[Federal Register: June 23, 2004 (Volume 69, Number 120)]
[Proposed Rules]
[Page 35145-35192]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23jn04-32]
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Part II
Department of Transportation
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Federal Railroad Administration
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49 CFR Parts 227 and 229
Occupational Noise Exposure for Railroad Operating Employees; Proposed
Rule
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Parts 227 and 229
[Docket No. FRA 2002-12357, Notice No. 1]
RIN 2130-AB56
Occupational Noise Exposure for Railroad Operating Employees
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: FRA is proposing to amend its occupational noise standards for
railroad employees whose predominant noise exposure occurs in the
locomotive cab. FRA's existing standard (issued in 1980) limits cab
employee noise exposure to certain levels based on the duration of
their exposure. This proposed rule modifies that standard and also sets
out additional requirements.
The NPRM proposes to require railroads to conduct noise monitoring
and to implement a hearing conservation program for railroad operating
employees whose noise exposure equals or exceeds an 8-hour time-
weighted average of 85 decibels. The NPRM also proposes design, build,
and maintenance standards for new locomotives and maintenance
requirements for existing locomotives. FRA expects that this proposed
rule will reduce the likelihood of noise-induced hearing loss for
railroad operating employees.
DATES: (1) Written Comments: Written comments must be received on or
before September 21, 2004. Comments received after that date will be
considered to the extent possible without incurring additional expense
or delay.
(2) Public Hearing: Requests for a public hearing must be in
writing and must be submitted to the Department of Transportation
Docket Management System at the address below on or before August 9,
2004. If a public hearing is requested and scheduled, FRA will announce
the date, location, and additional details concerning the hearing by
separate notice in the Federal Register.
ADDRESSES: You may submit comments (identified by DOT DMS Docket Number
FRA-2002-12357) by any of the following methods:
Web site: http://dms.dot.gov. Follow the instructions for
submitting comments on the DOT electronic docket site.
Fax: 202-493-2251.
Mail: Docket Management Facility; U.S. Department of
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401,
Washington, DC 20590-001.
Hand Delivery: Room PL-401 on the plaza level of the
Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
Federal eRulemaking Portal: Go to http://www.regulations.gov.
Follow the online instructions for submitting
comments.
Instructions: All submissions must include the agency name and
docket number or Regulatory Identification Number (RIN) for this
rulemaking. Note that all comments received will be posted without
change to http://dms.dot.gov, including any personal information
provided. Please see the Privacy Act heading under Regulatory Notices.
Docket: For access to the docket to read background documents or
comments received, go to http://dms.dot.gov at any time or to Room PL-
401 on the plaza level of the Nassif Building, 400 Seventh Street, SW.,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Jeffrey Horn, Economist, Office of
Safety, Federal Railroad Administration, 1120 Vermont Avenue, NW., Mail
Stop 25, Washington, DC 20590 (em-mail: 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.
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This definition makes clear that FRA has jurisdiction over (1)
rapid transit operations within an urban area that are connected to the
general railroad system of transportation, and (2) all freight,
intercity, passenger, and commuter rail passenger operations regardless
of their connection to the general railroad system of transportation or
their status as a common carrier engaged in interstate commerce. FRA
has issued a policy statement describing how it determines whether
particular rail passenger operations are subject to FRA's jurisdiction
(65 FR 42529 (July 2, 2000)). The policy statement is located in
Appendix A to parts 209 and 211.
Pursuant to its statutory authority, FRA promulgates and enforces a
comprehensive regulatory program to address railroad track, signal
systems, railroad communications, rolling stock, rear-end marking
devices, safety glazing, railroad accident/incident reporting,
locational requirements for dispatching of U.S. rail operations, safety
integration plans governing railroad consolidations, merger and
acquisitions of control, operating practices, passenger train emergency
preparedness, alcohol and drug testing, locomotive engineer
certification, and workplace safety. In the area of workplace safety,
the agency has issued a variety of standards designed to protect the
health and safety of railroad employees. For instance, FRA requires
ladders and handholds to be installed on rail equipment in order to
prevent employee falls (part 231). FRA requires locomotive cab floors
and passageways to remain clear of debris and oil in order to prevent
employee slips, trips, and falls (Sec. 229.119). FRA requires blue
signal protection in order to protect employees working on railroad
equipment from injuries due to the unexpected movement of the equipment
(part 218). FRA has rules that provide for the protection of railroad
employees working on or near railroad tracks in order to decrease the
risk of employees falling from railroad bridges and of being struck by
moving trains (part 214).
B. FRA-OSHA Jurisdiction for Occupational Safety and Health Issues
FRA and the U.S. Occupational Safety and Health Administration \1\
(OSHA) have a complementary relationship and overlapping jurisdiction
with respect to occupational safety and health issues in the railroad
industry. OSHA regulates conditions and hazards affecting the health
and safety of employees in the workplace. OSHA's jurisdiction extends
to all types of employment, except where another Federal agency
exercises statutory authority and displaces OSHA pursuant to section
4(b)(1) of the Occupational Safety and Health Act of 1970.\2\ Section
4(b)(1) permits Federal agencies to oust OSHA's regulatory and
enforcement authority where that agency pronounces its own regulations
or standards or articulates a formal position that a particular working
condition should go unregulated.
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\1\ OSHA is an agency within the U.S. Department of Labor.
Congress created OSHA with the Occupational Safety and Health Act of
1970 (``OSH Act''). Pursuant to the OSH Act, employers have a duty
to protect workers from all kinds of hazards, including noise.
\2\ See 29 U.S.C. 653(b)(1). This section provides:
Nothing in this Act shall apply to the working conditions of
employees with respect to which other Federal agencies * * *
exercise statutory authority to prescribe or enforce standards or
regulations affecting occupational safety or health.
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In 1978, FRA issued a Statement of Policy setting out the
respective areas of jurisdiction between FRA and OSHA in the railroad
industry.\3\ In that Policy Statement, FRA drew the jurisdictional line
between ``occupational safety and health'' issues in the railroad
industry and work related to ``railroad operations,'' with FRA
exercising authority over railroad operations and OSHA over
occupational safety and health issues. Further, the Policy Statement
pointed to FRA's ``proper role'' as concentrating its ``limited
resources in addressing hazardous working conditions in those
traditional areas of railroad operations'' (i.e., movement of equipment
over the rails'') in which FRA has special competence and expertise.
(43 FR 10585). Often, railroad working conditions are so unique that a
regulatory body other than FRA would not possess the requisite
expertise to determine appropriate safety standards.
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\3\ See 43 FR 10583 (March 14, 1978).
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As a general rule, FRA exercises its statutory jurisdiction over
railroad employee working conditions where employees are engaged in
duties that are intrinsic to ``railroad operations,'' where the
identical conditions generally do not occur in typical industrial
settings, and where the hazard falls within the scope of FRA's
expertise. Historically, the concept of ``railroad safety'' has
included the health and safety of employees when they are engaged in
railroad operations. In its 1978 Statement concerning employee
workplace safety, FRA stated:
The term `safety' includes health-related aspects of railroad
safety to the extent such considerations are integrally related to
operational safety hazards or measures taken to abate such hazards.
43 FR 10585.
Hazards that impact the health of railroad employees engaged in
railroad operations may also result in adverse impacts on railroad
safety, and so there is often a clear nexus between railroad safety and
employee health. An example of this jurisdiction is seen in FRA's
issuance of locomotive sanitation standards.\4\ There, FRA promulgated
regulations that address toilet and washing facilities for employees
who work in locomotive cabs. 49 CFR 229.137-139.
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\4\ See 67 FR 16032 (April 4, 2002).
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FRA has also exercised this jurisdiction with regard to
occupational noise in the locomotive cab. FRA issued its current
standard for locomotive standard in 1980. While OSHA, in general,
regulates occupational noise in the workplace,\5\ FRA is the more
appropriate entity to regulate noise in the locomotive cab, because the
locomotive cab is so much a part of ``railroad operations.'' With
respect to noise in the locomotive cab, FRA wrote, in its Policy
Statement, that:
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\5\ See 29 CFR 1910.95 and 29 CFR 1926.52 (``Occupational Noise
Exposure'').
FRA views the question of occupational noise exposure of
employees engaged in railroad operations, during their involvement
in such operations, as a matter comprehended by the regulatory
fields over which FRA has exercised its statutory jurisdiction. FRA
is therefore responsible for determining what exposure levels are
permissible, what further regulatory steps may be necessary in this
area, if any, and what remedial measures are feasible when evaluated
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in light of overall safety considerations. 43 FR 10588.
C. Federal Occupational Noise Standards
OSHA's occupational noise standard was promulgated under the Walsh-
Healey Public Contracts Act of 1969 \6\ for the purpose of protecting
employees from workplace exposure to damaging noise levels. The Walsh-
Healey Act contained very limited provisions. Its noise standard
allowed for a permissible exposure level of 90 dB(A), a 5 dB exchange
rate, and a 90 dB(A) threshold. Pursuant to section 6(a) of the OSH
Act, OSHA adopted the Walsh-Healey standard.
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\6\ 41 U.S.C. 35, et seq.
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In January 1981, OSHA promulgated a Hearing Conservation Amendment
to its occupational noise exposure standard. The amendment consisted of
requirements for noise measurements, audiometric testing, the use and
care of hearing protectors, employee training, employee education, and
recordkeeping. See 46 FR 4078 (1981). Portions of the amendment were
subsequently stayed for reconsideration and clarification. In 1983,
OSHA finalized the provisions of
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its Hearing Conservation Amendment by revoking various stayed
provisions, lifting the stay on other provisions, and making other
technical corrections. OSHA's revised regulation included a detailed
hearing conservation program. See 48 FR 9738 (1983). OSHA's
occupational noise standard applies, for the most part, to all industry
engaged in interstate commerce.\7\ OSHA's noise standard can be found
at 29 CFR 1910.95. As will be discussed in subsequent sections, FRA's
proposed standard is quite similar to OSHA's standard.
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\7\ OSHA has a general exclusion for the agriculture industry.
See 29 CFR 1928.21(b). OSHA exempts oil and gas well drilling and
servicing operations in its Hearing Conservation Amendment. See 29
CFR 1910.95(o). OSHA has a separate occupational noise regulation
that applies to the construction industry. See 29 CFR 1926.52.
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While OSHA is the primary regulator of noise in the workplace,
other federal agencies regulate specific occupational settings. FRA
regulates the occupational noise exposure of railroad operating
employees in the locomotive cab. The U.S. Air Force regulates the noise
environment of Air Force personnel.\8\ The Mine Safety and Health
Administration (MSHA) regulates the occupational noise exposure of
miners.
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\8\ See Air Force Occupational Safety and Health Standard 48-20,
``Hearing Conservation Program.''
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In 1999, MSHA issued a comprehensive rule that establishes uniform
requirements for all miners.\9\ In that rule, MSHA adopted a
permissible exposure level of 90 dB(A) as an 8-hour TWA. MSHA also
requires employers to use all feasible engineering and administrative
controls in order to reduce a miner's noise exposure to the permissible
exposure level. Where a mine operator is unable to reduce the noise
exposure to the permissible level, the mine operator must provide the
miner with hearing protectors (HP) and is required to ensure that the
miner uses them. In addition, where a miner is exposed at or above a
TWA of 85 dB(A), the employer must place the miner in a hearing
conservation program. The program must include exposure monitoring, the
use of hearing protectors, audiometric testing, training, and
recordkeeping. See 64 FR 49548, 49550 (1999).
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\9\ See 64 FR 49548 (September 13, 1999).
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II. History of FRA's Treatment of Occupational Noise
A. FRA's Noise Standard
In part 229, FRA establishes minimum federal safety standards for
locomotives. These regulations prescribe inspection and testing
requirements for locomotive components and systems. They also prescribe
minimum locomotive cab safety requirements. In 1980, FRA issued
standards for acceptable noise levels aboard a locomotive (Sec.
229.121).\10\
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\10\ For the Final Rule, see 45 FR 21092, 21105 and 21117 (March
31, 1980). For the Notice of Proposed Rulemaking, see 44 FR 29604,
29618 and 29627 (May 21, 1979).
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Section 229.121 was promulgated to protect the hearing and health
of cab employees and to facilitate crew communication. It provides that
noise level exposure in the cab may not exceed specific prescribed
levels. The provision limits employee noise exposure to an eight-hour
time-weighted average (TWA) of 90 dB(A) with a doubling rate of 5dB(A).
It also provides for an absolute upper noise limit of 115 dB(A). In
addition, it establishes procedures for noise testing.
At the time of the promulgation of the rule, there was discussion
as to the proposed noise exposure limits. One commenter to the proposed
rule took exception to the proposed 90 dB(A) 8-hour time limit and
suggested that 85 dB(A) was more appropriate. FRA explained that, in
selecting the proposed noise exposure limits, it attempted to ``strike
a balance between that which is most desirable and that which is
feasible.'' \11\ FRA acknowledged that more crew members would be at a
lower risk at 85 dB(A), but also acknowledged that there would be
problems with the technical feasibility of, and economic impact
associated with, an 85 dB(A) requirement. Based on the information
available and technology of the time, FRA determined that the 90 dB(A)
8-hour noise exposure limit would ``provide adequate protection for the
hearing, communication, and comfort of locomotive crews under presently
accepted standards.'' \12\
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\11\ 45 FR 21092, 21106 (March 31, 1980).
\12\ 45 FR 21092, 21106 (March 31, 1980).
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Section 229.121 does not address hearing conservation for
locomotive cab employees, including the use of personal protective
equipment, ongoing hearing testing, employee training on the cause and
prevention of hearing loss, and periodic noise monitoring in the
workplace. These are standard components of an occupational hearing
conservation program, and OSHA requires them of other industries.
In 1992, Congress enacted Section 10 of The Rail Safety Enforcement
and Review Act (RSERA) (Public Law 102-365, September 3, 1992; codified
at 49 U.S.C. 20103, note) in response to concerns raised by employee
organizations, Congressional members, and recommendations of the
National Transportation Safety Board (NTSB) concerning crashworthiness
of and working conditions in locomotive cabs. Section 10 of RSERA,
entitled Locomotive Crashworthiness and Working Conditions, required
FRA ``to consider prescribing regulations to improve the safety and
working conditions of locomotive cabs' throughout the railroad
industry. In order to determine whether regulations would be necessary,
Congress asked FRA to assess ``the extent to which environmental,
sanitary, and other working conditions in locomotive cabs affect
productivity, health, and the safe operation of locomotives.''
In response to the Congressional mandate set forth in Section 10 of
RSERA, FRA undertook steps to determine the health and safety effects
of locomotive cab working conditions. FRA studied a variety of working
conditions in locomotive cabs, including sanitation, noise,
temperature, air quality, ergonomics, and vibration. FRA prepared the
Locomotive Crashworthiness and Cab Working Conditions Report to
Congress (``Report''), dated September 1996, which outlines the results
of these studies. A copy of the Report is included in the docket. With
respect to noise, FRA conducted a comprehensive survey, reviewed
historical data on noise-related incidents and investigations, and
gathered information on hearing protection programs.
B. Studies on Noise
FRA first considered the sound environment in the locomotive cab in
1971 as part of a study on highway-rail grade crossings.\13\ The study
examined the visibility and audibility of trains approaching rail and
highway grade crossings. An addendum to the study, authored by John
Aurelius, examined the sound environment in locomotive cabs.\14\
Observing two different test runs made under diverse conditions,
Aurelius recorded the sounds inside cabs operating in regular service.
Aurelius concluded that the noise level in a typical locomotive cab
approached 90 dB(A), which is the limit allowed by the Walsh-Healey
Public Contracts Act.\15\ Given that conclusion, Aurelius recommended
that a more detailed survey be conducted to determine whether the
exposures exceeded the
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legal limits and if so, under what conditions.
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\13\ John Aurelius and Norman Korebor, ``The Visibility and
Audibility of Trains Approaching Rail--Highway Grade Crossings,''
Report No. FRA-RP-71-2, May 1971.
\14\ John P. Aurelius, ``The Sound Environment in Locomotive
Cabs,'' Report No. FRA-RP-71-2A, July 1971.
\15\ See 41 U.S.C. 35.
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In 1980, Roger Kilmer, under the auspices of the National Bureau of
Standards, conducted an extensive study on the noise environment in
locomotive cabs.\16\ Kilmer selected eighteen test runs that covered a
wide range of operational conditions, trip lengths, and geographical
conditions. In general, Kilmer concluded that ``based on the group of
locomotives tested, it does not appear that overexposure to noise is a
widespread problem for locomotive crews under the current OSHA
standard.'' \17\ Kilmer explained that noise exposure was within
acceptable limits for two reasons: (1) locomotives operate in such a
way that the sources which generate high sound levels (i.e., horn and
brakes) operate for only short periods of time, and (2) locomotives
spend a great deal of time in idle, which involves sound levels below
90 dB. However, the report also recognized that overexposure can, and
does, occur. The report explained that the level of overexposure
depends on the type of locomotive and the nature of the run. The next
step, according to Kilmer, was to determine the type of monitoring that
should be used to identify the cases where overexposure may occur.
Kilmer advocated a simplified test procedure to screen locomotives.
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\16\ Roger D. Kilmer, ``Assessment of Locomotive Crew In-Cab
Occupational Noise Exposure,'' National Bureau of Standards. Report
No. FRA-ORD-80/91, December 1980.
\17\ Kilmer at 113-114.
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C. FRA's Report to Congress
FRA conducted an extensive noise survey of actual noise levels in
locomotive cabs. The survey sought to determine whether cab working
conditions impaired a crew's ability to safely operate a locomotive.
FRA field inspectors traveled aboard locomotives while the crew
operated the locomotive in a ``normal'' fashion (i.e., as though FRA
personnel were not present). The inspectors measured cab noise with a
Metrosonics Db-3100 Metrologger. The inspectors conducted a total of
350 noise measurements, all between 1992 and 1994. FRA had intended to
run the noise tests over 8-hour time periods, but that was not possible
due to the varying lengths of the train routes. Tests performed on the
eastern routes tended to be shorter in length, and tests on the western
routes tended to be longer in length. The noise tests were run, on
average, for approximately 6.5 hours.
The 350 measurements included 234 measurements from winter/summer
tests and 116 measurements evaluated in response to inquiries and
complaints. Both the complaint-based investigations and the hot summer
tests (often conducted with windows open) represent railroad operations
that are more likely to present unacceptable noise environments. As a
result, the Report pointed out that measurements used in this survey
did not constitute a random sample of locomotives or locomotive
operating conditions. The Report directed the reader to exercise
caution in characterizing the significance of the findings.
FRA inspectors identified several factors as major contributors to
high average cab noise levels and to significant peak readings of 95
dB(A) or higher. Those major contributors were: radios; audible warning
devices; diesel engines; tunnels, sheds, and bridges; close
embankments; open windows; dynamic braking; loose cab sheet metal;
loose side windows; and miscellaneous loose and/or poorly fitted cab
equipment. While collecting the survey data, inspectors also noted the
use of hearing protection by train crews. FRA observed that, in most
cases, crews wore hearing protection in noise environments that
exceeded the FRA standard.
FRA reviewed several sources of data and information in the Report.
FRA reviewed historical data for noise-related incidents and
investigations. Using its accident/incident database, FRA compiled data
on locomotive cab member injuries and illnesses attributable to
excessive noise levels. Railroads had reported no incidents prior to
1992, 23 incidents in 1992, and 18 incidents in 1993. FRA also reviewed
complaints of alleged noise violations received by FRA from crew
members or their labor organizations. In addition, FRA gathered
information on the hearing conservation programs of several Class I
railroads by contacting the railroads' industrial hygienists. All
railroads stated that they had comprehensive hearing conservation
programs, that they were conducting audiometric exams, and that they
were providing hearing conservation training to both locomotive crews
and ground crews that work in excessively noisy areas. Finally, FRA
described the changing working conditions in the railroad industry,
i.e., the various measures that had been taken to reduce the effects of
noise in the cab. These steps included the introduction of new
locomotives with advanced sound reduction technology, as well as the
establishment of hearing conservation programs and the extensive use of
personal protective equipment.
Based on its findings, FRA concluded, among other things, that
certain locomotive crew assignments expose crews to increased noise
levels, thereby raising concerns of possible hearing loss and of
impaired communication. FRA also concluded that many factors, including
the sounding of the horn, engine noise, and radio volume, contribute to
noise levels that are equal to or exceed 85 dB(A) for a group of
locomotive assignments. In addition, FRA noted that human factors
literature suggests that excessive noise levels can impair mental
processes, increase fatigue, and increase the number of errors, while
simultaneously decreasing vigilance.
FRA then recommended several measures that, if implemented, might
reduce the exposure of operating crews to excessive noise levels. After
noting that several railroads have hearing conservation programs and
that FRA's current noise regulation lacks a hearing conservation
approach, FRA encouraged railroads without such programs to seriously
consider the development and implementation of such programs. In
addition, FRA stated that railroads should evaluate the use of sound-
insulated headsets with microphones in order to provide hearing
protection, to help ensure effective radio communications, and to
facilitate intra-crew communication.\18\ FRA also recommended that
railroads implement several administrative and engineering controls
(i.e., measures that reduce noise levels and minimize noise exposure in
locomotive cabs).
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\18\ See 227.115(d) and accompanying preamble language for a
further discussion of electronic communication devices.
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D. Wyle Report
The American Association of Railroads (AAR) commissioned Wyle
Laboratories to review the noise and vibration sections of FRA's Report
to Congress, as well as the 350 in-cab locomotive noise measurements
referenced in the Report. In December 1996, Wyle Laboratories produced
a Report entitled ``A Review of the Noise and Vibration Sections of the
Federal Railroad Administration's Report to Congress Entitled
`Locomotive Crashworthiness and Cab Working Conditions' '' (``Wyle
Report.'') \19\ A copy of the Wyle Report is included in the docket.
The Wyle Report reviewed Chapter 6 ``Locomotive Cab Noise'' and Chapter
10 ``Other Factors Affecting Locomotive Cab Working Conditions'' of
FRA's Report but focused most of its comments on Chapter 6. The Wyle
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Report acknowledged that FRA's noise measurements were, at that time,
the largest set of publicly available locomotive cab noise data and
were a valuable resource in analyzing and understanding the in-cab
noise environment. The Wyle Report disagreed with the two general
conclusions that FRA reached in Chapter 6.
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\19\ Wyle Report, WR 96-37, was prepared by Eric Stusnick, Ph.D.
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The Wyle Report disagreed with FRA's conclusion that ``[a>
significant minority of locomotive cabs had noise levels high enough to
contribute to long-term hearing loss after long-term repetitive
exposure, and in absence of personal protective equipment.'' \20\ It
stated that FRA's statistical analyses of locomotive cab noise exposure
measurements was flawed for three reasons.\21\ First, FRA compared its
8-hour TWA measurements from the Report to Congress with the 12-hour
TWA standard that is specified in 49 CFR 229.121. Second, FRA used a
definition of noise dose (in its analysis for the Report to Congress)
that had no lower sound level threshold, whereas 49 CFR 229.121
provides a definition of noise dose that uses a lower threshold of 87
dB. Third, FRA measured a sample of locomotive trips that was not
random and thus not an accurate representation of the total population
of trips. The Wyle report concluded that ``the result of these errors
is that the calculated TWA values are larger than would have been
obtained if the proper analysis were done on a properly stratified
random-sample of locomotive trips.'' \22\
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\20\ Wyle Report at 2-1.
\21\ Wyle Report at 2-2.
\22\ Wyle Report at 2-2.
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The Wyle Report also disagreed with FRA's conclusion that ``the
noise level in many locomotives was sufficiently high to interfere with
normal voice communication.'' \23\ The Wyle Report explained that FRA's
assertion was based on its statistical analysis that showed that
thirteen percent of the measured TWAs exceeded 88 dB. Earlier in the
Report, FRA had identified a sound level of 88 dB as the sustained
verbal communication limit. From that, FRA inferred that, where there
was a background sound level of 88 dB or more, crew members would need
to use a voice sound level equal to or greater than 88 dB (i.e., the
maximum that can be sustained to maintain verbal communication) in
order to communicate in the cab.
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\23\ Wyle Report at 2-12.
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The Wyle Report disagreed with that inference for three reasons.
First, the Wyle Report explained that a given TWA does not represent
the background sound level at any given time, because the TWA is an
average over a measurement period of all the sound levels that
occurred. A measured TWA of 88 dB does not mean that the sound level in
the cab was 88 dB for the entire trip; that TWA might result from a few
very loud sound levels and from the remainder at sound levels lower
than 88 dB--during which the crew could successfully communicate.
Second, the Wyle Report asserted that it is not necessary for the
speech sound level to be greater than or equal to the background sound
level (in order for the speech to be understood), because the ear can
distinguish communication from background noise based on its sound
level and its frequency content. Third, the Wyle Report asserted that
the sound level of radio messages usually contribute a great deal to
the TWA value and they are communication. Thus, it is inappropriate to
consider sound levels due to radio messages as part of the background
noise. In addition, the Wyle Report did note that ``voice communication
is certainly difficult'' when the horn is being sounded or the brake
systems are being exhausted.
E. FRA's Follow-Up to the Report to Congress and Wyle Report
FRA hired a contractor to review FRA's Report to Congress, the
accompanying data, and the Wyle Report. In June 1997, consultants with
Harris Miller, Miller & Hanson, Inc. prepared a Technical Memorandum
``Comments on AAR Review of Chapter 6, FRA Report to Congress
`Locomotive Crashworthiness and Cab Working Conditions.' '' A copy of
the Technical Memorandum is included in the docket. The Technical
Memorandum discussed each of the major points brought up in the AAR's
Review (i.e., the Wyle Report).
Harris Miller concluded that although FRA's noise measurements were
not part of a random sample and although FRA's analysis was not the
most rigorous, the data set used by FRA in the Report to Congress still
provided a valuable assessment of the noise levels in locomotive cabs.
Harris Miller also concluded that the data supported a ``general
conclusion that hearing conservation programs are warranted for some
locomotive crew assignments.'' In addition, while acknowledging that
the data could not be used to make statistical inferences, Harris
Miller explained that the data still did show that ``noise inside a
small percentage of locomotives exceeds the FRA and OSHA permissible
noise exposure limits.'' \24\
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\24\ Technical Memorandum from Hugh J. Saurenman and Lance D.
Meister of Harris, Miller, Miller, & Hanson (June 18, 1997), 1.
---------------------------------------------------------------------------
In the area of voice communication, Harris Miller found that FRA's
conclusion that ``frequent high in-cab noise levels make speech
communication difficult between crew members over two-way radios'' was
appropriate, even if FRA's analysis of the pertinent data was not
rigorous. In addition, Harris Miller stated that the normal background
noise level inside locomotive cabs is high enough to make voice
communication difficult. Harris Miller further explained that ``even
accounting for locomotive noise being weighted toward low frequencies,
with a background sound level of 88 dBA, crew members will need to
shout if they are to be understood by others in the cab.'' Thus, they
concluded that for some locomotive crew assignments, communication
could be categorized as ``difficult.'' \25\
---------------------------------------------------------------------------
\25\ Technical Memorandum at 5.
---------------------------------------------------------------------------
F. FRA's Administrator's Roundtable Discussion on Noise
On April 3, 1997, FRA hosted a roundtable discussion on noise. The
transcript from the roundtable discussion is included in the docket.
There were 32 participants, including representatives from FRA, other
federal agencies, railroads, labor organizations, locomotive
manufacturers, and trade associations. The meeting provided an
opportunity to discuss the effects of occupational noise exposure on
railroad workers and on the industry as a whole. FRA also explained
that the roundtable was an opportunity to understand best practices, to
exchange information about railroad industry conservation programs, and
to learn about educational hearing initiatives.\26\
---------------------------------------------------------------------------
\26\ Transcript at 13-14.
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Several individuals made presentations to the group. A physician
provided some historical background on hearing loss.\27\ He explained
that hearing loss had been ``substantially neglected'' for years.\28\
Then, in the late 1970s, government policy makers realized that the
emphasis should be placed on prevention, rather than treatment and
care, and that the industry was in a position to educate its workforce
and implement preventative measures that produce a healthier workforce.
As a result of that sentiment, OSHA wrote and issued its noise
regulation.
---------------------------------------------------------------------------
\27\ Transcript at 25-29.
\28\ Transcript at 26-27.
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[[Page 35151]]
A union representative provided some input from the employee's
perspective.\29\ He explained that conditions on a locomotive can be
extremely noisy and that those noisy conditions can lead to pain,
discomfort, and bad decisions. He acknowledged that some technological
progress has been made on locomotives, but that a difficult situation
remained ahead.
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\29\ Transcript at 29-33.
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A carrier representative spoke about the carrier's perspective and
about some of the initiatives that his particular railroad had
undertaken.\30\ He discussed the elements of a hearing conservation
program. He also spoke about his railroad's comprehensive mobile
medical service that traveled throughout the country and about his
railroad's extensive training program that covers hazard communication
in addition to the traditional audiometric testing training. In
addition, he mentioned that his railroad uses communication tools, such
as newsletters, pamphlets, and daily job briefings, to increase
employee awareness about noise issues. Finally, he briefly addressed
control measures that his railroad uses, including hearing protection,
equipment specifications, and alterations to track equipment.
---------------------------------------------------------------------------
\30\ Transcript at 33-44.
---------------------------------------------------------------------------
Next, FRA presented its Report to Congress, summarizing the
contents and noting that the Report was now a ``launching pad'' and
``baseline'' from which to move forward.\31\ In addition, the New York
League for the Hard of Hearing spoke to the group.\32\ The Executive
Director addressed the importance of prevention and treatment of
hearing loss. He also stressed the need for programs that educate
people about the dangers of excessive noise exposure. The roundtable
participants subsequently discussed a wide range of topics, including:
the available scientific data related to occupational noise exposure
and hearing loss in the railroad industry; \33\ the identification of
the appropriate noise exposure threshold at which noise adversely
affects railroad workers' health and job performance; a review of
voluntary noise reduction and conservation programs that industry
participants had already implemented; \34\ and an assessment of what
remained to be done in addressing the noise issue.
---------------------------------------------------------------------------
\31\ Transcript at 10, 13, 23, 50-57.
\32\ Transcript at 69-82.
\33\ Transcript at 92-94.
\34\ Transcript at 33, 88-89 ?>
---------------------------------------------------------------------------
Participants generally agreed that exposure to high levels of noise
adversely affects workers and the industry; however, participants did
not agree on the threshold level of noise exposure at which these
effects occur.\35\ One individual asked what the proper damage risk
criteria should be and what is safe noise verus unsafe noise.\36\
Another individual noted that there is controversy between scientists
and regulators as to what level of protection is necessary to protect
individuals from hearing loss.\37\
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\35\ Transcript at 96-97.
\36\ Transcript at 111.
\37\ Transcript at 42-43.
---------------------------------------------------------------------------
As well, the potential damaging effects of noise on railroad
workers arose on several occasions. In addition to noting the obvious
damaging affects of noise on railroad workers' hearing abilities, many
participants pointed out that there were several other potential
damaging effects of noise exposure. One participant noted that it is
more than just one's ears that respond to noise; bodies also respond to
noise, for example, in the form of hypertension, anxiety, nausea, or
other medical ailments.\38\ Another participant noted that there had
been little discussion about the impact of noise on fatigue.\39\
Several participants also noted that they lacked full understanding of
the effects of noise on railroad worker job performance.\40\
---------------------------------------------------------------------------
\38\ Transcript at 93
\39\ Transcript at 83.
\40\ Transcript at 100-102.
---------------------------------------------------------------------------
During the course of the discussions, the participants acknowledged
the positive steps taken thus far, that is, that industry participants
have implemented many voluntary noise reduction and hearing
conservation programs. Participants also acknowledged that there have
been technological advances that have led to the manufacture of quieter
locomotives.\41\ Participants concluded by identifying the need for
more current research and data on noise in the rail industry.\42\
---------------------------------------------------------------------------
\41\ Transcript at 115-118.
\42\ Transcript at 98-99.
---------------------------------------------------------------------------
III. The Railroad Safety Advisory Committee (RSAC) Process
A. RSAC
In March 1996, FRA established the RSAC, which provides a forum for
developing consensus recommendations on rulemakings and other safety
program issues. The Committee includes representation from all of the
agency's major customer groups, including railroad carriers, labor
organizations, suppliers, manufacturers, and other interested parties.
A list of member groups follows:
American Association of Private Railroad Car Owners (AARPCO)
American Association of State Highway & Transportation Officials
(AASHTO)
American Public Transportation Association (APTA)
American Short Line and Regional Railroad Association (ASLRRA)
American Train Dispatchers Department/BLE (ATDD/BLE)
AMTRAK
Association of American Railroads
Association of Railway Museums (ARM)
Association of State Rail Safety Managers (ASRSM)
Brotherhood of Locomotive Engineers (BLE)
Brotherhood of Maintenance of Way Employes (BMWE)
Brotherhood of Railroad Signalmen (BRS)
Federal Transit Administration (FTA)*
High Speed Ground Transportation Association
Hotel Employees & Restaurant Employees International Union
International Association of Machinists and Aerospace Workers
International Brotherhood of Boilermakers and Blacksmiths
International Brotherhood of Electrical Workers (IBEW)
Labor Council for Latin American Advancement (LCLAA)*
League of Railway Industry Women*
National Association of Railroad Passengers (NARP)
National Association of Railway Business Women*
National Conference of Firemen & Oilers
National Railroad Construction and Maintenance Association
National Transportation Safety Board (NTSB)*
Railway Progress Institute (RPI)
Safe Travel America
Secretaria de Communicaciones y Transporte*
Sheet Metal Workers International Association (SMWIA)
Tourist Railway Association Inc.
Transport Canada*
Transport Workers Union of America (TWUA)
Transportation Communications International Union/BRC (TCIU/BRC)
United Transportation Union (UTU)
*Indicates associate membership.
Where appropriate, FRA assigns a task to the RSAC, and after
consideration and debate, the RSAC may accept or reject the task. If
the task is accepted, the RSAC establishes a working group that
possesses the appropriate expertise and representation of interests to
develop recommendations to FRA for action on the task. The working
group develops the recommendations by consensus. The working group may
establish one or more task forces to
[[Page 35152]]
develop the facts and options on a particular aspect of a given task.
The task force reports to the working group. If a working group reaches
unanimous consensus on recommendations for action, the working group
presents the package to the RSAC for a vote. If a simple majority of
the RSAC accepts the proposal, the RSAC formally recommends the
proposal to FRA.
FRA then determines what action to take on the recommendation.
Because FRA staff has played an active role at the working group level
in discussing the issues and options and in drafting the language of
the consensus proposal, and because the RSAC recommendation constitutes
the consensus of some of the industry's leading experts on a given
subject, FRA is often favorably inclined toward the RSAC
recommendation.
However, FRA is in no way bound to follow the recommendation, and
the agency exercises its independent judgement on whether the
recommended rule achieves the agency's regulatory goal, is soundly
supported, and is in accordance with policy and legal requirements.
Often, FRA varies in some respects from the RSAC recommendation in
developing the actual regulatory proposal. If the working group or the
RSAC is unable to reach consensus on recommendations for action, FRA
moves ahead to resolve the issue through traditional rulemaking
proceedings.
On June 24, 1997, FRA presented the subject of locomotive cab
working conditions to RSAC. The purpose of this task was defined as
follows: ``To safeguard the health of locomotive crews and to promote
the safe operation of trains.'' The RSAC accepted this task (No. 97-2)
and formed a Locomotive Cab Working Conditions Working Group (``Working
Group'').
B. Working Group
Task 97-2 addressed several issues, one of which was noise
exposure. With respect to noise exposure, RSAC asked the Working Group
to complete two items: (1) Revise existing cab noise limits to take
into account current requirements of the OSHA standard, specifically as
it relates to hearing conservation programs, and (2) Continue efforts
to evaluate engineering controls and other measures used to minimize
noise exposure in locomotive cabs.
The Working Group consisted of representatives of the following
organizations, in addition to FRA:
AASHTO
APTA
ASLRRA
AAR
BLE
BMWE*
IBEW
Amtrak
RPI
SMWIA
TWUA
UTU
*Indicates associate membership
The Working Group's goal was to produce recommendations for
locomotive cab noise exposure standards warranted by an assessment of
available information on hearing loss, hearing conservation programs,
existing federal standards, and occupational injury data. The Working
Group decided that specific expertise would be needed to analyze
pertinent information and so it formed the Noise Task Force.
The Noise Task Force, which was established in September 1997, was
made up of industrial hygiene, safety, engineering, and medical staff
from carriers, labor organizations, and FRA. The Noise Task Force met
regularly over a period of several years to discuss several topics,
including hearing loss and noise exposure among locomotive cab
employees; existing railroad hearing loss prevention programs; OSHA's
occupational noise standards; equipment changes and procedures that
improve noise levels in the cab; hearing testing and training programs;
and noise monitoring.
The Task Force concluded that OSHA's standard for noise was an
appropriate framework and starting point for an update and revision to
FRA's existing noise regulation. The Task Force also identified several
areas where OSHA's regulation might be modified to create a FRA
regulation that could better address the occupational noise exposure of
the rail industry. The Task Force forwarded these findings to the
Working Group.
The Working Group conducted a number of meetings and discussed each
of the matters proposed in the NPRM. FRA has placed the minutes of
these meetings in the docket for this proceeding. Throughout this
preamble, we frequently discuss issues that were raised and views that
were expressed at the task force and working group levels. We discuss
these points to show the origin of certain important issues and the
course of discussion on these issues at the task force and working
group levels. FRA believes that this helps illuminate the facts FRA has
weighed in making its regulatory decisions and the logic behind those
decisions. The reader should keep in mind, of course, that only the
full RSAC makes recommendations to FRA, and it is the consensus
recommendation of the full RSAC on which FRA is acting.
The Working Group, using the preliminary findings of the Task
Force, developed recommendations for reducing the likelihood of hearing
loss for cab employees. The Working Group reached full consensus in
June 2003 and forwarded these recommendations to the RSAC. The RSAC
accepted these recommendations and on June 27, 2003, the RSAC voted to
forward these recommendations to FRA for rulemaking action. In large
part, this NPRM incorporates the RSAC's recommendations.
FRA has worked closely with the RSAC in the development of its
recommendations and believes that the RSAC effectively addressed
occupational noise exposure for cab employees. FRA has greatly
benefitted from the open, informed exchange of information that has
taken place during meetings. There is general consensus among labor,
management, and manufacturers concerning the primary principles FRA
sets forth in this NPRM. FRA believes that the expertise possessed by
the RSAC representatives enhances the value of the recommendations, and
FRA has made every effort to incorporate them in this proposal.
The Working Group will reassemble after the comment period for this
NPRM closes and will consider all comments received. Based on any
recommendations RSAC receives from the Working Group, RSAC will then be
in a position to make recommendations to FRA concerning the development
of a final standard.
IV. Fundamental Principles of Sound
A. Sound
Sound is a physical phenomenon brought about by oscillations in
pressure. Oscillations or vibrations cause pressure changes in a
medium, such as air. These pressure changes produce waves that emanate
away from the oscillating or vibrating source. If a listener is
present, the listener will experience these waves as an auditory
sensation. The effect of sound on a listener depends on three physical
characteristics of sound: amplitude, frequency, and duration.
The amplitude (i.e., the magnitude or intensity) of the pressure
change is measured in sound pressure level (SPL) and is perceived by
the listener as loudness. Sound pressure level, which is expressed in
decibels (dB), is a logarithmic measure. Because of the logarithmic
scale, a small increase in decibels represents a large increase in
[[Page 35153]]
sound energy. Technically speaking, each increase of 3 dB represents a
doubling of sound energy; an increase of 10 dB represents a tenfold
increase in sound energy, and an increase of 20 dB represents a 100-
fold increase. Frequency is an objective measurement of the physical
number of oscillations in a wave per unit of time. It is expressed in
hertz (Hz) and is perceived by listeners as pitch. Duration usually
refers to the amount of time per day to which an individual is exposed
to noise. Noise exposure durations can be broadly classified into
continuous-type noises (i.e., continuing, varying, and intermittent)
and impulsive noises (i.e., there is a steep rise in the sound level to
a high peak, followed by a rapid decay).
B. Hearing and Hearing Loss
The ear is the sense organ that detects sound waves and sends those
signals to the brain for processing. The human ear has three primary
components--outer ear, middle ear, and inner ear. The outer ear directs
sound into the ear, the middle ear mechanically transmits the sound
waves from the air to the fluid-filled inner ear, and the inner ear
changes the sound waves from mechanical energy into nerve impulses.
This last process is completed in a small organ known as the cochlea.
In the cochlea, sensory cells respond to the mechanical vibrations,
change the vibrations into electrical energy, and transmit a message to
the brain via the auditory nerve.
Noise is essentially any unwanted or undesirable sound. Exposure to
high levels or extended durations of noise can cause hearing loss.
Noise-induced hearing loss (NIHL) can be temporary or permanent.
Temporary hearing loss, also called a temporary threshold shift,
results from short-term exposures to noise; hearing generally returns
to its former level after a period of rest. Permanent hearing loss,
also called a noise-induced permanent threshold shift, can result from
prolonged exposure to high noise levels over an extended period of
time. The extent of the damage depends on several factors: the overall
decibel level of the sound, the duration of the noise exposure, the
frequency spectrum of the noise source, and an individual's personal
susceptibility to noise damage.
A noise-induced permanent threshold shift is not reversible and
cannot be treated medically. Once it has occurred, the only course of
action is to prevent the further progression of hearing loss. Noise-
induced hearing loss causes difficulty in interpreting sounds and in
perceiving the loudness and pitch of sounds. Even when sounds are
amplified (e.g., with a hearing aid), the sounds may still remain
indistinct.
Noise induced hearing loss typically starts with threshold shifts
in the higher frequencies. The loss usually appears first at 3000 Hz,
4000 Hz, or 6000 Hz. If damaging noise exposure continues, the loss
spreads to the lower frequencies (i.e., between 500 Hz and 3000 Hz.)
The human voice ranges from 200 Hz to 4000 Hz, so these frequencies are
critical to human conversation. The loss of these frequencies is
detrimental to an individual's ability to understand speech.
C. Instrumentation
1. Measuring Hearing Levels
An individual's hearing level (or hearing acuity) can be measured
through the use of an audiometer. An audiometer measures an
individual's hearing level by testing an individual's ability to hear
various frequencies in each ear. The audiogram is a graphic
representation of an individual's hearing and it indicates how intense
or loud a sound must be at a given frequency before it can be detected
by a listener.\43\
---------------------------------------------------------------------------
\43\ 46 FR 4078 (1981).
---------------------------------------------------------------------------
There are several different types of audiometers, including manual,
self-recording, microprocessor, and computer-controlled. To administer
manual audiometers, examiners operate the frequency dial (to select the
stimulus tone, e.g., 500 Hz or 1000 Hz), the presentation level dial
(with levels in increments of 5 dB), and the signal presentation switch
(to turn the stimulus on or off). Then the examiner must identify and
document the hearing levels that qualify as thresholds. With self-
recording audiometers, a pen traces a subject's response to test
signals on a response card; a subject indicates his or her response by
operating a hand switch. Microprocessor audiometers contain a computer
chip that controls the audiometer. A related type, a computer-
controlled audiometer, has software in a personal computer that drives
the audiometer.\44\
---------------------------------------------------------------------------
\44\ Royster, Julia Doswell. (2000). ``Audiometric Monitoring
Phase of the HCP'' in The Noise Manual, edited by Elliott H. Berger,
Larry H. Royster, Dennis P. Driscoll, Julia Doswell Royster, and
Martha Lane, American Industrial Hygiene Association, 470-473.
---------------------------------------------------------------------------
2. Measuring Noise Exposures
This regulation specifies two different types of instruments that
can be used to measure noise exposures: Sound level meters (SLM) and
noise dosimeters. Sound level meters and noise dosimeters are small
instruments used to measure, among other things, sound metrics and/or
sound pressure levels. These instruments are usually equipped with
weighting networks that adjust the instrument frequency response to
predetermined frequency spectra of the measured sounds. The A-weighting
network, one type of weighting network, is designed to adjust the
instrument frequency to that which approximates the frequency response
of human hearing.
A SLM is a hand-held device that records the sound pressure level
(logarithm of the ratio of the sound pressure to a reference point) at
a given moment in time at a particular location. It consists of a
microphone, preamplifier, electronic circuits, and a readout display.
The microphone detects the small air pressure variations associated
with the sound and changes them into electronic signals. These signals
are then processed by the electric circuitry of the instrument. The
readout displays the sound level in decibels (dB). Since SLMs provide a
measure of sound pressure at only one point in time, it is generally
necessary to take several measurements at many different times during
the day to estimate noise exposure over a workday. SLMs are useful for
measuring the noise attributable to a given process or for
instantaneous (or spot) sound pressure level measurements.
An integrating sound level meter (iSLM) is a specific type of SLM.
It can be used to determine equivalent sound levels, which are the
energy-averaged sound pressure levels over a given measurement period.
An iSLM with data storage capabilities is useful in a noise monitoring
program, because it records sound level data, which can be thoroughly
analyzed later. This can be particularly useful when distinguishing
artifactual noise measurements from actual noise exposure.
Noise dosimeters are primarily used to assess individual noise
exposure. A noise dosimeter measures an employee's total noise dose for
the duration of a sampling period. A noise dosimeter stores sound level
measurements and integrates these measurements over time, providing an
average noise exposure reading for a given period of time (e.g., an 8-
hour workday). The noise dosimeter is designed to be worn by an
employee and should be placed in a location that measures the
employee's noise exposure but does not interfere with the employee's
work. For noise dosimeter results to be meaningful, the person
conducting the survey should maintain a log of the employee's
activities and correlate the exposure data with different locations and
[[Page 35154]]
activities. This allows the person conducting the survey to identify
noise sources.
The use and design of SLMs and dosimeters vary. SLMs are used for
measuring all types of sounds and noise, whereas noise dosimeters are
typically used only for personal monitoring. SLMs are designed to be
handheld or tripod-mounted instruments, whereas most noise dosimeters
are designed to be worn by the individual that is being monitored.
Also, the SLMs used in the industrial and scientific communities tend
to be Type 1 and Type 2,\45\ while noise dosimeters are typically Type
2 instruments.
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\45\ There are four grades of SLMs (types 0, 1, 2, and S), and
there are design tolerances associated with each grade. Type 0 SLMs
are used for laboratory purposes only, and type S SLMs are used for
special purposes. Type 1 SLMs are precision instruments intended for
noise measurements in the field and laboratory. On average,
measurements with a Type 1 SLM will have errors not exceeding plus
or minus 1 dB.
Type 2 SLMs are general purpose instruments intended for general
field use. Type 2 SLMs have design tolerances that are greater than
Type 1 and tend to be used where high-frequency (over 10 kHz) sound
components do not dominate. On average, measurements with a Type 2
SLM will have errors not exceeding plus or minus 2 dB.
---------------------------------------------------------------------------
3. Instrument Calibration
There are two types of instrument calibration that should be
performed on SLMs and noise dosimeters: Field system (routine) and
laboratory instrument (comprehensive). Field system calibration on a
noise dosimeter or SLM should be conducted on the instrument before and
after taking measurements. Field system calibration is necessary to
ensure that the instruments provide accurate measurements and to
establish the measurement system's sensitivity. Laboratory instrument
calibration should be conducted according to manufacturer's
recommendations (typically on an annual or biannual basis) and is
traceable to a national standards laboratory. In addition, laboratory
instrument calibration should be conducted after an instrument has been
repaired or has experienced problems during field calibrations.
Users should keep instruments well-maintained and should follow the
manufacturer's instructions for maintenance. If an instrument is used
often or is inadvertently bumped or dropped, it should be calibrated
more frequently. In addition, if an instrument is frequently or
extensively adjusted as a result of field calibration, it should be
calibrated more often.
V. Occupational Noise in the Railroad Industry
Noise is one of the most pervasive hazardous agents in the American
workplace. In the 1980's, the National Institute for Occupational
Safety and Health (NIOSH) identified noise-induced hearing loss (NIHL)
as one of the ten leading work-related diseases and injuries.\46\ In
the 1990's, NIOSH listed noise-induced hearing loss as one of the eight
most critical occupational diseases and injuries requiring research and
development activities within the framework of the National
Occupational Research Agenda.\47\ Noise is also one of the most
intrusive aspects of locomotive operations.\48\
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\46\ National Institute for Occupational Safety and Health
(NIOSH), ``Criteria for a Recommended Standard: Occupational Noise
Exposure, Revised Criteria 1998,'' National Institute for
Occupational Safety and Health, DHHS (NOISH) Pub. No. 98-126,
Cincinnati, OH (1998).
\47\ NIOSH, ``National Occupational Research Agenda,'' National
Institute for Occupational Safety and Health, DHHS (NIOSH), Pub. 96-
115, Cincinnati, OH (1996).
\48\ Human Factors Guidelines for Locomotive Cabs, DOT/FRA/ORD-
93/03 (November 1998).
---------------------------------------------------------------------------
There are many noise sources in a locomotive cab. The primary noise
sources are engine noise, locomotive horns, and brake noise. The nature
and level of noise generated by each source varies greatly. Diesel
engine noise is continuous, but it varies according to the engine load
and engine speed. The noise from locomotive horns (and other audible
warning devices) is sporadic but can be very loud if the window is open
and can be very frequent if there are many highway-rail grade
crossings.
Brake noise results from the air exhaust that comes from the brake
valves when the brakes are released. Air brake exhaust is a high
frequency sound and can be very intense. In the past, air brake exhaust
vented directly into the locomotive cab. By 1980, locomotive
manufacturers, maintenance facilities, and railroads had begun venting
the exhaust below the cab floor. FRA noted that change in its 1980
locomotive cab noise rule.\49\ FRA recognized the effectiveness of this
redesign, noting that it reduced the cab occupant's noise dose by an
estimated 15 to 20 percent while still providing an audible indication
of brake performance.\50\ Manufacturers continued to re-design
locomotives accordingly, and today the vast majority of locomotive air
brakes are vented below the floor and away from the crew. There are
some older locomotives, though (such as the ones used by some short
lines), which still use the older equipment that vents air brake
exhaust into the cab.
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\49\ 45 FR 21092 (March 31, 1980).
\50\ 45 FR 21092, 21015 (March 31, 1980).
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Another noise source comes from vibrations which loosen cab
components--such as loose cab sheet metal, loose cab side windows, and
miscellaneous loose and/or poorly fitted cab equipment--and cause them
to resonate. Other potential noise sources include fans on dynamic
brake systems; alerters; wheel/rail contact at cruising speed; rooftop
or retrofitted air conditioning/cooling units; bells that are sounded
to indicate that the train is about to move; and radios that are used
for crew communication. Noise can also result from the cab structure,
depending on the particular design of the locomotive as it pertains to
noise or vibration isolation. Maintenance, or the lack thereof, can
also impact noise. Engines in less than ideal condition will run
rougher and noisier. Mountings can wear and loosen, which can create
new vibrations or decrease vibration damping. Also, worn engine
components (e.g., bearings) can create noise.
The locomotive is also subject to several external noise sources.
Since the locomotive cab is a mobile workplace, the level of noise
exposure varies greatly by the route traveled. Noise results from the
sound that is reflected into the cab (especially if through open
windows) from reflective surfaces such as tunnels, bridges, sheds, and
close embankments. Other conditions that can also impact noise include
the topography and grade of the work assignment and the use of
locomotive horns to provide notice at highway-rail grade crossings.
Predicting and addressing noise exposures in the locomotive cab is
difficult not only because of the wide variety of possible conditions,
but because of the mobile railroad workforce. It is a challenge to
create and implement effective training and testing programs, because
locomotive crews are not on the same run or same locomotive from one
day to the next. In addition, locomotive crews can work shifts that
last up to twelve hours.
VI. FRA's Approach to Cab Noise
As OSHA governs workplace safety, and OSHA has already issued
regulations in the area of occupational noise, FRA used OSHA's standard
as a foundation for its own standard. However, there are many areas in
which the OSHA standard differs from the FRA standard. The purpose of
this rulemaking is to adapt the OSHA rule to the unique circumstances
of the railroad environment. The working environment for railroad cab
employees is quite different than that of the typical
[[Page 35155]]
American worker. Also, the noise exposure of railroad employees is not
uniform throughout the industry. Railroad employees may work in a
different location each day, i.e., a different locomotive and/or a
different route. Employee assignments and actual time in the cab may
vary significantly during a typical week. The level of noise in any
individual locomotive cab will vary greatly, depending on the
locomotive model, locomotive age, condition of the locomotive, length
of the route, traffic on the route, number of highway-rail grade
crossings on the route, physical characteristics of the route, weather
conditions during the run, and any one or more of several other
factors. FRA's proposed rule has taken into account these unique
characteristics of the railroad operating environment and has modified
OSHA's standard to suit the railroad industry.
Since FRA's proposed rule is based on OSHA's rule, it is helpful to
review OSHA's standard before explaining FRA's proposed standard.
OSHA's noise standard limits employee noise exposure to an 8-hour TWA
of 90 dB(A). OSHA identifies a hierarchy of controls that should be
used to limit noise exposure. If employee noise exposure exceeds the
permissible exposure level, the employer must reduce the exposure (so
that it is within permissible exposure limits) through the use of
feasible engineering controls, administrative controls, or a
combination of both. Where such controls cannot reduce employee
exposure to permissible limits, employers are to supplement the
engineering and administrative controls with hearing protection. The
OSHA noise standard also requires that the employer administer a
continuing effective hearing conservation program for employees who are
exposed to levels that equal or exceed an 8-hour TWA of 85 dB(A).
OSHA's regulation has placed engineering controls, and then
administrative controls, at the top of its hierarchy and takes the
position that these controls are the best method for controlling noise
exposure. These controls reduce employee exposure to hazardous noise
levels by eliminating (or at least reducing) the noise source, by
modifying the noise path or by decreasing employee exposure time to the
noise source. Engineering controls are generally understood to be the
modification or replacement of equipment or any other related physical
change at the noise source or along the transmission path that reduces
the noise level at the employee's ear (not including hearing
protectors). They include such changes as the re-design of machinery or
the use of different tools. Administrative controls involve efforts to
limit worker noise exposure by modifying work schedules, work
locations, or the operating schedule of noisy machinery. Administrative
controls include, for example, the rotation of schedules for tasks that
are near noisy machinery or the use of quiet areas that provide
employees with an opportunity to recover from temporary threshold
shifts.
FRA's proposed standard on locomotive cab noise is based very
heavily on OSHA's standard. In part 227, FRA requires railroads to
limit employee noise exposure to an 8-hour TWA of 90 dB(A).\51\ Also,
FRA requires railroads to implement a hearing conservation program for
those employees who are exposed to noise levels that equal or exceed an
8-hour TWA of 85 dB(A).
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\51\ For a complete list of the permissible noise exposures, see
Table 1 in Sec. 227.103. According to Table 1, railroads must limit
employee noise exposure to 85 dB(A) as a 16-hour TWA, 87 dB(A) as a
12-hour TWA, 90 dB(A) as an 8-hour TWA, and so on.
---------------------------------------------------------------------------
FRA's doubling, or exchange, rate is 5 dB(A). FRA's decision to use
a 5 dB doubling rate is notable, because a 5 dB doubling rate is
different than the scientific principle for a doubling rate.
Technically, a increase of 3 dB represents a doubling of sound
energy.\52\ In making its decision, FRA considered a doubling rate of 3
dB, 4 dB, and 5 dB. FRA ultimately decided on a 5 dB doubling rate.
NIOSH recommends a 3 dB doubling rate, the Air Force uses a 3 dB
doubling rate, and OSHA and MSHA use a 5 dB doubling rate.
---------------------------------------------------------------------------
\52\ See discussion in Sec. IV(A) of the background section.
---------------------------------------------------------------------------
In its 1999 rulemaking on occupational noise for miners, MSHA faced
a similar decision, choosing between a 3 dB or 5 dB exchange rate. MSHA
conducted a study and found that the exchange rate substantially
affects the measured noise exposure; nonetheless, MSHA retained the 5
dB exchange rate because of feasibility concerns.\53\ In its final
rule, MSHA concluded that:
---------------------------------------------------------------------------
\53\ 64 FR 49548, 49588-49589 (September 13, 1999).
It would be extremely difficult and prohibitively expensive for
the mining industry to comply with the existing permissible exposure
level with a 3 dB exchange rate, using currently available
engineering and administrative noise controls. MSHA therefore cannot
demonstrate that implementation of such an exchange rate would be
feasible. However, [MSHA] will continue to monitor the feasibility
of adopting a 3 dB exchange rate. 64 FR 49548, 49589 (September 13,
---------------------------------------------------------------------------
1999).
FRA, like MSHA, recognizes that the cost and feasibility of a 3 dB
exchange rate is prohibitive. Furthermore, there was a consensus
decision of the RSAC that 5 dB is most appropriate. Taking all of those
factors into account, FRA proposes to use a doubling rate of 5 dB.
Thus, a 5 dB increase in level is permitted each time the exposure
duration is decreased by half.
FRA recognizes the same controls as OSHA (i.e., engineering
controls, administrative controls, and hearing protection); however,
FRA uses different terms to describe some of those controls. OSHA uses
the term, ``administrative controls,'' while FRA uses the term ``noise
operational controls.'' These two terms are the functional equivalent.
Also, OSHA uses the term ``engineering controls,'' while FRA uses no
equivalent term--FRA instead describes the specific actions which it
would like railroads to take.
FRA's overall approach toward controls differs from that of OSHA.
FRA does not adopt OSHA's hierarchy of controls. As explained above,
OSHA places controls in a hierarchy and mandates their use according to
that hierarchy. FRA has no such hierarchy. Rather, FRA has specific
requirements that railroads must satisfy. FRA requires railroads to
design and maintain locomotives according to the standards in Sec.
229.121. (OSHA's equivalent of ``engineering controls''). FRA requires
railroads to use hearing protectors (HP) when employees are exposed to
noise levels that exceed an 8 hour-TWA of 90 dB(A). (OSHA's equivalent
of HP). And, FRA gives railroads the option of using noise operational
controls when employees are exposed to noise levels that exceed 90
dB(A) as an 8 hour-TWA. (OSHA's equivalent of administrative controls).
It is very important to note that FRA does not require the use of noise
operational controls. Thus, when a railroad learns that an employee is
exposed to noise levels that exceed an 8-hour TWA of 90 dB(A), the
railroad must provide the employee with HP, but need only consider the
use of noise operational controls.
The RSAC spent a great deal of time discussing options and
developing the recommended requirements for Sec. 229.121 and thus a
discussion is warranted here. An Engineering Controls Task Force, a
subgroup of the Noise Task Force, met to discuss the viability of
engineering controls. The group reviewed OSHA and MSHA regulations and
compliance documents and journal articles. Among its findings,
[[Page 35156]]
the group identified certain items that might help reduce noise
exposure in the locomotive cab. In identifying these items, FRA has
given serious consideration to those items which are feasible and those
items which are not feasible.
FRA believes that the specified items are feasible maintenance and
engineering controls. The group found that certain maintenance tasks--
e.g., repair, replacement, or installation of cab insulation, door
seals, window seals, weatherstripping, and electrical cabinet
insulation and seals--can help reduce in-cab noise levels. The group
also discussed other engineering controls and maintenance items which
have been shown to reduce noise exposure in the cab, e.g., venting
piping for air brake exhaust and power control devices out and under
the locomotive; using air cooling devices so that windows can be
closed; and using noise-dampening window glass which limits the
penetration of noise and thereby limits the contribution of outside
noise. In addition, the group discussed the location of locomotive
horns and agreed that relocation of the horn to the center position had
reduced crew noise exposure.
FRA recognized that there are many benefits to using engineering
and maintenance controls. First, they do not interfere with crew and
radio communication, which HP can do. HP can interfere with crew and
radio communication by blocking out necessary sounds in addition to
unwanted noise. Second, engineering and maintenance controls do not
present the potential hazard of overprotection that HP presents.
Engineering controls block out noise at its source, thus there is no
concern that necessary sounds will be blocked out too. Third,
engineering controls put less burden on the employee and as a result,
are easier for employees to use. With HP, railroads must ensure that
employees are properly trained on the use of the devices, and employees
must ensure that they wear and properly use the devices. Due to the
benefits of engineering controls, FRA did not want to exclude their
use. However, due to burden that it would impose on railroads if there
was a general requirement for the use of engineering controls, FRA did
not include the requirement as found in OSHA's rule. As a compromise,
then, FRA identified the specific engineering controls--the design and
build requirements in Sec. 229.121(a) and the maintenance requirements
in Sec. 229.121(b)--which railroads must use.
This background section has sought to provide an overview of FRA's
rule, as well as a broad comparison to OSHA's rule. A more thorough
discussion of the differences between OSHA's and FRA's standards is
provided in the section-by-section analysis below.
VII. Responsibilities of Railroads and Employees
The primary responsibility for compliance with this regulation lies
with employers, i.e., railroads. As such, railroads would have several
enumerated responsibilities. This regulation would require railroads
to: develop and implement a noise monitoring program; administer a
hearing conservation program; establish and maintain an audiometric
testing program; make audiometric testing available to employees;
implement noise operations controls (if desired); require the use of
hearing protection; make hearing protection available to employees at
no cost; train employees in the use and care of hearing protection;
ensure proper fitting of and supervise the correct use of hearing
protection; give employees the opportunity to select hearing protection
from a variety of suitable hearing protection; evaluate hearing
protection attenuation; initiate and offer a training program, maintain
and retain records; and build and maintain locomotives according to
specified standards.
The responsibilities of employees derive from those of the
railroad. Employees' responsibilities come from railroad policies,
which are issued pursuant to this regulation. This regulation would
require employers to: use their hearing protection when mandated by the
railroad; care for their hearing protection as trained by the railroad;
and complete the training program which is offered by the railroad.
There is one additional obligation for which employees have primary
responsibility--employees must report for audiometric testing once
every three years. While railroads have an affirmative obligation to
offer testing, employees have an affirmative obligation to report for
testing. Without adequate audiometric testing, a HCP will not succeed,
and so FRA is identifying an employee's audiometric testing obligation
as a primary responsibility.
Because employee responsibilities are, for the most part,
derivative, compliance would generally take place through the railroad
disciplinary process, rather than direct enforcement by FRA. FRA does,
however, recognize one major exception. FRA may assess civil penalties
for a wilful violation \54\ for an employee who does not report for
audiometric testing. Overall, FRA expects that employees will fully
comply with all their responsibilities. Railroads should perform
required actions, and employees should reciprocate with their
commensurate responsibilities. Railroads should set expectations of
compliance, and employees should meet those expectations of compliance.
---------------------------------------------------------------------------
\54\ Under the railroad safety laws, civil penalties may be
assessed against individuals only for willful violations. See 49
U.S.C. 21304.
---------------------------------------------------------------------------
VIII. Compliance
FRA's principal method of enforcement will be through audits. With
an industrial hygienist as team leader, an audit team will examine a
railroad's hearing conservation program. The team will examine whether
the railroad is adequately protecting its employees. The team will
speak with the program manager, review records (e.g., noise monitoring
records, audiograms, standard threshold shift records, etc.) and
determine the extent to which the railroad is complying with the
requirements of this regulation. If warranted, FRA will take
enforcement action against the railroad.
In addition, if FRA has reason to believe that certain locomotive
crews are being exposed to high noise doses, FRA inspectors will ride
in the locomotive cab with those crews to measure the sound levels and
determine the crews' exposure. FRA inspectors may also review
maintenance records to determine whether railroads have corrected
defective conditions (e.g., loose windows, deteriorated seals).
Additionally, FRA will investigate employee complaints of excessive
noise.
IX. Section-by-Section Analysis
This section-by-section analysis explains the provisions of the
NPRM. Of course, a number of the issues and provisions of the proposed
rule have been discussed and addressed in detail in the preceding
discussions. Accordingly, the preceding discussions should be
considered in conjunction with those below and will be referred to as
appropriate.
Part 227--Occupational Noise Exposure
Subpart A--General
Section 227.1 Purpose and Scope.
This section identifies the purpose and scope of this part. This is
a general provision. Per paragraph (a), the purpose of this part is to
protect the occupational health and safety of employees involved in
specified
[[Page 35157]]
railroad activities and/or operations. More specifically stated, the
purpose of this part is to protect the hearing of individuals who
experience their primary noise exposure in the locomotive cab. Hearing
loss occurs cumulatively over time and thus, the purpose of this
proposed rule is to protect individuals over the span of their railroad
career. Per paragraph (b), this part prescribes minimum Federal safety
standards for the specified railroad workplace safety items (i.e.,
occupational noise).
Section 227.3 Application.
This section identifies the applicability of this part. FRA
proposes that this part will apply to all railroads and contractors to
railroads. This section identifies three exceptions. First, this part
will not apply to railroads that operate only on track inside an
installation that is not part of the general railroad system of
transportation.
Second, this part will not apply to rapid transit operations in an
urban area that are not connected to the general railroad system of
transportation. This part will still apply to rapid transit operations
in an urban area that are connected to the general railroad system.
Rapid transit operations connected to the general system are a
specialized set of operations (e.g., the Maryland Mass Transit
Administration's Central Light Rail Line in Baltimore). FRA regulates
at least the shared use portions these operations, because FRA has
jurisdiction over such operations by statute.\55\ FRA realizes that
these types of operations have already applied for and received shared
use waivers from FRA's other regulations. FRA also recognizes that
these types of operations might need to seek an additional waiver,
consistent with 49 CFR part 211, in order to be exempted from the
requirements of this part. FRA seeks comment from the public on how to
handle these types of operations.
---------------------------------------------------------------------------
\55\ Under the Federal railroad safety laws, FRA has
jurisdiction over all railroads except ``rapid transit operations in
an urban area that are not connected to the general railroad system
of transportation.'' 49 U.S.C. 20102. For a discussion of FRA's
jurisdiction over passenger operations, see 49 CFR part 209,
Appendix A.
---------------------------------------------------------------------------
Third, this part will not apply to railroads that operate tourist,
scenic, historic, or excursion operations, whether they are on or off
the general railroad system of transportation. The term ``tourist,
scenic, historic, or excursion operations'' is defined in Sec. 227.5
to mean ``railroad operations that carry passengers, often using
antiquated equipment, with the conveyance of the passengers to a
particular destination not being the principal purpose.'' Congress has
directed that, in issuing safety rules, FRA take into account the
unique financial, operational, and other factors that may apply to such
railroads. 49 U.S.C. 20103(f). For example, these operations are often
seasonal and generally use somewhat antiquated equipment.
In this proposal, FRA exempts these operations from the rule;
however, FRA is still considering this issue and invites public
comments. FRA believes that certain circumstances, such as employee
assignments and railroad equipment, might result in conditions that
expose these employees to high noise levels. If that is the case, then
these employees might also need the protection of this rule. FRA plans
to consult with tourist and historic railroad operators and their
associations, as well as the RSAC Working Group on tourist railroads,
to determine the applicability of this rule to those employees. For
now, FRA believes that this situation is best handled through such
separate proceedings.
Fourth, this part will not apply to employees of foreign railroads
operating in the U.S. if they meet the following requirements: (1) The
government of the foreign railroad must have established requirements
for hearing conservation for railroad employees in that jurisdiction;
(2) the foreign railroad must undertake to comply with those
requirements while operating within the U.S.; and (3) the Associate
Administrator for Safety must determine that the foreign government
requirements are consistent with the purpose and scope of part 227. A
``foreign railroad'' refers to a railroad that is incorporated in a
place outside the United States and is operated out of a foreign
country but operates for some distance in the U.S. (e.g., Canadian
National Railroad). Employees excepted from application would be those
employees of a foreign railroad whose primary reporting point is in
Canada and Mexico.
The Associate Administrator's evaluation and determination would
only be made at the request of the foreign railroad. As a practical
matter, this evaluation could be accomplished at the request of an
association of foreign railroads (e.g., the Railway Association of
Canada), and the exception would then be available to all railroads of
that country entering the U.S.
The Associate Administrator must find that the foreign government's
requirements are consistent with the purpose and scope of the new part,
specifically that their legitimate purpose ``is to protect the
occupational health and safety of employees whose predominant noise
exposure occurs in the locomotive cab.'' This standard does not require
a finding of equivalence in terms of program effectiveness, because
making such a finding would require an estimation of incremental
hearing loss over the working life of specific populations (which is
scientifically impracticable). Further, more important than precise
equivalence is the integrity of each of the North American governments'
programs. Employees and program managers need to know what rules apply
and need to be able to carry out those programs without the confusion
that would be inherent in changing the rules at international
boundaries. FRA will request similar treatment of U.S. railroads
operating into Canada and Mexico, in order to achieve the goal of
harmonization.
Section 227.5 Definitions
This section contains proposed definitions for key terms. The
definitions are set forth alphabetically. Most of these definitions
have been taken from the standards issued by OSHA and the Mine Safety
and Health Administration (MSHA) and the recommendations issued by the
National Institute of Occupational Safety and Health (NIOSH) and the
American Conference of Governmental Industrial Hygienists (ACGIH).
These are definitions that are widely used by noise professionals. This
includes definitions such as ``Audiologist,'' ``Decibel,'' ``dB(A),''
``Hertz,'' ``Medical Pathology,'' and ``Otolaryngologist.''
This section also contains some basic definitions that are standard
to several of FRA's regulations. This includes definitions such as
``Administrator,'' ``FRA,'' ``Person,'' ``Railroad,'' and ``Tourist,
scenic, historic, or excursion operations.'' Several of the
definitions, however, are new or fundamental concepts that require
further discussion.
The term ``Continuous Noise'' is being added by FRA in order to
clarify its use in Sec. 227.105. This definition comes from OSHA. See
29 CFR 1910.95(b)(2).
The term ``Employee'' refers to individuals engaged or compensated
by a railroad, as well as to contractors to a railroad. One of FRA's
objectives in covering contractors is to promulgate standards that are
applicable to all those individuals that are exposed to the specified
levels of locomotive cab noise. Whether an individual is paid by a
railroad or a contractor is irrelevant. The most important issue is the
prevention of hearing loss. FRA holds no position
[[Page 35158]]
on the practice of a railroad contracting work out to another company,
but FRA strongly believes that contract employees are entitled to the
same level of safety as railroad employees. To the extent that contract
employees work under the circumstances presenting the noise hazards
addressed in this regulation, those contractors must be protected.
The term ``Exchange Rate'' refers to the change in sound levels
which would require halving or doubling the allowable exposure time to
maintain the same noise dose. FRA has set the exchange rate for this
regulation at 5 dB. Both OSHA and MSHA also use a 5dB exchange rate.
See OSHA's ``Occupational Noise Exposure,'' 29 CFR 1910.95(a) and
MSHA's ``Health Standards for Occupational Noise,'' 30 CFR 62.101.
The term ``Hearing Protector'' is currently defined in the NPRM as
``any device or material, capable of being worn on the head or in the
ear canal, designed wholly or in part to reduce the level of sound
entering the ear, and which has a scientifically accepted indicator of
its noise reduction value.'' The RSAC discussed variations of this
definition but ultimately agreed upon this definition. FRA adopted that
definition.
Despite the RSAC consensus on this definition during its
development, several Working Group members expressed the view that the
phrase, ``which has a scientifically accepted indicator of its noise
reduction value,'' is too general and provides too much leeway. They
would prefer to see that phrase replaced with a requirement to use a
specific indicator--the Noise Reduction Rating. With such a change, the
definition of ``hearing protector'' would read as follows: ``any device
or material, capable of being worn on the head or in the ear canal,
designed wholly or in part to reduce the level of sound entering the
ear, and which has a Noise Reduction Rating.'' The Noise Reduction
Rating (NRR) is one of several methods that exist for estimating the
amount of sound attenuation that a hearing protector provides. The NRR
is one of the most commonly used methods. FRA seeks comments from the
public on the definition of hearing protector and asks whether FRA
should use a general description for an indicator (i.e., ``which has a
scientifically accepted indicator of its noise reduction value), the
NRR, or some other specific type of indicator.
The term ``Noise Operational Controls'' was developed by the RSAC
as the functional equivalent of the term ``administrative controls.''
FRA has accepted the RSAC's recommended term and definition. The term
``administrative controls'' is used by OSHA, MSHA, and NIOSH. OSHA uses
the term in its noise regulations. See 29 CFR 1910.95(b)(1) and 29 CFR
1926.52(a). MSHA also uses the term in its occupational noise exposure
rule. See 30 CFR 62.130. NIOSH defines ``administrative controls'' as
``[e]fforts, usually by management, to limit workers'' exposure by
modifying workers' schedule or location, or by modifying the operating
schedule of noisy machinery.'' See NIOSH's Common Hearing Loss
Prevention Terms.\56\
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\56\ See http://www.cdc.gov/niosh/hpterms.html.
---------------------------------------------------------------------------
The term ``Occasional Service'' refers to service of not more than
a total of 20 days with one or more assignments in a calendar year. The
term is used only once in this proposed regulation. This term is added
to clarify its use in Sec. 227.101.
The terms ``Sound Level'' and ``Sound Pressure Level'' can be used
interchangeably. The definition comes from OSHA's regulation. See
Appendix I to 29 CFR 1910.95. OSHA's regulation, in addressing SLOW
time response, referenced a now-outdated ANSI standard (ANSI S1.4-1971
R1976)). FRA changed that cite to ANSI S1.43-1997 which updates the
citation to reflect the current ANSI standard.
FRA invites comment from the public about all of the proposed
definitions, as well as any other terms that the public believes should
be defined.
Section 227.7 Preemptive Effect
This section informs the public of FRA's views on the preemptive
effect of the proposed rule. While the presence or absence of such a
section does not in itself affect the preemptive effect of the rule, it
informs the public about the statutory provision which governs the
preemptive effect of the rule. Section 20106 of title 49 of the United
States Code provides that all regulations prescribed by the Secretary
related to railroad safety preempt any State law, regulation, or order
covering the same subject matter, except a provision necessary to
eliminate or reduce an essentially local safety hazard that is not
incompatible with a Federal law, regulation, or order and that does not
unreasonably burden interstate commerce. With the exception of a
provision directed at an essentially local safety hazard, 49 U.S.C.
20106 will preempt any State regulatory agency rule covering the same
subject matter as the regulations in the proposed rule.
Section 227.9 Penalties
This section identifies the civil penalties that FRA may impose
upon any person, including a railroad or an independent contractor
providing goods or services to a railroad, that violates any
requirement of this part. These penalties are authorized by 49 U.S.C.
21301, 21302, and 21304. This penalty provision parallels penalty
provisions included in numerous other safety regulations issued by FRA.
Essentially, any person who violates any requirement of this part
or causes the violation of any such requirement will be subject to a
civil penalty of at least $500, and not more than $11,000, per
violation. Civil penalties may be assessed against individuals only for
willful violations. Where a grossly negligent violation or a pattern of
repeated violations creates an imminent hazard of death or injury to
persons, or causes death or injury, a civil penalty not to exceed
$22,000 per violation may be assessed. In addition, each day will
constitute a separate offense. Furthermore, a person may be subject to
criminal penalties under 49 U.S.C. 21311 for knowingly and willfully
falsifying reports required by these regulations. FRA believes that the
inclusion of penalty provisions for failure to comply with this
regulation is important in ensuring that compliance is achieved.
With respect to the penalty amounts contained in this section, the
Federal Civil Penalties Inflation Adjustment Act of 1990, Pub. L. 101-
410 Stat. 890, 28 U.S.C. 2461 note, as amended by the Debt Collection
Improvement Act of 1996 Pub. L. 104-134, April 26, 1996, required
agencies to adjust for inflation the maximum civil monetary penalties
within the agency's jurisdiction. The resulting $11,000 and $22,000
maximum penalties were determined by applying the criteria (set forth
in sections 4 and 5 of the statute) to the maximum penalties otherwise
provided for in the Federal railroad safety laws.
Section 227.11 Responsibility for Compliance
This section clarifies FRA's position that the requirements
contained in this proposed rule are applicable not only to any
``railroad'' subject to this part but also to any ``person'' (as
defined in ``227.5) that performs any function required by this rule.
Although various sections of the rule address the duties of a railroad,
FRA intends that any person who performs any action on behalf of a
railroad or any person who performs any action covered by this rule is
required to perform that action in the
[[Page 35159]]
same manner as required of a railroad or be subject to FRA enforcement
action.
Section 227.13 Waivers
This section sets forth the procedures for seeking waivers of
compliance with the requirements of this part. Requests for such
waivers may be filed by any interested party. In reviewing such
requests, FRA conducts investigations to determine if a deviation from
the general criteria can be made without compromising or diminishing
rail safety. This section is consistent with the general waiver
provisions contained in other Federal regulations issued by FRA.
Section 227.15 Information Collection
This section notes the provisions of this part that have been
reviewed and approved by the Office of Management and Budget (OMB) for
compliance with the Paperwork Reduction Act of 1995. See 44 U.S.C. 3501
et seq.
Subpart B--Occupational Noise Exposure for Railroad Operating
Employees
Section 227.101 Scope
This section identifies the individuals to whom this rule will
apply. In subparagraph (a)(1), FRA proposes that this rule will cover
employees who regularly perform service subject to the provisions of
the hours of service law governing ``train employees.'' See 49 U.S.C.
21101(5) and 21103. This refers to employees who are engaged in
functions traditionally associated with train, engine, and yard
service; for example, engineers, conductors, brakemen, switchmen, and
firemen. In general, these employees encounter their predominant
occupational noise exposure in the locomotive cab, and therefore, FRA
plans to appropriately tailor the noise monitoring and noise testing
programs in this section to address the exposure that these employees
experience.
With respect to the term ``regularly'' in subparagraph (a)(1), FRA
intends to cover individuals who perform some level of work in a
locomotive cab. In making this assessment, the railroad should consider
an employee's work over the period of a year. FRA would like railroads
to think about how they use their workforces, i.e., take a serious look
at the work that their employees perform, determine which employees
will experience potentially hazardous noise exposure in the cab, and
then place those employees in a hearing conservation program.
Given the nature of the railroad industry, FRA is aware that some
of these employees may not always experience their predominant noise
exposure in the cab. Due to longstanding labor practices in the
railroad industry concerning seniority privileges and concerning the
ability of railroad employees to bid for different work assignments,
these railroad employees are likely to change jobs frequently and to
work, for extended periods of time, on assignments that involve duties
outside the cab. For example, an employee might start the year in a job
that involves mostly outside-the-cab work, spend three months working
primarily inside the cab, and then return to outside-the-cab work for
the rest of the year. In this type of situation, FRA's regulations can
govern the noise exposure of this employee throughout the year despite
the fact that the employee only spent three months inside the cab. This
employee can be covered by FRA's regulations, because he spent time, no
matter how little, in a locomotive cab.
Under an alternative to the proposed scope provision, OSHA's
regulations would apply to these employees when they are outside the
cab and FRA's regulations would apply to these employees when they are
inside the cab. The employee would switch back and forth between OSHA's
and FRA's hearing conversation programs throughout the year. FRA
believes this would be both illogical and unworkable.
This rule will not extend to employees who occasionally and briefly
enter the cab. That includes employees who move equipment only within
the confines of locomotive repair or servicing areas protected by blue
signals (see Sec. 227.101(a)(1)(i)) or who move locomotives for
distances of less than 100 feet for inspection or maintenance purposes
(see Sec. 227.101(a)(1)(ii)). The job assignments of these employees
usually involve consistent and significant work outside the cab, such
as moving about on the shop floor, working on the ground to connect the
air hoses and MU cable for locomotives, and performing locomotive
servicing (e.g., sanding or fueling). This is why these types of
employees are being excepted from FRA's regulation. Increasingly,
however, inside hostling duties are commingled with other mechanical
duties involving major additional sources of noise exposure. These
employees would remain under the authority of OSHA with respect to
occupational noise exposure, unless the railroad elected to place them
in the FRA program based upon their expected mix of assignments (see
Sec. 227.103).
In addition, this rule will not extend to contractors who operate
historic equipment in occasional service, as long as those contractors
have been provided with hearing protection and are required (where
necessary) to use the hearing protection while operating the historic
equipment. Although these contractors will not be in the railroad's
HCP, it is still important that they use HP, because they will be
working in noisy environments (e.g., historic locomotives). Occasional
service is defined in Sec. 227.5 and refers to service of not more
than a total of 20 days with one or more assignments in a calendar
year. This exception will apply to all members of the crew responsible
for operating the train; that includes, but is not limited to,
engineers, conductors, firemen, and brakemen. When originally raised,
this exception contemplated service on steam locomotives; however, FRA
has instead used the term ``historic equipment,'' thereby encompassing
steam locomotives as well as diesel locomotives and other antiquated
equipment typically used in tourist and scenic operations.
A Working Group member raised this issue during a meeting. The
member explained that a railroad will occasionally hire a contractor
(with special expertise) to operate a steam locomotive for one or two
days as part of a special excursion operation. The member was concerned
that the railroad would have to place those temporary, contract
employees in a hearing conservation program. The Working Group
discussed this issue and recommended this exception. FRA decided to
include the exception. Pursuant to this provision, those contractors
are exempted, because they provide limited service and thus will have
limited exposure to noise in a locomotive cab. Railroads should note,
however, that this provision will not exempt regular railroad employees
who happen to perform this occasional service on historic equipment.
FRA realizes that earlier provisions in this proposed rule have
discussed historic operations. Section 227.3(b)(3) excludes from this
part railroads that perform historic operations. Despite the apparent
similarity, these provisions are different. The earlier provision
excludes railroads that operate, among other things, historic
operations, while this provision excludes contract employees who work
for a freight railroad (such as Union Pacific Railroad or CSX Railroad)
operating tourist, scenic, and excursion equipment.
Pursuant to Sec. 227.101(b), all other railroad employees who are
exposed to noise hazards but are outside the scope of this regulation
will continue to be
[[Page 35160]]
covered by OSHA's noise standard, which is located at 29 CFR 1910.95.
Section 227.103 Noise Monitoring Program
Railroad noise monitoring programs entail a system of monitoring
that evaluates employee noise exposure. Noise monitoring is performed
for one or more of the following reasons: To determine whether hearing
hazards exist; to ascertain whether noise presents a safety hazard by
interfering with oral communication; to ascertain whether noise
presents a safety hazard by impairing recognition of audible warning
signals; to identify which employees need to be included in a hearing
conservation program; to define and establish the amount of hearing
protection that is necessary; to evaluate specific noise sources for
noise control purposes; and to evaluate the success of noise control
efforts.
FRA's proposed regulation requires railroads to develop and
implement a noise monitoring program by a specific date, depending on
the size of the railroad. These noise monitoring programs are intended
to determine whether an employee's exposure to noise may equal or
exceed an 8-hour time-weighted average of 85 dB(A). Factors which
suggest that noise exposure in the cab may meet or exceed a TWA of 85
dB(A) include: employee complaints about the loudness of the noise,
indications that train employees are experiencing hearing loss, noisy
conditions that make conversation difficult, and route-specific or
locomotive-specific factors that suggest the possibility of an
excessive noise dose. In addition, actual workplace noise measurements
can suggest whether or not a monitoring program should be initiated.
FRA's proposed noise monitoring requirements cover noise in cabs
and noise in exterior environments in which employees work during their
work shifts. FRA's proposal would involve the monitoring of some
employees whose daily functions are entirely outside of the cab and
some employees whose daily functions are both inside and outside of the
cab. This ensures that the hearing conservation program addresses the
full noise exposure that is experienced by employees within the scope
of this rule.
FRA's proposed rule text on railroad noise monitoring programs is
nearly identical to OSHA's rule on noise monitoring programs.
Paragraphs (a) through (d) and (f) of 227.103 are very similar to the
provisions found in 29 CFR 1910.95(d), OSHA's ``Monitoring'' section.
Paragraph (a) provides the general requirement that all railroads must
develop and implement a noise monitoring program. FRA has re-worded
OSHA's language (from 29 CFR 1910.95(d)(1)) to make the provision more
clear.
Also, FRA has identified dates by which railroads must develop and
implement a noise monitoring program. The date varies based on the size
of the railroad. Class I, passenger, and commuter railroads have 12
months from the effective date of this rule to establish a noise
monitoring program. Railroads with 400,000 or more employee hours, but
that are not a class I, passenger, or commuter railroad have 18 months
to comply. Railroads with fewer than 400,000 employee hours have 30
months to comply.
FRA is proposing to classify railroads by employee hours, rather
than classes, for several reasons. First, it is a more specific and
better-defined distinction than a class distinction. Second, FRA
collects and maintains data on employee hours and thus FRA can more
easily identify a railroad's category based on employee hours. Third,
an hours distinction is probably more reflective than a class
distinction of a railroad's ability to comply with this regulation. For
example, all switching and terminal operations are categorized as class
III railroads regardless of their revenue. By using a class distinction
and staggering implementation for class III railroads, FRA would delay
implementation for all switching and terminal operations, not just
those that are small. But by using an hours distinction, FRA would
delay implementation for only those switching and terminal operations
that are small. Fourth, FRA has already used this distinction in other
regulations, such as Sec. 217.9(d) (a recordkeeping requirement in the
CFR part addressing railroad operating rules) and Sec. 220.11 (radio
communication requirements for roadway workers). FRA considered
staggering the implementation dates based on classes (class I, II, and
III); however, for the reasons discussed in this paragraph, FRA
proposes to stagger the implementation dates based on employee hours.
FRA seeks comment as to which option is the most appropriate.
FRA is adjusting the implementation dates for smaller operations
because of their unique situation. FRA understands that they lack the
resources, manpower, and money of larger operations, and thus FRA is
providing them with more time to comply with the requirements of this
part. In addition, FRA is required, by law, to consider the impact of
its regulations on smaller entities. The Small Business Regulatory
Enforcement and Fairness Act (SBREFA) \57\ requires agencies to employ
communication, enforcement, and regulatory systems that consider the
unique aspects of small entities. For the purposes of the regulation,
small entities are defined as operations with less than 400,000
employee hours per year. The Act specifically provides that agencies
should avoid ``one size fits all'' enforcement and regulatory programs
and should, to the extent possible, minimize unnecessary economic
burdens. One of the Act's suggestions is that agencies use phase-in
implementation dates to permit gradual compliance where no immediate
safety risk exists, and that is what FRA has proposed here. For all the
reasons discussed here, FRA has also provided phase-in implementation
dates here and in two other locations in this proposed rule--in Sec.
227.109(e)(2) (audiometric testing) and Sec. 227.119(b)(2) (training).
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\57\ Pub. L. 104-121, 110 Stat. 857 (codified at 5 U.S.C. 601
et. seq.)
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Paragraph (b) discusses sampling strategy and is virtually
identical to OSHA's provision. OSHA's provision is found in 29 CFR
1910.95(d)(i) and (ii).
Paragraph (c) specifies how railroads should conduct noise
measurements. Paragraph (c)(1) requires that all continuous,
intermittent, and impulsive sound levels from 80 dB to 130 dB shall be
integrated into the measurement of noise exposure. Paragraph (c)(1) is
identical to OSHA's comparable provision. See 29 CFR 1910.95(d)(2)(i).
OSHA promulgated its general industry noise standards for
occupational noise in 1981. In its preamble to that noise rulemaking,
OSHA explained that its intent was to increase the upper limit to 140
dB as noise dosimeters were improved and became readily available. OSHA
further explained that its decision to adopt the 80 to 130 dB range
(and not the 80 to 140 dB range) reflected the technological
limitations of sound level meters and noise dosimeters at the time of
the regulation's promulgation.\58\
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\58\ See 46 FR 4078, 4135 (January 16, 1981).
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Recently, in 2002, OSHA issued an Advance Notice of Proposed
Rulemaking (ANPRM) for a Hearing Conservation Program for Construction
Workers.\59\ In that ANPRM, OSHA stated that it ``believes that most,
if not all, of today's noise dosimeters and integrating sound level
meters are capable of dynamic ranges from 80 dB to 140 dB.'' \60\ FRA
seeks comments on whether, in light of technological advances, the 80
to 140 dB range is
[[Page 35161]]
more appropriate for calculating railroad operating employees noise
doses. If so, what are the expected impacts, i.e., costs and benefits,
associated with such a change?
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\59\ See 67 FR 50610 (August 5, 2002).
\60\ See 67 FR 50610, 50605 (August 5, 2002).
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Paragraph (c)(2) specifies that railroads shall take noise
measurements under typical operating conditions using a sound level
meter, integrated sound level meter, or noise dosimeter. The
instrumentation should meet the appropriate standard set forth by the
American National Standard Institute (ANSI); these standards set
performance and accuracy tolerances. A sound level meter used to comply
with this regulation shall meet the American National Standard, ANSI
S1.4-1983 (R2001) (or its successor). An integrating-averaging sound
level meter (iSLM) used to comply with this part shall meet the
American National Standard, ANSI S1.43-1997 (R2002) (or its successor).
A noise dosimeter used to comply with this regulation shall meet the
American National Standard, ANSI 1.25-1991 (R2002) (or its successor).
Each instrument should be set to an A-weighted SLOW response.
Paragraph (c)(2), for the most part, is from FRA's current noise
regulation, Sec. 229.121(d). Note, however, that FRA has added the
ANSI standard for noise dosimeters, updated the ANSI standard for sound
level meters (from ANSI S1.4-1971 to ANSI S1.4-1983 (R2001)), and
included a reference and citation to integrating-averaging sound level
meters. In doing so, FRA has made this regulation more current and
comprehensive.
FRA's use of standards established by other organizations, such as
ANSI, is a means of establishing technical requirements without
increasing the volume of Code of Federal Regulations. This NPRM uses
several different ANSI standards, including the ones above. In
developing the final rule, FRA will seek the proper authority from the
Office of the Federal Register to formally incorporate these standards
by reference.
While the regulation provides that a railroad may use either a
noise dosimeter, SLM, or iSLM to conduct noise measurements, a railroad
may choose to use any combination of those instruments. Using several
instruments helps to develop a more complete picture of the noise
environment, because the instruments provide different information. A
SLM and an iSLM measure the sound levels at fixed locations in the cab
and during transient events (e.g., application of the alerter, brakes,
or horn). They also characterize the emissions of suspected noise
sources (e.g., vibrating panels). A noise dosimeter and an iSLM measure
an employee's overall noise exposure. An iSLM is particularly useful,
because it characterizes the contribution of transient events to an
employee's overall dose. A noise dosimeter, which is worn by the
employee, is useful because it accumulates all the noise exposure data
from an employee's work shift. From that, a tester can determine an
employee's noise dose during a work shift.
Paragraph (c)(3) specifies that all instruments used to measure
employee noise exposure shall be calibrated to ensure accurate
measurements. Again, this paragraph is identical to OSHA's provision,
which is found in 29 CFR 1910.95(d)(2)(ii).
Paragraph (d) provides that a railroad shall repeat noise
monitoring whenever there is a change in operation, process, equipment,
or controls that increases noise exposures to the extent that either 1)
additional employees may be exposed at the action level, or (2) the
attenuation provided by the hearing protectors may be inadequate to
meet the requirements of Sec. 227.103. Once again, this paragraph is
identical to OSHA's provision, which is located at 29 CFR
1910.95(d)(3).
Paragraph (f) specifies that a railroad shall provide affected
employees or their representatives with an opportunity to observe any
noise dose measurements conducted pursuant to this section. This
parallels OSHA's provision, which is found in 29 CFR 1910.95(f).
There are also some notable differences in Sec. 227.103. First,
FRA is adding a new subsection, paragraph ``e,'' which states that,
``In administering the monitoring program, the railroad shall take into
consideration the identification of work environments where the use of
hearing protectors may be omitted.'' This provision will ensure that
railroads do not excessively rely on reflexive use of hearing
protectors when structuring their hearing conservation programs. FRA
believes that well managed programs already focus on this issue,
incorporating such monitoring, as necessary, to determine general
categories of work assignments that require hearing protectors and
those that do not. FRA fully recognizes that no sustainable amount of
monitoring could support a job-by-job analysis at all locations on the
railroad. FRA also recognizes that such a level of monitoring is not
appropriate given the objective of the hearing conservation program.
Examples of situations where hearing protection may be omitted
include:
(1) Cabs designed for sound reduction. These cabs should be
monitored over time on a sample basis to ensure that their noise-
insulating qualities continue to function as intended; and
(2) ``Ground'' assignments where employees work around moving
equipment but have limited exposure to loud and persistent noise
sources such as locomotives or retarders.
There are several benefits that accrue when employees refrain from
over-using hearing protectors. It reduces any danger of infection from
the misuse of hearing protectors. It strengthens overall employee
compliance with hearing protector use by focusing requirements (to use
hearing protectors) where it makes a difference. Among ground
personnel, it maximizes the availability of auditory cues associated
with the movement of equipment; this results in improved personal
safety. In addition, among cab crews with existing hearing loss (from
whatever source), it avoids negative impacts on the discrimination of
voice communications, both radio and in-person. This, in turn, limits
the noise dose of other employees in the workplace who would otherwise
have to live with excessively high radio volume and struggle to be
heard while calling signals and communicating other information.
Second, FRA is also adding another new paragraph, (g) Reporting of
Monitoring Results, which requires railroads (1) to notify each
monitored employee of the results of the monitoring, and (2) to post
the monitoring results at the appropriate crew origination point for a
minimum of 30 days.
Section 227.103(g)(1) is similar to OSHA's notification provision.
OSHA requires an employer to notify employees of the results of the
monitoring if the employee is exposed at or above an 8-hour time-
weighted average of 85 decibels. See 29 CFR 1910.95(e). FRA also
requires a railroad to notify employees of the results. However, there
is a difference. OSHA requires an employer to notify each employee that
is exposed at or above an 8-hour TWA of 85 dB(A) of the results of his
or her monitoring. By contrast, FRA requires a railroad to notify each
employee that is monitored of the results of his or her monitoring.
Section 227.103(g)(2) is a new section. There is no comparable
provision in OSHA's rule. This section specifies that a railroad must
post the monitoring results. The posting should include sufficient
information to permit other crews to interpret the meaning of the
results in the context of the operations monitored. The information is
intended to help crews and labor officials to
[[Page 35162]]
understand the conditions under which the monitoring was conducted.
There are a wide range of data elements that a railroad could include
in its posting. FRA believes that the railroad should include enough
information so that the monitored crew, as well as other crews, are
able to understand, interpret, and assess the results of the
monitoring.
FRA recommends, though does not require, that a railroad include
the following data elements: (1) A description of the monitoring event:
The date of the monitoring, the start time and end time of the
monitoring, the locations of the beginning and end of the monitoring;
the assignment or train identification number or train symbol; the
locomotive consist (including locomotive numbers, models, and dates of
manufacture); and a train profile (including car counts, length of
train, tonnage, and power consist details); and (2) circumstances of
the monitoring: Number of crew members monitored, job title(s) of the
crew members monitored, duration of crew member exposure, number of
crew members monitored, placement of measurement equipment, results of
the monitoring, and the equipment used for monitoring.
These data elements are useful, because they contain information on
items and conditions that can impact the noise level in the locomotive
cab. The date of monitoring is important, because it indicates the time
of year of the monitoring, which in turn indicates general weather
conditions (e.g., it was likely that there was ice on the rail or that
it was raining). The start and end time indicate