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

Section 227.9 Penalties

This section identifies the civil penalties that FRA may impose upon any person, including a railroad or an independent contractor providing goods or services to a railroad, that violates any requirement of this part. These penalties are authorized by 49 U.S.C. 21301, 21302, and 21304. This penalty provision parallels penalty provisions included in numerous other safety regulations issued by FRA.

Essentially, any person who violates any requirement of this part or causes the violation of any such requirement will be subject to a civil penalty of at least $500, and not more than $11,000, per violation. Civil penalties may be assessed against individuals only for willful violations. Where a grossly negligent violation or a pattern of repeated violations creates an imminent hazard of death or injury to persons, or causes death or injury, a civil penalty not to exceed $22,000 per violation may be assessed. In addition, each day will constitute a separate offense. Furthermore, a person may be subject to criminal penalties under 49 U.S.C. 21311 for knowingly and willfully falsifying reports required by these regulations. FRA believes that the inclusion of penalty provisions for failure to comply with this regulation is important in ensuring that compliance is achieved.

With respect to the penalty amounts contained in this section, the Federal Civil Penalties Inflation Adjustment Act of 1990, Pub. L. 101-410 Stat. 890, 28 U.S.C. 2461 note, as amended by the Debt Collection Improvement Act of 1996 Pub. L. 104-134, April 26, 1996, required agencies to adjust for inflation the maximum civil monetary penalties within the agency's jurisdiction. The resulting $11,000 and $22,000 maximum penalties were determined by applying the criteria (set forth in sections 4 and 5 of the statute) to the maximum penalties otherwise provided for in the Federal railroad safety laws.

Section 227.11 Responsibility for Compliance

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

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

Section 227.13 Waivers

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

Section 227.15 Information Collection

This section notes the provisions of this part that have been reviewed and approved by the Office of Management and Budget (OMB) for compliance with the Paperwork Reduction Act of 1995.

See

44 U.S.C. 3501

et seq.

Subpart B—Occupational Noise Exposure for Railroad Operating Employees

Section 227.101 Scope

This section identifies the individuals to whom this rule will apply. In subparagraph (a)(1), FRA proposes that this rule will cover employees who regularly perform service subject to the provisions of the hours of service law governing “train employees.”

See

49 U.S.C. 21101(5) and 21103. This refers to employees who are engaged in functions traditionally associated with train, engine, and yard service; for example, engineers, conductors, brakemen, switchmen, and firemen. In general, these employees encounter their predominant occupational noise exposure in the locomotive cab, and therefore, FRA plans to appropriately tailor the noise monitoring and noise testing programs in this section to address the exposure that these employees experience.

With respect to the term “regularly” in subparagraph (a)(1), FRA intends to cover individuals who perform some level of work in a locomotive cab. In making this assessment, the railroad should consider an employee's work over the period of a year. FRA would like railroads to think about how they use their workforces,

i.e.

, take a serious look at the work that their employees perform, determine which employees will experience potentially hazardous noise exposure in the cab, and then place those employees in a hearing conservation program.

Given the nature of the railroad industry, FRA is aware that some of these employees may not always experience their predominant noise exposure in the cab. Due to longstanding labor practices in the railroad industry concerning seniority privileges and concerning the ability of railroad employees to bid for different work assignments, these railroad employees are likely to change jobs frequently and to work, for extended periods of time, on assignments that involve duties outside the cab. For example, an employee might start the year in a job that involves mostly outside-the-cab work, spend three months working primarily inside the cab, and then return to outside-the-cab work for the rest of the year. In this type of situation, FRA's regulations can govern the noise exposure of this employee throughout the year despite the fact that the employee only spent three months inside the cab. This employee can be covered by FRA's regulations, because he spent time, no matter how little, in a locomotive cab.

Under an alternative to the proposed scope provision, OSHA's regulations would apply to these employees when they are outside the cab and FRA's regulations would apply to these employees when they are inside the cab. The employee would switch back and forth between OSHA's and FRA's hearing conversation programs throughout the year. FRA believes this would be both illogical and unworkable.

This rule will not extend to employees who occasionally and briefly enter the cab. That includes employees who move equipment only within the confines of locomotive repair or servicing areas protected by blue signals (

see

§ 227.101(a)(1)(i)) or who move locomotives for distances of less than 100 feet for inspection or maintenance purposes (

see

§ 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

§ 227.103).

In addition, this rule will not extend to contractors who operate historic equipment in occasional service, as long as those contractors have been provided with hearing protection and are required (where necessary) to use the hearing protection while operating the historic equipment. Although these contractors will not be in the railroad's HCP, it is still important that they use HP, because they will be working in noisy environments (

e.g.

, historic locomotives). Occasional service is defined in § 227.5 and refers to service of not more than a total of 20 days with one or more assignments in a calendar year. This exception will apply to all members of the crew responsible for operating the train; that includes, but is not limited to, engineers, conductors, firemen, and brakemen. When originally raised, this exception contemplated service on steam locomotives; however, FRA has instead used the term “historic equipment,” thereby encompassing steam locomotives as well as diesel locomotives and other antiquated equipment typically used in tourist and scenic operations.

A Working Group member raised this issue during a meeting. The member explained that a railroad will occasionally hire a contractor (with special expertise) to operate a steam locomotive for one or two days as part of a special excursion operation. The member was concerned that the railroad would have to place those temporary, contract employees in a hearing conservation program. The Working Group discussed this issue and recommended this exception. FRA decided to include the exception. Pursuant to this provision, those contractors are exempted, because they provide limited service and thus will have limited exposure to noise in a locomotive cab. Railroads should note, however, that this provision will not exempt regular railroad employees who happen to perform this occasional service on historic equipment.

FRA realizes that earlier provisions in this proposed rule have discussed historic operations. Section 227.3(b)(3) excludes from this part railroads that perform historic operations. Despite the apparent similarity, these provisions are different. The earlier provision excludes railroads that operate, among other things, historic operations, while this provision excludes contract employees who work for a freight railroad (such as Union Pacific Railroad or CSX Railroad) operating tourist, scenic, and excursion equipment.

Pursuant to § 227.101(b), all other railroad employees who are exposed to noise hazards but are outside the scope of this regulation will continue to be

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

Section 227.103 Noise Monitoring Program

Railroad noise monitoring programs entail a system of monitoring that evaluates employee noise exposure. Noise monitoring is performed for one or more of the following reasons: To determine whether hearing hazards exist; to ascertain whether noise presents a safety hazard by interfering with oral communication; to ascertain whether noise presents a safety hazard by impairing recognition of audible warning signals; to identify which employees need to be included in a hearing conservation program; to define and establish the amount of hearing protection that is necessary; to evaluate specific noise sources for noise control purposes; and to evaluate the success of noise control efforts.

FRA's proposed regulation requires railroads to develop and implement a noise monitoring program by a specific date, depending on the size of the railroad. These noise monitoring programs are intended to determine whether an employee's exposure to noise may equal or exceed an 8-hour time-weighted average of 85 dB(A). Factors which suggest that noise exposure in the cab may meet or exceed a TWA of 85 dB(A) include: employee complaints about the loudness of the noise, indications that train employees are experiencing hearing loss, noisy conditions that make conversation difficult, and route-specific or locomotive-specific factors that suggest the possibility of an excessive noise dose. In addition, actual workplace noise measurements can suggest whether or not a monitoring program should be initiated.

FRA's proposed noise monitoring requirements cover noise in cabs and noise in exterior environments in which employees work during their work shifts. FRA's proposal would involve the monitoring of some employees whose daily functions are entirely outside of the cab and some employees whose daily functions are both inside and outside of the cab. This ensures that the hearing conservation program addresses the full noise exposure that is experienced by employees within the scope of this rule.

FRA's proposed rule text on railroad noise monitoring programs is nearly identical to OSHA's rule on noise monitoring programs. Paragraphs (a) through (d) and (f) of 227.103 are very similar to the provisions found in 29 CFR 1910.95(d), OSHA's “Monitoring” section. Paragraph (a) provides the general requirement that all railroads must develop and implement a noise monitoring program. FRA has re-worded OSHA's language (from 29 CFR 1910.95(d)(1)) to make the provision more clear.

Also, FRA has identified dates by which railroads must develop and implement a noise monitoring program. The date varies based on the size of the railroad. Class I, passenger, and commuter railroads have 12 months from the effective date of this rule to establish a noise monitoring program. Railroads with 400,000 or more employee hours, but that are not a class I, passenger, or commuter railroad have 18 months to comply. Railroads with fewer than 400,000 employee hours have 30 months to comply.

FRA is proposing to classify railroads by employee hours, rather than classes, for several reasons. First, it is a more specific and better-defined distinction than a class distinction. Second, FRA collects and maintains data on employee hours and thus FRA can more easily identify a railroad's category based on employee hours. Third, an hours distinction is probably more reflective than a class distinction of a railroad's ability to comply with this regulation. For example, all switching and terminal operations are categorized as class III railroads regardless of their revenue. By using a class distinction and staggering implementation for class III railroads, FRA would delay implementation for all switching and terminal operations, not just those that are small. But by using an hours distinction, FRA would delay implementation for only those switching and terminal operations that are small. Fourth, FRA has already used this distinction in other regulations, such as § 217.9(d) (a recordkeeping requirement in the CFR part addressing railroad operating rules) and § 220.11 (radio communication requirements for roadway workers). FRA considered staggering the implementation dates based on classes (class I, II, and III); however, for the reasons discussed in this paragraph, FRA proposes to stagger the implementation dates based on employee hours. FRA seeks comment as to which option is the most appropriate.

FRA is adjusting the implementation dates for smaller operations because of their unique situation. FRA understands that they lack the resources, manpower, and money of larger operations, and thus FRA is providing them with more time to comply with the requirements of this part. In addition, FRA is required, by law, to consider the impact of its regulations on smaller entities. The Small Business Regulatory Enforcement and Fairness Act (SBREFA)

requires agencies to employ communication, enforcement, and regulatory systems that consider the unique aspects of small entities. For the purposes of the regulation, small entities are defined as operations with less than 400,000 employee hours per year. The Act specifically provides that agencies should avoid “one size fits all” enforcement and regulatory programs and should, to the extent possible, minimize unnecessary economic burdens. One of the Act's suggestions is that agencies use phase-in implementation dates to permit gradual compliance where no immediate safety risk exists, and that is what FRA has proposed here. For all the reasons discussed here, FRA has also provided phase-in implementation dates here and in two other locations in this proposed rule—in § 227.109(e)(2) (audiometric testing) and § 227.119(b)(2) (training).

Pub. L. 104-121, 110 Stat. 857 (codified at 5 U.S.C. 601

et. seq.

)

Paragraph (b) discusses sampling strategy and is virtually identical to OSHA's provision. OSHA's provision is found in 29 CFR 1910.95(d)(i) and (ii).

Paragraph (c) specifies how railroads should conduct noise measurements. Paragraph (c)(1) requires that all continuous, intermittent, and impulsive sound levels from 80 dB to 130 dB shall be integrated into the measurement of noise exposure. Paragraph (c)(1) is identical to OSHA's comparable provision.

See

29 CFR 1910.95(d)(2)(i).

OSHA promulgated its general industry noise standards for occupational noise in 1981. In its preamble to that noise rulemaking, OSHA explained that its intent was to increase the upper limit to 140 dB as noise dosimeters were improved and became readily available. OSHA further explained that its decision to adopt the 80 to 130 dB range (and not the 80 to 140 dB range) reflected the technological limitations of sound level meters and noise dosimeters at the time of the regulation's promulgation.

See

46 FR 4078, 4135 (January 16, 1981).

Recently, in 2002, OSHA issued an Advance Notice of Proposed Rulemaking (ANPRM) for a Hearing Conservation Program for Construction Workers.

In that ANPRM, OSHA stated that it “believes that most, if not all, of today's noise dosimeters and integrating sound level meters are capable of dynamic ranges from 80 dB to 140 dB.”

FRA seeks comments on whether, in light of technological advances, the 80 to 140 dB range is

more appropriate for calculating railroad operating employees noise doses. If so, what are the expected impacts,

i.e.

, costs and benefits, associated with such a change?

See

67 FR 50610 (August 5, 2002).

See

67 FR 50610, 50605 (August 5, 2002).

Paragraph (c)(2) specifies that railroads shall take noise measurements under typical operating conditions using a sound level meter, integrated sound level meter, or noise dosimeter. The instrumentation should meet the appropriate standard set forth by the American National Standard Institute (ANSI); these standards set performance and accuracy tolerances. A sound level meter used to comply with this regulation shall meet the American National Standard, ANSI S1.4-1983 (R2001) (or its successor). An integrating-averaging sound level meter (iSLM) used to comply with this part shall meet the American National Standard, ANSI S1.43-1997 (R2002) (or its successor). A noise dosimeter used to comply with this regulation shall meet the American National Standard, ANSI 1.25-1991 (R2002) (or its successor). Each instrument should be set to an A-weighted SLOW response.

Paragraph (c)(2), for the most part, is from FRA's current noise regulation, § 229.121(d). Note, however, that FRA has added the ANSI standard for noise dosimeters, updated the ANSI standard for sound level meters (from ANSI S1.4-1971 to ANSI S1.4-1983 (R2001)), and included a reference and citation to integrating-averaging sound level meters. In doing so, FRA has made this regulation more current and comprehensive.

FRA's use of standards established by other organizations, such as ANSI, is a means of establishing technical requirements without increasing the volume of Code of Federal Regulations. This NPRM uses several different ANSI standards, including the ones above. In developing the final rule, FRA will seek the proper authority from the Office of the Federal Register to formally incorporate these standards by reference.

While the regulation provides that a railroad may use either a noise dosimeter, SLM, or iSLM to conduct noise measurements, a railroad may choose to use any combination of those instruments. Using several instruments helps to develop a more complete picture of the noise environment, because the instruments provide different information. A SLM and an iSLM measure the sound levels at fixed locations in the cab and during transient events (

e.g.

, application of the alerter, brakes, or horn). They also characterize the emissions of suspected noise sources (

e.g.

, vibrating panels). A noise dosimeter and an iSLM measure an employee's overall noise exposure. An iSLM is particularly useful, because it characterizes the contribution of transient events to an employee's overall dose. A noise dosimeter, which is worn by the employee, is useful because it accumulates all the noise exposure data from an employee's work shift. From that, a tester can determine an employee's noise dose during a work shift.

Paragraph (c)(3) specifies that all instruments used to measure employee noise exposure shall be calibrated to ensure accurate measurements. Again, this paragraph is identical to OSHA's provision, which is found in 29 CFR 1910.95(d)(2)(ii).

Paragraph (d) provides that a railroad shall repeat noise monitoring whenever there is a change in operation, process, equipment, or controls that increases noise exposures to the extent that either 1) additional employees may be exposed at the action level, or (2) the attenuation provided by the hearing protectors may be inadequate to meet the requirements of § 227.103. Once again, this paragraph is identical to OSHA's provision, which is located at 29 CFR 1910.95(d)(3).

Paragraph (f) specifies that a railroad shall provide affected employees or their representatives with an opportunity to observe any noise dose measurements conducted pursuant to this section. This parallels OSHA's provision, which is found in 29 CFR 1910.95(f).

There are also some notable differences in § 227.103. First, FRA is adding a new subsection, paragraph “e,” which states that, “In administering the monitoring program, the railroad shall take into consideration the identification of work environments where the use of hearing protectors may be omitted.” This provision will ensure that railroads do not excessively rely on reflexive use of hearing protectors when structuring their hearing conservation programs. FRA believes that well managed programs already focus on this issue, incorporating such monitoring, as necessary, to determine general categories of work assignments that require hearing protectors and those that do not. FRA fully recognizes that no sustainable amount of monitoring could support a job-by-job analysis at all locations on the railroad. FRA also recognizes that such a level of monitoring is not appropriate given the objective of the hearing conservation program.

Examples of situations where hearing protection may be omitted include:

(1) Cabs designed for sound reduction. These cabs should be monitored over time on a sample basis to ensure that their noise-insulating qualities continue to function as intended; and

(2) “Ground” assignments where employees work around moving equipment but have limited exposure to loud and persistent noise sources such as locomotives or retarders.

There are several benefits that accrue when employees refrain from over-using hearing protectors. It reduces any danger of infection from the misuse of hearing protectors. It strengthens overall employee compliance with hearing protector use by focusing requirements (to use hearing protectors) where it makes a difference. Among ground personnel, it maximizes the availability of auditory cues associated with the movement of equipment; this results in improved personal safety. In addition, among cab crews with existing hearing loss (from whatever source), it avoids negative impacts on the discrimination of voice communications, both radio and in-person. This, in turn, limits the noise dose of other employees in the workplace who would otherwise have to live with excessively high radio volume and struggle to be heard while calling signals and communicating other information.

Second, FRA is also adding another new paragraph, (g) Reporting of Monitoring Results, which requires railroads (1) to notify each monitored employee of the results of the monitoring, and (2) to post the monitoring results at the appropriate crew origination point for a minimum of 30 days.

Section 227.103(g)(1) is similar to OSHA's notification provision. OSHA requires an employer to notify employees of the results of the monitoring if the employee is exposed at or above an 8-hour time-weighted average of 85 decibels. See 29 CFR 1910.95(e). FRA also requires a railroad to notify employees of the results. However, there is a difference. OSHA requires an employer to notify each employee

that is exposed at or above an 8-hour TWA of 85 dB(A)

of the results of his or her monitoring. By contrast, FRA requires a railroad to notify each employee

that is monitored

of the results of his or her monitoring.

Section 227.103(g)(2) is a new section. There is no comparable provision in OSHA's rule. This section specifies that a railroad must post the monitoring results. The posting should include sufficient information to permit other crews to interpret the meaning of the results in the context of the operations monitored. The information is intended to help crews and labor officials to

understand the conditions under which the monitoring was conducted. There are a wide range of data elements that a railroad could include in its posting. FRA believes that the railroad should include enough information so that the monitored crew, as well as other crews, are able to understand, interpret, and assess the results of the monitoring.

FRA recommends, though does not require, that a railroad include the following data elements: (1) A description of the monitoring event: The date of the monitoring, the start time and end time of the monitoring, the locations of the beginning and end of the monitoring; the assignment or train identification number or train symbol; the locomotive consist (including locomotive numbers, models, and dates of manufacture); and a train profile (including car counts, length of train, tonnage, and power consist details); and (2) circumstances of the monitoring: Number of crew members monitored, job title(s) of the crew members monitored, duration of crew member exposure, number of crew members monitored, placement of measurement equipment, results of the monitoring, and the equipment used for monitoring.

These data elements are useful, because they contain information on items and conditions that can impact the noise level in the locomotive cab. The date of monitoring is important, because it indicates the time of year of the monitoring, which in turn indicates general weather conditions (

e.g.

, it was likely that there was ice on the rail or that it was raining). The start and end time indicate the length of the crew exposure to noise. The location of the monitoring indicates the topography of the specific run (

e.g.

, there were many hills, curves, or closed embankments). The assignment or train identification number or train symbol indicate the type of equipment and the make-up of the train. The locomotive consist provides information which can be used to figure out tractive effort. The train profile provides specific information on the particulars of that train,

i.e.

, car counts, the number of loaded cars, the number of empty cars, the length of the train, tonnage, and power consist details. The monitoring circumstances are useful, as well, because they convey the specifics of the railroad's monitoring efforts.

Section 227.103(g) is the product of extensive RSAC discussions and negotiations. It reflects a compromise of labor and railroad concerns. To reach this compromise, the RSAC considered numerous proposals concerning monitoring observations and reporting. The RSAC's initial proposals did not include an observation provision and instead focused on reporting requirements. One proposal, without an observation requirement, required a railroad to notify each employee exposed during a monitored exposure, as well as the employee's designated representative, of the results of the monitoring. A variation to that proposal required a railroad to notify each employee and employee's representative upon written request by the employee. Another proposal, also without an observation requirement, required railroads to provide the monitoring information to the president of each labor organization that represented monitored employees. In yet another proposal, railroads would have been required to submit to FRA an annual summary of its noise monitoring activity. FRA would then have made this information publicly available.

In the end, the RSAC recommended to retain the observation provision contained in OSHA's provision. See 29 CFR 1910.95(f)). In addition, the RSAC recommended that railroads shall notify monitored employees of the results of monitoring (regardless of the TWA) and shall post monitoring results at appropriate crew origination points. FRA believes this it this is most effective proposal, because the proposal satisfies both labor's request for access to information and management's request for a reasonable and practical means of complying with the observation and reporting provisions. Nonetheless, FRA seeks comment from the public on this proposal.

See

proposed § 227.103(f).

Section 227.105 Protection of Employees

In this section, FRA establishes the permissible noise exposures for railroad employees. In paragraph (a), FRA proposes the prescribed limits that noise exposure may not exceed. These standards are the same as FRA's current noise standard (49 CFR 229.121), OSHA's permissible noise exposures (29 CFR 1910.95(a), Table G-16), and OSHA's occupational noise exposure limits (29 CFR 1926.52(a), Table D-2). The standards limit employee exposure to 90 dB(A) as an 8-hour TWA, with a 5 dB exchange rate. Where an employee is exposed to noise that exceeds the prescribed limits, the railroad shall provide appropriate protection for that employee.

In paragraph (b), FRA addresses measurement artifacts. FRA proposes that railroads should note the apparent source of noise exposure and, if possible, remove the measurement artifacts from their noise measurements. Artifacts include events such as an unintentional brushing of the noise dosimeter microphone. Artifacts cause the noise level to spike, which, in turn, results in higher overall noise dose levels. FRA proposes to exclude these measurement artifacts from the calculations, because they are not experienced as noise exposure by the employee.

The Working initially considered a draft provision that was based on OSHA's standard; it required railroads to remove measurement artifacts; the sentence originally provided that “the apparent source of the noise exposures

shall

be noted and measurement artifacts

shall

be removed.” By contrast, the proposed provision, based on the full RSAC recommendation, allows railroads to choose whether or not they want to remove the measurement artifacts. At one of its meetings, the Working Group discussed this issue at the request of a railroad representative. The representative had explained that if there is a measurement artifact, he will remove it, since artifacts can cause the overall noise levels to increase. He emphasized that not only would he remove the artifact, but he would want to remove it. However, he is concerned about a situation where he tries valiantly, but is unable to, identify the artifact. If he is unable to identify the artifact, he is going to be unable to remove the artifact. To address that practical concern, the proposed regulation contains this provision whereby a railroad has the option of removing an artifact. Practical concerns aside, FRA maintains that it is in the best interest of a railroad to remove measurement artifacts, because the inclusion of artifacts results in calculations that are not representative of an employee's noise exposure.

Paragraph (c) provides that employee exposure to continuous noise shall not exceed 115 dB(A). Paragraph (c) is the same as 49 CFR 229.121(c), FRA's current noise regulation. It merely restates an existing requirement.

Paragraph (d) addresses continuous noise exposure above 115 dB(A). This requirement differs from OSHA's standards. OSHA prohibits unprotected exposures above 115 dB(A) (

See

29 CFR 1910.95(a) and 29 CFR 1926.52(a)). By contrast, FRA proposes that employees can be exposed to continuous noise between 115 dB(A) and 120 dB(A) as long as their total daily duration does not exceed 5 seconds. FRA is making this proposal because of the operational realities of railroading and the resulting safety implications.

In the railroad industry, it is generally recognized that very brief excursions

above 115 dB(A) sometimes occur in the cab. For the most part, these noise exposures are brief, non-recurring events. Some of these excursions are due to external conditions that may be difficult, or unwise, to prevent. The sounding of the locomotive horn is a prime example. The locomotive horn is a safety device used to warn the public and railroad employees of oncoming train traffic. If the horn is used while cab windows are open or while the cab is adjacent to reflective surfaces, the noise level in the cab may exceed 115 dB(A). FRA would not want to eliminate the sounding of the horn, however, because the horn is very important to safe rail operations. Unfortunately, then, these types of noise exposures are unavoidable.

Working Group discussions revealed that some RSAC members did not wish to penalize the railroads for these brief excursions above 115 dB(A). At the same time, other RSAC members did not wish to stray, to any great extent, from the existing OSHA standard. It should be noted, however, that certain RSAC members expressed the view that there may be health effects associated with longer exposures over 115 dBA, while other RSAC members contended that health effects will not occur until much higher noise levels.

Recognizing the realities of railroad work, the RSAC recommended this provision. The proposed regulation permits very brief exposures to continuous noise (which is defined as noise that exceeds one second) so long as the exposures do not exceed a total of 5 seconds within one day or work shift. FRA concludes that this short cumulative time limit will effectively distinguish incidental, and perhaps unavoidable and necessary noise exposures, from longer exposures that stem from undesirable noise overexposure found in deficient rolling stock that should not be in use.

Section 227.107 Hearing Conservation Program

Section 227.107 sets out the requirement that railroads establish a hearing conservation program for all employees exposed to noise at or above the action level. It also provides that railroads shall compute employee noise exposure in accordance with Table 1 of § 227.105 and the tables found in Appendix A and without regard to any attenuation provided by the use of hearing protectors. Section 227.107 is identical to the comparable provision in OSHA's occupational noise regulation. OSHA's provision is found at 29 CFR 1910.95(c).

As for the current state of hearing conservation programs, FRA recognizes that most class I railroads, as well as some regional and commuter railroads, already have hearing conservation programs and that those HCPs meet the requirements of OSHA's occupational noise standard. Although not required, railroads have included cab employees in those hearing conservation programs. Thus, several railroads are already complying with the requirements of this proposed rulemaking,

i.e.

, establishing a HCP, offering training, conducting audiometric testing, etc.

Section 227.109 Audiometric Testing Program

This section sets out the requirements for railroads to establish and maintain an audiometric testing program for employees that are covered by the hearing conservation program. It requires railroads to establish a baseline audiogram and then to conduct periodic audiograms. It also specifies the requirements for conducting, evaluating, and following-up with the audiograms.

Paragraph (a) notes the general requirement that each railroad shall establish and maintain an audiometric testing program as set forth below. Paragraph (b) provides that audiometric tests shall be provided for employees, at no cost to employees. This paragraph refers only to the audiogram. (An audiogram is more popularly known as a hearing test.) It does not refer to additional costs that might be incurred by employees,

e.g.

, missed trips or missed work time that is incurred as a result of the audiogram.

Paragraph (c) requires that appropriate professionals or trained audiometric technicians administer the audiometric tests. It specifies that audiometric tests be administered by a licensed or certified audiologist, otolaryngologist, or other qualified physician (§ 227.109(c)(1)); or by a certified audiometric technician under the supervision of an audiologist, otolaryngologist or physician (§ 227.109(c)(2)). In order to be qualified under the standard, an individual must be competent in the administration of hearing tests and in the care and use of audiometers. In addition to trained technicians, this can also include hearing aid specialists, industrial hygienists, and nurses with appropriate credentials.

OSHA has recognized two methods by which a technician can become qualified in the administration of audiometric tests. (

See

48 FR 9738). FRA, likewise, recognizes those methods. The first method, and one of the best methods, is for a technician to successfully complete a course that is designed for the training and certification of audiometric technicians.

See

§ 227.109(c)(2)(i). The second method is for a technician to demonstrate, to the satisfaction of the professional supervisor of the hearing conservation program, that he or she is competent in the administration of audiometric tests and the use and care of audiometers. The technician must be able to show competence in the proper use, maintenance, calibration, and functioning of the particular type of audiometer being used.

See

§ 227.109(c)(2)(ii). Where a technician (of either qualification type) performs an audiometric test, that technician must be responsible to an audiologist, otolaryngologist, or physician.

See

§ 227.109(c)(2)(iii).

Paragraph (d) addresses the instruments that should be used during audiometric testing; it notes that the instruments used for audiometric testing must meet the requirements of Appendix C “Audiometric Testing Requirements.”

Paragraphs (e) and (f) discuss audiograms. For purposes of this regulations, there are two types of audiograms: A baseline audiogram and a periodic audiogram. A baseline audiogram is the reference audiogram to which all future audiograms are compared. Baseline audiograms are necessary, because they can then be used as points of comparison for subsequent audiograms. Periodic audiograms are the subsequent audiograms that are conducted at regular intervals in the future. They can be used to identify deterioration in hearing ability and to track the effectiveness of a hearing conservation program. Paragraph (e) provides the requirements for baseline audiograms, and paragraph (f) provides the requirements for periodic audiograms. These provisions differ from OSHA; the differences are discussed below.

Paragraph (g) provides the requirements for evaluation of audiograms. It states that each employee's periodic examination should be compared to that employee's baseline audiogram to determine if the audiogram is valid and to determine whether a standard threshold shift (STS) has occurred.

See

§ 227.109(g)(1). If the periodic audiogram demonstrates a STS, a railroad may obtain a retest within 90 days and use the retest as the periodic audiogram.

See

§ 227.109(g)(2). The audiologist, otolaryngologist, or physician shall review problem audiograms and shall determine whether there is a need for further evaluation.

See

§ 227.109(g)(3). The

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

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

Paragraph (h) provides the follow-up procedures. Section 227.109(h)(1) explains that a railroad shall notify an employee if the employee experiences a standard threshold shift (as indicated through a comparison of the employee's baseline audiogram and periodic audiogram). Section 227.109(h)(2) identifies the steps that a railroad should take if the railroad learns that an employee has experienced a standard threshold shift. Section 227.109(h)(3) specifies further notification procedures for subsequent audiometric testing.

Paragraph (i) identifies two situations where an audiologist, otolaryngologist, or physician may substitute a periodic audiogram in place of the baseline audiogram. The two situations are: (1) The audiogram reveals that the standard threshold shift is persistent, and (2) the hearing threshold shown in the periodic audiogram indicates significant improvement over the baseline audiogram. See 227.109(i).

Paragraph (j) addresses standard threshold shifts. It provides that when determining whether a standard threshold shift has occurred, the individual evaluating the audiogram can consider the contribution of age (presbycusis) to the change in hearing level. The individual evaluating the audiogram should use the procedure described in Appendix F: “Calculation and Application of Age Correction to Audiograms.”

See

227.109(j).

While most of section 227.109 tracks the requirements found in OSHA's regulation (29 CFR 1910.95(g)), there are a few differences. FRA's proposed regulation differs from OSHA's regulation in three areas: (1) Baseline audiograms, (2) periodic audiograms, and (3) time frames for re-testing and for employee notification.

First, OSHA and FRA differ with respect to baseline audiograms. OSHA requires employers to establish a valid baseline audiogram within 6 months of an employee's first exposure at or above the action level. Like OSHA, FRA provides a railroad with 6 months from a new employee's first tour of duty to establish a baseline audiogram for that employee.

See

§ 227.109(e)(1). (A railroad has one year to establish a baseline audiogram if it uses mobile test vans to meet these requirements.) Although OSHA's regulatory text did not provide additional time to establish baseline audiograms for existing employees, OSHA, provided one year from the effective date of the rule for employers to establish baseline audiograms for existing employees. See the “Effective Date” of OSHA's Final Rule.

See

48 FR 9738. FRA also provided railroads with additional time for establishing baseline audiograms for existing employees. However, unlike OSHA, FRA has several categories of existing employees and different terms for each.For an existing employee without a baseline audiogram, a railroad will have two years from the effective date of the rule to establish a baseline audiogram for that employee.

See

§ 227.109(e)(2). FRA is providing railroads with more time to establish baseline audiograms for employees without baseline audiograms, because FRA realizes that railroads will need time to “catch up” on testing. The decision to provide railroads with extra time for this category of employee recognizes the administrative difficulties of testing a large number of employees, as well as the high potential cost of testing so many employees in a short period of time. Railroads with 400,000 or fewer employee hours will have three years from the effective date of the rule to establish a baseline audiogram for existing employees.

For a further discussion on allowances for small entities, see the preamble discussion for § 227.103(a).

For existing employees who have had a baseline audiogram, a railroad may or may not be able to use that baseline audiogram, depending on how the baseline audiogram was obtained. Where an existing employee has already had a baseline audiogram as of the effective date of this rule, and it was obtained under conditions that satisfy the requirements found in 29 CFR 1910.95(h), the railroad must use that baseline audiogram. Section 1910.95(h) identifies OSHA's audiometric test requirements for employees who obtained audiograms as part of a hearing conservation program. The requirements in 29 CFR 1910.95(h) are the same requirements that are found in FRA's proposed regulation at § 227.109.

Where an existing employee has already had a baseline audiogram as of the effective date of this rule, and it was obtained under conditions that satisfy the requirements in 29 CFR 1910.95(h)(1) but not the requirements found in 29 CFR 1910.95(h)(2)-(5), the railroad may elect to use that baseline audiogram as long as the individual administering the Hearing Conservation Program makes a reasonable determination that the baseline audiogram is valid and is clinically consistent with the other material in the employee's medical file. This provision evolved out of comments made by numerous railroad hearing conservation individuals. Those individuals thought that it was in the employee's best interest to use grandfathered baseline audiograms; however, they were concerned that they would not be able to identify the information required to satisfy 29 CFR 1910.95(h)(2)-(5). To address those concerns, FRA has included this provision.

Many railroad employees—locomotive engineers, specifically—will have baseline audiograms that were obtained as part of the hearing acuity testing for FRA's Locomotive Engineer Qualification.

(

See

49 CFR 240.121). As part of the locomotive engineer certification process, many engineers will have had an audiogram that meets OSHA's 29 CFR 1910.95(h) requirements. As stated above, railroads must accept these baseline audiograms if they were obtained in compliance with the requirements found in 29 CFR 1910.95(h).

See

Qualification and Certification of Locomotive Engineer, 49 CFR part 240.

In essence, then, FRA is “grandfathering” certain pre-existing baseline audiograms. FRA is grandfathering these baseline audiograms, because they provide a more accurate picture of an individual's initial hearing ability. They indicate an employee's initial hearing level and thus, when compared with subsequent audiograms, they will reflect the true extent of an employee's hearing loss (if any). In addition, grandfathering these baseline audiograms eliminates unnecessary costs for the railroad, because railroads do not need to re-test employees that already have baseline audiograms.

OSHA also decided to adopt a lenient policy on accepting baseline audiograms that were taken before the promulgation of the hearing conservation amendment. OSHA noted that it would be flexible in accepting or grandfathering old baseline audiograms, because in most cases, this would be more protective of employees;

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

See

48 FR 9738.

Many railroads have expressed concern about the record-keeping requirements associated with grandfathered baseline audiograms. Section 227.121 requires railroads to maintain records of employee audiometric tests and to retain them for the duration of the employee's employment. Those records should include information such as the name and job classification of the employee, the date of the audiogram, the examiner's name, the date of the last acoustic or exhaustive calibration of the audiometer, and accurate records of the measurements of the background sound pressure levels in the audiometric test rooms. Railroads explain that they will not be able to provide all the required information for grandfathered baseline audiograms. FRA is fully aware of the railroads' concerns. FRA recognizes that, in some cases, railroads will not have some of that information and will not be able to obtain some of that information (

e.g.

, a railroad might not know the examiner or the last exhaustive calibration for a baseline audiogram that was obtained five years ago). FRA will be cognizant of that fact when evaluating what records are available and when evaluating the adequacy of the available records. Overall, FRA will take a practical approach toward the audiometric test record-keeping requirements for grandfathered baseline audiograms.

Second, FRA differs from OSHA with respect to periodic audiograms. OSHA's comparable requirement, “Annual Audiogram,” states that “[a]t least annually after obtaining the baseline audiogram, the employer shall obtain a new audiogram for each employee exposed” at or above the action level.

See

29 CFR 1910.95(g)(6).

FRA's proposed rule is stated in paragraph (f), “Periodic Audiogram.” Subparagraph (f)(1) requires railroads to offer audiometric testing to each covered employee at least once a year. FRA is aware that most large railroads already do this, and thus it should not impose a new burden on railroads. Subparagraph (f)(2) requires railroads to conduct audiometric testing of covered employees at least once every three years. This requirement mirrors part 240, in which locomotive engineers must receive a hearing test (as part of the engineer certification process) at least once every three years. See 49 CFR 240.201(c).

OSHA's application of this provision may be at variance with the language.

See

OSHA's Standard Interpretations, “Free audiometric testing for employees exposed over the action level,” July 27, 1987. For a copy of the letter,

see

http://www.osha.gov/pls/oshaweb/ owadisp.show_document?p_ table= INTERPRETATIONS&p_id=19570.

This provision reflects a compromise that evolved out of RSAC discussions. While employees often disfavor mandatory hearing testing, railroads generally favor mandatory hearing testing. To satisfy both concerns, FRA established a compromise position whereby railroads must test employees at least once every three years but must offer testing at least once a year. This provision is also important, because its provides additional assurances that FRA's hearing conservation efforts will be effective. The RSAC discussions indicate that the employee participation in existing railroad hearing conservation programs has been low. RSAC members agree that the effectiveness of a hearing conservation program would be improved by increased participation, and these provisions increase participation.

Third, FRA's proposal differs from OSHA's regulation with respect to time frames. In 29 CFR 1910.95(g)(7)(ii), if an annual audiogram shows that an employee has experienced a standard threshold shift, OSHA gives an employer 30 days to obtain a re-test. By comparison, FRA proposes to give an employer 90 days to obtain a re-test. See § 227.109(g)(2). FRA's standard gives employers more time to obtain a re-test, because FRA realizes that railroads can experience administrative difficulties in testing their employee population. The railroad employee population is widely dispersed, is subject to statutory Hours of Service limitations, and often works irregular hours.

In 29 CFR 1910.95(g)(8)(i), OSHA's standard provides that, if a comparison of the annual audiogram and the baseline audiogram indicates that a standard threshold shift has occurred, the employer shall inform the employee within 21 days. By contrast, FRA's proposal states that the railroad shall inform the employee of the determination within 30 days.

See

§ 227.109(h)(1). FRA's standard provides railroads with more time, because FRA is taking into account the mobile railroad workforce and railroad's difficulty in providing notice to that mobile workforce. Moreover, there is no substantial harm if the railroads have an additional nine days to notify employees.

Section 227.111 Audiometric Test Requirements

Once again, this section is almost identical to OSHA's Audiometric Test Requirements. OSHA's requirements can be found at 29 CFR 1910.95(h). FRA's proposed §§ 227.111(a) through (d) are identical to OSHA's §§ 1910.95(h)(1) through (h)(5). Section 227.111(a) provides that audiometric tests shall be pure tone, air conduction hearing threshold examinations and shall test frequencies including 500, 1000, 2000, 3000, 4000, and 6000 Hz. Section 227.111(b) addresses audiometers, § 227.111(c) addresses pulse-tone and self-recording audiometers, and § 227.111(d) addresses room requirements for audiometric testing.

In § 227.111(e), FRA's proposed rule differs from OSHA's rule in two ways, one minor and one substantial. The minor difference is found in § 227.111(e)(1), where FRA adds “or by appropriate calibration device.” In OSHA's rule the audiometer shall be checked by testing a person with known, stable hearing thresholds. FRA's rule allows that method and also allows the audiometer to be tested with an appropriate calibration device.

The more substantial difference is found in § 227.111(e)(3). OSHA requires employers to perform an exhaustive calibration of the audiometer at least every two years. As a general rule, FRA is also requiring railroads to perform an exhaustive calibration at least every two years. However, FRA is proposing stricter requirements for mobile test vans. FRA proposes that railroads perform an exhaustive calibration of the audiometers on mobile test vans at least once a year.

FRA proposes this stricter requirement for mobile vans because of the nature of mobile service work. Mobile vans are constantly in movement, and so the audiometric equipment in those mobile vans are subject to greater mechanical stress. An exhaustive annual calibration will ensure that the audiometer is continually producing accurate test results. Moreover, the cost of such a calibration is low. Accordingly, FRA concluded that the minimal cost of this stricter requirement would be easily offset by the assurance of more accurate test data.

Section 227.113 Noise Operational Controls

This section provides for the use of noise operational controls. As explained in the background section of this preamble, noise operational controls are the functional equivalent of OSHA's term “administrative controls.” Operational controls refer to efforts to limit workers' noise exposure by modifying workers' schedules or locations, or by modifying the operating schedule of noisy machinery. Examples of operational controls include, but are not limited to, the following: Placement of a newer (

i.e.

, quieter) locomotive in the lead; rotation of employees in and out of noisy locomotives; and variation of employee's routes,

e.g.

, rotation of employees on routes that have many grade crossings (which means that horn is sounded more often). Operational controls are beneficial, because they help reduce the total daily noise exposure of employees, thereby reducing the harmful cumulative effects of noise. They also make the environment safer and take the burden off employees to protect himself or herself. FRA seeks comments from the public on the proposed use of this measure.

This proposed regulation does not require railroads to use operational controls. (This is unlike OSHA's standard, which makes operational controls mandatory). Rather, this regulation gives railroads the option of using operational controls. Railroads can use operational controls, by themselves, to lower the total noise dose exposure (as long as the total noise dosage is not 90 dB(A) as an 8-hour TWA, in which case the railroad must require hearing protection). Railroads can also use operational controls in combination with the other controls. Those other controls include hearing protection and FRA's design, build, and maintenance requirements (

i.e.

, those items found in § 229.121, through which FRA has embodied OSHA's concept of engineering controls). FRA realizes operating requirements and labor agreements may affect a railroad's ability to use noise operational controls; nevertheless, FRA would like railroads to remain open to their use.

While operational controls will be an option for all railroads, FRA expects that the smaller railroads will be in the best position to use them and benefit from the flexibility that they provide. Small railroad work is characterized by more limited hours of operation and more flexible work rules, and thus it is more conducive to the use of operational controls. Noise operational controls are even more useful to small railroads since they rarely have the opportunity to implement engineering controls. Unlike larger railroads, small railroads infrequently buy new locomotives or rebuild old locomotives.

The regulation notes that “[w]hen employees are exposed to sound exceeding an 8-hour TWA of 90 dB(A), railroads may use noise operational controls.” FRA would like to clarify, however, that railroads may consider noise operational controls at any point in time. In other words, railroads need not wait until sound reaches an 8-hour TWA of 90 dB(A) before considering and/or using operational controls.

Section 227.115 Hearing Protectors

This section addresses another measure—hearing protectors (HP)—that can be used to minimize employee exposure to noise in the locomotive cab. The term “hearing protector” is defined in § 227.5. However, in simpler words, a hearing protector is a “personal safety product that is worn to reduce the harmful auditory and/or annoying effects of sound.”

Hearing protectors can be divided into three main categories: (1) Ear plugs are placed in or against the entrance of the ear canal to form a seal and block sound. (2) Ear muffs fit over and around the ears to provide an acoustic seal against the head. (3) Helmets encase the entire head.

Berger, Elliott H. (2000). “Hearing Protection Devices” in The Noise Manual, edited by Elliott H. Berger, Larry H. Royster, Dennis P. Driscoll, Julia Doswell Royster, and Martha Lane, American Industrial Hygiene Association, 381.

Berger at 383.

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

FRA invites comments from the public on the use of these types of hearing protection.

See

the discussion below on § 227.121(d) for a further discussion of radio headsets.

Paragraph (a) proposes that railroads shall require the use of hearing protectors where employees are exposed to sound exceeding an 8-hour time-weighted-average of 90 dB(A). Paragraphs (b)-(e) are modeled after the similar OSHA provision, which is located at 29 CFR 1910.95(i).

There is one significant difference between FRA's proposal and OSHA's provision. FRA has added subparagraph (b)(2), which requires railroads to consider two important factors when offering (and requiring) hearing protectors: (1) Employees' ability to understand and respond to voice communications, and (2) employees' ability to hear and respond to audible warnings. This requirement addresses FRA's concern that the use of hearing protection may be counter-productive, especially for employees with existing hearing loss. If, for example, there is a cab employee who is exposed to a TWA of 85 or 86 dB(A), the railroad will not want to simply put 30 dB noise reduction HP on that employee, because it will reduce the employee's hearing ability and thus the employee's ability to listen and communicate in the cab. The ability of these employees to discriminate speech and recognize other auditory clues can be critical to avoiding train accidents and incidents. In the transportation industry, there are important concerns about communication, in general, and about speech communication in noise, in particular. FRA seeks comment from the public on the proposal contained in this regulation, as well as any suggestions as to how best address this issue.

During meetings, some labor members of the RSAC noted their unease with the hearing protector requirement located in § 227.115(b)(2). They are concerned that some railroads might use a mandatory hearing protector provision as a disciplinary tool or as a means for harassing an employee. They also state that some employees find HP to be uncomfortable, and if railroads unnecessarily mandate the use of HP, compliance may erode and employees could encounter excessive noise exposure. FRA believes there are many beneficial aspects to HP, and thus FRA is including this section. FRA seeks comment from the public on these concerns.

Paragraph (d) generated a great deal of discussion and thus is discussed here. Paragraph (d) states that “The railroad shall give employees the opportunity to select their hearing protectors from a variety of suitable hearing protectors. The selection shall include devices with a range of attenuation levels.” This paragraph is intended to help ensure that railroads offer employees suitable hearing protectors. Providing a choice of suitable devices increases the likelihood that the employee will use the device as required. The first sentence of this paragraph is almost identical to OSHA's

rule. The second sentence is an addition to FRA's rule. FRA included the second sentence to acknowledge the importance of having a variety of hearing protectors with a range of hearing attenuation levels. Ensuring inclusion of low or moderate attenuation devices furthers safety by facilitating communication and detection of audible cues in the workplace.

The related matter of electronic communication headsets arose during Working Group meetings and generated extensive discussions. Railroad representatives strongly disfavor the use of these devices. They maintain that these types of devices are ineffective and have gained poor acceptance by crews. They also assert that it is expensive for them to purchase such devices and to apply the necessary wiring to locomotives to use these devices. Labor representatives, in response, agree that these devices have gained poor acceptance by crews, but assert that the poor acceptance is due to the conditions of their use,

i.e.

, non-temperature controlled locomotive cabs make for a warm cab environment and the resulting heat build-up under the headsets causes discomfort. Labor representatives believe that these hearing protection devices enhance communication and that crews would more widely and readily accept these devices if the circumstances of their use were improved.

For the purposes of this rule, FRA does not require a railroad to offer electronic communication headsets (wired or wireless), but FRA does not intend to discourage the use of this technology. If a railroad elects to accommodate an employee with hearing loss by providing that employee with an electronic headset, the railroad would also need to provide the other regularly assigned crew members with compatible equipment.

There are a few other miscellaneous issues related to this provision. With respect to locomotive engineers, the issue of hearing acuity is addressed in 49 CFR Part 240. In addition, with respect to crew members with documented hearing loss, the proposed rule does not vary or add to the railroad's duties under the Americans with Disabilities Act.

Section 227.117 Hearing Protector Attenuation

FRA's proposal is identical to OSHA's Hearing Protector Attenuation provisions. OSHA's standard is found at 29 CFR 1910.95(j). Paragraph (a) provides that a railroad shall evaluate HP attenuation for the specific noise environments in which the protector will be used and directs that a railroad shall use one of the methods described in Appendix B to this part, “Methods for Estimating the Adequacy of Hearing Protector Attenuation.” Those methods include the Noise Reduction Rating (NRR), NIOSH methods #1, #2, and #3, and objective measurement.

FRA seeks comment on an additional method, “Method B,” which is not included in Appendix B. Method B refers to the ANSI S12.6-1997 entitled Methods for Measuring Real-Ear Attenuation of Hearing Protectors. This standard “provides attenuation estimates based on the responses of subject who are given the manufacturer's directions and are told to fit the device themselves as best they can.”

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.”

Although this method is not included in Appendix B, FRA thinks that it would be a useful method and so seeks comment on its inclusion in the rule as yet one more method of measuring hearing protector attenuation.

Council for Accreditation in Occupational Hearing Conservation “Hearing Conservation Manual,” Fourth Edition, 114 (2002).

Id.

Paragraph (b) states that hearing protectors shall attenuate employee exposure to an 8-hour TWA of 90 decibels or lower, as required by § 227.115 of this subpart.

Paragraph (c) provides that hearing protectors for employees who have experienced a STS must attenuate exposure to an 8-hour time-weighted average of 85 decibels or lower. During RSAC discussions, a railroad representative raised some practical concerns about this requirement. Per § 227.115(d), an employee selects his hearing protection. The railroad representative is concerned that an employee might select hearing protection that is not protective enough,

e.g.

, an employee might want to use HP with lower attenuation because he or she finds it more comfortable. FRA notes that a railroad should offer its employees a variety of hearing protectors with several different types of attenuation, all of which provide adequate protection.

Paragraph (d) explains that the railroads should re-evaluate the adequacy of hearing protector attenuation wh

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