63066 Federal Register / Vol. 71, No. 208 / Friday, October 27, 2006 / Rules and Regulations 

1See 65 FR 42529 (July 2, 2000). 

DEPARTMENT OF TRANSPORTATION 

Federal Railroad Administration 

49 CFR Parts 227 and 229 

[Docket No. FRA 2002–12357, Notice No. 

2] 

RIN 2130–AB56 

Occupational Noise Exposure for 

Railroad Operating Employees 

AGENCY: Federal Railroad 

Administration (FRA), Department of 

Transportation (DOT). 

ACTION: Final rule. 

SUMMARY: FRA is amending its 

occupational noise standards for 

railroad employees whose predominant 

noise exposure occurs in the locomotive 

cab. FRA’s previous standard (issued in 

1980) limited cab employee noise 

exposure to certain levels based on the 

duration of their exposure. This rule 

modifies that standard and also sets out 

additional requirements. 

FRA is requiring railroads to conduct 

noise monitoring and to implement a 

hearing conservation program for 

railroad operating employees whose 

noise exposure equals or exceeds an 8- 

hour time-weighted average (TWA) of 

85 decibels. FRA is also establishing 

design, build, and maintenance 

standards for new locomotives and 

maintenance requirements for existing 

locomotives. FRA expects that this rule 

will reduce the likelihood of noiseinduced hearing loss for railroad 

operating employees. 

DATES: This final rule is effective 

February 26, 2007. The incorporation by 

reference of certain publications listed 

in the rule is approved by the Director 

of the Federal Register as of February 

26, 2007. Any petitions for 

reconsideration with this final rule must 

be submitted no later than December 26, 

2006. 

ADDRESSES: Docket: For access to the 

docket to read background documents 

or comments received, go to http:// 

dms.dot.gov at any time or to Room PL– 

401 on the plaza level of the Nassif 

Building, 400 Seventh Street, SW., 

Washington, DC, between 9 a.m. and 5 

p.m., Monday through Friday, except 

Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Alan Misiaszek, Senior Industrial 

Hygienist, Office of Safety, Federal 

Railroad Administration, 1120 Vermont 

Avenue, NW., Mail Stop 25, 

Washington, DC 20590 (e-mail: 

Alan.Misiaszek@dot.gov and telephone: 

202–493–6002); Jeffrey Horn, 

Economist, Office of Safety, Federal 

Railroad Administration, 1120 Vermont 

Avenue, NW., Mail Stop 25, 

Washington, DC 20590 (e-mail: 

Jeffrey.Horn@dot.gov and telephone: 

202–493–6283); or Jennifer Schwab, 

Trial Attorney, Office of Chief Counsel, 

Federal Railroad Administration, 1120 

Vermont Avenue, NW., Mail Stop 10, 

Washington, DC 20590 (email:Jennifer.Schwab@dot.gov and 

telephone: 202–493–6349). 

SUPPLEMENTARY INFORMATION: Note that 

for brevity, all references to CFR parts 

will be to parts in Title 49 of the Code 

of Federal Regulations (49 CFR), unless 

otherwise noted. 

Table of Contents for Supplementary 

Information 

I. Background 

A. Statutory and Regulatory Framework 

1. Railroad Safety, In General 

2. FRA–OSHA Jurisdiction for 

Occupational Safety and Health Issues 

3. Federal Occupational Noise Standards 

B. History of FRA’s Treatment of 

Occupational Noise 

1. FRA’s Past Noise Standard 

2. Studies of Noise 

C. Fundamental Principles of Sound 

D. Occupational Noise in the Railroad 

Industry 

II. The Railroad Safety Advisory Committee 

(RSAC) Process 

A. RSAC 

B. Working Group 

III. FRA’s Noise Standard 

A. FRA’s Approach to Cab Noise 

B. Responsibilities of Railroads and 

Employees 

C. Compliance 

IV. Summary of Comments 

A. In General 

B. Approaches Other Than the OSHA HCA 

C. Hierarchy of Controls 

D. Triggering Criteria 

E. Weighting Filter 

F. Electronic Communication Headsets 

G. Location of the Train Horn 

H. Report to Congress 

I. Regulatory Impact Analysis 

V. Section-by-Section Analysis 

VI. Regulatory Impact and Notices 

A. Executive Order 12866 and DOT 

Regulatory Policies and Procedures 

B. Regulatory Flexibility Act of 1980 and 

Executive Order 13272 

C. Paperwork Reduction Act of 1995 

D. Federalism Implications 

E. Environmental Impact 

F. Unfunded Mandates Reform Act of 1995 

G. Energy Impact 

H. Privacy Act 

I. Background 

A. Statutory and Regulatory Framework 

1. Railroad Safety, in General 

FRA has broad statutory authority to 

regulate railroad safety. The Locomotive 

Inspection Act (‘‘LIA’’) (formerly 45 

U.S.C. 22–34, now 49 U.S.C. 20701– 

20703) was enacted in 1911. It prohibits 

the use of unsafe locomotives and 

authorizes FRA to issue standards for 

locomotive maintenance and testing. In 

order to further FRA’s ability to respond 

effectively to contemporary safety 

problems and hazards as they arise in 

the railroad industry, Congress enacted 

the Federal Railroad Safety Act of 1970 

(‘‘Safety Act’’) (formerly 45 U.S.C. 421, 

431 et seq., now found primarily in 

chapter 201 of Title 49 of the United 

States Code). The Safety Act grants the 

Secretary of Transportation rulemaking 

authority over all areas of railroad safety 

(49 U.S.C. 20103(a)) and confers all 

powers necessary to detect and penalize 

violations of any rail safety law. This 

authority was subsequently delegated to 

the FRA Administrator (49 CFR 1.49). 

(Until July 5, 1994, the Federal railroad 

safety statutes existed as separate acts 

found primarily in Title 45 of the 

United States Code. On that date, all of 

the acts were repealed, and their 

provisions were recodified into Title 

49.) 

The term ‘‘railroad’’ is defined in the 

Safety Act to include all forms of nonhighway ground transportation that runs on 

rails or electromagnetic guideways, * * * 

other than rapid transit operations within an 

urban area that are not connected to the 

general railroad system of transportation. 

This definition makes clear that FRA 

has jurisdiction over (1) rapid transit 

operations within an urban area that are 

connected to the general railroad system 

of transportation, and (2) all freight, 

intercity, passenger, and commuter rail 

passenger operations regardless of their 

connection to the general railroad 

system of transportation or their status 

as a common carrier engaged in 

interstate commerce. FRA has issued a 

policy statement describing how it 

determines whether particular rail 

passenger operations are subject to 

FRA’s jurisdiction.1 That policy 

statement is located in Appendix A to 

part 209. 

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 


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2OSHA is an agency within the U.S. Department 

of Labor. Congress created OSHA with the 

Occupational Safety and Health Act of 1970 (‘‘OSH 

Act’’). Pursuant to the OSH Act, employers have a 

duty to protect workers from workplace hazards, 

including noise. 

3See 29 CFR 1910.95 and 29 CFR 1926.52 

(‘‘Occupational Noise Exposure’’). 

4See 41 U.S.C. 35, et seq. 

5See 48 FR 9738 (March 8, 1983). 

6Throughout the rule, FRA uses ‘‘hearing 

conservation program’’ and HCP interchangeably. 

7OSHA has a separate occupational noise 

regulation that applies to the construction industry. 

See 29 CFR 1926.52. 

8See Air Force Occupational Safety and Health 

Standard 48–20, ‘‘Hearing Conservation Program.’’

designed to protect the health and safety 

of railroad employees. For instance, 

FRA requires ladders and handholds to 

be installed on rail equipment in order 

to prevent employee falls (part 231). 

FRA requires locomotive cab floors and 

passageways to remain clear of debris 

and oil in order to prevent employee 

slips, trips, and falls (§ 229.119). FRA 

requires blue signal protection in order 

to protect employees working on 

railroad equipment from injuries due to 

the unexpected movement of the 

equipment (part 218). FRA has rules 

that provide for the protection of 

railroad employees working on or near 

railroad tracks in order to decrease the 

risk of employees falling from railroad 

bridges and of being struck by moving 

trains (part 214). 

2. FRA–OSHA Jurisdiction for 

Occupational Safety and Health Issues 

FRA and the U.S. Occupational Safety 

and Health Administration 2 (OSHA) 

have a complementary relationship with 

respect to occupational safety and 

health issues in the railroad industry. 

OSHA regulates conditions and hazards 

affecting the health and safety of 

employees in the workplace. OSHA’s 

jurisdiction extends to working 

conditions in all types of employment, 

except where another Federal agency 

exercises statutory authority to prescribe 

or enforce standards or regulations 

covering the working conditions 

pursuant to § 4(b)(1) of the OSH Act. See 

29 U.S.C. 653(b)(1). Section 4(b)(1) 

preempts OSHA’s jurisdiction where 

another federal agency issues its own 

regulations or standards or articulates a 

formal position that a particular 

working condition should go 

unregulated. 

In 1978, FRA issued a Statement of 

Policy setting out the respective areas of 

jurisdiction between FRA and OSHA in 

the railroad industry. See 43 FR 10583 

(March 14, 1978). In that Policy 

Statement, FRA drew the jurisdictional 

line between ‘‘occupational safety and 

health’’ issues in the railroad industry 

and work related to ‘‘railroad 

operations,’’ with FRA exercising 

authority over railroad operations and 

OSHA over occupational safety and 

health issues. Further, the Policy 

Statement pointed to FRA’s ‘‘proper 

role’’ as concentrating its ‘‘limited 

resources in addressing hazardous 

working conditions in those traditional 

areas of railroad operations’’ (i.e., 

‘‘movement of equipment over the 

rails’’) in which FRA has special 

competence and expertise. See 43 FR 

10585. Often, railroad working 

conditions are so unique that a 

regulatory body other than FRA would 

not possess the requisite expertise to 

determine appropriate safety standards. 

As a general rule, FRA exercises its 

statutory jurisdiction over railroad 

employee working conditions where 

employees are engaged in duties that are 

intrinsic to ‘‘railroad operations,’’ where 

the identical conditions generally do not 

occur in typical industrial settings, and 

where the hazard falls within the scope 

of FRA’s expertise. Historically, the 

concept of ‘‘railroad safety’’ has 

included the health and safety of 

employees when they are engaged in 

railroad operations. In its 1978 

Statement concerning employee 

workplace safety, FRA stated: 

The term ‘‘safety’’ includes health-related 

aspects of railroad safety to the extent such 

considerations are integrally related to 

operational safety hazards or measures taken 

to abate such hazards. 43 FR 10585. 

Hazards that impact the health of 

railroad employees engaged in railroad 

operations may also result in adverse 

impacts on railroad safety, and so there 

is often a clear nexus between railroad 

safety and employee health. An example 

of this jurisdiction is seen in FRA’s 

issuance of locomotive sanitation 

standards. See 67 FR 16032 (April 4, 

2002). There, FRA promulgated 

regulations that address toilet and 

washing facilities for employees who 

work in locomotive cabs. See 49 CFR 

§§ 229.137 through 139. 

FRA has also exercised this 

jurisdiction with regard to occupational 

noise in the locomotive cab. FRA issued 

its current standard for locomotive cab 

noise in 1980. While OSHA, in general, 

regulates occupational noise in the 

workplace,3 FRA is the more 

appropriate entity to regulate noise in 

the locomotive cab, because the 

locomotive cab is so much a part of 

‘‘railroad operations.’’ With respect to 

noise in the locomotive cab, FRA wrote, 

in its Policy Statement, that: 

FRA views the question of occupational 

noise exposure of employees engaged in 

railroad operations, during their involvement 

in such operations, as a matter 

comprehended by the regulatory fields over 

which FRA has exercised its statutory 

jurisdiction. FRA is therefore responsible for 

determining what exposure levels are 

permissible, what further regulatory steps 

may be necessary in this area, if any, and 

what remedial measures are feasible when 

evaluated in light of overall safety 

considerations. 43 FR 10588. 

3. Federal Occupational Noise 

Standards 

OSHA’s occupational noise standard 

was promulgated under the WalshHealey Public Contracts Act of 1969 4

for the purpose of protecting employees 

from workplace exposure to damaging 

noise levels. The Walsh-Healey Act 

contained very limited provisions. Its 

noise standard allowed for a permissible 

exposure level of 90 dB(A), a 5 dB 

exchange rate, and a 90 dB(A) threshold. 

OSHA adopted the Walsh-Healey 

standard as an OSHA standard pursuant 

to section 6(a) of the OSH Act. 

In January 1981, OSHA promulgated 

a Hearing Conservation Amendment 

(HCA) to its occupational noise 

exposure standard. See 46 FR 4078 

(January 16, 1981). The amendment 

consisted of requirements for noise 

measurements, audiometric testing, the 

use and care of hearing protectors, 

employee training, employee education, 

and recordkeeping. Portions of the 

amendment were subsequently stayed 

for reconsideration and clarification. 

See 46 FR 42622 (August 21, 1981). In 

1983, OSHA finalized the provisions of 

its Hearing Conservation Amendment 

by revoking various stayed provisions, 

lifting the stay on other provisions, and 

making other technical corrections.5

OSHA’s revised regulation included a 

detailed hearing conservation program 

(HCP).6 OSHA’s occupational noise 

standard applies, for the most part, to all 

industry engaged in interstate 

commerce.7 OSHA’s noise standard can 

be found at 29 CFR 1910.95. As will be 

discussed in subsequent sections, FRA’s 

standard is quite similar to OSHA’s 

standard. 

While OSHA is the primary regulator 

of noise in the workplace, other federal 

agencies, in addition to FRA, regulate 

specific occupational settings. FRA 

regulates employee noise exposure in 

the locomotive cab. The U.S. Air Force 

regulates the noise environment of Air 

Force personnel.8 The Mine Safety and 

Health Administration (MSHA) 

regulates the occupational noise 

exposure of miners. 

In 1999, MSHA issued a 

comprehensive rule that establishes 

uniform requirements for all miners. See 


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9For 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). 

10See document 4 of docket number 12357 on 

DOT’s Docket Web site (dms.dot.gov). 

11 John Aurelius and Norman Korebor, ‘‘The 

Visibility and Audibility of Trains Approaching 

Rail-Highway Grade Crossings,’’ Report No. FRA–

RP–71–2, May 1971. 

12 John P. Aurelius, ‘‘The Sound Environment in 

Locomotive Cabs,’’ Report No. FRA–RP–71–2A, July 

1971. 

13Roger D. Kilmer, ‘‘Assessment of Locomotive 

Crew In-Cab Occupational Noise Exposure,’’

National Bureau of Standards. Report No. FRA–

ORD–80/91, December 1980. 

14FRA Report to Congress, ‘‘Locomotive 

Crashworthiness and Cab Working Conditions.’’

September 1996. 

15Eric Stusnick for Wyle Laboratories, ‘‘A Review 

of the Noise and Vibration Sections of the Federal 

Railroad Administration’s Report to Congress 

Entitled ‘Locomotive Crashworthiness and Cab 

Working Conditions.’ ’’ December 1996. See 

document 6 of docket number 12357 on DOT’s 

Docket Web site (dms.dot.gov). 

16Technical Memorandum from Hugh J. 

Saurenman and Lance D. Meister of Harris Miller, 

Miller & Hanson, Inc., ‘‘Comments on AAR Review 

of Chapter 6, FRA Report to Congress ‘‘Locomotive 

Crashworthiness and Cab Working Conditions.’’

June 1997. See document 7 of docket number 12357 

on DOT’s Docket Web site (dms.dot.gov). 

64 FR 49548 (September 13, 1999). In 

that rule, MSHA adopted a permissible 

exposure level of 90 dB(A) as an 8-hour 

TWA. MSHA also requires employers to 

use all feasible engineering and 

administrative controls in order to 

reduce a miner’s noise exposure to the 

permissible exposure level. Where a 

mine operator is unable to reduce the 

noise exposure to the permissible level, 

the mine operator must provide the 

miner with hearing protectors (HP) and 

is required to ensure that the miner uses 

them. In addition, where a miner is 

exposed at or above a TWA of 85 dB(A), 

the employer must place the miner in a 

hearing conservation program. The 

program must include exposure 

monitoring, the use of hearing 

protectors, audiometric testing, training, 

and recordkeeping. See 64 FR 49550. 

B. History of FRA’s Treatment of 

Occupational Noise 

1. FRA’s Past Noise Standard 

In part 229, FRA establishes 

minimum federal safety standards for 

locomotives. These regulations 

prescribe inspection and testing 

requirements for locomotive 

components and systems. They also 

prescribe minimum locomotive cab 

safety requirements. In 1980, FRA 

issued standards for acceptable noise 

levels aboard a locomotive (49 CFR 

229.121).9

Section 229.121 was promulgated to 

protect the hearing and health of cab 

occupants and to facilitate crew 

communication. It provided that noise 

level exposure in the cab may not 

exceed specific prescribed levels. The 

provision limited employee noise 

exposure to an eight-hour time-weighted 

average (TWA) of 90 dB(A) with a 

doubling rate of 5 dB(A). It also 

provided for an absolute upper noise 

limit of 115 dB(A). In addition, it 

established procedures for noise testing. 

At the time of the promulgation of the 

rule, there was discussion as to the 

proposed noise exposure limits. One 

commenter to the 1980 proposed rule 

took exception to the proposed 90 dB(A) 

8-hour time limit and suggested that 85 

dB(A) was more appropriate. FRA 

explained that, in selecting the 

proposed noise exposure limits, it 

attempted to ‘‘strike a balance between 

that which is most desirable and that 

which is feasible.’’ See 45 FR 21092, 

21106 (March 31, 1980). FRA 

acknowledged that more crew members 

would be at a lower risk at 85 dB(A), but 

also acknowledged that there would be 

problems with the technical feasibility 

of, and economic impact associated 

with, an 85 dB(A) requirement. Based 

on the information available and 

technology of the time, FRA determined 

that the 90 dB(A) 8-hour noise exposure 

limit would ‘‘provide adequate 

protection for the hearing, 

communication, and comfort of 

locomotive crews under presently 

accepted standards.’’ See 45 FR 21092, 

21106 (March 31, 1980). 

The then-existing § 229.121 did not 

address hearing conservation for 

locomotive cab employees, including 

the use of personal protective 

equipment, ongoing hearing testing, 

employee training on the cause and 

prevention of hearing loss, and periodic 

noise monitoring in the workplace. 

These are standard components of an 

occupational hearing conservation 

program, and OSHA requires them of 

other general industry workplaces 

within its jurisdiction. 

In 1992, Congress enacted section 10 

of The Rail Safety Enforcement and 

Review Act (RSERA) (Pub. L. 102–365, 

September 3, 1992; codified at 49 U.S.C. 

20103, note) in response to concerns 

raised by employee organizations, 

Congressional members, and 

recommendations of the National 

Transportation Safety Board (NTSB) 

concerning crashworthiness of and 

working conditions in locomotive cabs. 

Section 10 of RSERA, entitled 

Locomotive Crashworthiness and 

Working Conditions, required FRA ‘‘to 

consider prescribing regulations to 

improve the safety and working 

conditions of locomotive cabs’’

throughout the railroad industry. In 

order to determine whether regulations 

would be necessary, Congress required 

FRA to assess ‘‘the extent to which 

environmental, sanitary, and other 

working conditions in locomotive cabs 

affect productivity, health, and the safe 

operation of locomotives.’’

In response to the Congressional 

mandate set forth in Section 10 of 

RSERA, FRA undertook steps to 

determine the health and safety effects 

of locomotive cab working conditions. 

FRA studied a variety of working 

conditions in locomotive cabs, 

including sanitation, noise, temperature, 

air quality, ergonomics, and vibration. 

FRA prepared the Locomotive 

Crashworthiness and Cab Working 

Conditions Report to Congress 

(‘‘Report’’), dated September 1996, 

which outlines the results of these 

studies. A copy of the Report is 

included in the docket.10 With respect 

to noise, FRA conducted a 

comprehensive survey, reviewed 

historical data on noise-related 

incidents and investigations, and 

gathered information on hearing 

protection programs. 

2. Studies of Noise 

In the proposed rule, FRA provided 

an extensive discussion on studies 

related to noise in the locomotive cab. 

This includes a 1971 study on highwayrail grade crossings 11 and an addendum 

on the sound environment in the 

locomotive cab,12 a 1980 study on incab occupational noise exposure,13 an 

FRA Report to Congress on cab working 

conditions,14 the Wyle Report (the 

Association of American Railroads’

(AAR) review of FRA’s Report to 

Congress),15 a 1997 Technical 

Memorandum on the FRA Report to 

Congress and subsequent review,16 and 

an FRA Administrator’s Roundtable 

Discussion on Noise. Copies of these 

documents are included in the docket. 

In the interest of space, FRA is not 

republishing its discussion here. See 69 

FR 35145, 35148–35151; June 23, 2004. 

C. Fundamental Principles of Sound 

FRA provided an extensive discussion 

in the proposed rule on fundamental 

principles of sound. The topics covered 

include sound, hearing, hearing loss, 

and instrumentation. See 69 FR 35145, 

35152–35154. 

D. Occupational Noise in the Railroad 

Industry 

Noise is one of the most pervasive 

hazardous agents in the American 


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17National 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). 

18NIOSH, ‘‘National Occupational Research 

Agenda,’’ National Institute for Occupational Safety 

and Health, DHHS (NIOSH), Pub. No. 96–115, 

Cincinnati, OH (1996). 

19Human Factors Guidelines for Locomotive 

Cabs, DOT/FRA/ORD–93/03 (November 1998). 

workplace. In the 1980’s, the National 

Institute for Occupational Safety and 

Health (NIOSH) identified noiseinduced hearing loss (NIHL) as one of 

the ten leading work-related diseases 

and injuries.17 In the 1990’s, NIOSH 

listed noise-induced hearing loss as one 

of the eight most critical occupational 

diseases and injuries requiring research 

and development activities within the 

framework of the National Occupational 

Research Agenda.18 Noise is also one of 

the most intrusive aspects of locomotive 

operations.19

There are many noise sources in a 

locomotive cab. The primary noise 

sources are engine noise, locomotive 

horns, and brake noise. The nature and 

level of noise generated by each source 

varies greatly. Diesel engine noise is 

continuous, but it varies according to 

the engine load and engine speed. The 

noise from locomotive horns (and other 

audible warning devices) is sporadic but 

can be very loud if the window is open 

and can be very frequent if there are 

many highway-rail grade crossings. 

Brake noise results from the air 

exhaust that comes from the brake 

valves when the brakes are released. Air 

brake exhaust is a high frequency sound 

and can be very intense. In the past, air 

brake exhaust vented directly into the 

locomotive cab. By 1980, locomotive 

manufacturers, maintenance facilities, 

and railroads had started venting the 

exhaust below the cab floor. FRA noted 

this change in its 1980 locomotive cab 

noise rule. See 45 FR 21092 (March 31, 

1980). FRA recognized the effectiveness 

of this redesign, noting that it reduced 

the cab occupant’s noise dose by an 

estimated 15 to 20 percent while still 

providing an audible indication of brake 

performance. See 45 FR 21092, 21015 

(March 31, 1980). Manufacturers 

continued to re-design locomotives 

accordingly, and today the vast majority 

of locomotives have their air brake 

exhaust vented below the floor and 

away from the crew. There are some 

older locomotives, though (such as the 

ones used by some short lines), which 

still use the older equipment that vents 

air brake exhaust into the cab. 

Another noise source comes from 

vibrations which loosen cab 

components—such as loose cab sheet 

metal, loose cab side windows, and 

miscellaneous loose and/or poorly fitted 

cab equipment—and cause them to 

resonate. Other potential noise sources 

include fans on dynamic brake systems; 

alerters; wheel/rail contact at cruising 

speed; rooftop or retrofitted air 

conditioning/cooling units; bells that 

are sounded to indicate that the train is 

about to move; and radios that are used 

for crew communication. Noise can also 

result from the cab structure, depending 

on the particular design of the 

locomotive as it pertains to noise or 

vibration isolation. Maintenance, or the 

lack thereof, can also impact noise. 

Engines in less than ideal condition will 

run rougher and noisier. Mountings can 

wear and loosen, which can create new 

vibrations or decrease vibration 

damping. Also, worn engine 

components (e.g., bearings) can create 

noise. 

The locomotive is also subject to 

several external noise sources. Since the 

locomotive cab is a mobile workplace, 

the level of noise exposure varies greatly 

by the route traveled. Noise results from 

the sound that is reflected into the cab 

(especially if through open windows) 

from reflective surfaces such as tunnels, 

bridges, sheds, and close embankments. 

Other conditions that can also impact 

noise include the topography and grade 

of the work assignment and the use of 

locomotive horns to provide notice at 

highway-rail grade crossings. 

Predicting and addressing noise 

exposures in the locomotive cab is 

difficult not only because of the wide 

variety of possible conditions, but 

because of the mobile railroad 

workforce. It is a challenge to create and 

implement effective training and testing 

programs, because locomotive crews are 

not on the same run or same locomotive 

from one day to the next. In addition, 

locomotive crews can work shifts that 

last up to twelve hours. 

II. The Railroad Safety Advisory 

Committee (RSAC) Process 

A. RSAC 

In March 1996, FRA established the 

RSAC, which provides a forum for 

developing consensus recommendations 

on rulemakings and other safety 

program issues. The Committee 

includes representation from all of the 

agency’s major customer groups, 

including railroad carriers, labor 

organizations, suppliers, manufacturers, 

and other interested parties. A list of 

member groups follows: 

American Association of Private Railroad Car 

Owners (AARPCO) 

American Association of State Highway & 

Transportation Officials (AASHTO) 

American Public Transportation Association 

(APTA) 

American Short Line and Regional Railroad 

Association (ASLRRA) 

American Train Dispatchers Department 

(ATDD) 

Association of American Railroads (AAR) 

Association of Railway Museums (ARM) 

Association of State Rail Safety Managers 

(ASRSM) 

Brotherhood of Locomotive Engineers and 

Trainmen (BLET) 

Brotherhood of Maintenance of Way 

Employes Division (BMWED) 

Brotherhood of Railroad Signalmen (BRS) 

Federal Transit Administration (FTA)* 

High Speed Ground Transportation 

Association 

International Association of Machinists and 

Aerospace Workers 

International Brotherhood of Electrical 

Workers (IBEW) 

Labor Council for Latin American 

Advancement (LCLAA)* 

League of Railway Industry Women* 

National Association of Railroad Passengers 

(NARP) 

National Association of Railway Business 

Women* 

National Conference of Firemen & Oilers 

National Railroad Construction and 

Maintenance Association 

National Railroad Passenger Corporation 

(AMTRAK) 

National Transportation Safety Board 

(NTSB)* 

Railway Supply Institute (RSI) 

Safe Travel America 

Secretaria de Communicaciones y Transporte 

(Mexico)* 

Sheet Metal Workers International 

Association (SMWIA) 

Tourist Railway Association Inc. 

Transport Canada* 

Transport Workers Union of America 

(TWUA) 

Transportation Communications 

International Union/BRC (TCIU/BRC) 

United Transportation Union (UTU) 

* Indicates associate membership. 

When appropriate, FRA assigns a task 

to the RSAC, and after consideration 

and debate, the RSAC may accept or 

reject the task. If the RSAC accepts the 

task, the RSAC establishes a working 

group that possesses the appropriate 

expertise and representation of interests 

to develop recommendations to FRA for 

action on the task. The working group 

develops the recommendations by 

consensus. The working group may 

establish one or more task forces to 

develop the facts and options on a 

particular aspect of a given task. The 

task force reports to the working group. 

If a working group reaches unanimous 

consensus on recommendations for 

action, the working group presents the 

package to the RSAC for a vote. If a 

simple majority of the RSAC accepts the 

proposal, the RSAC formally 

recommends the proposal to FRA. 


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FRA then determines what action to 

take on the recommendation. Because 

FRA staff has played an active role at 

the working group level in discussing 

the issues and options and in drafting 

the language of the consensus proposal, 

and because the RSAC recommendation 

constitutes the consensus of some of the 

industry’s leading experts on a given 

subject, FRA is often favorably inclined 

toward the RSAC recommendation. 

However, FRA is in no way bound to 

follow the recommendation, and the 

agency exercises its independent 

judgement on whether the 

recommended rule achieves the 

agency’s regulatory goal, is soundly 

supported, and is in accordance with 

policy and legal requirements. Often, 

FRA varies in some respects from the 

RSAC recommendation in developing 

the actual regulatory proposal. If the 

working group or the RSAC is unable to 

reach consensus on recommendations 

for action, FRA moves ahead to resolve 

the issue through traditional rulemaking 

proceedings. 

On June 24, 1997, FRA presented the 

subject of locomotive cab working 

conditions to the RSAC. The purpose of 

this task was defined as follows: ‘‘To 

safeguard the health of locomotive 

crews and to promote the safe operation 

of trains.’’ The RSAC accepted this task 

(No. 97–2) and formed a Locomotive 

Cab Working Conditions Working Group 

(‘‘Working Group’’). 

B. Working Group 

Task 97–2 addressed several issues, 

one of which was noise exposure. With 

respect to noise exposure, RSAC asked 

the Working Group to complete two 

items: (1) Revise existing cab noise 

limits to take into account current 

requirements of the OSHA standard, 

specifically as it relates to hearing 

conservation programs, and (2) 

Continue efforts to evaluate engineering 

controls and other measures used to 

minimize noise exposure in locomotive 

cabs. 

The Working Group consisted of 

representatives of the following 

organizations, in addition to FRA: 

AASHTO 

APTA 

ASLRRA 

AAR 

BLET 

BMWED* 

IBEW 

AMTRAK 

RSI (formerly Railway Progress Institute) 

SMWIA 

TWUA 

UTU 

* Indicates associate membership. 

The Working Group’s goal was to 

produce recommendations for 

locomotive cab noise exposure 

standards warranted by an assessment 

of available information on hearing loss, 

hearing conservation programs, existing 

federal standards, and occupational 

injury data. The Working Group decided 

that specific expertise would be needed 

to analyze pertinent information and so 

it formed the Noise Task Force. 

The Noise Task Force, which was 

established in September 1997, was 

made up of industrial hygiene, safety, 

engineering, and medical staff from 

carriers, labor organizations, and FRA. 

The Noise Task Force met regularly over 

a period of several years to discuss 

several topics, including hearing loss 

and noise exposure among locomotive 

cab employees; existing railroad hearing 

loss prevention programs; OSHA’s 

occupational noise standards; 

equipment changes and procedures that 

improve noise levels in the cab; hearing 

testing and training programs; and noise 

monitoring. 

The Noise Task Force concluded that 

OSHA’s standard for noise was an 

appropriate framework and starting 

point for an update and revision to 

FRA’s existing noise regulation. The 

Noise Task Force also identified several 

areas where OSHA’s regulation might be 

modified to create a FRA regulation that 

could better address the occupational 

noise exposure of the rail industry. The 

Noise Task Force forwarded these 

findings to the Working Group. 

The Working Group conducted a 

number of meetings and discussed each 

of the matters proposed in the NPRM. 

FRA has placed the minutes of these 

meetings in the docket for this 

proceeding. Throughout this preamble, 

FRA frequently discusses issues that the 

Noise Task Force and Working Group 

raised and views that they shared. FRA 

discusses these points to show the 

origin of certain important issues and 

the course of discussion on these issues 

at the task force and working group 

levels. FRA believes that this helps 

illuminate the facts FRA has weighed in 

making its regulatory decisions and the 

logic behind those decisions. The reader 

should keep in mind, of course, that 

only the full RSAC makes 

recommendations to FRA, and it is the 

consensus recommendation of the full 

RSAC on which FRA is acting. 

The Working Group, using the 

preliminary findings of the Noise Task 

Force, developed recommendations for 

reducing the likelihood of hearing loss 

for cab employees. In June 2003, the 

Working Group reached consensus on 

recommendations for the proposed rule 

and forwarded these recommendations 

to the RSAC. On June 27, 2003, the 

RSAC accepted these recommendations, 

which had been reviewed and accepted 

by FRA. 

On June 23, 2004, FRA published an 

NPRM containing the recommendations 

of the Working Group and the full 

RSAC. See 69 FR 35146. The NPRM 

provided for a 90-day comment period 

and provided interested parties the 

opportunity to request a public hearing. 

The comment period closed on 

September 21, 2004. FRA received 

comments from approximately 50 

interested parties. There were a wide 

variety of commenters, including 

individual locomotive engineers; 

professional, scientific, and 

credentialing associations; congressmen; 

individual audiologists; an acoustical 

consulting firm; a commuter railroad; 

and a manufacturing company. 

FRA reconvened the Task Force on 

March 1, 2005 and the Working Group 

on March 2–3, 2005 to discuss the 

comments that FRA received about the 

NPRM. The Task Force and the Working 

Group considered all the comments and 

again reached consensus on 

recommendations for a final standard. 

These recommendations were presented 

to the RSAC and on May 18, 2005, the 

RSAC accepted these recommendations. 

The RSAC voted to forward these 

recommendations to FRA as the basis 

for a final occupational noise standard. 

FRA has reviewed the RSAC’s 

recommendations and has adopted the 

recommendations in this final rule. 

FRA has worked closely with the 

RSAC in the development of its 

recommendations and believes that the 

RSAC effectively addressed 

occupational noise exposure for cab 

employees. FRA has greatly benefitted 

from the open, informed exchange of 

information that has taken place during 

meetings. There is general consensus 

among labor, management, and 

manufacturers concerning the primary 

principles FRA sets forth in this final 

rule. FRA believes that the expertise 

possessed by the RSAC representatives 

enhances the value of the 

recommendations, and FRA has made 

every effort to incorporate them in this 

rule. 

III. FRA’s Noise Standard 

A. FRA’s Approach to Cab Noise 

As OSHA governs workplace safety, 

and OSHA has already issued 

regulations in the area of occupational 

noise, FRA used OSHA’s standard as a 

foundation for its own standard. 

However, there are many areas in which 

the OSHA standard differs from the FRA 

standard. The purpose of this 


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Federal Register / Vol. 71, No. 208 / Friday, October 27, 2006 / Rules and Regulations 63071 

20For a complete list of the permissible noise 

exposures, see Table 1 in § 227.103. According to 

Table 1, railroads must limit employee noise 

exposure to 85 dB(A) as a 16-hour TWA, 87 dB(A) 

as a 12-hour TWA, 90 dB(A) as an 8-hour TWA, and 

so on. 

21See discussion in § IV(A) of the background 

section. 

22 64 FR 49548, 49588–49589 (September 13, 

1999). 

rulemaking is to adapt the OSHA rule to 

the unique circumstances of the railroad 

environment. The working environment 

for railroad cab employees is quite 

different than that of the typical 

American worker. Also, the noise 

exposure of railroad employees is not 

uniform throughout the industry. 

Railroad employees may work in a 

different location each day, i.e., a 

different locomotive and/or a different 

route. Employee assignments and actual 

time in the cab may vary significantly 

during a typical week. The level of noise 

in any individual locomotive cab will 

vary greatly, depending on the 

locomotive model, locomotive age, 

condition of the locomotive, length of 

the route, traffic on the route, number of 

highway-rail grade crossings on the 

route, physical characteristics of the 

route, weather conditions during the 

run, and any one or more of several 

other factors. FRA’s rule has taken into 

account these unique characteristics of 

the railroad operating environment and 

has modified OSHA’s standard to fit the 

railroad industry. 

Since FRA’s rule is based on OSHA’s 

rule, it is helpful to review OSHA’s 

standard before explaining FRA’s 

standard. OSHA’s noise standard limits 

employee noise exposure to an 8-hour 

TWA of 90 dB(A). OSHA identifies a 

hierarchy of controls that should be 

used to limit noise exposure. If 

employee noise exposure exceeds the 

permissible exposure level, the 

employer must reduce the exposure (so 

that it is within permissible exposure 

limits) through the use of feasible 

engineering controls, administrative 

controls, or a combination of both. 

Where such controls cannot reduce 

employee exposure to permissible 

limits, employers are to supplement the 

engineering and administrative controls 

with hearing protection. The OSHA 

noise standard also requires that the 

employer administer a continuing 

effective hearing conservation program 

for employees who are exposed to levels 

that equal or exceed an 8-hour TWA of 

85 dB(A). 

OSHA places engineering and 

administrative controls at the top of its 

hierarchy and takes the position that 

these controls are the best method for 

controlling noise exposure. These 

controls reduce employee exposure to 

hazardous noise levels by eliminating 

(or at least reducing) the noise at the 

source, by modifying the noise path or 

by decreasing employee exposure time 

to the noise source. Engineering controls 

are generally understood to be the 

modification or replacement of 

equipment or any other related physical 

change at the noise source or along the 

transmission path that reduces the noise 

level at the employee’s ear (not 

including hearing protectors). They 

include such changes as the re-design of 

machinery or the use of different tools. 

Administrative controls involve efforts 

to limit worker noise exposure by 

modifying work schedules, work 

locations, or the operating schedule of 

noisy machinery. An example of 

Administrative Controls would be 

schedules for rotation of employees 

from tasks that are near noisy machinery 

to quieter areas. The objective is 

employee exposures with lower time 

weighted average levels of exposure. 

FRA’s standard on locomotive cab noise 

is based very heavily on OSHA’s 

standard. In this final rule, FRA requires 

railroads to limit employee noise 

exposure to an 8-hour TWA of 90 

dB(A).20 Also, FRA requires railroads to 

implement a hearing conservation 

program for those employees who are 

exposed to noise levels that equal or 

exceed an 8-hour TWA of 85 dB(A). 

FRA’s doubling, or exchange, rate is 5 

dB(A). FRA’s decision to use a 5 dB 

doubling rate is notable, because a 5 dB 

doubling rate is different than the 

scientific principle for a doubling rate. 

Technically, an increase of 3 dB 

represents a doubling of sound energy.21

In making its decision, FRA considered 

a doubling rate of 3 dB, 4 dB, and 5 dB. 

FRA ultimately decided on a 5 dB 

doubling rate. NIOSH recommends a 3 

dB doubling rate, the Air Force uses a 

3 dB doubling rate, and OSHA and 

MSHA use a 5 dB doubling rate. 

In its 1999 rulemaking on 

occupational noise for miners, MSHA 

faced a similar decision, choosing 

between a 3 dB or 5 dB exchange rate. 

MSHA conducted a study and found 

that the exchange rate substantially 

affects the measured noise exposure; 

nonetheless, MSHA retained the 5 dB 

exchange rate because of feasibility 

concerns.22 In its final rule, MSHA 

concluded that 

it would be extremely difficult and 

prohibitively expensive for the mining 

industry to comply with the existing 

permissible exposure level with a 3 dB 

exchange rate, using currently available 

engineering and administrative noise 

controls. MSHA therefore cannot 

demonstrate that implementation of such an 

exchange rate would be feasible. However, 

[MSHA] will continue to monitor the 

feasibility of adopting a 3 dB exchange rate. 

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

FRA, like MSHA, recognizes that the 

cost and feasibility of a 3 dB exchange 

rate is prohibitive. Furthermore, there 

was a consensus decision of the RSAC 

Working Group that 5 dB is most 

appropriate. Taking all of those factors 

into account, FRA has decided to use a 

doubling rate of 5 dB. Thus, a 5 dB 

increase in the time weighted average 

level reduces the permitted time of 

exposure duration by half. 

FRA recognizes the same noise 

control measures as OSHA (i.e., 

engineering controls, administrative 

controls, and hearing protection); 

however, FRA uses different terms to 

describe some of those controls. OSHA 

uses the term, ‘‘administrative 

controls,’’ while FRA uses the term 

‘‘noise operational controls.’’ These two 

terms are the functional equivalent. 

Also, OSHA uses the term ‘‘engineering 

controls,’’ while FRA uses no equivalent 

term—FRA instead describes the 

specific actions which railroads and 

manufacturers must take when 

designing, building, and maintaining 

locomotives. 

FRA’s overall approach toward 

controls differs from that of OSHA. FRA 

does not explicitly adopt OSHA’s 

hierarchy of controls. As explained 

above, OSHA places controls in a 

hierarchy and mandates their use 

according to that hierarchy. FRA has no 

such hierarchy. Rather, FRA has specific 

requirements that railroads must satisfy. 

FRA requires railroads to obtain and 

maintain locomotives built to meet the 

performance standard for maximum 

noise level in the cab defined by the 

standards in § 229.121. (This is 

somewhat equivalent to OSHA’s 

‘‘engineering controls’’). FRA mandates 

that railroads require employees to use 

hearing protectors when employees are 

exposed to noise levels that exceed an 

8 hour-TWA of 90 dB(A). (This is 

equivalent to OSHA’s hearing protector 

requirement). And, FRA gives railroads 

the option of using noise operational 

controls when employees are exposed to 

noise levels that exceed 90 dB(A) as an 

8 hour-TWA. (This is equivalent to 

OSHA’s ‘‘administrative controls’’). It is 

very important to note that FRA does 

not require the use of noise operational 

controls. Thus, when a railroad learns 

that an employee is exposed to noise 

levels that exceed an 8-hour TWA of 90 

dB(A), the railroad must provide the 

employee with HP, but need only 

consider the use of noise operational 

controls. Using noise operational 

controls as an option rather than a 

requirement was done in recognition of 


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63072 Federal Register / Vol. 71, No. 208 / Friday, October 27, 2006 / Rules and Regulations 

23 In their comments, the AAR pointed out that 

the preamble inaccurately used the term 

‘‘employers’’ in place of ‘‘employees.’’ FRA has 

corrected that typo in this final rule. 

the nature of railroad operations and the 

impact of other federal laws, specifically 

the Hours of Service law. This law 

limits crew working hours to 12 hours, 

thus also permitting work shifts of up to 

12 hours. Given the fact that 

administrative controls use periods of 

time removed from exposure to reduce 

the dose, and the fact that the only way 

to be removed from exposure on a train 

(except passenger trains) would be to 

leave the train, mandating 

administrative controls to reduce noise 

exposure would have the effect of 

changing the operating practices of the 

entire industry without regard to other 

issues such as where and how to get the 

exposed crews off the trains and how to 

get replacement crews on them. 

The RSAC Working Group spent a 

great deal of time discussing options 

and developing the recommended 

requirements for § 229.121 and thus a 

discussion is warranted here. An 

Engineering Controls Task Force, a 

subgroup of the Noise Task Force, met 

to discuss the feasibility of engineering 

controls. Among its findings, the group 

identified certain items that might help 

reduce noise exposure in the locomotive 

cab. In identifying these items, FRA has 

given serious consideration to those 

items which are feasible and those items 

which are not feasible. 

In developing the proposed and final 

rules, the RSAC Working Group 

participants noted that since the early 

1990s, the industry has taken delivery of 

thousands of newer locomotives 

engineered to reduce noise levels. 

Original equipment manufacturers used 

a variety of strategies to sharply reduce 

the portion of noise dose derived from 

the prime mover and to filter out other 

noise sources. The cabs of most of these 

locomotives provide an environment 

where, for the great majority of 

operating circumstances, employees 

will not experience 8 hour TWA 

exposures approaching 90 dB(A), and 

under most circumstances, exposures 

are not expected to reach the action 

level. Railroads have also specified 

placement of horns in the center of the 

locomotive, rather than immediately 

over the cab, further reducing noise 

levels experienced by employees. 

Finally, as noted below, the practice of 

venting the airbrake system into the cab 

has been largely abandoned. 

Accordingly, the challenges in this 

proceeding have principally to do with 

management of noise exposure in older 

locomotives, at least minimal 

standardization of hearing conservation 

programs that have grown up without 

regulation, ensuring the progress in 

engineering of locomotives is 

maintained, and addressing the needs of 

employees of smaller railroads by 

providing basic guidance regarding 

noise monitoring, hearing conservation, 

training, and recordkeeping. To the 

extent that many comments filed by 

non-railroad parties assume a much 

more dire situation, those comments 

have missed the mark and, in many 

cases, have called for measures not 

warranted by the facts. 

The RSAC Working Group also found 

that certain maintenance tasks—e.g., 

repair, replacement, or installation of 

cab insulation, door seals, window 

seals, weatherstripping, and electrical 

cabinet insulation and seals—can help 

reduce in-cab noise levels. The group 

also discussed other engineering 

controls and maintenance items which 

have been shown to reduce noise 

exposure in the cab, e.g., venting piping 

for air brake exhaust and power control 

devices out and under the locomotive; 

using air cooling devices so that 

windows can be closed; and using 

noise-dampening window glass which 

limits the penetration of noise and 

thereby limits the contribution of 

outside noise. In addition, the group 

discussed the location of locomotive 

horns and agreed that relocation of the 

horn to the center position had reduced 

crew noise exposure. 

FRA recognizes that there are many 

benefits to using engineering and 

maintenance controls. First, they do not 

interfere with crew and radio 

communication, which personal 

Hearing Protection (HP) devices can do. 

HP can interfere with crew and radio 

communication by blocking out 

necessary sounds in addition to 

unwanted noise. Second, engineering 

and maintenance controls do not 

present the potential hazard of 

overprotection that HP may present. 

Engineering controls block out noise at 

its source, or along its transmission 

path, thus there is no concern that 

necessary sounds will be blocked out 

too. Third, engineering controls put less 

burden on the employee and as a result, 

are easier for employees to use. With 

HP, railroads must ensure that 

employees are properly trained on the 

use of the devices, and employees must 

ensure that they don and wear the 

devices properly. Due to the benefits of 

engineering controls, FRA did not want 

to exclude their use. However, due to 

burden that it would impose on 

railroads if there was a general 

requirement for the use of engineering 

controls, FRA did not include the 

requirement as found in OSHA’s rule. 

The burden was recognized when it was 

made clear by experts in locomotive 

noise reduction engineering that 

imposing the requirement to first use 

engineering controls to reduce exposure 

would require re-engineering the cab 

structure, the suspension and other 

elements of the locomotive to achieve 

the required noise reduction at a cost 

approaching that of buying a new 

locomotive. As a compromise, rather 

than imposing a general engineering 

controls requirement on railroads, FRA 

identified limited and specific 

engineering controls—the design and 

build requirements in § 229.121(a) and 

the maintenance requirements in 

§ 229.121(b)—which railroads must use. 

This background section has sought to 

provide an overview of FRA’s rule, as 

well as a broad comparison to OSHA’s 

rule. A more thorough discussion of the 

differences between OSHA’s and FRA’s 

standards is provided in the Section-bySection Analysis below. 

B. Responsibilities of Railroads and 

Employees 

The primary responsibility for 

compliance with this regulation lies 

with employers, i.e., railroads. As such, 

railroads have several enumerated 

responsibilities. This regulation requires 

railroads to: Develop and implement a 

noise monitoring program; administer a 

hearing conservation program; establish 

and maintain an audiometric testing 

program; make audiometric testing 

available to employees; implement 

noise operational controls (if desired); 

require the use of hearing protection; 

make hearing protection available to 

employees at no cost; train employees in 

the use and care of hearing protection; 

ensure proper fitting of and supervise 

the correct use of hearing protection; 

give employees the opportunity to select 

hearing protection from a variety of 

suitable hearing protection; evaluate 

hearing protection attenuation; initiate 

and offer a training program, maintain 

and retain records; and obtain and 

maintain locomotives that meet 

specified standards for limiting in-cab 

noise. 

The responsibilities of employees 

derive from those of the railroad. 

Employees’ responsibilities come from 

railroad policies, which are issued 

pursuant to this regulation. This 

regulation would require employees 23

to: Use their hearing protection when 

mandated by the railroad; care for their 

hearing protection as trained by the 

railroad; and complete the training 

program which is offered by the 

railroad. There is one additional 

obligation for which employees have 


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Federal Register / Vol. 71, No. 208 / Friday, October 27, 2006 / Rules and Regulations 63073 

24Under the railroad safety laws, civil penalties 

may be assessed against individuals only for willful 

violations. See 49 U.S.C. 21304. 

25FRA notes that the doseBusters Company Web 

site no longer exists and that FRA has been unable 

to find the doseBusters Company through any other 

means on the Internet. 

primary responsibility—employees 

must report for audiometric testing once 

every three years. While railroads have 

an affirmative obligation to offer testing, 

employees have an affirmative 

obligation to report for testing. Without 

adequate audiometric testing, a hearing 

conservation program will not succeed, 

and so FRA is identifying an employee’s 

audiometric testing obligation as a 

primary responsibility. 

Because employee responsibilities 

are, for the most part, derivative, 

compliance would generally take place 

through the railroad disciplinary 

process, rather than direct enforcement 

by FRA. FRA does, however, recognize 

one major exception. FRA may assess 

civil penalties for a wilful violation 24

for an employee who does not report for 

audiometric testing. Overall, FRA 

expects that employees will fully 

comply with all of their responsibilities. 

Railroads should perform required 

actions, and employees should 

reciprocate with their commensurate 

responsibilities. Railroads should set 

expectations of compliance, and 

employees should meet those 

expectations of compliance. 

C. Compliance 

FRA’s principal method of 

enforcement will be through audits. 

With an industrial hygienist as team 

leader, an audit team will examine a 

railroad’s hearing conservation program. 

The team will examine whether the 

railroad is adequately protecting its 

employees. The team will speak with 

the program manager, review records 

(e.g., noise monitoring records, 

audiograms, standard threshold shift 

records, etc.) and determine the extent 

to which the railroad is complying with 

the requirements of this regulation. If 

warranted, FRA will take enforcement 

action against the railroad. 

In addition, if FRA has reason to 

believe that certain locomotive crews 

are being exposed to high noise doses, 

FRA inspectors will ride in the 

locomotive cab with those crews to 

measure the sound levels and determine 

the crews’ exposure. FRA inspectors 

may also review maintenance records to 

determine whether railroads have 

corrected defective conditions (e.g., 

loose windows, deteriorated seals). 

Additionally, FRA will investigate 

employee complaints of excessive noise. 

IV. Summary of Comments 

A. In General 

Overwhelmingly, the commenters to 

this rule applauded FRA for amending 

its noise standard. They commended 

FRA for taking the initiative to prevent 

noise-related hearing loss among 

railroad workers. They also expressed 

their support for FRA’s effort to 

establish a uniform noise exposure rule 

for railroad operating employees, 

explaining that a uniform noise 

standard for the railroad industry will 

facilitate understanding of, and 

compliance with, regulatory 

requirements. One commenter was 

pleased to see that FRA had addressed 

both noise control (part 229 

requirements) and hearing conservation 

(part 227 requirements) in this rule, 

because, based on their observations, 

the most successful hearing loss 

prevention programs are those that 

include both noise control and hearing 

conservation components. 

The commenters acknowledged that 

FRA’s rule would bring about some 

significant improvements in certain 

areas of hearing conservation and would 

significantly improve the health and 

safety conditions for cab occupants. 

However, several commenters felt that 

the proposed rule still fell short of an 

effective hearing conservation program. 

Chief among that concern, commenters 

felt that FRA was relying too heavily on 

OSHA’s standard. Commenters agreed 

that OSHA’s standard was a good 

starting point, but explained that 

OSHA’s standard could use some 

updating. 

They explained that OSHA’s rule is 

over 20 years old and rooted in even 

older data. One commenter explained 

that the OSHA standard was based 

largely on the NIOSH recommended 

criteria from 1972, which was based on 

research in the 1950s and 1960s. The 

commenters went on to explain that, 

since that time, there have been new 

scientific findings (including advances 

in the fields of acoustics and 

bioacoustics), technological 

advancements, and years of field 

experience. The commenters felt that 

FRA should make more efforts to 

incorporate these advances into its 

standard. They explained that their 

comments tended to reflect this 

viewpoint. Along these lines, some 

commenters encouraged FRA to 

consider incorporating components of 

‘‘stronger’’ standards such as MSHA’s 

recent rule and the 1998 NIOSH revised 

criteria. 

FRA was very cognizant of these 

issues in drafting the rule. While FRA 

modeled its rule after OSHA’s standard 

and not after an alternative standard 

such as NIOSH’s 1998 revised criteria, 

FRA notes that FRA did not adopt each 

one of OSHA’s provisions without 

question. FRA incorporated several new 

changes into its revised noise standard, 

including some changes at this final rule 

stage. Throughout the process, FRA has 

tried to strike a balance between 

deferring to OSHA, the lead federal 

agency in the field of occupational 

safety and health, and incorporating 

changes based on scientific advances, 

technological improvements, 

recognition of some of the unique 

circumstances present in the railroad 

operating environment, and field 

experiences. FRA believes that this rule 

strikes the proper balance at this time. 

In the paragraphs below, FRA 

discusses several overarching 

comments. FRA discusses comments 

specific to the rule text in the sectionby-section analysis. 

B. Approaches Other Than the OSHA 

HCA 

FRA modeled this rule after OSHA’s 

Hearing Conservation Amendment 

(HCA). Several commenters strongly 

encouraged FRA to rewrite this rule 

based on the 1998 Revised Criteria for 

a Recommended Standard. They noted 

that NIOSH’s more stringent standards, 

such as an exposure limit of 85 dB(A) 

or an exchange rate of 3 dB, will better 

protect railroad workers by significantly 

reducing their risk of noise-induced 

hearing loss. Once commenter wrote 

that FRA, by choosing the OSHA model, 

had proposed what amounts to a 

watered down ‘‘hearing loss 

documentation program.’’

Another commenter, the doseBusters 

Company,25 questioned why FRA gave 

little ‘‘consideration’’ to other 

prevention strategies. The doseBusters 

Company argued that OSHA’s HCA is a 

flawed approach to the prevention of 

hearing loss and cited several reasons 

why it believes that FRA should have 

considered other prevention strategies: 

(1) The HCA is based on information, 

analyses, thinking, and technology that 

is 25 years old; (2) At the time of its 

adoption, the HCA represented a 

compromised approach; and (3) The 

prescriptive approach of the HCA may 

preclude more effective and/or 

conservative alternatives and stifle 

future innovation in prevention efforts. 

The doseBusters Company suggested 

that FRA provide a performanceoriented framework for the prevention 


rmajette on PROD1PC67 with RULES2
63074 Federal Register / Vol. 71, No. 208 / Friday, October 27, 2006 / Rules and Regulations 

26Please note that while FRA has not adopted 

NIOSH’s standard in whole (e.g., exposure limit 

based on 85 dB(A) limit and a 3 dB exchange rate, 

or annual training), FRA notes that it has adopted 

some components of the NIOSH standard (e.g., 

integrating sound levels up to 140 dB and 

conducting audiometric tests at 8000 Hz). 

of noise-induced hearing loss by either 

adopting, or at least allowing, 

alternative strategies. As one of those 

alternate strategies, the doseBusters 

Company advocated for its own 

solution—a program of continuous 

monitoring using a proprietary device 

that also serves as a hearing protector. 

The Exposure Smart Protector (ESP) 

system simultaneously measures a 

workers’s actual noise exposure and 

provides protection to the worker. This 

allows the employer to routinely 

determine the efficacy of the personal 

HP for individual users in real 

workplaces. It also provides the 

employee with individual feedback on 

his or her own daily noise exposure. 

After discussion with the RSAC 

Working Group, FRA decided that it 

would not specify such alternate 

prevention strategies and that it would 

instead continue to model its rule after 

OSHA’s HCA. FRA has chosen to follow 

OSHA’s lead in this matter, because 

OSHA is the lead agency in the field of 

occupational safety and health. 

Presumably OSHA used its expertise 

and resources to determine that the 

HCA is the most appropriate method for 

hearing conservation. Moreover, the 

HCA approach is a proven and effective 

method in the work place environment. 

With respect to the doseBuster 

Company’s ESP System, FRA is 

unaware of any peer review or other 

scientific evaluation of that approach. 

As the doseBuster Company pointed 

out, the approach is still undergoing 

testing and review. In addition, there are 

several fundamental issues that the 

doseBusters Company did not address 

and would need to be addressed before 

FRA could employ this alternate 

prevention strategy. Among those issues 

are: Under what circumstances does the 

railroad decide to equip the employees 

with these devices? Should the railroad 

equip all potentially exposed employees 

or only a predefined group? What 

criteria would the railroad use to 

identify the predefined group? 

Furthermore, these devices have the 

potential to create an unsafe operating 

environment. Railroad employees need 

to focus their attention on their jobs and 

the safe operation of trains. These 

devices, which depend on significant 

employee attention, would prevent 

employees from focusing all their 

attention on their jobs. Finally, FRA 

does not believe it is appropriate to 

identify a single commercial product as 

a means of meeting the requirements of 

the rule. This is of even greater concern 

given that the use of the ESP devices 

would impose a significant, increased 

burden on railroads in complying with 

other requirements of the rule (i.e., 

noise exposure monitoring and the 

associated recordkeeping requirements). 

While the doseBuster Company’s 

concept is interesting, FRA does not 

believe that there is sufficient evidence 

that the device would be effective in 

increasing the protection of employees 

or that the system would be either 

practical or affordable for employers. 

As explained above, FRA modeled 

this rule after the OSHA HCA. FRA 

chose not to use alternate prevention 

strategies such as NIOSH’s 

Recommended Standard 26 or the 

doseBuster Company’s ESP system. 

While FRA has not chosen to use these 

alternate strategies, there is nothing in 

the rule that precludes a railroad 

employer from using any individual 

components of these strategies, as long 

as the components are consistent with 

the requirements of FRA’s rule. For 

example, if a railroad wished to use 

doseBuster Company’s ESP hearing 

protectors, the railroad is free to do so, 

as long as the railroad satisfies all the 

requirements of this rule. 

Finally, an individual engineer 

suggested that FRA consider another 

issue as part of its approach to hearing 

conservation. Specifically, the 

commenter wrote that FRA should 

mandate the use of air ride seats to 

address the problem of bone conduction 

whole body vibration. He asserted that 

vibration has an impact on hearing. FRA 

is not mandating the use air ride seats 

in this final rule, because the issue of 

vibration in locomotives is out of the 

scope of this rulemaking. It is possible 

that FRA will address this issue in the 

future. Vibration is listed as item 

number 3 on RSAC Task Statement 97–

2 on Locomotive Cab Working 

Conditions and is discussed in Chapter 

10 of FRA’s September 1996 Report to 

Congress. However, FRA is not issuing 

regulations on the issue of vibration at 

this time. 

C. Hierarchy of Controls 

As explained above in section III(A), 

OSHA and FRA differ with respect to 

the controls each employs. OSHA 

identifies a hierarchy of controls that 

should be used to limit noise 

exposure—engineering controls and/or, 

administrative controls, and then 

hearing protection. FRA recognizes the 

same controls but utilizes a specific 

strategy to ensure cost effective 

implementation of the controls in the 

railroad industry. 

Several members of Congress 

submitted comments about the 

hierarchy of controls. Each of them 

expressed concern that FRA was using 

an approach different than OSHA and 

MSHA with respect to engineering 

controls. They explained that the 

primary tool under the OSHA and 

MSHA scheme is the elimination of 

noise from the workplace through 

engineering controls. They also pointed 

out that both OSHA and MSHA require 

the use of engineering controls only if 

they are commercially viable and 

economically feasible. In urging FRA to 

follow the lead of the other Federal 

agencies, one Congressman wrote that 

‘‘OSHA is well-versed in the scientific 

and technical capabilities of engineering 

controls.’’ He also wrote that ‘‘the OSHA 

standard has been proven to 

successfully protect the hearing of 

workers and the adoption of the OSHA 

standards will allow our nation’s 

workplaces to have a consistent 

standard across all industries.’’ These 

Congressmen and Senators urged FRA 

to consider revising the proposed rule 

so that, consistent with the other 

Federal noise standards, FRA’s rule 

would require employers to use 

engineering controls as the primary 

method of reducing employee noise 

exposure. 

Other commenters also expressed 

concern about FRA’s approach. Several 

organizations wrote that FRA should 

base its rule on the ‘‘widely accepted 

concept of a hierarchy of controls.’’

Cooper Tire and Rubber Company 

(‘‘Cooper Tire’’), which specializes in 

the manufacturing of transportation 

industry products, likewise disagreed 

with FRA’s decision not to mandate the 

use of engineering controls as the 

primary strategy to combat workplace 

noise. Cooper Tire noted that FRA failed 

to follow OSHA’s and MSHA’s lead 

‘‘due to unspecified concerns about the 

burden engineering controls would 

impose on railroads.’’ Cooper Tire felt 

that it was ‘‘unclear how the FRA came 

to the conclusion regarding the costs of 

engineering controls.’’ Cooper Tire 

explained that it has scientific and 

technological expertise in the area of 

noise reduction and control and that it 

is aware of current, off-the-shelf 

technology that will adequately address 

low-frequency locomotive noise. As a 

result, Cooper Tire believes that 

railroads can implement engineering 

controls at modest cost with maximum 

benefit to employees. 

Cooper Tire also felt that FRA’s 

approach to engineering controls (i.e., 

specific prescriptive requirements) 


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27For a more detailed discussion, see the 

preamble to proposed rule at 69 FR 35145, 35155. 

stifles the advancement of technology. 

Cooper Tire believes that by not 

allowing engineering controls generally, 

‘‘FRA seems to presuppose that the 

proposed rule reflects all current 

technology and that no new technology 

will address the problem of workplace 

noise-induced hearing loss.’’ Like the 

above commenters, Cooper Tire 

recommended that FRA adopt the same 

approach as OSHA and MSHA, ‘‘one 

which does not dictate specific 

engineering controls * * * but instead 

allows the employer to evaluate various 

engineering controls on the basis of 

their effectiveness, cost, technical 

feasibility, as well as their implications 

for equipment, use, service, and 

maintenance.’’ Cooper Tire advocated 

that FRA use an Active Noise Reduction 

approach and discussed information on 

an actual installation of an Active Noise 

Reduction System tested by Cooper 

Tire. 

In contrast, FRA also received 

comments indicating that FRA should 

be less reliant on engineering controls. 

The doseBusters Company wrote that 

‘‘the role of engineering controls is 

always emphasized, yet in reality their 

impact on prevention of hearing loss is 

problematic.’’ The doseBusters 

Company argued that engineering 

controls are not superior to hearing 

protection; that even if successfully 

implemented, engineering controls only 

prevent hearing loss for a fraction of 

workers (since few exposures are 

reduced to the action level through the 

use of engineering controls); and that 

engineering controls are not truly that 

effective (as evidenced by the fact that 

employers tend to rely on conventional 

hearing protection rather than 

engineering controls as the principal 

means of preventing hearing loss). 

FRA appreciates the theoretical merit 

of active noise control (‘‘noise 

cancellation’’) and has researched this 

subject in prior years in the context of 

community noise impacts. FRA believes 

that technology for active noise control 

may be useful in the future for reducing 

noise exposure in cab environments 

generally or in connection with audio 

headsets. Nothing in this rule prohibits 

use of this technology either in 

connection with initial qualification of 

locomotives or with respect to railroads’

providing HP to employees. However, 

FRA is not aware of any rigorous 

demonstration that existing technology 

is feasible and ‘‘cost effective’’ for this 

purpose. The commenter provided no 

economic information supporting the 

claim that its proprietary technology is 

ready for application in the railroad 

environment, and FRA is not aware of 

any other supplier making such a claim. 

FRA welcomes demonstration of the 

technology on locomotives in service, 

and FRA is prepared to assist in 

facilitating such a demonstration. 

However, FRA is not prepared to 

mandate an abstract requirement for 

engineering controls based upon a 

single supplier’s representation that the 

technology is available and affordable. 

FRA believes that the more specific 

requirements for engineering controls 

embodied in this final rule are more 

suitable given existing knowledge. 

With regard to the issue of freezing 

technology as asserted by Cooper Tire, 

FRA does not mandate any specific 

approach to manufacturing quieter 

locomotives, only that they meet a 

performance standard of a maximum 

permitted level of noise. Manufacturers 

and railroads are free to use any 

technology they wish to meet this 

requirement and FRA would expect the 

railroads and OEMs to continue to seek 

better (and perhaps cheaper) ways to do 

this. 

Throughout the rulemaking process, 

FRA devoted a great deal of time to 

considering OSHA’s rule and exploring 

alternative options. The RSAC Working 

Group engaged in extensive discussions 

on this issue and even formed a Task 

Force to solely consider the issue of 

engineering controls. The RSAC 

Working Group generally agreed that 

engineering controls should be 

emphasized as the first approach where 

feasible, but rather than leaving 

determinations of feasibility to later 

interpretation, the Working Group 

recommended that FRA specify the 

actions to be taken (i.e., new 

locomotives required to meet static 

testing requirements, protection of 

sound-insulating properties in existing 

locomotives, repair of certain noise 

sources as identified by crews). The 

RSAC Working Group had the 

confidence to take this approach 

because, over the past decade and a half, 

locomotive manufacturers have 

produced new locomotives that protect 

against excessive noise levels. At the 

same time, the RSAC Working Group 

recognized that there are operational 

conditions where, due to the limitations 

of glazing material or the need to run 

with windows open, occasional 

excessive doses might be encountered 

and that avoiding the need to employ 

HP under these circumstances might not 

be feasible. OSHA, by contrast, 

generally deals with fixed work places 

and needs a more general approach in 

order to address a wide range of 

industrial and commercial 

establishments. 

As a result of these discussions, FRA 

and the RSAC Working Group decided 

that the best approach for the railroad 

industry was the approach proposed in 

the NPRM—identify those specific 

engineering controls which were 

feasible and mandate them. FRA is 

further convinced of the 

appropriateness of that approach by the 

fact that it evolved out of the consensus 

process of the RSAC Working Group, 

which was comprised of representatives 

from railroads, manufacturers, unions, 

and others. 

Given the number and nature of 

comments on engineering controls, FRA 

is reiterating its approach toward 

engineering controls specifically and 

controls generally.27 FRA’s overall 

approach toward controls differs from 

OSHA. Although OSHA and FRA both 

have the same three controls, FRA uses 

different terminology for two of them: 

(1) OSHA uses the term ‘‘administrative 

controls,’’ and FRA uses the term ‘‘noise 

operational controls.’’ (2) OSHA uses 

the term ‘‘engineering controls,’’ and 

FRA uses no comparable term. FRA 

does however, require specific 

engineering controls. Those items are 

found in § 229.121. (3) Finally, both 

OSHA and FRA use the term ‘‘hearing 

protector.’’

OSHA places controls in a hierarchy 

and mandates their use according to that 

hierarchy—first engineering controls, 

and/or administrative controls, and 

finally hearing protectors. (Occupational 

noise exposure standard, administrative 

controls and engineering controls are on 

equal footing. See 29 CFR 

1910.95(b)(1).) FRA has no such 

hierarchy. FRA expects that railroads 

will comply with the requirements in 

§ 229.121 (equivalent to OSHA’s 

engineering controls) and that railroads 

will comply with the requirements 

regarding hearing protectors. FRA gives 

railroads the option of using noise 

operational controls (OSHA’s equivalent 

of administrative controls). 

Engineering controls are generally 

understood to be the modification or 

replacement of equipment or any other 

related physical change at the noise 

source or along the transmission path 

that reduces the noise level at the 

employee’s ear (not including hearing 

protectors). They include such changes 

as the re-design of machinery or the use 

of different tools. 

Rather than impose the general 

requirement to ‘‘use engineering 

controls,’’ FRA has identified the 

specific engineering controls which 

railroads must use. Specifically, 

railroads must buy locomotives 

manufactured such that they do not 


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63076 Federal Register / Vol. 71, No. 208 / Friday, October 27, 2006 / Rules and Regulations 

exceed a certain decibel level (see 

§ 229.121(a)(1)), must maintain those 

‘‘new’’ locomotives in such a way that 

alterations do not cause the sound level 

to increase beyond certain decibel levels 

(see § 229.121(a)(2)), and must maintain 

all pre-existing locomotives so that they 

do not reach excessive noise levels (see 

§ 229.121(b)(1)). In maintaining 

locomotives, railroads must be 

cognizant of items, including but not 

limited to, defective cab window seals, 

defective cab door seals, broken or 

inoperative windows, deteriorated 

insulation or insulation that has been 

removed for other reasons, broken or 

inoperative doors, and air brakes that 

vent outside of the cab (see 

§ 229.121(b)(2)). 

In addition to the items unique to this 

rulemaking, FRA has several other preexisting maintenance requirements that 

reduce cab noise levels. Conditions that 

can contribute to the noise dose, such as 

leaking manifolds, flat spots on wheels, 

insecurely attached components, and 

general conditions addressed in § 229.45 

are already required to be maintained 

properly under FRA’s regulations or the 

Locomotive Inspection Act itself for 

other safety reasons. 

In practice, all of these items, both the 

maintenance items listed in the final 

rule and pre-existing maintenance 

requirements in part 229, function like 

engineering controls, because they 

modify or replace equipment at the 

noise source so that it reduces the noise 

level at the employee’s ear. So, while 

FRA does not use the term ‘‘engineering 

controls,’’ FRA still employs 

engineering controls. Indeed, over the 

past decade and a half, the locomotive 

fleet has come to be dominated by cabs 

that are sufficiently quieter such that 

hearing protection is not required under 

most conditions of operation. 

Finally, FRA’s standard is different 

from OSHA’s in the following way. 

OSHA imposes a general requirement 

that their regulated industries must use 

engineering controls where they are 

technically and economically feasible. 

By contrast, FRA imposes specific 

requirements with which railroads 

absolutely must comply. Railroads have 

much less leeway when it comes to 

these controls than do OSHA’s regulated 

industries. 

D. Triggering Criteria 

The rule has two triggering criteria 

levels. The first one, which is located in 

§ 227.107, delineates when a railroad 

should place an employee in a hearing 

conservation program. It requires 

railroads to place employees in a 

hearing conservation program if 

employees are exposed to noise at or 

above the action level (i.e., an 8-hourTWA of 85 dB(A) with a 5dB exchange 

rate). The second one, which is located 

in § 227.105, delineates when a railroad 

should actively protect employee 

hearing. It requires railroads to provide 

appropriate protection to employees 

whose noise exposure exceeds the 

permissible limit of an 8-hour-TWA of 

90 dB(A) with a 5 dB exchange rate. 

Several commenters were displeased 

with these triggering criteria. They 

recommended that FRA lower the 

exchange rate to 3 dB and the criterion 

level to an 8-hour-TWA of 85 dB(A) and 

that FRA use this as the sole trigger for 

compliance. The commenters asserted 

that an exposure limit based on 90 

dB(A) and a 5 dB exchange rate is not 

protective enough for employees. The 

National Hearing Conservation 

Association (NHCA) wrote that these 

limits ‘‘will expose workers to an 

unacceptably high risk of noise induced 

hearing loss.’’ Similarly, NIOSH wrote 

that the 90 dB(A) limit exposes 

‘‘workers to a statistically significant 

increase in the risk of occupational 

hearing loss.’’ Likewise, a locomotive 

engineer wrote that ‘‘90 dBA over 8 

hours is a ridiculously high amount of 

noise. Anyone exposed to this day in 

and day out will certainly suffer hearing 

loss * * *. The one thing I was hoping 

you would do was lower the allowable 

noise level in all of our locomotive cabs 

and you have not done that.’’

NIOSH pointed to statistics, which 

show that there is a increased risk to 

employees exposed to noise at higher 

levels. NIOSH quoted a 1997 article by 

Stayner Prince and Gilbert Smith, which 

explained that, with at least 10 years of 

occupational noise exposure, eight 

percent of 65-year old workers would 

develop a material hearing impairment 

at 85 dB(A), twenty-two percent at 90 

dB(A), thirty-eight percent at 95 dB(A), 

and forty-four percent at 100 dBA. A 

Minnesota audiologist with a 20-year 

career in audiology, Ted Madison, cited 

additional NIOSH statistics, in his 

attempt to show that FRA’s proposed 

standard would result in noise-induced 

hearing loss for an ‘‘unacceptably high 

percentage of railroad workers.’’ Mr. 

Madison wrote that the estimated excess 

risk of incurring material hearing 

impairment over a 40-year working 

lifetime with average daily noise 

exposure of 90 dB(A) is 20% while the 

estimated excess risk with an average 

daily noise exposure of 85 dB(A) is only 

15%. 

In addition, a number of commenters 

pointed out that many government, 

scientific, and professional 

organizations recommend (and in some 

cases, mandate the use of) an 85 dB(A) 

permissible exposure limit and a 3 dB 

exchange rate. This includes 

organizations such as the U.S. 

Department of Defense, U.S. 

Environmental Protection Agency, and 

the National Institute for Occupational 

Safety and Health. The commenters also 

pointed out that most European 

countries use 85 dB(A) or less and that 

both the International Organization for 

Standards (ISO) and the American 

National Standards Institute (ANSI) 

have adopted standards that rely on a 3 

dB exchange rate. One commenter 

asserted that ‘‘virtually all other 

industrialized countries use a 3 dB 

exchange rate.’’

In suggesting a 3 dB exchange rate, 

commenters made several other 

arguments. American Speech-LanguageHearing Association (ASHA) and the 

American Industrial Hygiene 

Association (AIHA) asserted that a 3 dB 

exchange rate was ‘‘more appropriate 

and protective for railroad employees.’’

They rejected FRA’s decision to follow 

MSHA, arguing that the ‘‘noise exposure 

conditions, legacy of engineering 

controls, and other criteria surrounding 

MSHA’s adoption of the 5 dB rule are 

not necessarily germane to the railroad 

industry.’’ Theresa Schulz, who has 

spent more than 20 years as a hearing 

conservation audiologist in the U.S. 

military, wrote that the 3 dB exchange 

rate is ‘‘based on scientific principle and 

the physics of sound.’’ Cooper Tire 

explained that ‘‘US and international 

regulatory agencies have eschewed the 

5 dB exchange rate because of certain 

inherent deficiencies * * * [and] have 

embraced a more scientifically-sound, 

worker-friendly 3 dB exchange rate that 

is based on much better data than 

existed in the 1970s when the 5 dB 

exchange rate was first utilized.’’

Commenters proposed various 

alternatives. NHCA recommended that 

FRA revise the rule to include the 

Threshold Limit Values (TLVs) for noise 

established by the ACGIH. The TLVs are 

based on an 8-hour TLV of 85 dB(A) and 

a 3 dB exchange rate. NIOSH suggested 

that if FRA ultimately decided to retain 

the 90 dB(A) exposure limit and the 

5 dB exchange rate, then FRA should 

include a non-mandatory appendix 

containing tables from the 1998 NIOSH 

revised criteria document. Those tables 

would be analogous to the existing 

OSHA/FRA tables, however, they would 

calculate the numbers with a 85 dB(A) 

exposure limit/3 dB exchange rate 

(LNIOSH) in addition to calculating the 

numbers with a 90 dB(A) exposure 

limit/5 dB exchange rate (LOSHA). 

Commenters explained that, by having 

both sampling protocols, railroad safety 

and health professionals would be able 


rmajette on PROD1PC67 with RULES2
Federal Register / Vol. 71, No. 208 / Friday, October 27, 2006 / Rules and Regulations 63077 

28Berger, E.H. (2000). ‘‘Auditory and Nonauditory Effects of Noise’’ in The Noise Manual, 5th 

Edition, edited by E.H. Berger, L.H. Royster, J.D. 

Royster, D.P. Driscoll, and M. Layne, Am. Ind. Hyg. 

Assoc., Fairfax, VA, 137. 

29Berger, E.H. (2000). ‘‘Auditory and Nonauditory Effects of Noise’’ in The Noise Manual, 5th 

Edition, edited by E.H. Berger, L.H. Royster, J.D. 

Royster, D.P. Driscoll, and M. Layne, Am. Ind. Hyg. 

Assoc., Fairfax, VA, 137. 

30 Id. at 138. 

31 Id. at 139. 

to better understand the spectrum of 

hearing risks faced by railroad 

employees and could better choose the 

most relevant method for protecting 

employee hearing. Overwhelmingly, 

though, the commenters advocated for 

FRA to ‘‘follow the NIOSH expert 

advice’’ and adopt an 85 dB(A) exposure 

limit and a 3 dB exchange rate. 

For several reasons, FRA has decided 

to leave the triggering criteria as 

proposed. First, with respect to the 

exchange rate, many commenters argue 

that the 3 dB rate is much more 

protective than the 5 dB rate that FRA 

proposed and now adopts. The issue, 

however, is not as clear as the 

commenters suggest. There are two 

major approaches that have been taken 

in attempts to develop a simple scheme 

for determining the appropriate level of 

protection: the equal-energy approach 

and the equal-TTS approach. ‘‘The 

equal-energy approach is an example of 

attempts to equate exposures on the 

basis of their physical characteristics 

directly, while the equal-TTS method is 

based on an assumed correlation 

between permanent and temporary 

effects of noise exposure.’’ 28

The equal energy approach ‘‘makes 

the assumption that damage depends 

only on the daily amount of A-weighted 

sound energy that enters the ear of the 

worker, and that the temporal pattern 

during the day is irrelevant.’’ 29 This 

approach ultimately leads to the ‘‘3 dB 

rule,’’ which is that one should reduce 

the permissible time of exposure by half 

for every 3 dB increase in dose level. 

Thus, the argument for a 3 dB exchange 

rate assumes that since 3 dB represents 

a doubling in the acoustical energy, it 

also represents a doubling of the damage 

risk based on the daily exposure rate. 

However, this is not necessarily true. A 

doubling in energy does not necessarily 

represent a doubling of the damage risk, 

because there is a serious shortcoming 

with this theory. This theory only 

applies to single steady uninterrupted 

exposures. This theory does not account 

well for exposures to noise 

environments where the noise levels 

vary widely in intensity and throughout 

the work shift. Where exposures vary 

widely in intensity and over time, there 

is an opportunity for some auditory 

recovery and so the damage risk is not 

equivalent to exposures to steady state 

noise. The second theory is the equalTTS theory. It ‘‘is based on the 

hypothesis that daily exposures that 

produce the same temporary effects will 

eventually produce the same permanent 

effects.’’ 30 This theory does not have the 

same problem as the equal-energy 

theory, for it does not make the mistake 

of ignoring temporal patterns. 

Neither of these approaches, however, 

are well-suited for the locomotive cab 

noise environment. FRA experience has 

shown that exposures for crews of older 

and relatively ‘‘noisy’’ locomotive cabs 

are a mixture of periods of generally 

steady state noise at low to medium 

levels (80–90 dB(A)) interspersed with 

short periods with high noise levels 

(e.g., horn blowing, operations through 

tunnels and underpasses, and other 

relatively short term events). Given that 

crew exposures vary in intensity and 

over time, the equal energy approach 

(which ignores these temporal patterns) 

is not appropriate. As for the equal-TTS 

approach, it might be a seemingly more 

accurate method of assessing damage 

risk, but it is not suitable for regulatory 

compliance purposes, because its 

criteria are extremely complicated to 

apply. 

During the development of the OSHA 

HCA, OSHA was likewise faced with 

the practical reality of these approaches. 

OSHA wanted a simplified approach to 

establishing an equivalent exposure, but 

one that would account for the 

intermittence of exposures inherent in 

many occupational noise settings. 

Accordingly, OSHA came up with the 

5 dB exchange rate. They ‘‘decided that 

the best way to take into account the 

reduction of hazard associated with 

intermittence was to use a trading 

relation of 5 dB per halving of exposure 

time.’’ 31 FRA, like OSHA, believes that 

the 5 dB exchange rate is the most 

appropriate one to use at this time. 

Second, FRA does not feel 

comfortable changing the triggering 

criteria, since it would be a radical 

departure from the existing leading 

federal regulation on occupational noise 

exposure. The leading federal regulatory 

authority for occupational hearing loss 

is OSHA, and the leading federal 

regulation on occupational noise 

exposure is OSHA’s general industry 

standard. See 29 CFR 1910.95. The 

current OSHA permissible exposure 

limit, action level, and exchange rate are 

the same as those that FRA is using in 

this final rule. During this rulemaking 

proceeding, FRA sent a letter dated 

January 11, 2005 to OSHA and asked 

whether OSHA’s position had changed 

since the issuance of the HCA and 

whether OSHA had any plans in the 

near future to modify its exchange rate. 

In referring to scientific and technical 

issues including the exchange rate, 

OSHA replied in a March 16, 2005 letter 

that ‘‘OSHA has not re-addressed these 

issues since [the issuance of the HCA] 

and our position remains essentially 

unchanged.’’ (Copies of the letters are 

included in the docket). In addition, 

FRA notes that in a 1999 rulemaking, 

MSHA adopted hearing conservation 

requirements for miners, using the same 

limits and exchange rate as OSHA. See 

64 FR 49548 (September 13, 1999). 

Third, FRA notes that the data 

supported by several of the commenters 

(to support a 3 dB exchange rate) fails 

to take into account the actual nature of 

employee exposure. Studies cited in the 

comments (that compare the risk of 

hearing loss over time based on the level 

of the employee’s noise exposure) 

presume that employees experience 

these exposures without any protective 

measures. That is not necessarily true. 

Employees who are included in a 

hearing conservation program are 

presumably educated about the risk of 

noise, have been offered HP at certain 

noise levels, and have been required to 

wear HP at certain levels. Thus, 

employees in a HCP are a ‘‘protected’’

population and their hearing loss will 

be less than that of the ‘‘unprotected 

populations’’ (that are cited in the 

studies). And so the risk of hearing loss 

with a 5 dB exchange rate is not as high 

as commenters suggest. 

Fourth, even if FRA were to accept 

the argument that the 3 dB exchange 

rate is more protective and appropriate 

for the noise experienced by locomotive 

crews, FRA cannot adopt the lower limit 

given the implications that would 

result. While the railroads are subject to 

FRA’s noise standard for their noiseexposed employees in the locomotive 

cab, railroads are subject to OSHA’s 

noise standard for noise-exposed 

employees in areas outside of the 

locomotive cab. See § 227.101. If FRA 

adopted a 3 dB exchange rate and OSHA 

continued with its 5 dB exchange rate, 

railroads would have to comply with 

two different regulatory criteria for their 

employees. That would be overly 

burdensome, difficult, and costly. For 

example, it would most likely 

substantially increase the railroad’s 

recordkeeping burden and the railroad’s 

cost for medical services. There are 

limits to what technology permits and 

what the regulated industry can afford. 

FRA would be pushing those limits by 

imposing the 3 dB exchange rate. 


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63078 Federal Register / Vol. 71, No. 208 / Friday, October 27, 2006 / Rules and Regulations 

32Earshen, John J. (2000). ‘‘Sound Measurement: 

Instrumentation and Noise Descriptors’’ in The 

Noise Manual, edited by Elliott H. Berger, Larry H. 

Royster, Dennis P. Driscoll, Julia Doswell Royster, 

and Martha Lane, American Industrial Hygiene 

Association, 54. 

Fifth, the use of the 3 dB exchange 

rate is not as widespread as some 

commenters suggest. FRA believes there 

is a marked distinction between 

professional organizations that 

recommend a 3 dB exchange rate and 

Federal agencies that actually enforce a 

3 dB exchange rate on a regulated 

community. Most of the entities that 

recommend the use of the 3 dB 

exchange rate are professional 

organizations like NIOSH, ACGIH, 

NHCA, ASHA, and the American 

Academy of Audiology (AAA), as well 

as standards organizations like ANSI 

and ISO. Few Federal regulatory 

agencies actually enforce a 3 dB 

exchange rate standard on a regulated 

community. OSHA and MSHA use a 5 

dB exchange rate. DOD is one of the few 

federal agencies that has a 3 dB 

exchange rate, but even DOD is in an 

unique position, for they have internal 

guidelines, as opposed to regulations in 

the Code of Federal Regulations. (In 

addition, the Air Force is an especially 

unique situation since the Air Force’s 

employees face unusually high noise 

levels, and so the 3 dB exchange rate is 

warranted). For the reasons listed above, 

FRA believes that the adopted triggering 

criteria is the best approach currently 

available to achieve the regulatory and 

occupational health objectives of this 

rule. Accordingly, in this final rule, FRA 

is using the same triggering criteria as 

proposed in the NPRM. 

E. Weighting Filter 

FRA used the A-weighted scale 

throughout the proposed rule. FRA 

explicitly acknowledges its use in 

§ 227.105(a), where FRA writes ‘‘A 

railroad shall provide appropriate 

protection for its employees who are 

exposed to noise that exceeds the limits 

of those shown in Table 1 of this 

section, as measured on the dB(A) scale 

as set forth in Appendix A of this part.’’

(A weighting filter is an electronic 

device in the sound measuring 

instrument that changes the way the 

instrument detects the intensity of 

different frequencies of sound. The Aweighting filter is designed to 

approximate the sensitivity of the 

human ear to the different sound 

frequencies.) Two commenters, Cooper 

Tire and an individual railroad 

employee, suggested that FRA should 

use the C-weighted scale instead of the 

A-weighted scale. 

Cooper Tire asserts that the Aweighting scale is not appropriate for 

the locomotive cab noise environment. 

Cooper Tire explains that the noise 

generated by a locomotive is radically 

different than the noise found in other 

industrial environments (i.e., of a lower 

frequency), and so FRA should use a 

weighting scale that appropriately 

measures low-frequency noise (i.e., the 

C-weighted scale). Cooper Tire explains 

that ‘‘A-weighted noise measurements 

filter out low-frequency noise content 

characteristic of locomotive noise prior 

to the noise measurement, giving an 

artificially low measure of an 

environment’s likelihood of causing 

harm to the locomotive employee.’’ By 

contrast, Cooper Tire believes that the 

C-weighted scale will better measure the 

low-frequency noise and thus ‘‘will 

afford railroad workers better protection 

against the negative hearing and health 

effects that low frequency noise can 

cause.’’ Similarly, an individual BLET 

member submitted comments, 

requesting that FRA use a C-scale 

instead of an A-scale in order to better 

measure low frequency noise. 

Consistent with its position in the 

proposed rule and OSHA’s position in 

its general industry standard, FRA will 

require railroads to use the A-weighted 

scale for measuring occupational noise 

in the workplace. Not only is the Aweighted scale the most appropriate 

weighing filter for this purpose, but it is 

also the most widely accepted. 

According to the AIHA Noise Manual, 

‘‘As a result of investigations in which 

a variety of weighing filters have been 

compared, it has been concluded that 

empirically derived measures using Aweighting gives a better estimation of 

the threat to hearing * * * than do the 

other weightings. Because of simplicity 

and substantiated results, A-weighting 

has continued to receive wide 

acceptance.’’ 32 The Working Group 

members agreed with this position, as 

does FRA. Accordingly, FRA has not 

changed the weighting scale it uses in 

this rule. 

F. Electronic Communication Headsets 

During pre-NPRM Working Group 

meetings, the matter of electronic 

communication headsets generated 

extensive discussions. Railroad 

representatives strongly disfavor the use 

of these devices. They maintain that 

they are ineffective and have gained 

poor acceptance by crews. They also 

assert that it is expensive for them to 

purchase such devices and to apply the 

necessary wiring to locomotives to use 

them. Labor representatives, in 

response, agree that these devices have 

gained poor acceptance by crews, but 

assert that the poor acceptance is due to 

the conditions of their use, i.e., nontemperature controlled locomotive cabs 

make for a warm cab environment with 

the resulting heat build-up under the 

headsets causing discomfort. Labor 

representatives believe that these 

hearing protection devices enhance 

communication and that crews would 

more widely and readily accept these 

devices if the circumstances of their use 

were improved. 

In the NPRM, FRA sought comment 

from the public on the use of different 

types of hearing protection, including 

electronic communication headsets. 

Several commenters, all of whom 

appear to be railroad operating 

employees, questioned why FRA did 

not require the railroad industry to use 

noise canceling headsets with built-in 

communication microphones. The 

commenters explained that the headsets 

work well for airline pilots, and so 

would probably also work well for 

locomotive engineers. Another 

commenter explained that these 

headsets would keep out the locomotive 

noise and make it easier to hear the 

dispatcher. Overall, these commenters 

felt strongly that these headsets would 

make a significant difference and would 

decrease the noise level in locomotives. 

One individual, in particular, wrote that 

‘‘[these headsets] would not be 

inexpensive, but [these headsets] are 

worth their weight in gold in an aircraft 

environment and would likely be the 

same in a locomotive.’’

The AAR, however, disagreed as to 

the value of these headsets when used 

as hearing protection. The AAR noted 

that several of their members have had 

extensive experience with radio 

headsets and have found that their use 

is limited. The AAR explained that the 

headsets have been poorly received by 

most crews and that many employees 

found the headsets to be uncomfortable. 

The AAR also explained that many 

employees lost their headsets or left 

them at home. The consensus of the 

AAR members is that ‘‘the 

disadvantages and cost of radio headsets 

far outweigh any benefits they might 

offer.’’

FRA considered this issue and 

decided to leave this provision the same 

as in the proposed rule. As noted above, 

the Working Group had discussed this 

issue at length in past meetings and 

reached the same conclusion. Absent 

any new information or justification to 

support a change, neither FRA nor the 

Working Group saw any reason to 

change its position. FRA thinks, at this 

time, that it is most appropriate that 

FRA allow the use of the electronic 

headset technology but not require it. 


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33See Pilcher, J., Nadler, E., and Busch, C., 

‘‘Effects of Hot and Cold Temperature Exposure on 

Performance: A Meta-Analytic Review,’’

Ergonomics, vol. 45, no. 10, 682–688. 

34See FRA Docket No. 1999–6439, including 65 

FR 2230 (January 13, 2000), 68 FR 70586 (December 

18, 2003), and 70 FR 21844 (April 27, 2005). 35See 69 FR 35146, 35149 (June 23, 2004). 

FRA has previously examined the 

issue of temperature control in 

locomotive cabs and came to the 

conclusion that it was not possible to 

mandate use of air conditioning during 

hot periods of the year. In reporting 

these findings to the RSAC, FRA did 

call attention to the importance of 

temperature control and urge railroads 

to include full temperature control in its 

specifications for new locomotives and 

to maintain the systems in service. 

Absent firm requirements that 

temperature control be provided, and 

given the long hours that employees 

work in the cab setting, FRA agrees it is 

not practical to require use of headsets 

in the normal course of business.33

In sum, FRA will not require a 

railroad to offer electronic (or radio) 

communication headsets (wired or 

wireless), however FRA does not intend 

to discourage railroads from using this 

technology. Railroads are welcome to 

use this technology if they so wish. Of 

course, if a railroad elects to 

accommodate an employee with hearing 

loss by providing that employee with an 

electronic headset, the railroad would 

also need to provide the other regularly 

assigned crew members with compatible 

equipment. Because of the safety need 

attendant to good intra-crew 

communication, this is an 

accommodation that would be 

particularly appropriate where one 

member of the crew has known hearing 

loss and the locomotive is an older 

model known to have significant 

background noise. In this case, all crew 

members should cooperate in utilization 

of the technology. As a related aside, 

FRA notes that, with respect to crew 

members with documented hearing loss, 

this rule does not vary or add to the 

railroad’s duties under the Americans 

with Disabilities Act. 

G. Location of the Train Horn 

Several individual commenters, all 

railroad employees, expressed concern 

about the location of the train horn. One 

commenter asserted that the location of 

the train horn was unsafe with respect 

to hearing protection for personnel on 

the train. Another commenter suggested 

that railroads with cab-roof-mounted 

horns should relocate their horns to the 

back of the cab on the engine 

compartment hood. This commenter 

also stated that cab-mounted horns 

create a greater safety risk, because they 

reduce the communication between the 

engineer and conductor in the cab and 

because they decrease the crew’s ability 

to hear the radio. Yet another asserted 

that the ‘‘biggest cause of cab noise [is] 

the horns mounted on top of the 

locomotive cab on all the older engines’’

and recommended that the new rule 

‘‘include mandatory relocation of the 

roof mounted horns to the long hood 

area where all new locomotive horns are 

mounted.’’

FRA has a long history of working 

with the railroad industry on the issue 

of locomotive horn noise, both in the 

context of locomotive cab working 

conditions and of unwanted noise in 

communities through which active 

railroad lines pass. FRA has addressed 

train horn issues in depth through the 

rulemaking proceedings for its Final 

Rule on the Use of Locomotive Horns at 

Highway-Rail Grade Crossings (‘‘Train 

Horn Rule.’’) 34 The issues ranged from 

setting maximum horn sound output 

levels to limiting horn sound 

(emanating to the side of the 

locomotive) to relocating the horn on 

locomotives. In order to fully consider 

these issues, FRA held a Technical 

Conference on Locomotive Horns during 

the comment period to the NPRM (for 

the Train Horn Rule), conducted tests 

through the Volpe National 

Transportation Systems Center, and 

reviewed the results of Transport 

Canada tests. 

Research in support of the Train Horn 

Rule confirmed that placing the horn in 

the middle of the locomotive results in 

the need to have louder output from the 

source in order to achieve adequate 

warning to motorists, which, in turn, 

causes concern in communities along 

the rail line. However, the placement of 

the horn in the middle of the locomotive 

clearly reduces the impact on crews. 

Research conducted in Canada suggests 

that front-mounted horns may be more 

effective (than center-mounted horns) in 

providing warning under dynamic 

conditions. 

In the Train Horn Rule, FRA decided 

not to mandate the relocation of the 

train horn. FRA explained that further 

research would be necessary before 

making any further regulatory changes. 

FRA continues to research these issues. 

For purposes of this rulemaking, the 

issue is whether employee hearing is 

adequately protected. The provisions of 

this rule will achieve that result. 

Accordingly, FRA, with the agreement 

of the RSAC Working Group, is not 

mandating that railroads locate the train 

horn in any particular location. 

H. FRA Report to Congress 

In the NPRM, FRA discussed the 

noise chapter of its 1996 Report to 

Congress.35 The AAR commented on the 

data relied upon for the Report to 

Congress. The AAR asserted that there 

were problems with that data, that is 

‘‘that FRA made time weighted 

measurements using an eight hour 

metric, but then reported the results as 

a percent of dose using a twelve hour 

metric as a reference. This resulted in 

overstating the percentage of exposures 

that exceeded the permissible exposure 

limit and also overstating the percentage 

of exposures that exceeded the OSHA 

threshold for hearing conservation 

programs.’’ The AAR believes that it 

‘‘could lead to overestimating the degree 

to which train crews are exposed to 

sound levels.’’

The AAR noted that FRA had 

acknowledged in the preamble 

discussion to the NPRM that the Report 

to Congress was ‘‘not rigorous.’’

However, the AAR wants FRA to 

publicly correct the averages and 

percentages in the Report to Congress 

that were affected by these errors. The 

information that FRA endeavored to 

summarize in the Report is now more 

than a decade old and could not, even 

if drawn from a representative sample of 

assignments (which it was not), and 

even if re-characterized as AAR 

suggests, be used to describe current 

industry conditions in any quantitative 

way. However, the Report to Congress 

provides data supporting the 

proposition that excessive noise doses 

are possible in the worst of the older 

locomotives. And, industry 

representatives themselves pointed out 

during RSAC Working Group 

deliberations that occasional excessive 

doses are possible in new locomotives 

under challenging conditions of 

operations (e.g., windows open, many 

grade crossings, heavy loading). 

Industry noise monitoring has 

confirmed these points (see data 

reported in Appendix C to the 

Regulatory Impact Analysis for this final 

rule), and all parties agree that a hearing 

conservation approach is warranted to 

address potential exposures. 

Accordingly, FRA, having responded 

repeatedly and candidly to criticisms of 

the Report, sees no purpose relevant to 

this rulemaking for revisiting the details 

of the Report. 

I. Regulatory Impact Analysis 

The doseBusters Company submitted 

comments on the Regulatory Impact 

Analysis (RIA) that FRA prepared to 


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36This definition comes from Appendix III(A), 

‘‘Instruments Used to Conduct a Noise Survey’’ of 

OSHA’s Technical Manual. See http://www.

osha.gov/dts/osta/otm/noise/exposure/

instrumentation.html#dosimeter. 

accompany the NPRM. FRA has 

responded to these comments in the 

final economic analysis, of which a 

copy can be found in the docket. FRA 

is addressing one comment here, 

however, because it is related to the 

reasons that FRA issued this rule and 

not just the RIA. 

The doseBusters Company 

commented on Appendix C of the RIA. 

Appendix C of the RIA cited railroad 

data that FRA had reviewed before 

issuing the rule. A Class 1 railroad has 

gathered and submitted to FRA data on 

employee noise exposure in the 

locomotive cab. FRA reviewed that data, 

as described in Appendix C to the RIA. 

The doseBusters Company felt that the 

data readings from the dosimeter were 

flawed because of the placement of the 

dosimeter microphones during testing 

(i.e., the microphones were placed at 

different locations—at the collar lapel, 

ball cap, or shoulder). The doseBusters 

Company asserted that using different 

microphone locations could cause 

substantial errors in the data. 

The doseBusters Company also 

disagreed with FRA’s conclusions from 

the testing about the risk of NIHL. The 

doseBusters Company stated that the 

results from the noise sampling 

represented the average number of 

workers overexposed to noise on any 

particular day, not the actual number of 

workers that may be overexposed over 

time. The doseBusters Company 

explained that, based on similar 

exposure data that they collected on 

underground coal miners, they estimate 

that nearly twice the number of railroad 

workers (than FRA identifies) are 

overexposed to noise. 

FRA does not believe that the 

dosimeter data is flawed, and FRA 

believes that it can rely on this data 

which it received from a Class 1 

railroad. FRA believes that the primary 

objective of this data collection was met 

placing the microphone near the 

employee’s ear. It is widely accepted 

that, as long as the dosimeter 

microphone is located in the employee’s 

hearing sphere (i.e., a sphere with a twofoot diameter surrounding the head),36

the tester will get a reasonable 

representation of the employee’s noise 

exposure. In addition, FRA notes that 

this data was collected from field 

surveys, not a controlled laboratory 

study. As such, small variations in the 

microphone testing location may be 

expected. FRA also notes that, out of 

512 valid samples, 17 samples included 

a comment about the microphone 

location. In addition, no structural 

errors were observed in the data. As the 

variance in microphone location 

appears to be small from the comments, 

the error introduced by this variance is 

likely to be small as well. A small 

amount of error would not invalidate 

the study results. 

The data displayed in the two tables 

in Appendix C to the RIA, Locomotive 

Cab TWA(80) Measurements and 

Locomotive Cab TWA(90) 

Measurements, were a simple count of 

the number of employees that fell below 

or above the OSHA standards. The TWA 

or number of employees was not 

arithmetically averaged. FRA agrees that 

a longitudinal study would have 

provided additional information on 

which employees were overexposed to 

noise and how their noise exposure 

changed over time. FRA notes that no 

new data was gathered for the analysis 

in Appendix C; rather, a previouslyconducted study provided a cost 

effective source of data. FRA feels that 

the data review provides a good 

indication of the number of employees 

overexposed to noise in those 

environments in which the noise 

sampling was conducted, given that 

railroad routes and schedules tend to 

stay fairly constant. With similar work 

activities performed over time, the noise 

exposure can be expected to 

approximate the noise exposure 

measured in the study. 

Without further information, FRA is 

uncertain whether the coal mining 

example cited by the doseBusters 

Company applies to the railroading 

environment. There are likely many 

differences between the coal mining 

environment and the railroading 

environment. For example, the noise 

sources, noise duration, sound 

frequencies, and reflective 

characteristics of the surroundings may 

all be different. Although FRA finds the 

coal mining comparison to be 

interesting anecdotally, there is no 

information presented that indicates 

how noise exposure in an underground 

coal mine correlates with noise 

exposure in a railroad cab. 

V. Section-by-Section Analysis 

This section-by-section analysis 

explains the provisions of the final rule. 

A number of the issues and provisions 

of the final rule have been discussed 

and addressed in the preceding 

discussions. Accordingly, the preceding 

discussions should be considered in 

conjunction with those below and will 

be referred to as appropriate. 

Part 227—Occupational Noise Exposure 

Subpart A—General 

Section 227.1 Purpose and Scope 

This section identifies the purpose 

and scope of this part. This is a general 

provision. Section 227.1(a) provides that 

the purpose of this part is to protect the 

occupational health and safety of 

employees involved in specified 

railroad activities and/or operations. 

More specifically stated, the purpose of 

this part is to protect the hearing of 

individuals who experience their 

primary noise exposure in the 

locomotive cab. Hearing loss occurs 

cumulatively over time and thus, the 

purpose of this rule is to protect 

individuals over the span of their 

railroad career. Section 227.1(b) states 

that this part prescribes minimum 

Federal health and safety noise 

standards for locomotive cab occupants. 

FRA did not receive any comments on 

this section, and so FRA did not make 

any changes based on public comments 

or RSAC Working Group discussions. 

However, FRA did make a few minor 

changes in order to clarify this section. 

FRA revised the language in § 227.1(b) 

to reflect the fact that the rule provides 

‘‘noise standards for locomotive cab 

occupants,’’ not general ‘‘health and 

safety standards for specified workplace 

safety subjects.’’

Section 227.3 Application 

This section identifies the 

applicability of this part and states that 

part 227 will apply to all railroads and 

contractors to railroads. This section 

identifies five exceptions. First, this part 

will not apply to railroads that operate 

only on track inside an installation that 

is not part of the general railroad system 

of transportation. Second, this part will 

not apply to rapid transit operations in 

an urban area that are not connected to 

the general railroad system of 

transportation. Aside from the exception 

noted below, this part will apply to 

rapid transit operations in an urban area 

that are connected to the general 

railroad system. 

Third, this part will not apply to rapid 

transit (light rail) operations in an urban 

area that are connected to the general 

system and operate under a shared use 

waiver. This exception is a departure 

from the proposed rule, and one that 

was decided upon after the RSAC 

consensus. These operations are 

provided using electrical powered or 

diesel powered light rail vehicles. Most 

of these systems operate as streetrunning trolleys and over track 

segments shared with conventional 

railroads using the approach referred to 


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37See 69 FR 35157. 

38The language in the NPRM had provided: ‘‘This 

part does not apply to * * * Employees of a foreign 

railroad whose primary reporting point is outside 

the U.S. while operating trains or conducting 

switching operations in the U.S., if * * *’’

as temporal separation. FRA has 

attempted to maintain consistency in 

sorting out those matters that FRA 

should regulate (because of interface 

with conventional railroads) and those 

that the Federal Transit Administration 

should regulate (under their State Safety 

Oversight program). FRA has used the 

waiver process to implement this 

arrangement, following the general 

principles set forth in FRA’s relevant 

policy statements. See 49 CFR part 209, 

Appendix A ‘‘Statement of Agency 

Policy Concerning Enforcement of the 

Federal Railroad Safety Laws’’ and 49 

CFR part 211, Appendix A ‘‘Statement 

of Agency Policy Concerning Waivers 

Related to Shared Use Trackage or 

Rights-of-Way by Light Rail and 

Conventional Operations.’’

With the passage of time, FRA and the 

affected transit authorities have found 

this complex of issues increasingly 

unwieldy. FRA believes that where FRA 

is issuing or revising a regulation, 

matters are greatly simplified both for 

the regulated entity and for FRA, if FRA 

provides for appropriate exceptions 

outright. This is such a case. Light rail 

operations are typically conducted 

using equipment designed for passenger 

and operator comfort, and FRA has 

received no information that any shared 

use light rail operation is affected by a 

serious noise exposure problem. 

Further, to the extent a transit authority 

needs to address hearing conservation 

issues among its employees, there is no 

reason to single out just the employees 

operating on the general rail system. 

Finally, from a practical standpoint, 

most shared use operations involve line 

segments not under FRA jurisdiction, 

and it would make no sense to bifurcate 

hearing conservation between the time 

the trolley operator is on the shared use 

segment and the time the trolley 

operator is on the street running 

segment. Accordingly, FRA has 

provided for an appropriate exception 

in this final rule. 

Fourth, this part will not apply to 

railroads that operate tourist, scenic, 

historic, or excursion operations, 

whether they are on or off the general 

railroad system of transportation. The 

term ‘‘tourist, scenic, historic, or 

excursion operations’’ is defined in 

§ 227.5 to mean ‘‘railroad operations 

that carry passengers, often using 

antiquated equipment, with the 

conveyance of the passengers to a 

particular destination not being the 

principal purpose.’’ Congress has 

directed that, in issuing safety rules, 

FRA take into account the unique 

financial, operational, and other factors 

that may apply to such railroads. 49 

U.S.C. 20103(f). For those operations, 

FRA has considered that they are often 

seasonal and generally use older or 

historic equipment. 

In the NPRM, FRA solicited public 

comment on how to handle the 

employees covered in these types of 

operations but did not receive any 

comments. FRA has no evidence that 

employees and volunteers providing 

this service are at serious risk of hearing 

loss. Accordingly, FRA will continue to 

exempt these operations from this 

regulation. FRA notes, however, that 

operations utilizing steam locomotives 

with extended duty periods for 

locomotive engineers and firemen 

should make vigorous use of hearing 

protection to reduce crew doses to 

acceptable levels. 

Fifth, this part will not apply to 

certain foreign railroad operations. 

Specifically, it will not apply to 

operations where employees of foreign 

railroads have a primary reporting point 

outside the U.S. but are operating in the 

U.S., and they satisfy the following 

requirements: (1) The government of the 

country in which the foreign railroad is 

based must have established 

requirements for hearing conservation 

for railroad employees in that 

jurisdiction; (2) the foreign railroad 

must undertake to comply with those 

requirements while operating within the 

U.S.; and (3) the Associate 

Administrator for Safety must determine 

that the foreign government 

requirements are consistent with the 

purpose and scope of part 227. A 

‘‘foreign railroad’’ refers to a railroad 

that is incorporated in a place outside 

the United States and is operated out of 

a foreign country but operates for some 

distance in the U.S. (e.g., Canadian 

National Railroad). Employees excepted 

from application would be those 

employees of a foreign railroad whose 

primary reporting point is in Canada 

and Mexico. 

The Associate Administrator’s 

evaluation and determination would 

only be made at the request of the 

foreign railroad. As a practical matter, 

this evaluation could be accomplished 

at the request of an association of 

foreign railroads (e.g., the Railway 

Association of Canada), and the 

exception would then be available to all 

railroads of that country entering the 

U.S. 

The Associate Administrator will 

determine whether the foreign 

government’s requirements are 

consistent with the purpose and scope 

of this part, specifically that the purpose 

of the foreign government’s 

requirements are ‘‘to protect the 

occupational health and safety of 

employees whose predominant noise 

exposure occurs in the locomotive cab.’’

This standard does not require a finding 

of equivalence in terms of program 

effectiveness, because making such a 

finding would require an estimation of 

incremental hearing loss over the 

working life of specific populations and 

that is scientifically impracticable. 

Further, more important than precise 

equivalence is the integrity of each of 

the North American governments’

programs. Employees and program 

managers need to know what rules 

apply and need to be able to carry out 

those programs without the confusion 

that would be inherent in changing the 

rules at international boundaries. FRA 

will request similar treatment of U.S. 

railroads operating into Canada and 

Mexico, in order to achieve the goal of 

harmonization. 

FRA did not receive any comments on 

this section, and so FRA did not make 

any changes based on public comments 

or RSAC Working Group discussions. 

However, FRA did make two minor 

changes on its own. FRA realized that 

it had failed to state in § 227.3(a) that 

the rule covers contractors in addition 

to railroads. While the preamble to the 

NPRM included such a statement,37 the 

regulatory text did not. The regulatory 

text now indicates that this rule covers 

railroad contractors. FRA also realized 

that there was a drafting inconsistency 

in § 227.3(b)(4) and corrected it. In order 

to provide for consistency within the 

section, FRA started § 227.3(b)(4) with 

the term ‘‘railroad operations’’ instead 

of the term ‘‘employees.’’ 38

Section 227.5 Definitions 

This section contains definitions for 

key terms. The definitions are set forth 

alphabetically. FRA intends these 

definitions to clarify the meaning of 

terms as they are used in the text of the 

final rule. 

Many of these definitions have been 

taken from the standards issued by 

OSHA and MSHA and the 

recommendations issued by NIOSH and 

the American Conference of 

Governmental Industrial Hygienists 

(ACGIH). These are definitions that are 

widely used by noise professionals. This 

includes definitions such as 

‘‘Audiologist,’’ ‘‘Decibel,’’ ‘‘dB(A),’’

‘‘Hertz,’’ ‘‘Medical Pathology,’’ and 

‘‘Otolaryngologist.’’ This section also 

contains some basic definitions that are 

standard to several of FRA’s regulations. 

This includes definitions such as 


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39See 42 U.S.C. 1395x(ll)(3)(b). 40See 29 CFR § 1910.95(b)(2). 

‘‘Administrator,’’ ‘‘FRA,’’ ‘‘Person,’’

‘‘Railroad,’’ and ‘‘Tourist, scenic, 

historic, or excursion operations.’’

Several of the definitions, however, are 

new or fundamental concepts that are 

discussed below. 

The term ‘‘Action Level’’ has been 

revised since the proposed rule. FRA, 

with the agreement of the RSAC, 

changed the upper limit for noise 

measurements from 130 dB(A) to 140 

dB(A). FRA also made this change in 

§ 227.103(c)(1). See § 227.103(c)(1) for a 

discussion of the revision. 

The term ‘‘Audiogram’’ has been 

added to the final rule. The Council for 

Accreditation in Occupational Hearing 

Conservation (CAOHC) and AAA 

recommended that FRA add this 

definition. Since FRA uses this term 

throughout the rule, FRA decided, and 

the RSAC Working Group agreed, that it 

is appropriate for FRA to provide a 

definition. 

The term ‘‘Audiologist’’ has been 

revised from the proposed rule. Several 

commenters suggested that FRA revise 

the definition, and most suggested 

alternative definitions. ASHA suggested 

a revised definition and explained it 

would be consistent with that contained 

in ASHA’s Scope of Practice in 

Audiology (2004). An individual 

commenter suggested an almost 

identical definition, except that it 

contained a different certification and 

licensing requirement. AAA also 

submitted a revised definition, 

explaining that their recommended 

definition came from the Social Security 

Act 39 and by using it, FRA would foster 

uniformity among Federal health 

programs. Finally, an individual ASHA 

member requested that FRA ensure that 

the audiologists are fully educated and 

trained. In particular, she suggested that 

an audiologist should have at least a 

master’s degree (or Ph.D. or Au.D), 

experience and training in hearing 

conservation, and certification from a 

national organization (and state 

licensure). 

RSAC Working Group members 

expressed concerns about certain 

aspects of the comments. One member 

was concerned that it might be 

unreasonable to expect audiologists to 

have masters or doctoral degrees, 

however the other members pointed out 

that the vast majority of audiologists 

already have either masters or doctoral 

degrees. Another member was 

concerned about linking audiologist 

certification to a single organization. (In 

the NPRM, FRA had required ASHA 

certification for audiologists). Members 

were concerned that this might present 

problems if that organization went out 

of existence or if a new licensing 

organization was created. As a result, 

the Working Group members decided 

not to link licensing to any one 

organization. 

In addition, one railroad 

representative explained that he had 

reservations about AAA’s 

recommendation that the audiologist be 

licensed in the state in which the 

audiologist furnishes service. The 

railroad representative explained that 

since railroads operate through several 

states, railroad audiologists will provide 

services in many states. It would be 

impracticable to expect railroad 

audiologists to become licensed in each 

state in which the railroad operates. 

FRA agrees that it would be 

impracticable to impose such a burden 

on railroads, and thus FRA did not 

adopt AAA’s recommendation. OSHA’s 

rule did not require licensure in the 

state in which the audiologist furnishes 

service. FRA also does not have such a 

requirement. Moreover, FRA does not 

expect that this will present any 

problems. As a general matter, FRA 

expects that audiologists will perform 

broad duties associated with the hearing 

conservation program. Presumably, the 

audiologist will perform such duties 

from the state in which the railroad is 

headquartered and where the 

audiologist is licensed. Furthermore, 

FRA’s experience has indicated that 

most railroad audiometric testing tends 

to be conducted by contractor 

technicians hired by the railroad. As 

such, audiologists are unlikely to travel 

into the field in mobile vans (i.e., 

potentially other states) and provide 

audiological services. 

As a related matter, one Working 

Group member suggested that FRA 

remove the provision in the second half 

the definition of audiologist, which sets 

the parameters for states which do not 

license audiologists. The Task Force 

member asserted that the provision was 

unnecessary, since the revised rule only 

requires audiologists to be licensed in 

any one state, and so therefore there was 

no need to make provisions for states 

without audiologist licensing 

requirements. The Task Force, as a 

whole, however, decided that removing 

this provision could create a problem 

for shortlines. A shortline operating in 

only one state which did not have 

licensing requirements for audiologists 

might have difficulty finding 

audiologists. With the provision 

removed, the rule would require 

audiologists to have a state license, and 

yet if the state didn’t require 

audiologists to get licensed, it would be 

likely that most, if not all, the 

audiologists near the shortline 

operations would not have state 

licenses. Accordingly, FRA decided to 

retain in the definition of audiologist a 

provision for states which do not license 

audiologists. 

The definition in the final rule is a 

hybrid of the above recommendations. It 

combines the description of the tasks 

from the ASHA (i.e., ‘‘a professional 

who provides comprehensive diagnostic 

and treatment/rehabilitative services for 

auditory, vestibular, and related 

impairments’’) with the qualification 

requirements from AAA (i.e., requires 

(1) a masters or doctoral degree and (2) 

a state license or alternate state 

certification). (Note also that FRA has 

formatted the qualification requirements 

slightly different than AAA.) This 

hybrid definition addresses both 

commenters’ concerns that audiologists 

are adequately qualified, as well as 

Working Group members’ concerns that 

railroads are able to comply with the 

rule. 

The term ‘‘Audiometry’’ has been 

added to the final rule. The Council for 

Accreditation in Occupational Hearing 

Conservation (CAOHC) and AAA 

recommended that FRA add this 

definition. Since FRA uses this term 

throughout the rule, FRA decided, and 

the RSAC Working Group agreed, that it 

is appropriate for FRA to provide a 

definition. 

The term ‘‘Continuous Noise’’ is 

intended to clarify the use of the word 

in § 227.105. The term is used in 

OSHA’s standard,40 though OSHA does 

not include a definition in its definition 

section. FRA decided to add a definition 

for the sake of clarity. 

The term ‘‘Employee’’ refers to 

individuals engaged or compensated by 

a railroad, as well as to contractors to a 

railroad. One of FRA’s objectives in 

covering contractors is to promulgate 

standards that are applicable to all those 

individuals that are exposed to the 

specified levels of locomotive cab noise. 

Whether an individual is paid by a 

railroad or a contractor is irrelevant. The 

most important issue is preventing 

hearing loss. FRA holds no position on 

the practice of a railroad contracting 

work out to another company, but FRA 

strongly believes that contract 

employees are entitled to the same level 

of safety as railroad employees. To the 

extent that contract employees work 

under the circumstances presenting the 

noise hazards addressed in this 

regulation, those contractors must be 

protected. 

The term ‘‘Exchange Rate’’ refers to 

the change in sound levels which would 


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41See 29 CFR § 1910.95(b)(1) and 29 CFR 

§ 1926.52(a). 

42See 30 CFR § 62.130. 

43See www.cdc.gov/niosh/hpterms.html for 

NIOSH Common Hearing Loss Prevention Terms. 

require halving or doubling the 

allowable exposure time to maintain the 

same noise dose. FRA has set the 

exchange rate for this regulation at 5 dB. 

As previously discussed, both OSHA 

and MSHA also use a 5 dB exchange 

rate. Regarding this definition and the 

definition of ‘‘Time-Weighted Average,’’

several commenters suggested that FRA 

instead adopt a 3 dB exchange rate. For 

a discussion of those comments, see 

section IV(D) above. 

The term ‘‘Hearing Protector’’ refers to 

‘‘any device or material, which is 

capable of being worn on the head, 

covering the ear canal or inserted in the 

ear canal; is designed wholly or in part 

to reduce the level of sound entering the 

ear; and has a scientifically accepted 

indicator of its noise reduction value.’’

At the suggestion of NHCA and with the 

consensus of the RSAC Working Group, 

FRA added the words ‘‘covering the ear 

canal opening’’ after the phrase ‘‘worn 

on the head’’ and ‘‘inserted’’ before ‘‘in 

the ear canal.’’ FRA believes that these 

words make the definition more clear. 

In the NPRM, FRA sought comment 

on inclusion of the phrase ‘‘has a 

scientifically accepted indicator of its 

noise reduction value.’’ The RSAC 

Working Group had discussed this 

phrase during the proposed rule stage 

and had considered several variations. 

Certain Working Group members had, at 

one point, thought the phrase was too 

general and provided too much leeway. 

They wanted that phrase replaced with 

a requirement to use a specific 

indicator, the Noise Reduction Rating 

(NRR). FRA sought comment from the 

public, asking whether FRA should use 

a general description for an indicator, 

the NRR, or some other specific 

indicator. 

A few commenters, including Aearo 

Company, ASHA, and Theresa Schulz, 

responded to FRA’s request for 

comments, explaining that they felt that 

the phrase was too vague. Aearo 

Company and ASHA suggested that 

FRA should mandate the use a specific 

rating(s) for enforcing hearing protector 

attenuation and include that rating(s) in 

this definition. They noted that there 

were several options, including NRR, 

NRR (SF), and Method B, though did 

not assert a preference for any 

individual one. Similarly, Theresa 

Schulz noted that there are new 

products and testing methods, including 

Fit Testing, Method B and Predicted 

Personal Attenuation Rating (P-PAR), 

that have been accepted scientifically 

and that provide real-world testing of 

attenuation. 

The AAR also responded to FRA’s 

request for comments, noting its support 

for the proposed definition of HP. The 

AAR wrote that railroads should not be 

limited to the NRR for evaluating HP 

attenuation, because it does not provide 

the flexibility to employ current science. 

The AAR explained that there is current 

technology, such as in-the-ear 

microphones, which measure actual 

attenuation, and that technology would 

not be available if railroads were limited 

only to the NRR. 

The Working Group discussed these 

comments and expressed concern that 

replacing that phrase with the NRR (or 

any other specific indicator) would 

ultimately be limiting. It would prevent 

the industry from availing themselves of 

advances in science and technology. By 

not listing any particular indicator, FRA 

leaves it open for the development of 

new standards. This is particularly 

important, since the EPA is currently 

working to develop a new standard. 

Given that there are several possible 

indicators that FRA could use and given 

that there is not widespread public 

support for any particular one, as well 

as the fact that listing a particular 

indicator might ultimately preclude the 

use of new technology, FRA will not 

mandate the use of any particular 

indicator in the definition of hearing 

protector. 

The term ‘‘Noise Operational 

Controls’’ is the functional equivalent of 

OSHA’s term ‘‘administrative 

controls.’’ 41 MSHA 42 and NIOSH 43

also use the term. FRA proposed the use 

of this term in the NPRM and has 

decided to retain it in this final rule. 

A few commenters, including the 

ASHA, Teresa Schulz, and Aearo 

Company, recommended that FRA use 

the term ‘‘administrative controls’’

instead of ‘‘noise operational controls.’’

They acknowledged that FRA enforces 

noise operational controls differently 

than OSHA, MSHA and NIOSH; 

however, they thought that FRA should 

use the same term as the others since the 

terms are functionally equivalent. The 

commenters explained that FRA should 

be consistent and uniform with other 

Federal agencies in order to minimize 

confusion. They thought that it was 

particularly important for FRA to be 

clear, since OSHA and FRA share 

jurisdiction over certain aspects of the 

rail industry. Aearo Company also felt 

that the term itself could be potentially 

confusing; a newcomer might question 

whether the term applies to worker 

schedules since those could be thought 

of as ‘‘noise operations.’’

FRA developed the term ‘‘noise 

operational controls’’ in conjunction 

with the RSAC Working Group during 

the NPRM stage. FRA re-opened the 

discussion on this matter during the 

comment period, and FRA, with the 

RSAC Working Group’s input, has reaffirmed its decision to use this term. 

FRA uses a different term to distinguish 

it from OSHA’s term. While the 

definition of the two terms is identical, 

the application of the two terms is 

different. Administrative controls are 

mandatory in OSHA’s hierarchy, 

whereas noise operational controls are 

optional in FRA’s hierarchy-free 

scheme. FRA is using this different term 

to make it clear that FRA treats noise 

operational controls differently than the 

way OSHA treats administrative 

controls. 

The term ‘‘Occasional Service’’ refers 

to service of not more than a total of 20 

days with one or more assignments in 

a calendar year. The term is used only 

once in this rule in § 227.101. Theresa 

Schulz commented on this definition, 

noting that it is an ‘‘important but 

previously unrecognized element for a 

noise standard.’’ She explained that this 

provision ensures that the focus of the 

HCP is on employees who are routinely 

exposed to noise and therefore at higher 

risk for noise-induced hearing loss. 

The term ‘‘Periodic Audiogram’’ has 

been revised in the final rule. The new 

definition states that a periodic 

audiogram is ‘‘a record of follow-up 

audiometric testing conducted at regular 

intervals after the baseline audiometric 

test.’’ FRA made this change in response 

to commenters who explained that the 

NPRM incorrectly referred to 

audiograms as something that is ‘‘done’’

or ‘‘conducted.’’ CAOHC, for example, 

explained that an audiogram is a 

document or report of audiometric 

testing, and so it is not something that 

is ‘‘done’’ or ‘‘conducted.’’ This new 

definition corrects that inaccuracy. 

The term ‘‘Professional Supervisor of 

the Audiometric Monitoring Program’’

was added to the final rule. This 

definition arose in the context of 

qualifications for individuals who 

perform audiometric tests. See 

§ 227.109(c) for a discussion of this term 

and of qualifications, in general. 

The term ‘‘Qualified Technician’’ was 

added to the final rule. This definition 

was not a product of the RSAC 

consensus. FRA added this definition in 

order to simplify the rule. Rather than 

restate the definition several times in 

the rule, FRA states it in this definition 

section once and then uses the term 

throughout the rule. For a discussion of 

the comments that FRA received about 


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44For a general discussion on the use of ANSI 

standards in this rule, see the section-by-section 

analysis for § 227.103(c)(2). 45See 69 FR 30591 (May 28, 2004). 

technicians, see the section-by-section 

analysis for § 227.109(c). 

The terms ‘‘Sound Level’’ and ‘‘Sound 

Pressure Level’’ can be used 

interchangeably. The definition comes 

from OSHA’s regulation. See Appendix 

I to 29 CFR 1910.95. OSHA’s regulation, 

in addressing SLOW time response, 

referenced a now-outdated ANSI 

standard, S1.4–1971 (R1976). FRA 

updated that standard with the current 

standard, ANSI S1.43–1997 (R2002), 

‘‘Specifications for IntegratingAveraging Sound Level Meters.’’44

The term ‘‘Time-weighted-average 

eight-hour (or 8-hour TWA)’’ includes a 

reference to the 5 dB exchange rate. 

Regarding this definition and the 

definition of ‘‘Exchange Rate,’’ several 

commenters suggested that FRA instead 

adopt a 3 dB exchange rate. For a 

discussion of those comments, see 

section IV(D) above. 

Section 227.7 Preemptive Effect 

This section informs the public of 

FRA’s intention and views on the 

preemptive effect of the rule. The 

preemptive effect of this rule is broad, 

as its purpose is to create a uniform 

national standard. Section 20106 of 

Title 49 of the United States Code 

provides that all regulations prescribed 

by the Secretary related to railroad 

safety preempt any State law, 

regulation, or order covering the same 

subject matter, except a provision 

necessary to eliminate or reduce an 

essentially local safety hazard that is not 

incompatible with a Federal law, 

regulation, or order and that does not 

unreasonably burden interstate 

commerce. Exceptions would be rare. In 

general, 49 U.S.C. 20106 will preempt 

any State law—whether statutory or 

common law—and any state regulation, 

rule, or order, that concerns the same 

subject matter as the regulations in this 

rule. FRA received no comments on this 

section and it remains the same as 

proposed in the NPRM. 

Section 227.97 Penalties 

This section identifies the civil 

penalties that FRA may impose upon 

any person, including a railroad or an 

independent contractor providing goods 

or services to a railroad, that violates 

any requirement of this part. These 

penalties are authorized by 49 U.S.C. 

21301, 21302, and 21304. This penalty 

provision parallels penalty provisions 

included in numerous other safety 

regulations that FRA has issued. 

Any person who violates any 

requirement of this part or causes the 

violation of any such requirement will 

be subject to a civil penalty of at least 

$550, and not more than $11,000, per 

violation. Civil penalties may be 

assessed against individuals only for 

willful violations. Where a grossly 

negligent violation or a pattern of 

repeated violations creates an imminent 

hazard of death or injury to persons, or 

causes death or injury, a civil penalty 

not to exceed $27,000 per violation may 

be assessed. In addition, each day will 

constitute a separate offense. 

Furthermore, a person may be subject to 

criminal penalties under 49 U.S.C. 

21311 for knowingly and willfully 

falsifying reports required by these 

regulations. FRA believes that the 

inclusion of penalty provisions for 

failure to comply with this regulation is 

important in ensuring that compliance 

is achieved. FRA received no comments 

on this section and it remains the same 

as proposed in the NPRM. 

With respect to the penalty amounts 

contained in this section, the Federal 

Civil Penalties Inflation Adjustment Act 

of 1990 (Inflation Act), Pub. L. 101–410 

Stat. 890, 28 U.S.C. 2461 note, as 

amended by the Debt Collection 

Improvement Act of 1996 Pub. L. 104–

134, April 26, 1996, requires agencies to 

periodically adjust by regulation each 

maximum civil monetary penalty or 

range of minimum and maximum civil 

monetary penalties. By final rule 

effective June 28, 2004,45 FRA adjusted 

its civil monetary penalties. In this final 

rule, FRA has included those adjusted 

penalty amounts. 

Section 227.11 Responsibility for 

Compliance 

This section clarifies FRA’s position 

that the requirements contained in this 

rule are applicable not only to any 

‘‘railroad’’ subject to this part but also 

to any ‘‘person’’ (as defined in § 227.5) 

that performs any function required by 

this rule. Although various sections of 

the rule address the duties of a railroad, 

FRA intends that any person who 

performs any action on behalf of a 

railroad or any person who performs 

any action covered by this rule is 

required to perform that action in the 

same manner as required of a railroad or 

be subject to FRA enforcement action. 

FRA received no comments on this 

section and it remains the same as 

proposed in the NPRM. 

Section 227.13 Waivers 

This section sets forth the procedures 

for seeking waivers of compliance with 

the requirements of this part. Requests 

for such waivers may be filed by any 

interested party. In reviewing such 

requests, FRA conducts investigations to 

determine if a deviation from the 

general criteria can be made without 

compromising or diminishing rail 

safety. This section is consistent with 

the general waiver provisions contained 

in other Federal regulations issued by 

FRA. FRA received no comments on 

this section and so FRA left it the same 

as proposed in the NPRM. 

Section 227.15 Information Collection 

This section notes the provisions of 

this part that will be submitted to the 

Office of Management and Budget 

(OMB) for compliance with the 

Paperwork Reduction Act of 1995. See 

44 U.S.C. 3501 et seq. 

Subpart B—Occupational Noise 

Exposure for Railroad Operating 

Employees 

Section 227.101 Scope and 

Applicability 

This section identifies the individuals 

to whom this rule will apply. FRA did 

not receive any comments on this 

section, and so FRA did not make any 

changes based on public comments or 

RSAC discussions. However, FRA did 

make a few minor changes in order to 

clarify this section. FRA changed the 

name of this section, from ‘‘scope’’ in 

the NPRM to ‘‘scope and applicability’’

in the final rule. FRA believes that the 

revised name more accurately reflects 

the content of this section. In 

§ 227.101(a), FRA added the words 

‘‘noise-related,’’ to clarify that this 

subpart applies to noise-related working 

conditions, not just working conditions 

in general. Additionally, at the end of 

§ 227.101(a)(1), FRA added the clause 

‘‘subject to a railroad’s election in 

paragraph (3) of this section.’’ This 

clarifies the interplay between 

paragraphs (a)(1) and (a)(3) of this 

section. FRA believes these changes 

make the rule more clear and accurate. 

Section 227.101(a)(1) provides that 

this rule covers employees who 

regularly perform service subject to the 

provisions of the hours of service law 

governing ‘‘train employees.’’ See 49 

U.S.C. 21101(5) and 21103. This refers 

to employees who are engaged in 

functions traditionally associated with 

train, engine, and yard service; for 

example, engineers, conductors, 

brakemen, switchmen, and firemen. In 

general, these employees encounter 

their predominant occupational noise 

exposure in the locomotive cab, and 

therefore, FRA plans to appropriately 

tailor the noise monitoring and noise 


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testing programs in this section to 

address the exposure that these 

employees experience. 

With respect to the term ‘‘regularly’’

in § 227.101(a)(1), FRA intends to cover 

individuals who perform some level of 

work in a locomotive cab. In making 

this assessment, the railroad should 

consider an employee’s work over the 

period of a year. FRA would like 

railroads to think about how they use 

their workforces, i.e., take a serious look 

at the work that their employees 

perform, determine which employees 

will experience potentially hazardous 

noise exposure in the cab, and then 

place those employees in a hearing 

conservation program. 

Given the nature of the railroad 

industry, FRA is aware that some of 

these employees may not always 

experience their predominant noise 

exposure in the cab. Due to 

longstanding labor practices in the 

railroad industry concerning seniority 

privileges and concerning the ability of 

railroad employees to bid for different 

work assignments, these railroad 

employees are likely to change jobs 

frequently and to work for extended 

periods of time on assignments that 

involve duties outside the cab. For 

example, an employee might start the 

year in a job that involves mostly 

outside-the-cab work, spend three 

months working primarily inside the 

cab, and then return to outside-the-cab 

work for the rest of the year. In this type 

of situation, FRA’s regulations can 

govern the noise exposure of this 

employee throughout the year despite 

the fact that the employee only spent 

three months inside the cab. This 

employee can be covered by FRA’s 

regulations, because he spent time, no 

matter how little, in a locomotive cab. 

Under an alternative scope provision 

that the RSAC Working Group 

considered at the NPRM stage, OSHA’s 

regulations would have applied to these 

employees when they were outside the 

cab, and FRA’s regulations would have 

applied to these employees when they 

were inside the cab. The employee 

would have had to switch back and 

forth between OSHA’s and FRA’s 

hearing conversation programs 

throughout the year. FRA believes this 

would have been both illogical and 

unworkable. 

This section identifies groups of 

employees to whom this subpart does 

not apply. This rule will not extend to 

employees who occasionally and briefly 

enter the cab. That includes employees 

who move equipment only within the 

confines of locomotive repair or 

servicing areas protected by blue signals 

(see § 227.101(a)(1)(i)) or who move 

locomotives for distances of less than 

100 feet for inspection or maintenance 

purposes (see § 227.101(a)(1)(ii)). The 

job assignments of these employees 

usually involve consistent and 

significant work outside the cab, such as 

moving about on the shop floor, 

working on the ground to connect the 

air hoses and MU cable for locomotives, 

and performing locomotive servicing 

(e.g., sanding or fueling). This is why 

these types of employees are being 

excepted from FRA’s regulation. 

Increasingly, however, inside hostling 

duties are commingled with other 

mechanical duties involving major 

additional sources of noise exposure. 

These employees would remain under 

the authority of OSHA with respect to 

occupational noise exposure, unless the 

railroad elected to place them in the 

FRA program based upon their expected 

mix of assignments. (See § 227.103). 

In addition, this rule will not extend 

to contractors who operate historic 

equipment in occasional service, as long 

as those contractors have been provided 

with hearing protection and are required 

to use the hearing protection while 

operating the historic equipment. (See 

§ 227.101(a)(1)(iii)). Although these 

contractors will not be in the railroad’s 

HCP, it is still important that they use 

HP, because they will be working in 

noisy environments (e.g., historic 

locomotives). Occasional service is 

defined in § 227.5 and refers to service 

of not more than a total of 20 days with 

one or more assignments in a calendar 

year. This exception will apply to all 

members of the crew responsible for 

operating the train. That includes, but is 

not limited to, engineers, conductors, 

firemen, and brakemen. When originally 

raised, this exception contemplated 

service only on steam locomotives; 

however, FRA instead used the term 

‘‘historic equipment,’’ thereby 

encompassing in the definition diesel 

locomotives and other antiquated 

equipment typically used in tourist and 

scenic operations, in addition to steam 

locomotives. 

FRA added this historic equipment 

exception as a result of a Working 

Group member’s comment during a preNPRM meeting. The member explained 

that a railroad will occasionally hire a 

contractor with special expertise to 

operate a steam locomotive for one or 

two days as part of a special excursion 

operation. The member was concerned 

that the railroad would have to place 

those temporary, contract employees in 

a hearing conservation program. At the 

recommendation of the Working Group, 

FRA decided to include this exception. 

Pursuant to this provision, those 

contractors are exempted, because they 

provide limited service and thus will 

have limited exposure to noise in a 

locomotive cab. Railroads should note, 

however, that this provision will not 

exempt regular railroad employees who 

happen to perform this occasional 

service on historic equipment. 

FRA realizes that earlier provisions in 

this rule have discussed historic 

operations. In particular, § 227.3(b)(3) 

excludes from this part railroads that 

perform historic operations. Despite the 

apparent similarity, these provisions are 

different. The earlier provision excludes 

railroads that operate, among other 

things, historic operations, while this 

provision excludes contract employees 

who work for a freight railroad (such as 

Union Pacific Railroad or CSX Railroad) 

operating tourist, scenic, and excursion 

equipment. 

Section 227.101(a)(2) provides that 

this rule covers any direct supervisor of 

the persons described in § 227.101(a)(1) 

whose duties require frequent work in 

the locomotive cab. 

Section 227.101(a)(3) provides that 

this rule covers, at the election of the 

railroad, any other person whose duties 

require frequent work in the locomotive 

cab and whose primary noise exposure 

is reasonably expected to be 

experienced in the cab, if the position 

occupied by such person is designated 

in writing by the railroad, as required by 

§ 227.121(d). Note that, pursuant to 

§ 227.101(a)(3), a railroad can elect to 

cover an employee that would otherwise 

be excluded by §§ 227.101(a)(1). 

Section 227.101(b) provides that all 

other railroad employees who are 

exposed to noise hazards but are outside 

the scope of this regulation will 

continue to be covered by OSHA’s noise 

standard, which is located at 29 CFR 

1910.95. The MTA/Long Island Railroad 

(LIRR) submitted comments on this 

provision. LIRR believes that this rule 

will cause them to administer a hearing 

conservation program to a much larger 

percentage of their workforce than they 

currently do and that it will have a 

significant monetary cost and with a 

greatly increased administrative burden. 

They explained that they would 

probably be forced to reallocate 

resources to the detriment to other 

aspects of operations, which in turn, 

could affect the service it provides to 

the general public. 

FRA believes the scope of this rule is 

appropriate and is leaving it as 

proposed in the NPRM. LIRR provided 

no reason why the rule would 

necessitate inclusion of a much larger 

portion of their workforce in a HCP. 

Based upon the typical cab environment 

on LIRR and similar commuter 

railroads, FRA does not believe that will 


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63086 Federal Register / Vol. 71, No. 208 / Friday, October 27, 2006 / Rules and Regulations 

46Class I, passenger, and commuter railroads 

have 12 months from the effective date of this rule 

to establish a noise monitoring program. Railroads 

with 400,000 or more annual employee hours, but 

that are not a class I, passenger, or commuter 

railroad have 18 months to comply. Railroads with 

fewer than 400,000 annual employee hours have 30 

months to comply. 

47Pub. L. No. 104–121, 110 Stat. 857 (codified at 

5 U.S.C. § 601 et seq.). 

48The SBA Table of Size Standards specifices 

that line-haul railroads with 1,500 or fewer 

employees and short-line railroads with 500 fewer 

employees are considered small businesses. 13 CFR 

121.201. 

be the case. To the extent LIRR 

employees are exposed above the action 

level, as a Federal grantee and public 

benefits corporation of the state of New 

York, LIRR bears at least the same 

responsibility to its employees as other 

railroads. Finally, FRA notes that this 

rule is the product of the RSAC, of 

which railroad representatives 

including APTA, were members. The 

railroad representatives on the RSAC 

Working Group noted that most 

railroads already had HCPs and so as a 

practical matter, this rule would not be 

overly burdensome on railroads. 

Section 227.103 Noise Monitoring 

Program 

Railroad noise monitoring programs 

entail a system of monitoring that 

evaluates employee noise exposure. 

Noise monitoring is performed for one 

or more of the following reasons: To 

determine whether hearing hazards 

exist; to ascertain whether noise 

presents a safety hazard by interfering 

with oral communication; to ascertain 

whether noise presents a safety hazard 

by impairing recognition of audible 

warning signals; to identify which 

employees need to be included in a 

hearing conservation program; to define 

and establish the amount of hearing 

protection that is necessary; to evaluate 

specific noise sources for noise control 

purposes; and to evaluate the success of 

noise control efforts. 

FRA’s rule requires railroads to 

develop and implement a noise 

monitoring program by a specific date; 

the date varies depending on the size of 

the railroad. The noise monitoring 

program is intended to determine 

whether an employee’s exposure to 

noise may equal or exceed an 8-hour 

time-weighted average of 85 dB(A). 

Factors which suggest that noise 

exposure in the cab may meet or exceed 

a TWA of 85 dB(A) include: employee 

complaints about the loudness of the 

noise, indications that train employees 

are experiencing hearing loss, noisy 

conditions that make conversation 

difficult, and route-specific or 

locomotive-specific factors that suggest 

the possibility of an excessive noise 

dose. In addition, actual workplace 

noise measurements can indicate that 

railroad should initiate a monitoring 

program. 

FRA’s noise monitoring requirements 

cover noise in cabs and noise in exterior 

environments in which employees work 

during their work shifts. FRA’s rule 

involves the monitoring of some 

employees whose daily functions are 

entirely outside of the cab and some 

employees whose daily functions are 

both inside and outside of the cab. This 

ensures that the hearing conservation 

program addresses the full noise 

exposure that is experienced by 

employees who are within the scope of 

this rule. 

Section 227.103(a) provides the 

general requirement that all railroads 

must develop and implement a noise 

monitoring program. FRA used the 

provision from OSHA’s rule as a starting 

point and then tailored it to suit FRA’s 

needs. FRA identifies dates by which 

railroads must develop their programs. 

The dates are staggered based on 

railroad size, giving smaller railroads 

more time and larger railroads less time 

to develop a noise monitoring 

program.46 FRA provides railroads with 

a defined purpose for the noise 

monitoring program—that is, ‘‘to 

determine whether any employee 

covered by the scope of this subpart 

may be exposed to noise that may equal 

or exceed an 8-hour TWA of 85 dB(A).’’

Note that FRA has changed the 

organization of this section since the 

proposed rule in order to make the rule 

easier to understand, however, the 

substance of the section remains the 

same. FRA received several comments 

about the phase-in implementation 

dates found in § 227.103(a). The 

comments fell on both side of the issue. 

Several of the commenters, including 

ASHA, AIHA, NHCA, and Theresa 

Schulz, suggested that FRA has given 

railroads too much time with these 

implementation dates. AHSA and 

several individual ASHA members 

suggested that all aspects of the rule be 

phased in within 12 months of the 

effective date of the rule. They 

explained that the Small Business 

Regulatory Enforcement Fairness Act 47

(‘‘SBREFA’’) supports phase-in dates, 

but only where there is no immediate 

safety risk. They believe there is an 

immediate safety risk for railroad 

operating employees. Theresa Schulz 

wrote that there is significant evidence 

showing that excessive noise levels ‘‘can 

impair mental processes, increase 

fatigue, and increase the number of 

errors, while simultaneously decreasing 

vigilance.’’ NHCA suggested that FRA 

give railroads 12 to 18 months to 

comply with the rule. NHCA stated that 

18 to 30 months appears to be an 

‘‘indulgence,’’ given that ‘‘the 

equipment, procedures, trained 

personnel, and reporting techniques of a 

noise-monitoring program have existed 

for decades.’’ By contrast, LIRR, 

indicated that the 12-month-period is a 

short time frame and recommended that 

FRA allow for 24 months instead. 

FRA has decided to retain the phasein dates that FRA proposed in the 

NPRM. FRA is providing smaller 

operations with extra time to comply, 

because FRA understands that they are 

in a unique situation. Smaller 

operations lack the resources, 

manpower, and money of larger 

operations. In addition, FRA is required, 

by law, to consider the impact of its 

regulations on smaller entities. SBREFA 

requires agencies to employ 

communication, enforcement, and 

regulatory systems that consider the 

unique aspects of small entities. 

SBREFA specifically provides that 

agencies should avoid ‘‘one size fits all’’

enforcement and regulatory programs 

and should, to the extent possible, 

minimize unnecessary economic 

burdens. One of the SBREFA’s 

suggestions is that agencies use phasein implementation dates to permit 

gradual compliance where no 

immediate safety risk exists, and that is 

what FRA has done here. 

The specific dates in this rule are 

based on FRA’s assessment of the 

current resources and abilities of the 

railroad industry, as well as FRA’s 

assessment of employee safety. FRA 

believes these phase-in dates are the 

most appropriate since they strike a 

balance between employee safety and 

the practical realities of current railroad 

operations. As a practical matter, too, 

many, if not most, railroads already 

have hearing conservation programs in 

place, and so employees will not be 

completely unprotected during the 

phase-in months. Furthermore, these 

dates are based upon the consensus 

agreement of the affected parties (e.g., 

union and railroad representatives) as 

part of the RSAC. For all the reasons 

discussed here, FRA has provided 

phase-in implementation dates here and 

in two other locations in this proposed 

rule: in § 227.109(e)(2) (audiometric 

testing) and § 227.119(b) (training). 

Also of note regarding the phase-in 

implementation dates is FRA’s use of an 

alternate size standard. Rather than use 

the size standard promulgated by the 

Small Business Administration 48 or the 

size standard adopted in FRA’s ‘‘Final 

Policy Statement Concerning Entities 


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49 68 FR 24, 891 (May 9, 2003). This Policy 

Statement defines a ‘‘small entity’’ as a railroad that 

meets the line haulage revenue requirements of a 

Class III railroad (i.e., a railroad with annual 

oeprating revenue of $20 million or less). 

50See 29 CFR 1910.95(d)(2)(i). 

51See 67 FR 50610 (August 5, 2002). 

52 ndash;53See 67 FR 50610, 50605 (August 5, 

2002). 

Subject to the Railroad Safety Laws,’’49

FRA is using an alternate size standard 

that implicitly defines a small business 

as a railroad with fewer than 400,000 

annual employee work hours. 

Accordingly, FRA has identified three 

categories of railroads and given the 

smaller railroads more time to comply. 

FRA sought approval from the SBA in 

a January 11, 2005 letter for the use of 

this alternate size standard and received 

that approval from SBA Administrator 

Hector V. Barreto in a May 12, 2005 

letter. (Copies of the letters are included 

in the docket). 

FRA has decided to use this alternate 

size standard for several reasons. First, 

the specific safety problem at issue here 

is employee health and specifically 

employee hearing. An employee hours 

definition is most appropriate given that 

the nature of the safety issue is 

protecting employee hearing. Second, 

FRA can more readily identify a 

railroad’s size according to annual 

employee hours, because FRA collects 

data related to annual employee hours. 

See 49 CFR part 225. Furthermore, 

FRA’s safety inspectors and industrial 

hygienists have easy access to this data 

through FRA’s safety data Web site. By 

contrast, FRA does not maintain 

updated information identifying 

railroads by class. Third, FRA has 

successfully used this definition in its 

regulations in the past. See 49 CFR 

217.9 and 49 CFR 220.11. Fourth, FRA 

believes that the SBA size standard, 

which would encompass 650 railroads, 

would be over inclusive. FRA’s alternate 

size standard encompasses 634 

railroads. Section 227.103(b) discusses 

sampling strategy. Aside from some 

minor language changes, it is identical 

to OSHA’s provision, which is found in 

29 CFR 1910.95(d)(i) and (ii). Cooper 

Tire commented on FRA’s statistical 

approach, advocating that FRA employ 

a 100 percent monitoring program. 

Cooper Tire noted that 100% 

monitoring technology, which did not 

exist when FRA began proceedings for 

this rule seven years ago, is now 

available and can provide continuous 

weighted eight hour noise data. Cooper 

Tire explained that new technology 

permits the capturing and transmitting 

of data continuously. They also noted 

that railroads could measure all 

locomotives for compliance 

automatically, thereby relieving the 

railroads from having to collect the data 

as proposed in the rule. 

Cooper Tire’s comment is similar to 

the doseBuster Company’s comment 

about alternative prevention strategies. 

As discussed above in section IV(B), the 

doseBusters Company advocated the use 

of their ESP system, which includes 

continuous monitoring. FRA does not 

believe it is necessary to mandate 

continuous monitoring. Sampling is a 

well-established and widely-accepted 

statistical principle. In addition, FRA 

does not believe it is appropriate to link 

any requirement (e.g., continuous 

monitoring) to individual commercial 

products. Finally, FRA believes that the 

costs of continuous monitoring would 

outweigh any benefits. If railroads were 

to employ continuous monitoring, their 

compliance with other portions of the 

regulation (e.g., recordkeeping) could be 

very burdensome. 

Please note that while FRA does not 

require the use of continuous 

monitoring, FRA also does not prohibit 

its use. Railroads are free to employ 

continuous monitoring if they so wish. 

Section 227.103(c) specifies how 

railroads should conduct noise 

measurements. Section 227.103(c)(1) 

requires all continuous, intermittent, 

and impulsive sound levels from 80 dB 

to 140 dB to be integrated into the noise 

measurements. FRA has changed this 

provision in the final rule by increasing 

the upper limit from 130 dB to 140 dB. 

In the proposed rule, FRA used an 

130 dB upper limit. FRA had adopted 

that limit from OSHA though with 

reservation. In the NPRM, FRA 

explained that, while OSHA’s 1981 

general industry noise standard used a 

130 dB upper limit, OSHA wrote in the 

preamble that its intent was to increase 

the upper limit to 140 dB as dosimeters 

were improved and became readily 

available.50 According to OSHA in the 

preamble to the 1981 standard, the 

decision to use the 130 dB upper limit 

was the result of technological 

limitations on sound level meters and 

dosimeters. In addition, FRA explained 

in the NPRM that it had looked to 

OSHA’s 2002 Advance Notice of 

Proposed Rulemaking (ANPRM) for a 

Hearing Conservation Program for 

Construction Workers,51 in which 

OSHA noted that ‘‘most, if not all, of 

today’s noise dosimeters and integrating 

sound level meters are capable of 

dynamic ranges from 80 dB to 140 

dB.’’ 52-53

FRA sought comment on whether 130 

dB or 140 dB was the appropriate upper 

limit for calculating railroad operating 

employee noise dose. Several 

commenters responded in support of the 

140 dB upper limit, all of whom 

explained that technology has improved 

considerably since OSHA promulgated 

its general industry standard and that 

technology now supports the 140 dB 

upper limit. ASHA explained that 

‘‘today’s dosimeters and integrating 

sound level meters are capable of 

dynamic ranges from 80 dB to 140 dB,’’

and AAA explained that ‘‘modern 

sound level measurement systems now 

routinely integrate noise levels to 140 

dB(A).’’ NIOSH made an additional 

point, explaining that ‘‘impulsive-type 

noise may frequently exceed 130 dB 

peak SPL’’ and so ‘‘limiting 

measurements to 130 dB may exclude 

the most harmful events in a given 

exposure and seriously underestimate a 

worker’s risk of hearing loss.’’ Wilson, 

Ihrig, & Associates, an acoustical 

consulting firm, responded that the 

upper limit should be at least 140 dB. 

Only one commenter, the AAR, did 

not support the 140 dB upper limit. The 

AAR explained that ‘‘most AAR 

members already own equipment that 

was purchased to comply with existing 

OSHA rules. Some of this equipment is 

old enough that it will not have the 

increased range.’’ Without evidence that 

the expanded range would yield 

benefits outweighing the costs, the AAR 

thought FRA should not increase the 

range. 

At the RSAC Working Group meeting, 

the members discussed the capabilities 

of railroads with respect to this 

equipment. Members acknowledged that 

this change would impose neither an 

administrative nor an economic burden. 

Given OSHA’s statement in its 2002 

ANPRM, the RSAC consensus, and the 

widespread belief among commenters 

that modern technology supports this 

change, FRA raised the upper limit to 

140 dB. FRA notes that noise 

monitoring data conducted prior to this 

rulemaking (i.e., with the upper limit of 

130 dB(A)) is still good data. 

On a related matter, Wilson, Ihrig, & 

Associates submitted comments on the 

lower limit. Wilson, Ihrig, & Associates 

asserted that there should be no lower 

limit. They explained that ‘‘there is no 

practical reason for limiting the lower 

range to 80 dB(A), as the levels below 

this range contribute little to the total 

noise dose.’’ FRA has decided not to 

remove the lower limit. FRA does not 

believe there is any justification 

supporting such a change. Given that 

there is little contribution to dose by 

levels below 80 dB(A), given that 

eliminating the lower level is not a 

commonly accepted practice, and given 

that it could potentially result in a 


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heavy financial burden (e.g., complying 

with this provision might require the redesign of dosimeters, SLMs, and 

iSLMs), FRA sees no reason to mandate 

such a change. 

Section 227.103(c)(2) specifies that 

railroads shall take noise measurements 

under typical operating conditions 

using a sound level meter (SLM), 

integrating-averaging sound level meter 

(iSLM), or noise dosimeter. The 

instrumentation should meet the 

appropriate standard set forth by ANSI; 

these standards set performance and 

accuracy tolerances. An SLM used to 

comply with this part shall meet ANSI 

S1.4–1983 (Reaffirmed 2001), 

‘‘Specification for Sound Level Meters.’’

An iSLM used to comply with this part 

shall meet ANSI S1.43–1997 

(Reaffirmed 2002). A noise dosimeter 

used to comply with this part shall meet 

ANSI S1.25–1991 (Reaffirmed 2002), 

‘‘Specification for Personal Noise 

Dosimeters.’’ Each instrument should be 

set to an A-weighted SLOW response. 

Section 227.103(c)(2), for the most 

part, is adopted from FRA’s previous 

noise standard (i.e., the previous 

§ 229.121(d)). Note, however, that FRA 

has added the ANSI standard for noise 

dosimeters, updated the ANSI standard 

for SLMs (from ANSI S1.4–1971 to 

ANSI S1.4–1983 (Reaffirmed 2001)), and 

included a reference and citation to 

iSLMs. In doing so, FRA has made this 

regulation more current and 

comprehensive. 

In conformance with Office of 

Management and Budget (OMB) Revised 

Circular A–119 (February 10, 1998), 

FRA is using voluntary national 

consensus standards here and in several 

other locations throughout the rule. 

FRA’s use of standards established by 

other organizations such as ANSI is a 

means of establishing technical 

requirements without increasing the 

volume of the Code of Federal 

Regulations. See 1 CFR part 51. In this 

final rule, FRA has used the most 

current version of each ANSI standard, 

however FRA understands that over 

time, ANSI will revisit these standards 

and likely update them. FRA intends to 

regularly update the rule, most likely 

through the use of technical 

amendments, in order to incorporate 

ANSI’s newer standards. Note that in 

the NPRM, FRA had proposed to adopt 

successor standards. Given the Federal 

law requires that a publication 

incorporated by reference be identified 

by its title, date, edition, author, 

publisher, and identification number, 

FRA amended this final rule to 

incorporate the current standards only. 

See 1 CFR 51.9(b)(2). 

While the rule provides that a railroad 

may use either a noise dosimeter, SLM, 

or iSLM to conduct noise 

measurements, it also permits a railroad 

to use any combination of those 

instruments. Using several instruments 

helps to develop a more complete 

picture of the noise environment, 

because the instruments provide 

different information. A SLM and an 

iSLM measure the sound levels at fixed 

locations in the cab and during transient 

events (e.g., application of the alerter, 

brakes, or horn). They also characterize 

the emissions of suspected noise 

sources (e.g., vibrating panels). A noise 

dosimeter and an iSLM measure an 

employee’s overall noise exposure. An 

iSLM is particularly useful, because it 

characterizes the contribution of 

transient events to an employee’s 

overall dose. A noise dosimeter, which 

is worn by the employee, is useful 

because it accumulates all the noise 

exposure data from an employee’s work 

shift. From that, a tester can determine 

an employee’s noise dose during a work 

shift. 

Section 227.103(c)(3) specifies that all 

instruments used to measure employee 

noise exposure shall be calibrated to 

ensure accurate measurements. This 

paragraph is the same as OSHA’s 

provision, which is found in 29 CFR 

1910.95(d)(2)(ii). FRA received no 

comments on this section and it remains 

the same as proposed in the NPRM. 

Section 227.103(d) provides that a 

railroad shall repeat noise monitoring 

whenever there is a change in operation, 

process, equipment, or controls that 

increases noise exposures to the extent 

that either: (1) Additional employees 

may be exposed at the action level, or 

(2) the attenuation provided by the 

hearing protectors may be inadequate to 

meet the requirements of § 227.103. This 

paragraph is the same as OSHA’s 

provision, which is located at 29 CFR 

1910.95(d)(3). FRA received no 

comments on this section and it remains 

the same as proposed in the NPRM. 

Section 227.103(e) provides that, in 

administering the monitoring program, a 

railroad shall take into consideration the 

identification of work environments 

where the use of hearing protectors may 

be omitted. This provision is unique to 

FRA’s rule; no comparable provision 

exists in OSHA’s standard. The purpose 

of this provision is to ensure that 

railroads do not excessively rely on 

reflexive use of hearing protectors when 

structuring their hearing conservation 

programs. FRA believes that well 

managed programs already focus on this 

issue, incorporating such monitoring as 

necessary, to determine general 

categories of work assignments that 

require hearing protectors and those that 

do not. FRA fully recognizes that no 

sustainable amount of monitoring could 

support a job-by-job analysis at all 

locations on the railroad. FRA also 

recognizes that such a level of 

monitoring is not appropriate given the 

objective of the hearing conservation 

program. 

Examples of situations where hearing 

protection may be omitted include: (1) 

Cabs designed for sound reduction. 

These cabs should be monitored over 

time on a sample basis to ensure that 

their noise-insulating qualities continue 

to function as intended; and (2) 

‘‘Ground’’ assignments where 

employees work around moving 

equipment but have limited exposure to 

loud and persistent noise sources such 

as locomotives or retarders. 

Aearo Company commented on 

§ 227.103(e), asserting that it is 

redundant with §§ 227.103(b) and 

227.115. FRA does not believe these 

provisions are redundant, for they serve 

different purposes. Section 227.103(b) 

addresses the sampling strategy for the 

noise monitoring program, § 227.103(e) 

identifies one of the factors that 

employers need to consider when 

administering the noise monitoring 

program, and § 227.115 identifies the 

levels at which railroads must require 

HP use. 

In the proposed rule, FRA listed 

several benefits that accrue when 

employees refrain from over-using 

hearing protectors. That list included 

the following: reducing the danger of 

infection from the misuse of HP; 

strengthening overall employee 

compliance with HP use by focusing 

requirements where it makes a 

difference; and maximizing the 

availability of auditory cues associated 

with the movement of equipment among 

ground personnel, which results in 

improved personal safety. 

Aearo Company commented on this 

preamble discussion, asserting that 

some of those items, specifically a 

reduction in the danger of infection and 

a strengthening of overall compliance, 

were not benefits of refraining from 

overuse of HP. Regarding infections, 

Aearo Company cited a 1985 

monograph that found that regular 

wearing of HP does not normally 

increase the likelihood of contracting an 

ear infection. Regarding compliance, 

Aearo Company explained that 

compliance improves, not by ‘‘having 

less people wear [HPs] in less 

applications,’’ but by developing a 

hearing conservation culture and 

empowering employees to believe they 

can make a difference in protecting their 

hearing. 


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Aearo’s comments generated a great 

deal of discussion at the post-NPRM 

RSAC Working Group meeting. Aearo 

Company had presented data which 

shows it will not cause an infection. 

Several members presented information 

at the RSAC Working Group meeting 

suggesting that overuse of HP can cause 

an infection. Overuse of HP may or may 

not cause ear infections. Without further 

study or more conclusive data, FRA is 

unable to reach any conclusions about 

the danger of ear infections from HP. 

With respect to compliance, FRA, in 

conjunction with the RSAC Working 

Group, has determined that there are 

compliance benefits from refraining 

from overuse of HP. Overprotection can 

erode compliance. Where an employee 

is instructed to wear HP at all times and 

in all circumstances, it creates the 

impression for the employee that the HP 

requirement is just a pro forma 

requirement, not part of a larger 

program designed to protect their 

hearing. With that mindset, the 

employee is less likely to wear HP. This 

is particularly significant for 

transportation employees who are not 

subject to direct supervision during 

most of their work shift. 

In short, FRA has included 

§ 227.103(e) to ensure that railroads do 

not overuse HP. FRA wants to ensure 

that there is not an excessive reduction 

in hearing from the use of HP such that 

it interferes with employee 

communication and with auditory cues 

related to job duties. 

Section 227.103(f) specifies that a 

railroad shall provide affected 

employees or their representatives with 

an opportunity to observe any noise 

dose measurements conducted pursuant 

to this part. This parallels OSHA’s 

provision, which is found at 29 CFR 

1910.95(f). FRA received no comments 

on this section and it remains the same 

as proposed in the NPRM. 

Section 227.103(g) identifies a 

railroad’s obligation for reporting 

monitoring results to employees and 

their representatives. There are two 

components to this reporting provision. 

The first component is § 227.103(g)(1), 

which requires railroads to notify each 

monitored employee of the results of the 

monitoring. This is similar, but not 

identical, to OSHA’s notification 

provision located at 29 CFR 1910.95(e). 

Whereas OSHA requires an employer to 

notify each employee that is exposed at 

or above an 8-hour TWA of 85 dB(A) of 

the results of his or her monitoring, FRA 

requires a railroad to notify each 

monitored employee, irrespective of his 

or her exposure. 

The second component of this 

reporting provision, which is found at 

§ 227.103(g)(2), requires railroads to 

post monitoring results. The posting 

should include sufficient information to 

permit other crews to interpret the 

meaning of the results in the context of 

the operations monitored. The 

information is intended to help crews 

and labor officials to understand the 

conditions under which the monitoring 

was conducted. There are a wide range 

of data elements that a railroad could 

include in its posting. FRA believes that 

the railroad should include enough 

information so that the monitored crew, 

as well as other crews, are able to 

understand, interpret, and assess the 

results of the monitoring. Theresa 

Schulz commented on this provision, 

commending FRA for requiring 

railroads to post noise measurements 

results ‘‘in an ‘understandable way’ so 

that employees are aware of the hazard 

and what they can do to protect 

themselves.’’

In order to make the posting 

meaningful and understandable to 

crews, railroads should include 

information on the following types of 

data elements: (1) A description of the 

monitoring event: The date of the 

monitoring, the start time and end time 

of the monitoring, the locations of the 

beginning and end of the monitoring; 

the assignment or train identification 

number or train symbol; the locomotive 

consist (including locomotive numbers, 

models, and dates of manufacture); and 

a train profile (including car counts, 

length of train, tonnage, and power 

consist details); and (2) circumstances of 

the monitoring: Number of crew 

members monitored, job title(s) of the 

crew members monitored, duration of 

crew member exposure, number of crew 

members monitored, placement of 

measurement equipment, results of the 

monitoring, and the equipment used for 

monitoring. 

These data elements are useful, 

because they contain information on 

items and conditions that can impact 

the noise level in the locomotive cab. 

The date of monitoring is important, 

because it indicates the time of year of 

the monitoring, which in turn indicates 

general weather conditions (e.g., it was 

likely that there was ice on the rail). The 

start and end time indicate the length of 

the crew exposure to noise. The location 

of the monitoring indicates the 

topography of the specific run (e.g., 

there were many hills, curves, or closed 

embankments). The assignment or train 

identification number or train symbol 

indicate the type of equipment and the 

make-up of the train. The locomotive 

consist provides information which can 

be used to figure out tractive effort. The 

train profile provides specific 

information on the particulars of that 

train, i.e., car counts, the number of 

loaded cars, the number of empty cars, 

the length of the train, tonnage, and 

power consist details. The monitoring 

circumstances are useful, as well, 

because they convey the specifics of the 

railroad’s monitoring efforts. 

Section 227.103(g) is the product of 

extensive RSAC Working Group 

discussions. It reflects a compromise of 

labor and management concerns. To 

reach this compromise, the RSAC 

Working Group considered numerous 

proposals concerning monitoring 

observations and reporting. The RSAC 

Working Group’s initial proposals did 

not include an observation provision 

and instead focused on reporting 

requirements. One proposal, without an 

observation requirement, required a 

railroad to notify each employee 

exposed during a monitored exposure, 

as well as the employee’s designated 

representative, of the results of the 

monitoring. A variation to that proposal 

required a railroad to notify each 

employee and employee’s representative 

upon written request by the employee. 

Another proposal, also without an 

observation requirement, required 

railroads to provide the monitoring 

information to the president of each 

labor organization that represented 

monitored employees. In yet another 

proposal, railroads would have been 

required to submit to FRA an annual 

summary of its noise monitoring 

activity. FRA would then have made 

this information publicly available. 

In the end, the RSAC Working Group 

recommended, and FRA adopted, this 

provision which retains the observation 

provision contained in OSHA’s 

provision located at 29 CFR 1910.95(f). 

In addition, the RSAC Working Group 

recommended, and FRA adopted, the 

requirement that railroads shall notify 

monitored employees of the results of 

monitoring (irrespective of the TWA) 

and shall post monitoring results at 

appropriate crew origination points. 

FRA believes this provision is the most 

effective one, because it satisfies both 

labor’s request for access to information 

and management’s request for a 

reasonable and practical means of 

complying with the observation and 

reporting provisions. FRA did not 

receive any comments recommending 

that FRA revise this section and so it 

remains the same as proposed in the 

NPRM. 

Section 227.105 Protection of 

Employees 

In this section, FRA establishes the 

permissible noise exposures for railroad 

employees. These limits are the same as 


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FRA’s previous noise standard, OSHA’s 

permissible noise exposures (29 CFR 

1910.95(a), Table G–16), and OSHA’s 

occupational noise exposure limits (29 

CFR 1926.52(a), Table D–2). 

Section 227.105(a) prescribes the 

noise exposure limits and requires 

railroads to provide appropriate 

protection if employees are exposed to 

noise that exceeds those limits. The 

limits are identified in Appendix A to 

part 227. For purposes of clarity, FRA 

has slightly revised § 227.105(a). FRA 

replaced the phrase ‘‘as measured on the 

dB(A) scale as set forth in Appendix A’’

with ‘‘as measured according to 

§ 227.103.’’ FRA believes that rewording more accurately captures the 

requirement of that section. In addition, 

since Table 1 contained information that 

is equivalent to the information in 

Tables A–1 and A–2 in Appendix A, 

FRA has removed Table 1 from this 

section and referred readers to the limits 

in Appendix A. Related to that, FRA has 

taken the provision on impulsive or 

impact noise from the footnote to Table 

1 and has put it into section I of 

Appendix A to this part. With respect to 

Appendix A, FRA has made some 

additional clarifying edits, e.g., use the 

term ‘‘work day’’ throughout the 

appendix as opposed to alternating 

between ‘‘work shift’’ and ‘‘work day;’’

replace ‘‘reference duration’’ with 

‘‘duration permitted,’’ add an entry for 

140 dB in Table A–1, etc. All of these 

changes are drafting clarifications and 

as such, they were not part of the RSAC 

consensus. 

More significantly, FRA has added a 

provision on deadheading in section I of 

Appendix A. Both Wilson, Ihrig, & 

Associates and NHCA had suggested 

that FRA add language in the rule to 

address deadheading. RSAC Working 

Group and FRA agreed with the 

comment. FRA addressed this issue in 

section (I)(D), which provides that, 

when calculating the noise dose, a 

railroad shall include any time that an 

employee spends deadheading. 

Deadheading is a practice unique to the 

railroad industry. It refers to the time 

when railroad employees are being 

transported (whether by van, taxi, 

locomotive, or other vehicle) between 

their home base and a point where they 

begin or end operation of a train. 

Although these employees are not 

operating a train when deadheading, 

they continue to be exposed to noise. 

Since noise dose is based on time of 

exposure as well as intensity of 

exposure, railroads must consider the 

time employees spend deadheading in 

locomotives when calculating an 

employee’s noise dose. 

AIHA also commented on 

§ 227.105(a). They suggested that FRA 

add a requirement for a 140 dB 

unweighted peak limit in Table 1 to 

§ 227.105. They asserted that ‘‘this 

would eliminate exposures to high-level 

impulse noise, which is not captured 

with current SLMs.’’ As discussed in the 

preceding paragraphs, FRA has removed 

Table 1 in this final rule. Accordingly, 

this issue became moot. However, FRA 

notes that FRA did add an entry for 140 

dB in Table A–1 to Appendix A. 

Section 227.105(b) addresses the 

treatment of measurement artifacts 

when assessing exposures exceeding 

115 dB(A). Artifacts include events such 

as unintentionally coughing into or 

brushing against the dosimeter 

microphone. Artifacts cause the noise 

level to spike, which, in turn, results in 

higher overall noise dose levels. 

This provision has undergone several 

changes. The initial version required 

railroads to remove measurement 

artifacts. The sentence provided that 

‘‘the apparent source of the noise 

exposures shall be noted and 

measurement artifacts shall be 

removed.’’ During pre-NPRM meetings, 

a railroad representative explained that 

while he wants to remove all artifacts, 

he is concerned about a getting into a 

predicament where he tries to identify 

an artifact but is unable to do so. Unable 

to identify the artifact, he would be 

unable to remove it. To accommodate 

that concern, the version in the NPRM 

gave railroads the option of removing 

measurement artifacts. The sentence 

provided that ‘‘the apparent source of 

noise exposures shall be noted and 

measurement artifacts may be 

removed.’’ Aearo Company submitted 

comments on this provision. Aearo 

Company acknowledged that the 

opportunity to remove measurement 

artifacts is reasonable on the surface. 

However, they believe it is unnecessary, 

and they are concerned that if done 

carelessly or with bias, it could 

materially distort the data. 

In the final rule, FRA requires 

railroads to observe and document the 

apparent source of noise exposures and 

allows them, but does not require them, 

to remove measurement artifacts. This 

artifact removal provision addresses 

only those phenomena that result in 

peaks above 115 dB(A) as recorded by 

a dosimeter. Where an industrial 

hygienist (or other appropriately 

qualified individual) is present in a 

locomotive cab during a monitoring run 

and observes the noise events to which 

a monitored individual is subject, the 

industrial hygienist has the option of 

removing noise sources that cannot be 

explained by his or her record of the 

run. In other words, if the industrial 

hygienist were to maintain a log during 

the run in which he documented all 

noise sources he observed, (e.g., horn, 

grade crossing bell), and he later 

discovered that there were additional 

unexplained events (over 115 dB(A)) in 

the noise monitoring data, he could 

remove those unexplained events. Of 

course, the industrial hygienist only has 

the option of removing those noise 

events where the records of his or her 

direct observations do not show a noise 

event at the time the artifact appears in 

the record. 

FRA decided to retain the provision 

whereby railroads have the option of 

removing artifacts, because FRA wanted 

to address Working Group members’

concerns. FRA does not want members 

to be in a predicament where they try 

to identify an artifact and are unable to 

do so. Moreover, FRA believes that, 

from a statistical perspective, it makes 

sense to remove the artifacts. It is 

accepted scientific practice to remove 

directly observed artifacts from any data 

set, because artifacts will affect other 

statistical aspects of the data such as the 

variance. FRA recognizes that data 

manipulation is a concern when data 

editing is allowed, however, FRA hopes 

that it can rely on the professionalism 

of the individuals testing employees and 

that those individuals will not 

manipulate the data. Finally, FRA 

intends to develop a compliance guide 

that provides direction to its inspectors 

on how it intends on enforcing the 

various elements of compliance. This 

guide will be available to the regulated 

community as well as the public when 

it is finalized after the final rule is 

published. 

Practical concerns aside, FRA 

maintains that it is in the best interest 

of a railroad to remove measurement 

artifacts. Artifacts are not experienced 

as noise exposure by the employee, and 

so they should not be included in an 

employee’s noise dose. 

With respect to this provision, FRA 

has made a one additional minor 

change. Since FRA removed Table 1 

from § 227.105(a), FRA removed the 

reference to Table 1 in § 227.105(b). 

Section 227.105(c) provides that 

employee exposure to continuous noise 

shall not exceed 115 dB(A). Paragraph 

(c) contains the same requirement that 

had been located in FRA’s previous 

noise regulation at § 229.121(c). 

Section 227.105(d) addresses 

continuous noise exposure above 115 

dB(A). This requirement differs from 

OSHA’s standards. OSHA prohibits 

unprotected exposures above 115 dB(A) 

(See 29 CFR 1910.95(a) and 29 CFR 

1926.52(a)). By contrast, FRA permits 


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very brief exposures to continuous noise 

(which is defined as noise that exceeds 

one second) between 115 dB(A) and 120 

dB(A) as long as the total daily duration 

does not exceed 5 seconds. 

Wilson, Ihrig, & Associates 

commented on this provision, stating 

that there is no practical reason for 

relaxing the standard. Wilson, Ihirg, & 

Associates believes that ‘‘it results in a 

lax standard and one that does not 

encourage railroads to reduce the noise 

levels that their employees are exposed 

to.’’ They explained that this provision 

might be acceptable if FRA were to 

adopt a 3 dB exchange rate, but that is 

not the case. Wilson, Ihirg, & Associates 

believe that FRA’s logic for relaxing the 

standard is faulty—i.e., that FRA has no 

technical justification for this change 

‘‘other than the fact that these noise 

levels occur, so these levels can be 

allowed to exist.’’

RSAC Working Group discussions on 

this matter had revealed that some 

members did not wish to penalize the 

railroads for these brief unavoidable 

excursions above 115 dB(A). At the 

same time, other RSAC members did not 

wish to stray, to any great extent, from 

the existing OSHA standard. It should 

be noted, however, that certain RSAC 

Working Group members expressed the 

view that there may be health effects 

associated with longer exposures over 

115 dBA, while other RSAC Working 

Group members contended that health 

effects will not occur until much higher 

noise levels. 

At the proposed rule stage, FRA 

determined that it was necessary to 

relax OSHA’s standard because of the 

operational realities of railroading and 

the resulting safety implications. FRA 

stands by those reasons and thus is 

leaving this provision as proposed. As 

explained in the proposed rule, in the 

railroad industry, it is generally 

recognized that very brief excursions 

above 115 dB(A) sometimes occur in the 

cab. For the most part, these noise 

exposures are brief, non-recurring 

events. Some of these excursions are 

due to external conditions that may be 

difficult, or unwise, to prevent. The 

sounding of the locomotive horn is a 

prime example. The locomotive horn is 

a safety device used to warn the public 

and railroad employees of oncoming 

train traffic. If the horn is used while 

cab windows are open or while the cab 

is adjacent to reflective surfaces, the 

noise level in the cab may exceed 115 

dB(A). FRA would not want to eliminate 

the sounding of the horn, however, 

because the horn is very important to 

safe rail operations. Unfortunately, then, 

these types of noise exposures are 

unavoidable. FRA has concluded that 

this short cumulative time limit will 

effectively distinguish incidental, and 

perhaps unavoidable and necessary 

noise exposures, from longer exposures 

that stem from undesirable noise 

overexposure found in deficient rolling 

stock that should not be in use. 

Section 227.107 Hearing Conservation 

Program 

Section 227.107 sets out the 

requirement that railroads establish a 

hearing conservation program for all 

employees exposed to noise at or above 

the action level. It also provides that 

railroads shall compute employee noise 

exposure in accordance with the tables 

found in Appendix A and without 

regard to any attenuation provided by 

the use of hearing protectors. Since the 

RSAC consensus, FRA made some 

drafting changes to better clarify the 

provisions of this section. FRA divided 

the section into two separate 

paragraphs. FRA added an explanatory 

clause (‘‘required by § 227.103’’) when 

referring to the noise monitoring 

program. FRA revised § 227.107(a) to 

reflect the fact that the hearing 

conservation program is set forth in 

§§ 227.109 through 227.121, not just in 

§ 227.121. In addition, since FRA has 

removed Table 1, FRA removed the 

reference to Table 1 in this section. The 

drafting changes aside, § 227.107 is the 

same as the comparable provision found 

in OSHA’s standard at 29 CFR 

1910.95(c). 

FRA received one comment on this 

section. The doseBusters Company 

requested that FRA clarify the meaning 

of the last sentence in § 227.107. The 

doseBusters Company asked: ‘‘Is the 

intent to prohibit any adjustment to the 

dose measurement, based on the hearing 

protector manufacturer’s published 

attenuation data? FRA believes that the 

language (which is the identical 

language which OSHA uses) speaks for 

itself. The relevant portion of the last 

sentence of § 227.107 provides that: 

‘‘Noise exposure shall be computed 

* * * without regard to any attenuation 

provided by the use of hearing 

protectors.’’ This means that a 

professional reviewer should not adjust 

an employee’s exposure dose based on 

any attenuation provided by the 

employee’s hearing protection. Or as the 

Working Group answered the question, 

‘‘You do not adjust the dose based on 

the hearing protection worn by the 

employee.’’ In short, the answer to the 

doseBuster Company’s question is, yes. 

Section 227.109 Audiometric Testing 

Program 

This section sets out the requirements 

for railroad audiometric testing 

programs. Section 227.109(a) sets out 

the general requirement that each 

railroad shall establish and maintain an 

audiometric testing program as set forth 

in this section and include employees 

who are required to be included in a 

hearing conservation program pursuant 

to § 227.107. FRA has made one 

clarifying change to this section. Section 

227.109(a) of the NPRM had contained 

the phrase ‘‘by making audiometric tests 

available to all of its employees.’’

Because one of the paragraphs in this 

section (see § 227.109(f)) specifically 

addressed this issue, FRA thought it was 

confusing and unnecessary to include 

this phrase here, and so FRA removed 

this phrase. In place of that phrase, FRA 

included language clarifying that the 

railroad shall include in the audiometric 

testing program all employees who are 

required to be included in the HCP. 

Section 227.109(b) provides that 

audiometric tests shall be provided for 

employees, at no cost to employees. 

This paragraph refers only to the 

audiometric test itself. It does not refer 

to additional costs that an employee 

might incur, e.g., missed trips or missed 

work time as a result of the test. FRA 

received no comments on this section 

and it remains the same as proposed in 

the NPRM. 

Section 227.109(c) requires that 

appropriate professionals or qualified 

technicians administer the audiometric 

test. FRA received several comments on 

this provision. Commenters included 

ASHA, AAA, AIHA, CAOHC, NHCA, 

Aearo Company, and Theresa Schulz. 

The comments were very similar in 

nature. 

With respect to physician 

qualifications, the commenters stated 

that it is unwise to let any physician 

administer or supervise audiometric 

testing. Because there is a wide range of 

medical specialities, and because 

hearing testing and hearing conservation 

program management are not usually 

part of medical training programs, most 

physicians are not well-informed on the 

details of hearing, its measurement, and 

its impairment. Theresa Schulz went 

further, suggesting that FRA require 

physicians to attend training on how to 

supervise the audiometric testing 

portion of a hearing conservation 

program. 

With respect to technician 

competency, all of the commenters 

shared the same basic concern. They 

disagreed with the second method that 

FRA permitted in the NPRM for 

qualifying technicians (i.e., allowing 

technicians to demonstrate their 

competence to a audiologist, 

otolaryngologist, or physician). The 

commenters think it contributes to the 


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54 In contrast, Aearo Company and CAOHC 

asserted that MSHA recognized the uniqueness of 

CAOHC ‘‘(with no equivalent organization).’’ That 

does not appear to be the case. In 29 CFR 62.101, 

MSHA defines a ‘‘qualified technician’’ as ‘‘a 

technician who has been certified by the Council 

for Accreditation in Occupational Hearing 

Conservation (CAOHC), or by another recognized 

organization offering equivalent certification.’’

(Italics added). 55See 29 CFR 62.101 and footnote 54 supra. 

weakening of the competence of the 

personnel conducting the audiometric 

tests. They questioned whether a 

technician who had merely 

‘‘satisfactorily demonstrated 

competence’’ would be skilled enough 

to perform some of the necessary duties, 

e.g., problem solving for judgment calls 

encountered during testing or serving as 

a resource for employees with 

questions. 

As an alternative, the commenters 

suggested that the rule only allow 

technicians to be qualified by the first 

method (i.e., successful completion of 

the CAOHC certification requirements). 

They explained that CAOHC has a board 

of multi-disciplinary professionals that 

collectively strive to maintain and 

increase the minimum standard of 

competency. By requiring railroads to 

use only CAOHC-certified technicians, 

FRA would assure a high level of 

quality for this component of the HCP. 

Also, regarding technician 

qualifications, there were a few 

comments about FRA’s decision in the 

NPRM to allow a technician to be 

qualified by CAOHC or any equivalent 

organization. This differs from OSHA’s 

standard, which only allows technicians 

to be certified by CAOHC. CAOHC 

strongly opposed this provision, 

explaining that CAOHC is the only 

national accreditation program of its 

kind for Occupational Hearing 

Conservationists. CAOHC further 

explained that § 227.109(c)(2) should 

not include the words ‘‘equivalent 

organization, because there is no 

equivalent to CAOHC’s unique 

capabilities.’’ CAOHC pointed out that 

MSHA recognized CAOHC’s uniqueness 

in its 1999 rule.54

Finally, regarding technician 

qualifications, Theresa Schulz 

commended FRA for removing OSHA’s 

‘‘unsupportable exemption [from 

CAOHC certification] for technicians 

using microprocessors.’’

FRA made three changes to this 

provision. Two were the product of 

RSAC consensus, and one was a drafting 

clarification that FRA added on its own. 

First, with RSAC consensus, FRA added 

a qualification requirement for 

physicians. According to 

§ 227.109(c)(1), audiometric tests shall 

be performed by an audiologist, 

otolaryngologist, or other physician who 

has experience and expertise in hearing 

and hearing loss. (Italics indicate 

revised language). ‘‘Experience and 

expertise’’ means that the individual has 

the knowledge and skills to conduct 

audiometric tests, has experience 

conducting audiometric tests, and has 

demonstrated success in audiometric 

conducting tests. 

FRA did not, however, add a 

provision requiring physicians to attend 

training on how to supervise the 

audiometric testing portion of a HCP. 

FRA did not think it was necessary to 

require that training, especially given 

the addition of the ‘‘experience and 

expertise’’ requirement. By requiring 

that physicians have ‘‘experience and 

expertise,’’ FRA ensures that the doctors 

are knowledgeable about hearing 

conservation and so there is no point to 

also require those doctors to attend 

training. 

Second, subsequent to the RSAC 

consensus, FRA added a definition for 

‘‘qualified technician’’ to § 227.5 . FRA 

used language from § 227.109(c)(2) of 

the proposed rule for the definition 

(though with some modifications, which 

are discussed below). FRA believes this 

change simplifies the rule. Rather than 

repeat the definition throughout the 

rule, FRA states it once in the 

beginning. According to § 227.5, 

audiometric tests shall be performed by 

a qualified technician who can become 

qualified in one of two ways: (1) By 

successfully completing a course 

designed for the training and 

certification of audiometric technicians, 

or (2) by satisfactorily demonstrating 

competence to the Professional 

Supervisor of the Audiometric 

Monitoring Program in administering 

audiometric exams and in the use and 

care of audiometers. Qualified 

technicians might include trained 

technicians as well as hearing aid 

specialists, industrial hygienists, and 

nurses who have the appropriate 

qualifications. A technician (of either 

qualification type) must be responsible 

to the Professional Supervisor of the 

Audiometric Monitoring Program. 

Third, with RSAC consensus, FRA 

modified the qualification requirement 

for technicians. Technicians must be 

responsible to a Professional Supervisor 

of the Audiometric Program, instead of 

simply an ‘‘audiologist, 

otolaryngologist, or a physician.’’ A 

Professional Supervisor of the 

Audiometric Monitoring Program is ‘‘an 

audiologist, an otolaryngologist, or a 

physician with experience and expertise 

in hearing and hearing loss.’’ As 

explained above, ‘‘experience and 

expertise’’ means that the individual has 

the knowledge and skills to conduct 

audiometric tests, has experience 

conducting audiometric tests, and has 

demonstrated success in audiometric 

conducting tests. Consistent with this 

change, FRA added a definition of 

Professional Supervisor to the 

Definitions section (§ 227.5). However, 

FRA used a different definition than 

that suggested by commenters. Several 

commenters had suggested that FRA 

define a Professional Supervisor as ‘‘an 

audiologist, an otolaryngologist, or a 

physician who supervises the 

audiometric testing program, reviews 

audiograms, and reviews audiometric 

tests.’’ Rather than focus on the tasks 

involved in being an audiologist, FRA 

instead chose to focus on the 

qualifications of an audiologist. 

Despite several commenters’

suggestions, FRA did not eliminate the 

second method for qualifying 

technicians (i.e., satisfactorily 

demonstrating competence). FRA 

adopted this provision from OSHA’s 

rule. FRA does not know of any 

problems with weakened competence 

among technicians performing under 

OSHA’s rule, and so FRA believes it is 

appropriate to use it here. Furthermore, 

if FRA were to remove this provision at 

this point in time, FRA would 

potentially disqualify an entire group of 

individuals who have been performing 

these tasks (and presumably well) under 

OSHA’s rule for years. However, 

acknowledging that technicians must be 

adequately qualified, FRA revised this 

second method. As explained above, 

FRA now requires a technician to be 

responsible to a Professional Supervisor 

who must have experience and 

expertise in hearing and hearing loss. 

FRA anticipates that this will ensure 

that technicians are fully qualified. 

FRA also retained the provision 

allowing technicians to be certified by 

an ‘‘equivalent organization.’’ FRA 

wants the rule to be forward looking. At 

the time of this final rule, CAOHC is the 

only national accreditation program for 

hearing conservationists, however, in 

coming years, there may be additional 

organizations comparable to CAOHC. 

FRA wants to ensure that the rule has 

the flexibility to accommodate such 

changes. FRA notes that MSHA 

included a comparable phrase in its 

Final Rule on occupational noise 

exposure of miners.55

Section 227.109(d) is intentionally left 

blank. The proposed § 227.109(d) had 

addressed audiometric instrumentation, 

providing that instruments used for 

audiometric testing must meet the 

requirements of the Appendix C 

‘‘Audiometric Testing Requirements.’’


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Since FRA has removed Appendix C: 

‘‘Audiometric Testing Requirements’’

from the rule, this regulatory provision 

is now unnecessary. For a discussion of 

FRA’s decision to remove the proposed 

Appendix C, see the section-by-section 

analysis for Appendix C. 

Section 227.109(e) provides the 

requirements for baseline audiograms. A 

baseline audiogram is the reference 

audiogram to which all future 

audiograms are compared. Baseline 

audiograms are necessary, because they 

can then be used as points of 

comparison for subsequent audiograms. 

Note that FRA has changed some of the 

formatting of this section since the 

proposed rule in order to make the rule 

easier to understand, however, the 

substance of the section remains the 

same. Section 227.109(e)(1) sets out the 

requirements for establishing baseline 

audiograms for new employees. A 

railroad has six months from a new 

employee’s first tour of duty to establish 

a valid baseline audiogram for that 

employee. See § 227.109(e)(1)(i). Where 

a railroad uses a mobile test van, a 

railroad has one year from a new 

employee’s first tour of duty to obtain a 

valid baseline audiogram. See 

§ 227.109(e)(1)(ii). Pre-employment 

audiometric tests can be used as 

baseline audiograms. 

Regarding § 227.109(e)(1), ASHA, 

AIHA, and Theresa Schulz submitted 

virtually identical comments and 

opposed several of the provisions. 

Contrary to FRA’s 6 month allowance 

for new employees, they recommended 

that FRA require railroads to complete 

an audiometric test before the employee 

works in an environment where sound 

levels are going to be equal to or greater 

than 85 dBA or pre-placement. 

Similarly, contrary to FRA’s 1 year 

allowance for new employees tested on 

a mobile test van, ASHA, AIHA, and 

Theresa Schulz suggested that FRA 

require railroads to obtain baseline 

audiograms in 90 days for new 

employees who are tested on mobile test 

vans. They explained that ‘‘it is in the 

employer’s best interest to obtain an 

accurate measurement of an employee’s 

hearing levels as soon as possible.’’

FRA and the Working Group did not 

adopt these recommendations and is 

leaving the language as proposed in the 

NPRM. While FRA agrees that it is in 

the employer’s best interest to obtain a 

measurement as soon as possible, FRA 

also realizes that the commenters’

recommendation is not practical, given 

the mobile nature of railroad operating 

work and the large size of the railroad 

workforce. Railroad operating 

employees are constantly moving 

throughout the country. It is hard to 

know what noise environment any 

individual employee is going to 

encounter on any given day since the 

noise level can vary greatly depending 

on several variables, e.g., which 

locomotive, which run, what time of 

day, what geographical characteristics, 

etc. As such, it would be difficult for 

railroads to know when they would 

have to test any given employee. 

Exacerbating the situation further, it 

would be administratively difficult, and 

potentially very costly, for railroads to 

have to plan, schedule, and arrange for 

each individual audiometric test as an 

employee moves across company 

locations throughout the country. FRA 

found, and the RSAC Working Group 

agreed, that it is necessary and 

reasonable to give railroads six months 

to obtain a new employee’s baseline 

audiogram and to give them one year for 

new employees tested on mobile test 

vans. 

FRA also found this allowance for 

new employees to be reasonable because 

a railroad may not know that a newly 

hired employee has exposures that 

require baseline audiometric testing 

until the employee is assigned to, or 

bids certain jobs. Once the jobs the 

employee is doing are known the fact 

that those jobs have triggering exposures 

requiring inclusion in the Hearing 

Conservation program, and thus a 

baseline audiometric test will be known. 

In addition, FRA would note that the 

employees covered by the scope of the 

rulemaking are not highly dosed 

workers, which are more likely to be 

found in other industries. 

Furthermore, the concern underlying 

the comment is that employees need to 

have adequate protection for their 

hearing. As a practical matter, 

employees are going to be adequately 

protected, because most of them will 

have had audiometric tests during their 

pre-employment tests. At the postNPRM Working Group meeting, Class 1 

railroad representatives explained that it 

is common practice for their railroads to 

use pre-employment tests as baseline 

audiograms. 

Furthermore, the commenters’

concern is also addressed by another 

provision in the rule. According to 

§ 227.115(c)(2), a railroad must require 

the use of hearing protectors when: an 

employee is exposed to sound levels 

that meet or exceed the action level and 

the employee has not yet had a baseline 

audiogram. ASHA, AIHA and Theresa 

Schulz had made another 

recommendation, suggesting that when 

a railroad does not obtain an audiogram 

before placing an employee on the job 

and if that employee’s noise exposure 

meets or exceeds the action level, the 

railroad should require that employee to 

wear hearing protection until the 

railroad can obtain an audiogram. As 

explained at the beginning of this 

paragraph, FRA has already adopted 

that requirement but located it 

elsewhere in the rule. 

Section 227.109(e)(2) sets out the 

requirements for establishing baseline 

audiograms for existing employees. 

Section 227.109(e)(2)(i) covers existing 

employees who have not had a baseline 

audiogram as of the effective date of the 

rule. Class 1, passenger, and commuter 

railroads, and railroads with 400,000 or 

more annual employee hours have two 

years from the effective date of the rule 

to establish a baseline audiogram for 

this group of employees. Railroads with 

400,000 or fewer annual employee 

hours have three years from the effective 

date of the rule to establish a baseline 

audiogram for this group of employees. 

For a further discussion on allowances 

for small entities, see the section-bysection analysis for § 227.103(a). 

ASHA and AIHA did not like the two 

year allowance that FRA gave railroads 

for existing employees. They suggested 

that railroads treat existing employees 

without baseline audiograms as if they 

were new employees. NHCA likewise 

did not like this allowance, suggesting 

that FRA phase in all aspects of the rule 

within 12 to 18 months. NHCA wrote 

that SBREFA, which FRA cited to 

support the phase-in implementation, 

only applies where no immediate safety 

risks exist. NHCA believes there is an 

immediate safety risk here, and so it is 

not appropriate to phase in 

implementation dates. 

FRA, along with a Working Group 

recommendation, decided to leave that 

provision as proposed in the NPRM. At 

the NPRM stage, FRA made a decision 

to distinguish between new employees 

and existing employees and to give 

railroads more time to test existing 

employees. That was one of the big 

differences between OSHA’s rule and 

FRA’s rule with respect to baseline 

audiograms. FRA had specifically 

deviated from OSHA and extended the 

time frame for compliance in order to 

accommodate the unique aspects of the 

rail industry. FRA recognizes that there 

are serious administrative difficulties, 

and potentially high costs, of testing a 

large number of mobile employees in a 

short period of time. This extra time was 

intended to give railroads an 

opportunity to ‘‘catch up’’ on their 

testing. Also, contrary to NHCA’s 

assertion, FRA does not believe there is 

an immediate safety risk. FRA expects 

that many of the rail employees will be 

tested well before the end of the twoyear period. Moreover, as a practical 


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56Aearo Company commented that FRA used the 

term ‘‘hearing acuity’’ incorrectly in the preamble 

and suggested that FRA use ‘‘sensitivity’’ instead. 

FRA used the term ‘‘hearing acuity’’ in the 

preamble, and again in this final rule, to refer to an 

existing regulatory provision that contains the term. 

See § 240.121 ‘‘Criteria for vision and hearing acuity 

data.’’ Moreover, FRA’s use is consistent with 

OSHA’s use. See 66 FR 52031, 52032 (October 12, 

2001). 

matter, FRA expects that many railroad 

employees will already have been tested 

as part of existing railroad hearing 

conservation programs. Accordingly, 

FRA did not adopt the commenters’

suggestions. 

Sections 227.109(e)(2)(ii) and (iii) 

cover existing employees who have had 

a baseline audiogram as of the effective 

date of the rule. FRA has decided to 

grandfather many of these baseline 

audiograms. This is in line with OSHA, 

which had adopted a lenient policy on 

accepting baseline audiograms that were 

produced before the promulgation of the 

hearing conservation amendment. 

OSHA had noted that it was flexible in 

grandfathering old baseline audiograms, 

because in most cases, this would be 

more protective of employees. 

For the same reasons, FRA is 

grandfathering baseline audiograms. 

FRA believes that the grandfathered 

baseline audiograms will provide a 

more accurate picture of an individual’s 

hearing ability. A grandfathered 

baseline audiogram will show an 

employee’s initial hearing level and so, 

when compared with subsequent 

audiograms, it will be possible to 

determine the extent of an employee’s 

hearing loss. Also, by allowing railroads 

to grandfather baseline audiograms, 

FRA eliminates unnecessary costs for 

the railroad, because railroads do not 

need to re-test employees that have 

already been tested. Whether or not a 

railroad can grandfather a particular 

baseline audiogram depends on how the 

railroad conducted that baseline 

audiogram. 

Per § 227.109(e)(2)(ii), where an 

existing employee has already had a 

baseline audiogram as of the effective 

date of this rule, and it was obtained 

under conditions that satisfied the 

requirements found in 29 CFR 

1910.95(h), the railroad must use that 

baseline audiogram. Section 1910.95(h) 

identifies OSHA’s audiometric test 

requirements for employees who 

obtained audiograms as part of a hearing 

conservation program. The requirements 

in 29 CFR 1910.95(h) are similar to the 

requirements that are now found in 

FRA’s rule at § 227.109. 

FRA notes that many locomotive 

engineers will have baseline audiograms 

that were obtained as part of the hearing 

acuity 56 testing for FRA’s Locomotive 

Engineer Qualification. See 49 CFR 

240.121. FRA expects that the majority 

of these audiograms will have met 

OSHA’s 29 CFR 1910.95(h) 

requirements. FRA notes that railroads 

must accept these baseline audiograms 

if they were obtained in compliance 

with the requirements found in 29 CFR 

1910.95(h)(1)–(5). 

Per § 227.109(e)(2)(iii), where an 

existing employee has already had a 

baseline audiogram as of the effective 

date of this rule, and it was obtained 

under conditions that satisfied the 

requirements in 29 CFR 1910.95(h)(1) 

but not the requirements found in 29 

CFR 1910.95(h)(2)–(5), the railroad may 

elect to use that baseline audiogram as 

long as the Professional Supervisor of 

the Audiometric Monitoring Program 

makes a reasonable determination that 

the baseline audiogram is valid and is 

clinically consistent with the other 

material in the employee’s medical file. 

At the suggestion of AAA and 

CAOHC, FRA revised this section by 

replacing the phrase ‘‘individual 

administering the Hearing Conservation 

Program’’ (which was used in the 

NPRM) with ‘‘Professional Supervisor of 

the Audiometric Monitoring Program.’’

Professional Supervisor of the 

Audiometric Monitoring Program is 

defined in § 227.5. While the RSAC 

Working Group agreed to add a 

definition in the final rule for 

‘‘Professional Supervisor of the 

Audiometric Monitoring Program,’’ the 

RSAC Working Group did not 

specifically address the substitution in 

this situation. FRA has made this 

change, because it ensures that the 

determination in § 227.109(e)(2)(iii) is 

made by a qualified professional who 

understands hearing loss. FRA made a 

similar change in § 227.109(i). 

ASHA, AIHA, and Theresa Schulz 

commended FRA for grandfathering 

these pre-existing baseline audiograms. 

They also agreed with FRA that it 

should be the responsibility of the 

professional supervising the hearing 

conservation program to determine 

which pre-existing audiograms are 

acceptable and which should be chosen 

as the baseline. 

An issue closely related to 

grandfathering baseline audiograms is 

recordkeeping. During pre-NPRM 

Working Group meetings, many railroad 

representatives expressed concern about 

the record-keeping requirements 

associated with grandfathered baseline 

audiograms. Section 227.121 requires 

railroads to maintain records of 

employee audiometric tests and to 

retain them for the duration of the 

employee’s employment plus thirty 

years. Those records should include 

information such as the name and job 

classification of the employee, the date 

of the audiogram, the examiner’s name, 

the date of the last acoustic or 

exhaustive calibration of the 

audiometer, and accurate records of the 

measurements of the background sound 

pressure levels in the audiometric test 

rooms. At the NPRM stage, railroads 

explained that they will not be able to 

provide all the required information for 

grandfathered baseline audiograms. 

FRA is fully aware of the railroads’

concerns and so FRA reiterates in this 

final rule what FRA explained in the 

proposed rule. FRA recognizes that, in 

some cases, railroads will not have some 

of that information and will not be able 

to obtain some of that information (e.g., 

a railroad might not know the examiner 

or the last exhaustive calibration for a 

baseline audiogram that was obtained 

five years ago). FRA will be cognizant of 

that fact when evaluating what records 

are available and when evaluating the 

adequacy of the available records. 

Overall, FRA will take a practical 

approach toward the audiometric test 

record-keeping requirements for 

grandfathered baseline audiograms. 

Section 227.109(e)(3) addresses one of 

the details of baseline audiogram tests, 

specifically, that baseline audiograms 

must be preceded by a 14-hour quiet 

period and that HP may be used in place 

of the 14-hour quiet period. Aearo 

Company submitted comments on the 

second part of this subparagraph. Aearo 

Company has concerns about allowing 

employees to substitute hearing 

protection in place of a 14-hour quiet 

period. Aearo Company asserts that 

hearing protectors do not provide high 

levels of protection and do not always 

prevent noise-induced hearing loss. 

They explain that hearing protectors fail 

to prevent permanent threshold shifts, 

and so they must also fail to prevent 

temporary threshold shifts. In essence, 

then, Aearo Company doesn’t think 

hearing protectors are an effective 

substitute for a quiet period. However, 

Aearo Company recognizes that it 

would be impossible and impracticable 

to require employees to rely solely on 

the 14-hour quiet period, because, for 

example, it is not always possible for an 

employer to obtain an audiogram prior 

to a workshift. 

Aearo Company proposes that FRA 

continue to allow the use of the 14-hour 

quiet period, but with stipulations. An 

employee would be able to use hearing 

protectors as long as, within 5 days 

prior to the audiogram: (1) The 

employee received individual refresher 

training on the use of his or her hearing 

protector, (2) the condition of the 

employee’s hearing protector is checked 


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and found to be satisfactory, (3) the 

hearing protector to be used is either an 

earmuff or a foam earplug or is a device 

that has been fit-tested and shown to 

provide adequate protection to reduce 

exposure to levels equivalent to less 

than 80 dB(A), and (4) an employee 

exposed to sound levels about 100 

dB(A) would be required to wear an 

earplug with an earmuff for the 14-hour 

quiet period. 

FRA and the Working Group 

considered Aearo Company’s suggestion 

but decided to leave the rule as 

proposed. FRA believes this change 

would impose very rigorous standards 

that would greatly increase the 

requirements of the rule and are not 

justified. In addition, there are practical 

problems with this approach. For 

example, regarding #1, FRA’s standard 

already requires training whenever an 

employer provides an employee with 

HP, so it is unnecessary to duplicate 

that requirement. Regarding #2, it is 

unclear who would check the 

employee’s HP and whether there 

would be a record made of the check. 

If so, there would then be an additional 

recordkeeping burden on employers. 

Regarding #3 & 4, this specific standard 

contradicts the performance standard 

that FRA uses in § 227.115(a)(4) for 

giving employees an opportunity to 

select from a ‘‘variety’’ of HPs with a 

‘‘range’’ of attenuation levels. Finally, 

FRA pulled this provision directly from 

OSHA’s general industry noise 

standard. See 29 CFR 1910.95(g)(5)(iii). 

As OSHA is the lead agency in this area, 

and FRA does not see any compelling 

reason to veer from OSHA’s rule, FRA 

is leaving the rule the same as FRA’s 

proposed rule and OSHA’s general 

industry standard. 

Since the post-NPRM RSAC Working 

Group meeting, FRA realized that there 

were some drafting errors in this section 

and corrected them . Section 

227.109(e)(3) referred to ‘‘the level 

specified in § 227.115’’ and yet there are 

several levels listed in § 227.115 and so 

it was not clear to which level in 

§ 227.115 the rule was referring. To 

clear up this type of confusion which 

can result from cross-referencing, FRA 

has revised § 227.109(e)(3) such that it 

refers directly to the specified level, i.e., 

the action level. In addition, FRA 

changed the term ‘‘workplace’’ to 

‘‘occupational’’ in the second sentence 

of § 227.115, so that the terminology is 

consistent throughout the paragraph. 

Accordingly, § 227.115 now provides 

that ‘‘testing to establish a baseline 

audiogram shall be preceded by at least 

14 hours without exposure to 

occupational noise in excess of the 

action level. Hearing protectors may be 

used as a substitute for the requirement 

that baseline audiograms be preceded by 

14 hours without exposure to 

occupational noise.’’

Section 227.109(e)(4) provides that 

‘‘the railroad shall notify its employees 

of the need to avoid high levels of nonoccupational noise exposure during the 

14-hour period immediately preceding 

the audiometric examination.’’ FRA did 

not receive any comments on this 

section and so it remains the same as 

proposed in the NPRM. 

Section 227.109(f) provides the 

requirements for periodic audiograms. 

Periodic audiograms are the subsequent 

audiograms that are conducted at 

regular intervals in the future. They can 

be used to identify deterioration in 

hearing ability and to track the 

effectiveness of a hearing conservation 

program. 

This section has undergone several 

permutations. The starting point was 

OSHA’s rule. OSHA requires an 

employer to obtain a new audiogram at 

least annually for each employee 

exposed at or above the 8-hour TWA of 

85 dB(A). See 29 CFR 1910.95(g)(6). 

During RSAC Working Group meetings, 

labor representatives tended to disfavor 

mandatory hearing testing and railroad 

representatives tended to favor 

mandatory hearing testing. The RSAC 

Working Group members reached a 

compromise position that was used in 

the proposed rule. It required railroads 

to test employees at least once every 

three years but to offer a test at least 

once a year. 

FRA received several comments on 

this provision. The commenters, 

including ASHA, AAA, AIHA, NHCA, 

CAOHC, Aearo Company, Theresa 

Schulz, and 12 individual ASHA 

members, overwhelmingly supported an 

annual audiometric testing requirement. 

Theresa Schulz wrote that the annual 

audiogram is a ‘‘critical tool to 

determine the effectiveness of a hearing 

conservation program.’’ NHCA wrote 

that ‘‘annual audiometric monitoring 

will allow for early identification, 

leading to early intervention, and thus 

the potential to prevent noise-induced 

hearing loss.’’ Aearo Company 

explained that, with triennial 

audiometric testing, an employer’s 

ability to catch changes in time and to 

halt the progression [of hearing loss] 

will be substantially diminished. ASHA 

and AIHA went on to explain that a 

significant amount of irreversible 

hearing loss can occur in 3 years. 

Theresa Schulz and NHCA added that 

the progression of hearing loss is more 

aggressive in early years of an 

employee’s career, especially the first 3 

to 6 years of noise exposure. 

The commenters identified several 

other reasons why FRA should require 

annual testing. Aearo Company wrote 

that the test data is of less value when 

spread out over 3 year periods. Aearo 

Company explained that audiometric 

test results can be very variable, and so 

a doctor reviewing data for potential 

shifts might want to review additional 

test results spanning a period of years. 

With triennial tests, it would take too 

long to develop a database of periodic 

audiograms. Aearo Company also wrote 

that the annual audiogram is the best 

training opportunity that a professional 

hearing conservationist has to educate 

and motivate employees. Having a 

triennial testing requirement means 

there are much fewer training 

opportunities. In addition, ASHA, 

AIHA, and Aearo Company noted that it 

would more logical for FRA to be 

consistent with other Federal noise 

standards (OSHA, MSHA, DOD) and 

have an annual audiometric test 

requirement. CAOHC and Aearo 

Company acknowledged that the mobile 

railroad workforce presents some 

logistical challenges and recognized 

FRA’s desire to reduce that burden for 

railroads, yet still thought that FRA 

should require annual audiometric tests. 

Finally, ASHA and AIHA also stated 

that it will be administratively more 

difficult for FRA to track compliance if 

there is as much as 3 years between 

audiograms. 

There was one commenter who took 

a different position. Attorney/ 

audiologist Michael Fairchild of 

Michael Fairchild and Associates wrote 

that ‘‘OSHA and MSHA do not make the 

hearing test mandatory which results in 

some individuals ‘slipping through the 

cracks’ until it is far too late to preserve 

their hearing.’’ He felt that obtaining 

triennial hearing tests would help to 

alleviate that problem to at least some 

extent. 

At the post-NPRM RSAC Working 

Group meeting to discuss comments to 

the proposed rule, the AAR raised a new 

concern. They noted that they had not 

raised this concern in their comment 

submission but that it followed the same 

logic as their comment submission 

regarding calendar days in the training 

requirement. The AAR argued that the 

testing should be based on a calendar 

year, not 365 days from the last test. The 

AAR explained that they had not 

contemplated the issue when the RSAC 

Working Group was drafting 

recommendations for the NPRM, but at 

this stage, they had realized that it 

would too difficult for them to comply 

with the proposed requirement. They 

explained that it would be virtually 

impossible to offer testing to each 


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covered employee every 365 days, given 

their large workforce, mobile nature of 

the workforce, and lack of clinics in 

certain rural communities. The railroad 

representatives explained that they 

needed more time and more flexibility 

to meet the testing requirement. In turn, 

the labor representatives pointed out 

that a calendar year requirement raised 

some serious practical concerns. For 

example, a railroad could offer testing to 

an employee in January 2008 and would 

not have to offer testing again to that 

employee until December 2009. In 

effect, then, employees could go as long 

as 23 months without having the 

railroad offer them a test. 

There was a great deal of discussion 

on this topic during the post-NPRM 

Working Group meeting. The RSAC 

Working Group members were faced 

with various sets of competing 

positions. There was the railroad-labor 

difference of opinion as to the time 

frame. The railroad wanted the 

requirement based on the calendar year 

but labor thought that allowed for far 

too much time between tests. There was 

also a railroad-commenter difference of 

opinion. On one hand, commenters 

rejected a triennial testing requirement 

and instead recommended an annual 

audiometric testing requirement. On the 

other hand, the railroad representatives 

adamantly asserted that they were 

unable to comply with the proposed 

triennial testing requirement, no less an 

annual requirement. 

In the end, the RSAC Working Group 

recommended, and FRA adopted, a 

variation on the provision that was used 

in the proposed rule. The final rule 

requires a railroad to offer an 

audiometric test to each employee 

included in the hearing conservation 

program at least once every calendar 

year, however, the rule qualifies the 

time frame. For any individual 

employee, the interval between the date 

offered for a test in a calendar year and 

the date offered in the subsequent 

calendar year shall be no more than 450 

days and no less than 280 days. See 

§ 227.109(f)(1). 

The provision giving railroads up to 

450 days to offer a test to any individual 

employee is important, because it will 

provide railroads with sufficient time to 

offer testing to their large, mobile 

workforce. This provision was part of 

the RSAC recommendation for this 

rulemaking. 

The provision that requires railroads 

to offer audiometric tests at least 280 

days apart was not a product of the 

RSAC consensus. FRA added this 

provision after the RSAC Working 

Group meeting. Without this provision, 

railroads would have been able to offer 

tests to employees virtually back-toback. For example, a railroad could test 

an employee in December 2006 and 

again in January 2007. To prevent that, 

FRA has established a minimum time 

period between tests of 280 days, or 9 

months. FRA chose 9 months, because 

it allows for equal increments of time in 

relation to the 450 day requirement. The 

final rule also requires railroads to 

require each employee included in the 

hearing conservation program to take an 

audiometric test at least once every 1095 

days. See § 227.109(f)(2). 1095 days is 

the equivalent of 36 months or 3 years. 

This triennial requirement is consistent 

with the triennial hearing acuity 

requirement for locomotive engineers. 

See 49 CFR 240.201(c). 

Contrary to some of the comments 

received, FRA believes that these 

provisions are, in fact, comparable to 

OSHA provisions because they mandate 

employers’ offering testing annually and 

require employee’s participation not 

less than triennially. 

Section 227.109(g) provides the 

requirements for the evaluation of 

audiograms. Paragraph (g)(1) provides 

that each employee’s periodic 

examination should be compared to that 

employee’s baseline audiogram to 

determine if the audiogram is valid and 

to determine whether a standard 

threshold shift (STS) has occurred. The 

second sentence of paragraph (g)(1) 

provides that this comparison may be 

done by a technician. AAA and CAOHC 

commented on this second sentence, 

suggesting that FRA require this 

comparison to be done by a technician 

‘‘under the supervision of a Professional 

Supervisor of the Audiometric Testing 

Program.’’ FRA adopted that change, 

though not in the precise manner the 

commenter suggested. Instead of adding 

that phrase here, FRA added that phrase 

elsewhere—i.e., in the definition of 

‘‘qualified technician’’ located in 

§ 227.5. FRA believes it important to 

have the Professional Supervisor 

oversee these determinations, because it 

will ensure consistency of application 

across all determinations. 

Paragraph (g)(2) states that if the 

periodic audiogram demonstrates a STS, 

a railroad may obtain a retest within 90 

days and use the retest as the periodic 

audiogram. This provision differs from 

OSHA’s regulation. OSHA gives an 

employer 30 days to obtain a re-test if 

an annual audiogram shows that an 

employee has experienced a standard 

threshold shift. See 29 CFR 

1910.95(g)(7)(ii). 

Several commenters opposed the 90- 

day retest period, suggesting that FRA 

follow NIOSH’s recommendation for an 

immediate retest if an STS has occurred. 

If the retest audiogram does not show 

the same shift, the restest audiogram 

becomes the test of record and there is 

no need for a confirmatory test within 

30 days. ASHA and AIHA also 

recommended that FRA require 

employers to conduct confirmation 

audiograms within 30 days of any 

monitoring or retest audiogram that 

continues to show an STS. They believe 

that the 90-day window permits too 

much time to lapse to permit effective 

comparison of tests, and they believe 

that 30 days is more appropriate. One 

commenter supported this provision. 

Michael Fairchild and Associates, noted 

that the 90-day retest period ‘‘makes 

sense given the mobile nature of the 

target worker population and the fact 

that some conditions that may cause a 

spurious STS may not resolve within 

the 30 days required by OSHA and 

MSHA.’’

FRA and the Working Group 

discussed the issue and decided to leave 

the retest period at 90 days. Most 

importantly, this 90-day retest period 

accommodates the mobile nature of the 

railroad work force. OSHA’s 30-day 

retest period would not be appropriate 

here. OSHA regulates employers that 

tend to have employees at fixed 

facilities, and so it is practically 

possible to retest those employees 

within 30 days. Railroad employees, by 

contrast, are not at fixed facilities, but 

are widely dispersed, constantly moving 

throughout the country, and often work 

irregular hours. As well, many are 

subject to the Hours of Service laws, 

which further limits the railroad’s 

ability to test employees on certain 

dates and at certain times. In addition, 

FRA and the Working Group believe 

that the 90-day period might allow for 

a better retest than the 30-day period. 

For example, medical conditions that 

are likely to interfere with the 

audiometric test, such as the common 

cold, are more likely to resolve 

themselves in 90 days than 30 days. 

Section 227.109(g)(3) provides that 

the audiologist, otolaryngologist, or 

physician shall review problem 

audiograms and shall determine 

whether there is a need for further 

evaluation. A railroad shall provide 

various pieces of information to the 

person performing this review. That 

information includes: The baseline 

audiogram of the employee to be 

evaluated, the most recent audiogram of 

the employee to be evaluated, 

measurements of background sound 

pressure levels in the audiometric test 

rooms, and records of audiometer 

calibrations. 

As used in this paragraph, ‘‘problem 

audiograms’’ refers to audiograms that 


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57OSHA Interpretation Letter from OSHA to Mr. 

J. Christopher Nutter dated May 9, 1994. 

have had technical or administrative 

problems. In a general sense, it refers to 

situations where the testing equipment 

did not work, where there is evidence 

that the test-taker skewed the test 

results, or where the results are 

medically atypical. Examples of 

problem audiograms include 

audiograms that show large differences 

in hearing thresholds between the two 

ears, audiograms that show unusual 

hearing loss configurations that are 

atypical of noise induced hearing loss, 

and audiograms with thresholds that are 

not repeatable.57

NHCA commented on this paragraph, 

noting that FRA had not required 

railroads to provide the worker’s most 

recent noise exposure. NHCA thinks 

this information is critical to the 

professional reviewer in making 

appropriate follow-up decisions. NHCA 

also wrote that ‘‘although it can be 

difficult to obtain this information from 

the worker, it is not impractical 

especially since FRA has a requirement 

to keep a list of employees or positions 

in the hearing conservation program.’’

FRA is not sure what the NHCA is 

recommending here. NHCA seems to be 

implying that the employee provide this 

information to the railroad, which does 

not make sense. Moreover, OSHA 

requires employers to retain a record of 

the employee’s most recent noise 

exposure assessment (see 29 CFR 

1910.95(m)(2)(e)), but FRA, in the 

recordkeeping section, made a 

conscious decision not to include this 

requirement in FRA’s rule. 

FRA specifically excluded, and 

continues to exclude, the employee’s 

most recent noise exposure, because the 

workforce in question typically 

experiences a relatively wide range of 

exposures. Thus, there is no reason to 

believe that any individual’s last 

exposure data will be particularly 

relevant to the evaluation of an 

audiogram. Further, this rule authorizes 

monitoring of exposures on a sampling 

basis, so for any given employee, the 

last exposure may not be available or 

may be months or years out of date. 

Section 227.109(h) provides the 

follow-up procedures for subsequent 

audiograms. Section 227.109(h)(1) 

provides that a railroad shall notify an 

employee if the railroad determines that 

the employee has experienced a 

standard threshold shift (STS). The 

employer will be able to identify that a 

STS has occurred by comparing the 

employee’s baseline audiogram with the 

employee’s periodic audiogram. A 

railroad shall inform the employee in 

writing within 30 days of the 

determination. FRA’s rule gives 

railroads 30 days while OSHA’s rule 

gives employers 21 days. See 29 CFR 

1910.95(g)(8)(i). FRA’s rule provides 

railroads with more time, because FRA 

is taking into account the mobile 

railroad workforce and railroads’

difficulty in providing notice to that 

mobile workforce. Moreover, FRA 

believes there is no substantial harm if 

the railroads have an additional nine 

days to notify employees. 

Section 227.109(h)(2) identifies the 

steps that a railroad should take if the 

railroad learns that an employee has 

experienced a standard threshold shift 

and specifies further notification 

procedures for subsequent audiometric 

testing. It provides that ‘‘if subsequent 

audiometric testing of an employee 

whose exposure to noise is less than an 

8-hour TWA of 90 dB indicates that a 

standard threshold shift is not 

persistent, the railroad shall inform the 

employee of the new audiometric 

interpretation and may discontinue the 

required use of hearing protectors for 

that employee.’’

Several commenters, including 

Theresa Schulz, ASHA, AAA, AIHA, 

CAOHC, and NHCA strongly opposed 

the language in § 227.109(h)(3). Before 

summarizing their comments, it is 

necessary to provide a context for their 

comments. According to § 227.115(c)(2), 

a railroad must require the use of HP 

when an employee is exposed to sound 

levels that meet or exceed the action 

level, and the employee has experienced 

a STS and is required to use HP under 

§ 227.109(h). However, according to 

§ 227.109(h)(3), the railroad may 

discontinue the required use of HP if an 

employee’s STS resolves, i.e., is not 

persistent. In other words, if the railroad 

finds that an employee’s STS was only 

a TTS (temporary threshold shift), then 

the railroad need not require that 

employee to continue wearing HP. 

The commenters were opposed to 

language in § 227.109(h)(3), and several 

requested that FRA delete it. They 

stated that it is illogical to discontinue 

the use of HP if an STS is not deemed 

persistent. They explained that a TTS is 

an indication that intervention is 

necessary, not that intervention should 

be discontinued. AAA explained that ‘‘If 

a retest indicates that hearing may have 

improved due to the use of HP prior to 

the retest, individuals should be aware 

of the need to continue use of HP when 

exposed to noise, rather than simply 

ignore this early warning and continue 

with the sloppy use of [personal 

protective equipment].’’ Similarly, 

AIHA wrote that a TTS may be an early 

indication of a noise-susceptible 

employee. Rather than discontinue the 

use of HP, the employer should see it as 

an indicator that they need to intervene 

and promote the effective use of HP by 

offering a different selection of devices. 

These commenters overwhelmingly 

emphasized that to discontinue 

intervention is to allow a TTS to become 

a permanent threshold shift (or 

permanent hearing loss) and that does 

not further the goal of preventing 

hearing loss. They wrote that the current 

language in the rule means that 

employers are merely documenting the 

TTS, but not doing anything to prevent 

further hearing loss. As Theresa Schulz 

wrote, this provision ‘‘makes the 

hearing conservation program an 

hearing loss documentation program!!’’

CAOHC recommended a variation, 

specifically that FRA require employees 

who show a STS that is not persistent 

but who are exposed to noise levels 

between 85 and 90 dB(A) to use HP. 

AAA also recommended a very similar 

variation, suggesting that employees 

who (1) show a STS that is not 

persistent and (2) are exposed to <90 

dBA TWA not be allowed to terminate 

use of HP. 

FRA, with the consensus of the RSAC 

Working Group, has decided to leave 

this provision as presented in the 

proposed rule. FRA does not believe it 

makes sense to change this provision 

according to the commenters’

recommendations. If FRA adopted the 

commenters’ recommendations, FRA 

would create a ‘‘new class’’ of noiseexposed employees—that is, employees 

who are exposed to noise below an 8- 

hour TWA of 90 dB(A) and who do not 

have an STS upon retest. Also, FRA 

would require that ‘‘new class’’ of noiseexposed employees to wear hearing 

protection all the time. As long as these 

employees continued in the same job 

and experienced the same noise 

exposure, they would have to wear 

hearing protection for the rest of their 

working careers. That would be illogical 

given that the STS could have been 

caused by one or more conditions other 

than hearing loss, e.g., poor technique, 

an undetected illness that suppresses 

hearing, an intentional effort to test 

poorly, or some other non-noise related 

condition. In addition, in order to 

ensure that this ‘‘new class’’ of exposed 

employees were in compliance, FRA 

would have to require a new set of 

records, which would impose an 

additional recordkeeping burden on 

railroads. Finally, this change would be 

a significant departure from OSHA. FRA 

adopted this provision from OSHA’s 

general industry noise standard. See 29 

CFR 1910.95(g)(8)(iii). Throughout this 

rulemaking, FRA has followed OSHA’s 


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58The Executive Council of the National Hearing 

Conservation Association approved these 

guidelines on February 24, 1996. 

lead and veered from it only when FRA 

thought it was necessary to 

accommodate the unique aspects of the 

rail industry or when there have been 

advances in technology that warranted a 

change. As OSHA is the lead agency in 

this area and FRA does not see any 

compelling reason to veer from OSHA’s 

rule in this case, FRA is leaving this 

provision as proposed. 

Section 227.109(i) identifies the 

methods which railroads should use to 

revise baseline audiograms. The first 

method, which is provided in 

§ 227.109(i)(1), should be used by 

railroads for the two years immediately 

following the effective date of this rule. 

It states that there are two situations 

where a Professional Supervisor of the 

Audiometric Monitoring Program may 

substitute a periodic audiogram in place 

of the baseline audiogram. The two 

situations are: (1) the audiogram reveals 

that the standard threshold shift is 

persistent, or (2) the hearing threshold 

shown in the periodic audiogram 

indicates significant improvement over 

the baseline audiogram. FRA adopted 

this concept from OSHA’s general 

industry noise standard. See 29 CFR 

1910.95(g)(9). 

At the suggestion of AAA and 

CAOHC, FRA revised this section by 

replacing the phrase ‘‘audiologist, 

otolaryngologist, or physician’’ (which 

was used in the NPRM) with the more 

specific phrase ‘‘Professional Supervisor 

of the Audiometric Monitoring 

Program.’’ Professional Supervisor of 

the Audiometric Monitoring Program is 

defined in § 227.5. While the RSAC 

Working Group agreed to add a 

definition in the final rule for 

‘‘Professional Supervisor of the 

Audiometric Monitoring Program,’’ the 

RSAC Working Group did not discuss 

the substitution in this situation. FRA 

has made this change, because it 

ensures that the substitution in 

§ 227.109(i) is made by a qualified 

professional who understands hearing 

loss. FRA made a similar change in 

§ 227.109(e)(2)(iii). 

The second method, which is 

provided in § 227.109(i)(2), should be 

used by railroads for the period of time 

after the date that this rule has been in 

effect for two years. This method is 

virtually identical to the NHCA 

Professional Guide for Audiometric 

Baseline Revision (NHCA Guidelines). 

NHCA recommended that FRA adopt 

the NHCA Guidelines and use it to 

better explain what OSHA meant in 29 

CFR 1910.95(g) and what FRA now 

means in § 227.109(i). AAA, CAOHC, 

and Aearo Company also endorsed the 

use of the NHCA Guidelines. According 

to the commenters, NHCA developed 

these guidelines in 1996 in response to 

frustrations among hearing 

conservationists who wanted 

clarification of what OSHA intended for 

baseline audiograms in its general 

industry standard.58 The commenters 

explained that the OSHA guidelines 

lack precision. They explained that the 

NHCA Guidelines, in contrast, provide 

specific recommendations concerning 

when audiometric baselines should be 

revised. The NHCA Guidelines offer a 

standardized method of determining 

when baselines will be revised, and so 

they assure consistency and uniformity 

among professional reviewers. Several 

commenters also noted that these 

guidelines ‘‘have been commonly 

accepted.’’

FRA agrees with the commenters that, 

from a technical and programmatic 

point of view, the information contained 

in the NHCA Guidelines is very useful 

information. OSHA is silent on this 

issue, and these NHCA Guidelines 

provide much-needed guidance in this 

area. The NHCA Guidelines create a 

consistent methodology for revising 

baselines and in the process, make 

FRA’s rule more clear. They fill the gap 

that has developed since OSHA issued 

its rule. And it fills the gap with a 

document created by and widely 

supported by the hearing conservation 

community. 

Accordingly, with the consensus of 

the RSAC Working Group, FRA added 

the NHCA Guidelines as Appendix C to 

this final rule: ‘‘Audiometric Baseline 

Revision.’’ FRA has made some edits to 

the document to tailor them for FRA’s 

use (e.g., changing ‘‘OSHA’’ to ‘‘FRA’’

and changing the ‘‘30-day retest’’ to a 

‘‘90-day retest’’). The appendix is 

initially non-mandatory, but the 

appendix will become mandatory two 

years from the effective date of the final 

rule. The RSAC Working Group agreed 

that this two-year period is a fair and 

reasonable amount of time. It should 

provide railroads with sufficient time to 

make any necessary administrative 

changes. 

Section 227.109(j) addresses standard 

threshold shifts. It provides that when 

determining whether a standard 

threshold shift has occurred, the 

individual evaluating the audiogram can 

consider the contribution of age 

(presbycusis) to the change in hearing 

level. The individual evaluating the 

audiogram should use the procedure 

described in Appendix F: ‘‘Calculation 

and Application of Age Correction to 

Audiograms.’’

Appendix F is a non-mandatory 

appendix that employers can use to 

calculate and apply age correction to 

audiograms. Consistent with their 1998 

criteria document, NIOSH submitted 

comments, recommending that FRA 

should not provide employers with the 

option of using age-corrected hearing 

levels to determine the presence or 

absence of a STS. NIOSH explained that 

‘‘it is statistically inappropriate to apply 

aggregate data to individuals.’’ In 

addition, NIOSH asserted that the 

Appendix F tables are racially biased 

and are discriminatory against persons 

older than 60 years old. NIOSH 

explained that the data sources for the 

age correction tables in Appendix F 

were surveys conducted in the late 

1960s and early 1970s. The tables are 

representative of Caucasian male and 

female hearing thresholds from age 20 to 

60 and therefore not of people of other 

races and above 60 years old. 

NIOSH went on to suggest that FRA 

should make some changes to the agecorrection charts if FRA decides to use 

age correction tables. Specifically, 

NIOSH suggested that FRA make the 

following adjustments—compute age 

corrections based on hearing levels of 

the 84th or 98th percentiles, i.e., mean 

minus 1 or 2 standard deviations; use 

tables that have representative agerelated changes for both genders of all 

major ethnic groups; and use tables that 

accurately represent age-related hearing 

changes for workers over age 60. NIOSH 

also recommended that, if FRA wishes 

to use age correction tables, FRA should 

use tables derived from the National 

Health and Nutrition Examination 

Survey (NHANES), a joint National 

Institutes of Health (NIH)–Centers for 

Disease Control (CDC) effort, in order to 

ensure that the racial, gender, and age 

specific corrections are valid. 

AAA and NHCA also submitted 

comments on this matter. Similar to 

NIOSH, AAA and NHCA do not support 

the use of the tables in Appendix F, 

because they are racially biased and 

discriminatory against persons greater 

than 60 years old. AAA raised a separate 

issue too. AAA asserts that the OSHA 

method for permitting use of age 

corrections (when computing STSs) is 

not a best practice for identifying 

meaningful changes in hearing. AAA 

believes that age correction of 

individual audiograms is 

counterproductive to the goal of 

detecting temporary hearing changes 

before they become permanent hearing 

losses. AAA asserts that a STS should 

be a sentinel for identifying significant 

changes in hearing. 

On one hand, FRA understands that 

there are problems with the historical 


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59For a general discussion on the use of ANSI 

standards in this rule, see the section-by-section 

analysis for § 227.103(c)(2). 

data used to create the tables in 

Appendix F. It is older data that fails to 

take into account racial differences or 

the fact that people now have longer life 

spans. On the other hand, FRA does not 

have a viable alternative to use in place 

of the tables in Appendix F. 

NIOSH did not present FRA with a 

viable alternative option. NIOSH did 

recommend that FRA use data from 

NHANES, but the NHANES effort is still 

pending, so there is nothing conclusive 

to use. There is no good scientific data 

available yet. NIOSH also offered that its 

scientists could provide technical 

assistance to FRA. However, that is not 

a feasible option for FRA either. FRA 

has neither the resources nor the 

expertise to conduct its own studies, 

obtain the new data, and create new age 

correction tables, even with NIOSH’s 

technical assistance. 

Since there is no viable replacement 

for the Appendix F tables, FRA 

considered the option of removing the 

age correction charts completely. 

Essentially, the age correct decision 

would be left up to the professional 

judgment of the Professional Supervisor 

of the Audiometric Monitoring Program. 

However, FRA decided that might do 

more harm than good. Without these 

tables, there would be absolutely no 

guidance for Professional Supervisors, 

and FRA would have created a gap. 

Finally, OSHA, not FRA, is the lead 

federal agency on this matter and OSHA 

continues to use age correction charts. 

FRA is reluctant to make such a radical 

departure from OSHA at this time. 

Given the above reasons and the fact 

that these tables are non-mandatory, 

FRA and the Working Group decided to 

leave these tables as proposed in the 

NPRM. When, and if, OSHA decides to 

change these tables, FRA will consider 

a change. 

Section 227.111 Audiometric Test 

Requirements 

This section sets out the requirements 

for audiometric tests. FRA used OSHA’s 

standard at 29 CFR 1910.95(h) as a 

starting point and then tailored the 

provisions for FRA’s use. 

Section 227.111(a) provides that 

audiometric tests shall be pure tone, air 

conduction, hearing threshold 

examinations with test frequencies 

including 500, 1000, 2000, 3000, 4000, 

6000, and 8000 Hz. Tests at each 

frequency shall be taken separately for 

each year. 

In the proposed rule, FRA sought 

comment on whether FRA should add 

the 8000 Hz frequency. Several 

commenters, including AAA, CAOHC, 

Aearo Company, NHCA, and NIOSH 

recommended that FRA require 

audiometric testing at the 8000 Hz 

frequency. They explained that the 

information provided by the 8000 Hz 

threshold is valuable in determining the 

classic ‘‘noise notch’’ pattern. It 

enhances clinical decisions about the 

probable etiology of hearing losses. In 

order to determine that hearing loss is 

related to noise exposure and is a 

‘‘work-related hearing loss,’’ clinicians 

must observe an audiometric notch at 

4000 Hz or 6000 Hz. This notch cannot 

be calculated without observing hearing 

thresholds at 8000 Hz. In addition, 

commenters noted that the cost, time, 

and effort of adding one frequency per 

test is negligible, particularly when 

compared to the reviewer time lost 

when a case’s status regarding workrelated, noise-induced hearing loss is 

unclear. 

Accordingly, FRA has decided, and 

the RSAC Working Group has agreed, to 

require audiometric testing at the 8000 

Hz frequency. It is important to include 

this frequency, because it will allow 

employers to identify hearing loss 

sooner. It is possible to include this 

frequency because the technology to test 

it is available while the time and effort 

necessary to test it is negligible. 

Moreover, railroads with hearing 

conservation programs are probably 

already testing at this frequency. It is 

important to note that all existing tests 

(i.e., tests conducted prior to this rule 

and which did not include the 8000 Hz 

frequency) are still considered to be 

valid tests. 

Section 227.111(b) provides that 

audiometric tests shall be conducted 

with audiometers that meet the 

specifications of and are maintained and 

used in accordance with ANSI S3.6–

2004, ‘‘Specification for 

Audiometers.’’ 59 Aearo Company 

brought to FRA’s attention the fact that 

FRA had published an outdated ANSI 

standard in the proposed rule (i.e., ANSI 

S3.6–1996), FRA has since updated the 

standard. 

Section 227.111(b)(1) addresses the 

requirements for pulsed-tone 

audiometers. In the proposed rule, the 

requirement for pulsed-tone 

audiometers was found in § 227.111(c). 

FRA has substantially revised this 

requirement since the proposed rule. 

For a discussion of the changes, see the 

section-by-section analysis for 

Appendix C to this part. 

Section 227.111(b)(2) is new to this 

final rule. This provision allows 

railroads to use insert earphones while 

conducting audiometric testing. Some 

commenters asserted that FRA had 

allowed for the use of insert earphones 

by adopting the updated ANSI standard 

for audiometers (ANSI S3.6–2004) in 

§ 227.111(b). They explained that ANSI 

S3.6–2004 includes, among other things, 

requirements for the use of insert 

earphones and so therefore, FRA must 

implicitly be allowing for the use of 

insert earphones in § 227.111(b). 

The commenters also discussed 

OSHA’s position on insert earphones. 

OSHA does not explicitly permit the use 

of insert earphones in its standard 

(although, as one commenter pointed 

out, that is probably because this 

technology did not exist at the time 

OSHA promulgated its standard). In 

fact, as indicated in a August 31, 1993 

interpretation letter, OSHA considers 

the use of insert earphones to be a 

violation, albeit a de minimis one. 

Employers who wish to use insert 

earphones under OSHA standards can 

do so and avoid a citation , however, if 

they satisfy specified conditions (which 

are listed in the August 31, 1993 letter). 

Commenters concurred that OSHA’s 

position on insert earphones is difficult 

with which to contend. One commenter 

specifically wrote that OSHA has made 

the use of insert earphones difficult in 

industrial settings. 

Overwhelmingly, commenters praised 

the idea of permitting the use of insert 

earphones. Commenters pointed out 

that insert earphones are increasingly 

used in hospital-based and clinical 

practices, and so it is logical to permit 

their use in the regulation. Aearo 

Company wrote that insert earphones 

not only provide the same level of test 

validity and reliability as supra-aural 

headphones but eliminate several of the 

most vexing limitations of supra-aural 

earphones. AAA noted that it is 

desirable to use insert earphones since 

they provide better isolation of the 

stimulus (than supra-aural headphones) 

from the ambient room noise. AAA also 

wrote that insert earphones provide 

significant advantages in testing patients 

with background noise levels, with 

asymmetrical hearing loss, and with 

collapsing canals, and for reducing 

cross-contamination in cases of external 

ear canal infections. 

The RSAC Working Group considered 

the issue of insert earphones. The 

members felt strongly that FRA should 

not require the use of insert earphones. 

The Working Group members explained 

that there were logistical problems with 

their required use. Railroad contractors 

who perform hearing tests do not 

generally use insert earphones, because, 

among other things, they have to keep 

several different types of tips and that 

becomes too difficult when they are 


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60For a general discussion on the use of ANSI 

standards in this rule, see the section-by-section 

analysis for § 227.103(c)(2). 

61This relaxes the 1991 ANSI requirements by 3.5 

dB (and the current 1999 ANSI standard by 5 dB) 

to a value of 24.5 dB. 

operating out of mobile vans. As well, 

there are data problems with using 

insert earphones. The data from tests 

with insert earphones and tests with 

supra-aural headphones would not be 

comparable since the testing conditions 

for each vary. Despite these problems, 

the Working Group agreed that insert 

earphones are a useful and emerging 

technology and wanted to provide 

railroads with the option of using them. 

The Working Group recommended that 

FRA permit their use but left it to FRA 

to work out the details. 

Consistent with the Working Group’s 

recommendation, FRA is allowing 

railroads to avail themselves of this new 

technology. FRA could have relied on 

the implication in § 227.111(b) that 

permits the use of insert earphones, but 

FRA believes that is too ambiguous. To 

avoid ambiguity, § 227.111(b)(2) of this 

rule explicitly permits the use of insert 

earphones. Although FRA is not 

mandating the use of insert earphones, 

when they are in fact used, they must 

be used consistent with the 

requirements listed in Appendix E: 

‘‘Use of Insert Earphones for 

Audiometric Testing.’’ In drafting the 

requirements for Appendix E, FRA used 

the conditions from OSHA’s August 31, 

1993 letter as a starting point and 

tailored them to meet FRA’s needs. Of 

note are the background sound level 

requirements for insert earphones. They 

are discussed below in the section-bysection analysis for § 227.111(c). 

Section 227.111(c) provides that 

railroads should administer audiometric 

examinations in rooms that meet the 

requirements listed in Appendix D: 

‘‘Audiometric Test Rooms.’’ Appendix 

D specifies that employers shall use 

rooms that do not have background 

sound pressure levels that exceed the 

levels in Table D–1 of Appendix D. 

Railroads are required to measure sound 

pressure levels with equipment 

conforming to at least Type 2 

requirements of ANSI S1.4–1983 

(Reaffirmed 2001), ‘‘Specification for 

Sound Level Meters’’ and to the Class 2 

requirements of ANSI S1.11–2004, 

‘‘Specification for Octave-Band and 

Fractional-Octave-Band Analog and 

Digital Filters.’’ 60 Note that FRA has 

updated the octave-band filter ANSI 

standard from the outdated standard 

used in the proposed rule, ANSI S1.11–

1971 (R1976) ‘‘Specification for Octave, 

Half-Octave, and Third-Octave Band 

Filter Sets.’’

Several commenters asserted that the 

background noise levels in Table D–1 of 

Appendix D are too high. The 

commenters explained that excessive 

background noise levels in the room can 

interfere with an individual’s ability to 

detect stimuli. As a result, clinicians do 

not know whether hearing shifts are 

valid or are caused by interfering 

background noise. In addition, Aearo 

Company explained that the Appendix 

D levels, which FRA adopted from 

OSHA, are outdated. Aearo Company 

explained that the OSHA requirements 

were based on a 1960 ANSI standard 

and its values were based on 

audiometric zero as defined in 1951. 

The 1951 threshold values are about 10 

dB less sensitive than today’s values, 

and the science behind the 1960 

permissible noise standard was not as 

well developed. 

The commenters proposed various 

alternatives. Theresa Schulz 

recommended that FRA adopt the 

background noise levels specified by the 

DOD in their Instruction 6055.12 (DOD, 

1996). AAA, NHCA, ASHA, and Aearo 

Company recommended that FRA adopt 

the compromise position established by 

NHCA—that is, adopt the latest ANSI 

standard on background noise levels, 

ANSI S3.1–1999, ‘‘Maximum 

Permissible Ambient Noise Levels for 

Audiometric Rooms’’ but with a 5 dB 

relaxation at 500 Hz.61 NIOSH suggested 

that FRA adopt the ANSI S3.1–1999 

standard for testing frequencies of 1000 

to 8000 Hz but did not assert a position 

on how FRA should handle 500 Hz. 

With respect to the ANSI S3.1–1999 

standard, the commenters were 

concerned about railroads’ ‘‘real world’’

ability to comply with ANSI S3.1–1999, 

specifically the maximum noise level at 

500 Hz. They pointed out that studies 

have shown that a large percentage of 

audiometric booths and test vans would 

fail those requirements at 500 Hz. 

Mobile facilities did not fail, however, 

when the requirement for 500 Hz was 

relaxed. Aearo Company also pointed 

out that the 5 dB relaxation has minimal 

negative effect. Aearo Company 

explained that ambient background 

noise is typically high at 500 Hz and at 

the same time, occupational noise 

exposure has little measurable effect on 

the hearing thresholds that are masked 

(i.e., elevated) by those background 

noise levels. 

By contrast, one commenter, Michael 

Fairchild and Associates suggested that 

the proposed Appendix D is a workable 

solution. He asserted that the proposals 

from the various professional 

organizations are ‘‘neither workable in a 

real world environment nor necessary.’’

He explained that the very low ambient 

sound levels suggested by the 

professional organizations are necessary 

for clinical diagnosis and research but 

not for occupational hearing 

conservation screening tests. He also 

explained that audiometric testing in a 

rail yard can be difficult under the 

current OSHA standards. Given the 

noise in the rail yard environment, 

clinicians often have to stop and re-start 

the test or move the test away from the 

work area. Both increase employee 

travel time and costs. 

The RSAC Working Group discussed 

this issue of background sound levels at 

the post-NPRM meeting. The Working 

Group identified three options: (1) Use 

the OSHA background sound levels 

found in Appendix D, (2) use the more 

stringent standards (i.e., lower levels) 

found in ANSI S3.1–1999 or (3) use a 

modified version of the ANSI S3.1–1999 

standard (i.e., relax 500 Hz by 5 dB). 

Railroad representatives of the 

Working Group were concerned that 

they would experience substantial 

administrative difficulties if they had to 

comply with ANSI S3.1–1999 standard. 

One representative explained that, when 

this rule goes into effect, some railroad 

employees will be covered by the OSHA 

HCA while others will be covered by 

FRA. If FRA adopted the ANSI standard, 

railroads would have to test some 

employees with existing equipment that 

meets the OSHA standards and others 

with new equipment that meets the 

ANSI standard. There would also be 

difficulties with mobile test vans. 

Mobile test vans are already set to the 

OSHA standards, so all vans would 

have to be re-worked to accommodate 

the ANSI standards. AAR 

representatives stated that they do not 

know of any vans currently available on 

the market that are set to the new ANSI 

standard. In addition, some Working 

Group members pointed out that, given 

the noise environment in a rail yard, it 

is often difficult to perform audiometric 

tests using OSHA’s background sound 

levels. To change the requirements to 

ANSI’s more stringent standard would 

be even more difficult. Overall, the 

Working Group felt strongly that it was 

difficult to expect employers to switch 

between the standards in Appendix D 

and the latest ANSI standard. As a 

result, FRA decided to leave the 

requirements as proposed—that is, 

railroads should comply with the 

background sound levels that FRA 

adopted from OSHA and placed in 

Appendix D. 

A related issue is the background 

sound levels for insert earphones. As 

several commenters pointed out, insert 


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62For a general discussion on the use of ANSI 

standards in this rule, see the section-by-section 

analysis for § 227.103(c)(2). 

earphones provide more attenuation 

than supra-aural headphones and so the 

background sound levels can be higher 

when hearing tests are performed with 

insert earphones. Accordingly, the 

relevant ANSI standard (ANSI S3.1–

1999) sets higher background levels for 

insert earphones. The RSAC Working 

Group members discussed this issue at 

the post-NPRM meeting. The Working 

recommended that FRA allow the use of 

insert earphones but left it to FRA to 

implement the requirements for their 

use. 

FRA considered two options for 

background sound levels for insert 

earphones: (1) the Appendix D levels 

which FRA adopted from OSHA (and 

which apply to supra-aural headphones) 

or (2) the levels in ANSI S3.1–1999. 

FRA has decided to use the background 

noise levels specified in ANSI S3.1–

1999. Note, however, that FRA is not 

adopting ANSI S3.1–1999 in whole (and 

specifically not the background noise 

levels for supra-aural headphones). FRA 

is merely adopting the background noise 

levels from ANSI S3.1–1999 as they 

relate to insert earphones. FRA has 

placed the noise levels for insert 

earphones in a new row in Table D–1 

of Appendix D. The background noise 

levels for insert earphones are higher 

than the background noise levels for 

supra-aural earphones. This is due to 

the fact that insert earphones provide 

higher attenuation. 

Section 227.111(d) addresses the 

calibration of audiometers. Section 

227.111(f)(1) requires a check of the 

audiometer’s functional operation 

before each day’s use. This requirement 

is slightly different than the related 

provision in OSHA’s standard. In 

OSHA’s rule, the audiometer must be 

checked by testing a person with 

known, stable hearing thresholds. In 

FRA’s rule, the audiometer can be 

checked by either a person or with an 

appropriate calibration device. 

Section 227.111(d)(2) requires an 

acoustic calibration annually. This 

section also directs railroads to perform 

the acoustic calibration in accordance 

with ANSI S3.6–2004.62 Just as FRA 

replaced ANSI S3.6–1996 with ANSI 

S3.6–2004 in § 227.111(b), so FRA has 

done here. FRA made this change at the 

recommendation of a couple of 

commenters and with the agreement of 

the RSAC Working Group. 

Upon replacing the information in 

Appendix E with the requirement to 

comply with an ANSI standard, FRA 

realized that most of the information in 

the proposed Appendix E: ‘‘Acoustic 

Calibration of Audiometers’’ was 

outdated and unnecessary. The 

information in the proposed Appendix 

E had come from OSHA’s Appendix E, 

and most of that information, in turn, 

appears to have come from ANSI S3.6–

1969. FRA deleted that outdated 

information. FRA has placed in 

§ 227.111(d)(2) the requirement that 

railroads comply with ANSI S3.6–2004. 

FRA has also included some 

particularly salient parts of the ANSI 

standard and provided them in 

§ 227.111(d)(2). 

FRA notes that this updated ANSI 

standard includes procedures for the 

calibration of audiometers with insert 

earphones. FRA expects that railroads 

who elect to use insert earphones will 

follow those calibration procedures. 

Section 227.111(d)(3) requires an 

exhaustive calibration, performed in 

accordance with ANSI S3.6–2004, once 

every two years for audiometers not 

used in mobile test vans and once a year 

for audiometers used in mobile test 

vans. This stricter requirement for 

mobile vans is necessary because of the 

nature of mobile service work. Mobile 

vans are constantly in movement, and 

thus the audiometric equipment in 

those mobile vans are subject to greater 

mechanical stress. An exhaustive 

annual calibration will ensure that the 

audiometer is continually producing 

accurate test results. Moreover, the cost 

of such a calibration is low. Because of 

that, FRA concluded that the minimal 

cost of this stricter requirement would 

be easily offset by the assurance of more 

accurate test data. 

Theresa Schulz commented on this 

stringent mobile van requirement, 

noting that it helps to maintain quality 

in a difficult-to-control environment. 

She went further, suggesting that FRA 

require ‘‘daily listening checks’’ that 

railroads should conduct whenever they 

move equipment or turn it on or off. 

While FRA believes it’s important to 

have more stringent standards for 

mobile test van audiometers, however, 

FRA does not believe it is necessary to 

go so far as to require daily listening 

checks. FRA believes the exhaustive 

annual calibration for mobile test vans 

is sufficient. 

Section 227.113 Noise Operational 

Controls. 

This section addresses noise 

operational controls. Operational 

controls refer to efforts to limit workers’

noise exposure by modifying workers’

schedules or locations or by modifying 

the operating schedule of noisy 

machinery. Examples of operational 

controls include, but are not limited to, 

the following: placement of a newer 

(i.e., quieter) locomotive in the lead; 

rotation of employees in and out of 

noisy locomotives; and variation of 

employee’s routes, e.g., rotation of 

employees on routes that have many 

grade crossings (which means that the 

horn is sounded more often). 

Operational controls are beneficial, 

because they help reduce the total daily 

noise exposure of employees, thereby 

reducing the harmful cumulative effects 

of noise. They also make the 

environment safer and take the burden 

off the employee to protect himself or 

herself. 

Noise operational controls are the 

functional equivalent of OSHA’s term 

‘‘administrative controls.’’ Unlike 

OSHA, FRA does not mandate the use 

of controls. This difference is rooted in 

practicality. In general industry, if an 

employee’s noise exposure is too high, 

an employer can often simply move the 

employee to a different location. That 

option is not necessarily available in the 

railroad industry. Certain railroad 

employees, by the nature of their job, 

are limited as to their ability to be 

moved to a quieter location. For 

example, locomotive engineers have to 

work in a locomotive, which can be 

noisy. Management can rotate 

employees through a quieter locomotive 

or a quieter route, but even those 

options are limited, given that 

locomotives are constantly moving 

throughout the country and a quieter 

locomotive might not be available or a 

quieter route might not exist on a 

particular day for a particular employee. 

Because there are far fewer options in 

the railroad industry for employing 

operational controls, FRA did not 

mandate the use of noise operational 

controls in this rule. 

This section provides that railroads 

may use noise operational controls to 

reduce noise exposures to levels below 

those required by Table A–1 of 

Appendix A of this part and that 

railroads are encouraged to use noise 

operational controls when employees 

are exposed to sound exceeding an 8- 

hour TWA of 90 dB(A). This section has 

been revised slightly since the proposed 

rule. The revision does not make any 

substantive changes; it merely ensures 

that the regulatory language 

accomplishes what FRA had intended 

and what FRA had expressed in the 

preamble to the proposed rule. In 

particular, railroads may consider noise 

operational controls at any point in 

time. The proposed rule provision had 

implied that railroads should wait until 

sound reaches an 8-hour TWA of 90 

dB(A) before using or considering noise 


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63Berger at 383. 

operational controls, and that is not the 

case. 

As stated above, railroads have the 

option of using noise operational 

controls. Railroads can use noise 

operational controls, by themselves, to 

lower the total noise exposure (as long 

as the total noise exposure does not 

exceed 90 dB(A) as an 8-hour TWA, in 

which case the railroad must also 

require hearing protection). Railroads 

can also use noise operational controls 

in combination with the other controls. 

Those other controls include FRA’s 

design, build, and maintenance 

requirements (i.e., those items found in 

§ 229.121, through which FRA has 

embodied OSHA’s concept of 

engineering controls). FRA realizes 

operating requirements and labor 

agreements may affect a railroad’s 

ability to use noise operational controls; 

nevertheless, FRA would like railroads 

to remain open to their use. 

While noise operational controls will 

be an option for all railroads, FRA 

expects that the smaller railroads will be 

in the best position to use them and 

benefit from the flexibility that they 

provide. Small railroad work is 

characterized by more limited hours of 

operation and more flexible work rules, 

and thus it is more conducive to the use 

of operational controls. Noise 

operational controls are even more 

useful to small railroads since they 

rarely have the opportunity to 

implement engineering controls. Unlike 

larger railroads, small railroads 

infrequently buy new locomotives or 

rebuild old locomotives. 

A couple of commenters, including 

ASHA and AIHA, submitted comments, 

supporting FRA’s decision to make 

noise operational controls optional 

rather than mandatory. The commenters 

point out that administrative controls 

have proven to be problematic in 

general industry. They explain that 

administrative controls tend to take a 

secondary role to production 

requirements and that they have been 

difficult to administer and enforce.’’

Section 227.115 Hearing Protectors 

This section addresses hearing 

protectors (HP), another measure that 

can be used to minimize employee 

exposure to noise in the locomotive cab. 

The term ‘‘hearing protector’’ is defined 

in § 227.5. Hearing protectors can be 

divided into three main categories: (1) 

Ear plugs that are placed in or against 

the entrance of the ear canal to form a 

seal and block sound; (2) ear muffs that 

fit over and around the ears to provide 

an acoustic seal against the head; and 

(3) helmets that encase the entire 

head.63

FRA has reorganized § 227.115 since 

the proposed rule. The content remains 

the same; however, the section is 

structured differently. This was brought 

about by Aearo Company’s comment 

that the proposed §§ 227.115(a) and 

227.115(c)(1) were redundant. By 

reorganizing the section, FRA believes it 

has removed the redundancy and also 

made this section more clear. Paragraph 

(a) contains the general requirements for 

hearing protectors, while paragraphs (b) 

through (d) address employee use of 

hearing protectors. 

Section 227.115(a) contains the 

general requirements for hearing 

protectors. Railroads are required to 

provide hearing protectors to employees 

at no cost (§ 227.115(a)(1)) and replace 

hearing protectors as necessary 

(§ 227.115(a)(2)). These requirements are 

similar to the comparable provision in 

OSHA’s standard, which is found at 29 

CFR 1910.95(i). 

Section 227.115(a)(3) is unique to 

FRA’s rule; there is no comparable 

provision in OSHA’s rule. This 

provision requires railroads to consider 

two important factors when offering 

(and requiring) hearing protectors: (1) 

Employees’ ability to understand and 

respond to voice communications, and 

(2) employees’ ability to hear and 

respond to audible warnings. This 

requirement addresses FRA’s concern 

that the overuse of hearing protection 

may be counter-productive, especially 

for employees with existing hearing 

loss. For example, an employee who is 

exposed to a TWA of 85 or 86 dB(A) 

should not wear HP that provides 30 dB 

in noise reduction, because that will 

reduce the employee’s hearing ability 

and thus the employee’s ability to listen 

and communicate in the cab. The ability 

of these employees to discriminate 

speech and recognize other auditory 

cues is critical to avoiding train 

accidents and incidents. 

FRA specifically sought comments 

from the public on this issue. In general, 

commenters supported this provision. 

ASHA, Theresa Schulz, and AIHA 

submitted similar comments, 

applauding FRA’s recognition of the 

potential adverse impacts of 

overprotection. They explained that 

overprotection is prevalent because 

‘‘purchasing authorities often * * * 

operate under the false assumption that 

higher noise reduction is better—

regardless of local exposure conditions 

and need.’’ They noted that a ‘‘one size 

fits all’’ approach for HP is 

inappropriate. They explained that 

employers instead need to consider 

several factors-including an employee’s 

comfort, an employee’s ability to 

understand and respond to voice and 

radio communication, and an 

employee’s ability to hear and respond 

to audible warnings—when selecting HP 

for an employee. Theresa Schulz noted 

that these two new considerations that 

FRA added (i.e., an employee’s ability to 

hear and respond to (1) voice 

communication and (2) audible 

warnings) are important considerations 

that directly address the problem of 

overprotection.’’ Overall, these 

commenters expressed their belief that 

employees will be safer and more 

satisfied with HP if overprotection is 

limited or eliminated. 

NHCA also applauded FRA for 

including this language. NHCA 

suggested that the use of lowattenuating devices or flat-attenuating 

devices may be an option to address the 

problem of employees’ inability to 

understand and respond to voice radio 

communications and audible warnings. 

Likewise, an individual railroad 

operating employee with 35 years of 

engine service submitted comments 

applauding FRA’s efforts with this rule. 

While he didn’t specifically link his 

comment to this provision, he raised a 

point directly related to it. He 

acknowledged that he sometimes has 

difficulty hearing the alerter when he is 

wearing his hearing protection. 

Another commenter, Aearo Company, 

initially explained that, based on their 

experience, the problem is usually 

inadequate use of HP, not overuse of 

HP. While responding to the preamble 

discussion on avoiding excessive 

reflexive use of HPs, Aearo Company 

asserted that the ‘‘problem is truly one 

of getting those in need to be protected 

without focusing undue attention on the 

few who may be wearing hearing 

protection that need not be.’’ However, 

further in their comments, Aearo 

Company noted that ‘‘FRA’s interest in 

accommodating hearing loss and use of 

HPs in moderate noise is well founded.’’

Aearo Company pointed to data 

supporting FRA’s provisions; Aearo said 

that the studies have found that the use 

of HPs in lower-level noise increases the 

likelihood that the HPs ‘‘will interfere 

with the audibility of warning signals 

and communication, especially for the 

hearing impaired.’’ Similar to the 

comments mentioned above, Aearo 

Company noted that ‘‘simple blanket 

recommendations are not possible.’’

Aearo Company suggested that it is 

generally necessary to do case-by-case 

analyses for each critical 

communication scenario and that such 

an analysis might include speech 


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intelligibility or signal detection testing 

in a simulated occupational noise 

environment, as well as the services of 

a consulting audiologist. 

Similarly, Wilson, Ihrig, & Associates 

had a mixed reaction. They agreed with 

FRA that employees with existing 

hearing loss will have more problems 

communicating with HPs and that a 30 

dB noise reduction for a employee with 

existing hearing loss would be 

inappropriate. However, Wilson, Ihrig, 

& Associates then asserted that a 30 dB 

noise reduction is unlikely even if the 

NRR rating indicated such. Wilson, 

Ihrig, & Associates explained that ‘‘FRA 

should assume the reduction indicated 

in the NIOSH recommended standard 

document. [Accordingly,] it would 

appear that over protection would be a 

minor problem and that the main 

problem is outfitting a population of 

workers who already have hearing loss, 

where it is a problem of bad signal to 

noise ratio that precludes proper 

communication.’’

In addition to the above comments, 

Aearo Company had an organizational 

suggestion. Aearo Company suggested 

that the concept in § 227.115(a)(3) 

(which requires consideration of 

communications ability) would work 

better as the latter part of the proposed 

§ 227.115(a)(4) (which requires railroads 

to provide a variety of hearing 

protectors). While FRA did not merge 

the two concepts, FRA has re-organized 

the section. As part of that 

reorganization, these two concepts are 

now back-to-back. FRA believes that 

change addresses the intent of Aearo 

Company’s comment; it makes these 

concepts more understandable. 

In the NPRM, FRA sought comment 

from the public on a related matter—the 

potential use by railroads of a 

mandatory hearing protection provision 

as a disciplinary tool. During pre-NPRM 

Working Group meetings, some labor 

members of the RSAC Working Group 

stated that they were uneasy with the 

HP requirement in § 227.115(a)(3). They 

worried that railroads might use a 

mandatory HP provision as a 

disciplinary tool or as a means for 

harassing an employee. They were also 

concerned that compliance could 

ultimately erode as a result of this 

provision and employees would 

encounter even worse noise exposure, 

i.e., if railroads were to unnecessarily 

mandate the use of HP, employees who 

find HP uncomfortable would stop 

wearing them altogether and receive 

even less hearing protection. 

The commenters on this subject did 

not seem to think this would be a 

problem. ASHA and AIHA noted that 

the use of HPs should be considered in 

the same light as all other mandatory 

personal protective equipment. They 

also noted that ‘‘enforcement of this 

policy should be uniform and 

consistent’’ and that neither labor nor 

management should view the use of HP 

as punitive or as a disciplinary tool. 

Aearo Company was surprised by this 

statement, explaining that it is 

unsupported by literature. Aearo 

Company explained that ‘‘discipline 

may certainly be needed for those who 

fail to wear their safety products, but 

viewing the required use of safety 

products as discipline is 

counterproductive.’’ Aearo Company 

went on to explain that individuals who 

have studied and written on this topic 

emphasize the need for ‘‘strong 

enforcement, good motivation, and the 

development of a safety culture within 

an organization.’’

The AAR also submitted comments 

similar to those they had made at the 

RSAC Working Group meetings. They 

wrote that they supported these 

requirements; however, they disagreed 

with a comment made by FRA in the 

preamble discussion accompanying this 

provision in the NPRM. The AAR noted 

that during Working Group meetings, 

there was an open exchange of ideas 

and opinions, some of which were 

ultimately rejected by the Working 

Group. With respect to labor’s concern 

that a mandatory HP provision could be 

used as a disciplinary tool, the AAR 

says they explained, during the Working 

Group discussions, that most railroads 

have had mandatory HP requirements 

and many of the requirements have been 

in place for 20 years. The AAR says they 

invited FRA or labor ‘‘to provide 

examples of any abuse of these rules, 

and none were forthcoming.’’ ‘‘Given 

this background, AAR believes that it is 

inconsistent with the history and spirit 

of the RSAC process to include a 

comment like this in the NPRM.’’

Given FRA’s belief that § 227.115(a)(3) 

is a valuable addition to FRA’s noise 

standard, coupled with the 

overwhelming positive response that 

FRA received from the public, FRA is 

leaving this provision as proposed in 

the NPRM. FRA believes there are many 

beneficial aspects to the use of HP 

especially when employers carefully 

select an employee’s HP (i.e., consider 

the employee’s ability to understand 

and respond to communications and 

warnings). 

Section 227.115(a)(4) provides that 

‘‘The railroad shall give employees the 

opportunity to select their hearing 

protectors from a variety of suitable 

hearing protectors. The selection shall 

include devices with a range of 

attenuation levels.’’ The first sentence of 

this paragraph is identical to OSHA’s 

rule. See 29 CFR 1910.95(i)(3). The 

second sentence is unique to FRA’s rule. 

The requirements in both sentences 

underscore the importance of railroads 

offering employees with sufficient 

options—a variety of hearing protectors 

with a range of hearing attenuation 

levels. FRA believes that providing a 

choice of suitable devices increases the 

likelihood that the employee will use 

the device as required. 

FRA received various comments 

about the phrase ‘‘variety of suitable 

hearing protectors’’ in the first sentence. 

Overwhelmingly, commenters noted 

that the rule does not define the term 

‘‘variety’’ and requested that FRA 

provide a definition. Aearo Company 

pointed out that OSHA’s regulation did 

not adequately define ‘‘variety’’ and as 

a result, OSHA has had to issue 

subsequent interpretations. 

Several commenters provided specific 

suggestions as what a ‘‘variety’’ should 

be. Aearo Company wrote that a choice 

between two protectors, as per OSHA’s 

HCA, is inadequate because ‘‘it fails to 

provide sufficient choice to assist in 

persuading the employee that they are a 

welcome participant in the HCP, and 

hence to encourage their ‘buy-in’ to the 

program.’’ Aearo Company noted that a 

2000 study and MSHA both recommend 

a minimum of four devices. ASHA, 

Theresa Schulz, and AIHA submitted 

similar comments, all suggesting that 

FRA require employers to provide a 

minimum number of HPs, i.e., ‘‘at least 

four different models of HPs with an 

appropriate range of attenuation levels 

including at least two types of earplugs 

and one type of earmuff.’’ ASHA 

explained that the effectiveness of a 

HCP is dependent on the workers’

willingness to wear HPs. By ensuring 

that workers have sufficient options, it 

increases the likelihood that workers 

will willingly wear their HP. NHCA 

made a similar suggestion, though with 

slightly different language. NHCA wrote 

that railroads should be required to 

‘‘offer a minimum of four hearing 

protection devices (HPDs), including at 

least two different styles of plugs (e.g., 

foam and flanged), and at least one type 

of earmuff.’’

Aearo Company went further, 

explaining that ‘‘suitable variety’’ refers 

to more than just providing HPs with a 

range of potential levels of protection; it 

also means that an employer should 

provide HPs with differing feels and 

ergonomic characteristics. As Aearo 

Company wrote, ‘‘a ‘menu’ of options 

from which to choose conveys to 

employees that their opinion counts, 

and this in turn will enhance their 

feelings of self-efficacy and the 


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likelihood of wearing their HPs 

consistently and properly.’’

At the meeting to discuss public 

comments, the Working Group 

considered these recommendations. The 

Working Group recommended that the 

rule should remain as stated in the 

NPRM, i.e., to refrain from specifying a 

minimum number of HPs which an 

employer must offer. FRA agrees and is 

reluctant to specify a minimum number 

as representing a ‘‘variety,’’ because 

FRA is concerned that employers may 

interpret that number as a maximum 

rather than a minimum. In addition, 

FRA wants to provide employers with 

the flexibility to consider the specific 

working environment of their 

employees. By specifying a number, 

FRA would be greatly limiting the 

employer’s flexibility. 

FRA, however, would like to clarify 

the meaning of ‘‘variety.’’ When offering 

hearing protectors, employers should 

offer employees several different types, 

whether ear plugs, ear muffs, and/or 

electronic headsets. Within any given 

type, the employer should offer several 

different designs and models. For 

example, with respect to ear plugs, there 

are several options, including, but not 

limited to, roll down foam earplugs, 

push-in foam earplugs, premoldedflanged earplugs, premolded-unflanged 

earplugs, banded ear protectors. The 

employee should have the opportunity 

to try a variety of devices, so that he can 

determine what fits best and most 

comfortably. 

Railroad industrial hygiene 

representatives of the Working Group 

indicated that a lack of variety of HP has 

not been a problem in the past, and they 

do not foresee that it will be a problem 

in the future. Several of the major 

railroads indicated that they have 

developed practices that seem to work. 

One railroad industrial hygienist noted 

that he tries to keep a large variety of 

hearing protectors readily available for 

employees. Another railroad industrial 

hygienist explained that he tries to work 

with employees on an individual basis 

if the employee has a special need, such 

as a STS. 

As further guidance, FRA is including 

the hearing protector selection criteria 

set forth in the report of the NHCA Task 

Force on Hearing Protector Effectiveness 

in 1995. FRA included this information 

at the suggestion of the NHCA. ‘‘No 

single HPD characteristic, such as 

attenuation (as represented by the 

present NRR), or any other feature, 

should be the sole arbiter influencing 

selection of an HPD. The most critical 

consideration in selecting and 

dispensing a hearing protector is the 

ability of the wearer to achieve a 

comfortable noise-blocking seal, which 

can be consistently maintained during 

all noise exposures. Additional 

important issues include: The noise 

reduction of the device, the wearer’s 

daily equivalent noise exposure, 

variations in noise level, user 

preference, communication needs, 

hearing ability, compatibility with other 

safety equipment, the wearer’s physical 

limitations, climate and other working 

conditions, and HPD replacement, care 

and use requirements.’’

FRA also received a comment about 

the ‘‘range of attenuation levels’’

language found in the second sentence 

of § 227.115(a)(4). Aearo Company 

explained that the provision ‘‘range of 

attenuation levels’’ is helpful but too 

vague. Aearo Company is concerned 

that an employer ‘‘could easily interpret 

a range of attenuation values as being 

only 27–33 dB, just as likely as being 

from 12–33 dB,’’ and so they suggested 

some alternative language. FRA decided 

not to adopt Aearo Company’s suggested 

language. The Working Group agreed, 

but recommended that FRA include 

more guidance in the preamble. 

As used in this paragraph (a)(4), a 

‘‘range of attenuation levels’’ means that 

an employer should provide HP types 

with ranges that are sufficient to protect 

the employee from the level of noise 

expected but still permit the employee 

to communicate effectively for the job. 

In addition to offering devices with high 

attenuation, railroads should offer 

devices with low or moderate 

attenuation. Low or moderate 

attenuation devices further safety by 

facilitating communication and the 

detection of audible cues in the 

workplace. FRA expects that railroads 

will employ or consult professionals, 

such as industrial hygienists, who can 

guide employees in their selections and 

ensure that employees are adequately 

protected. 

Section 227.115(a)(5) provides that 

railroads shall provide training in the 

use and care of all hearing protectors 

provided to employees. This section sets 

out the general requirement that 

railroads must train employees on the 

use and care of HP. Section 227.119 

addresses this issue further. It requires 

railroads to have a training program that 

includes, among other things, 

instructions on selection, fitting, use, 

and care of hearing protectors. See 

§ 227.119(c)(4). FRA did not receive any 

comments on § 227.115(a)(5), and 

accordingly FRA has left this provision 

as proposed. 

Section 227.115(a)(6) provides that 

railroads shall ensure proper initial 

fitting and supervise the correct use of 

all hearing protectors. NHCA 

commented on this provision, noting 

that the initial fitting is critical. NHCA 

explained that employers often gloss 

over the HPD fitting and simply tell 

employees to ‘‘follow the directions on 

the package.’’ NHCA wrote that ‘‘the 

employee should be given the 

opportunity [at the proper fitting] to 

sample a variety of HPDs to determine 

the proper fit, comfort, preference, 

appropriateness, and ability to use 

correctly.’’ FRA agrees that it is 

important that employers take the time 

and effort with employees at their initial 

fitting to ensure that the employees have 

the proper HP. 

Sections 227.115(b) through (d) 

address the use of hearing protectors by 

employees. Section 227.115(b) requires 

railroads to make hearing protectors 

available to all of its employees exposed 

to noise at or above the action level. 

Section 227.115(c) provides that 

railroads shall require the use of HP 

where employees are exposed to sound 

levels that meet or exceed the action 

level, and the employee has not yet had 

a baseline audiogram established 

pursuant to § 227.109 or the employee 

has experienced a STS and is required 

to use HP under § 227.109(h). Section 

227.115(d) provides that railroads shall 

require the use of HP when an employee 

is exposed to sound levels equivalent to 

an 8-hour TWA of 90 dB(A) or greater. 

The HP should be used to reduce sound 

levels to within the levels required by 

§ 227.105 and Appendix A to § 227.105. 

Note that, since FRA has removed Table 

1 (to § 227.105) from the rule, FRA has 

removed the reference to Table 1 here in 

§ 227.115(d). FRA received some 

comments suggesting that FRA reorganize the proposed §§ 227.115(a) and 

(c). FRA has done so and believes that 

this section is now easier to understand. 

Section 227.117 Hearing Protector 

Attenuation 

Section 227.117(a) provides that a 

railroad shall evaluate HP attenuation 

for the specific noise environments in 

which the protector will be used and 

directs that a railroad shall use one of 

the methods described in Appendix B to 

this part, ‘‘Methods for Estimating the 

Adequacy of Hearing Protector 

Attenuation.’’ Those methods include: 

derating by type, Method B from ANSI 

S12.6–1997 (Reaffirmed 2002), and 

objective measurement. 

This is a change from the proposed 

rule. In the NPRM, FRA had adopted 

OSHA’s Appendix B to 29 CFR 1910.95, 

which provided for the following 

methods: Noise Reduction Rating (NRR), 

and NIOSH methods #1, #2, and #3. 

There were two main issues with 

respect to the changes to this section: 


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Federal Register / Vol. 71, No. 208 / Friday, October 27, 2006 / Rules and Regulations 63105 

64Council for Accreditation in Occupational 

Hearing Conservation ‘‘Hearing Conservation 

Manual,’’ Fourth Edition, 114 (2002). 

65 Id. 

the inclusion of Method B as an 

acceptable method and the overall 

revision of Appendix B. 

In the NPRM, FRA had not included 

Method B but had sought comment on 

whether FRA should include it. Method 

B refers to the use of ‘‘subject-fit’’

attenuation data measured according to 

Method B from ANSI S12.6–1997 

(Reaffirmed 2002). That ANSI standard, 

‘‘Methods for Measuring Real-Ear 

Attenuation of Hearing Protectors,’’

‘‘provides attenuation estimates based 

on the responses of subject who are 

given the manufacturer’s directions and 

are told to fit the device themselves as 

best they can.’’ 64 Instead of the 

traditional method of obtaining 

attenuation estimates, which uses 

experimenters who fit highly trained 

subjects, this method uses subjects that 

are untrained in the fitting of hearing 

protectors. Arguably, ‘‘the NRR derived 

from Method B more closely resembles 

the real-world performance of hearing 

protectors.’’ 65

Several commenters responded to 

FRA’s request for comment, stating that 

FRA should allow railroads to use 

Method B as a method for evaluating 

hearing protector noise reduction. The 

president and principal of Wilson, Ihrig, 

& Associates explained that, based on 

his experience as a consultant, of those 

individuals who had filed hearing loss 

claims, most who used HP had done so 

without any explicit training. Thus, 

Wilson et al. explained, ‘‘determining 

the attenuation without training or with 

only verbal training would provide a 

very valuable tool with respect to the 

actual attenuation achieved under 

actual field conditions.’’

Similarly, ASHA and AIHA agreed 

with FRA’s assessment that Method B 

more closely resembles the real-world 

performance of hearing protectors and 

supported its inclusion in Appendix B. 

They explained that hearing protector 

ratings included in the NRR are based 

on data obtained under optimal 

laboratory conditions and therefore 

differ greatly from the noise reduction 

that employees actually experience on 

the job. They pointed to a few studies, 

including one that ‘‘demonstrated that 

having untrained subjects fit their own 

hearing protectors provided much better 

estimates of the hearing protectors’

noise attenuation in the workplace than 

having the experimenter fit them.’’

Theresa Schulz went further, explaining 

that there are other methods available to 

test the ‘‘real world’’ performance of 

hearing protectors (e.g., the ‘‘fit-check’’

and the Predicted Personal Attenuation 

Rating) and recommending that FRA 

also encourage the use of those 

methods. 

Other commenters, such as NHCA 

and Aearo Company, acknowledged that 

the Method B ‘‘subject-fit’’ attenuation 

data provides a better estimate of the 

average real world attenuation but 

expressed concern about using Method 

B. Both noted that there is ‘‘still wide 

debate about Method B and questions 

about whether it will be adopted or 

widely used.’’ NHCA, along with some 

other commenters, recommended that 

railroads have the option to follow the 

NIOSH recommendations for derating 

HPs for the purpose of estimating the 

average workplace protection attainable 

by groups of HP users. The Aearo 

Company suggested a more complex 

scheme, whereby the use and type of 

attenuation varies based on the 

employee’s level of exposure. 

FRA and the Working Group 

considered this issue and decided to 

allow railroads to use Method B as a 

method of evaluating hearing protector 

attenuation. It provides railroads with 

an additional option, thereby giving 

railroads more flexibility to choose the 

method which is most appropriate for 

them. 

The other issue related to HP 

attenuation was the overall revision of 

Appendix B. Aearo Company had 

submitted comments, asserting that it 

was ‘‘regrettable’’ that FRA chose to 

adopt OSHA’s Appendix B without 

change. Aearo Company explained that 

Appendix B is confusing and 

misleading and recommended that FRA 

rewrite and clarify it in the final rule. 

The RSAC Working Group discussed 

Aearo Company’s comment at the postNPRM meeting and decided that it was 

most appropriate to leave Appendix B 

as proposed, with the exception that, 

FRA would add Method B as an option 

for estimating the adequacy of HP 

attenuation. The Working Group also 

noted that Aearo Company had not 

provided FRA with any viable 

alternatives to use in place of Appendix 

B. 

As FRA attempted to incorporate 

Method B into Appendix B, FRA 

encountered difficulty. FRA found that 

the proposed appendix was, in fact, 

confusing. Given the confusion and 

complications, FRA is unable to simply 

add Method B, and so FRA is revising 

Appendix B. While the decision to add 

Method B to Appendix B was part of the 

RSAC Working Group consensus, the 

revision of Appendix B was not. FRA 

has modified Appendix B as explained 

below. 

In the interest of simplicity, FRA 

provides for three methods of estimating 

real world HP protection levels. Using 

the first method, one subtracts 7 dB 

from the published NRR and then 

derates based on a percentage of the 

remainder. This is similar to NIOSH 

recommendations based on type. The 

justification for derating by device type 

has to do with the potential effect HP fit 

has on the attenuation level, with muffs 

being the least prone to fitting poorly 

and non-formable ear plugs being the 

most prone to fitting poorly. Using the 

second method, one would derate based 

on ANSI S12.6–1997 (Reaffirmed 2002) 

Method B. And finally, using the third 

method, one uses objective 

measurement. One conducts testing in 

user environments that measure actual 

levels inside the users HPs. FRA wants 

to emphasize that it recognizes that all 

of the methods mentioned, with the 

possible exception of the objective 

measurements, are estimates and may 

not precisely reflect the true level of 

protection. FRA acknowledges that the 

level of protection is as much related to 

the quality of training, practice and 

motivation of the users as it is to the 

NRR of the devices used. 

Finally, with respect to HP 

attenuation, NHCA submitted further 

comments, specifically that FRA should 

include cautions about HP attenuation 

in the rule text. The cautions are based 

on conclusions of the NHCA Task Force 

on Hearing Protector Effectiveness. The 

Working Group, along with FRA, did 

not think it was necessary to include 

this information in the rule text but did 

think it was useful to include it here in 

the preamble. Accordingly, FRA 

encourages railroads to be cognizant of 

the following when evaluating HP 

attenuation: 

When comparing hearing protectors, 

differences between hearing protector ratings 

of less than 3 dB are not important. 

The labeled values of noise reduction are 

based on laboratory tests. It is not possible to 

use these data to reliably predict levels of 

protection achieved by a given individual in 

a particular environment. To ensure 

protection, those wearing hearing protectors 

for occupational exposures must be enrolled 

in a hearing conservation program. 

The remaining provisions in § 227.117 

are identical to FRA’s proposed rule and 

to OSHA’s standard at 29 CFR 

1910.95(j). Section 227.117(b) provides 

that hearing protectors shall attenuate 

employee exposure to an 8-hour TWA of 

90 decibels or lower, as required by 

§ 227.115. 

Section 227.117(c) provides that 

hearing protectors for employees who 

have experienced a STS must attenuate 

exposure to an 8-hour time-weighted 


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average of 85 decibels or lower. During 

pre-NPRM RSAC Working Group 

discussions, a railroad representative 

raised some practical concerns about 

this requirement. Per § 227.115(d), an 

employee selects his hearing protection. 

The railroad representative is concerned 

that an employee might select hearing 

protection that is not protective enough, 

e.g., an employee might want to use HP 

with lower attenuation because he or 

she finds it more comfortable. FRA 

notes that a railroad should offer its 

employees a variety of hearing 

protectors with several different types of 

attenuation, all of which provide 

adequate protection. 

Section 227.117(d) provides that the 

railroads should re-evaluate the 

adequacy of hearing protector 

attenuation whenever noise exposures 

increase to the extent that hearing 

protectors may no longer provide 

adequate attenuation. FRA believes it is 

necessary for railroads to conduct noise 

monitoring in order to know whether 

noise exposures have changed. 

Section 227.119 Training Program 

This section governs a railroad’s 

training program. FRA’s training 

requirements are based heavily on 

OSHA’s training requirements found at 

29 CFR 1910.95(k), however there are 

some differences, which are noted 

below. Section 227.119(a) sets forth the 

basic requirement that railroads must 

institute an occupational noise and 

hearing conservation training program 

for all employees included in the 

hearing conservation program. 

LIRR submitted comments about the 

training requirement generally. They 

noted that they already have a four-day 

process to re-certify/re-qualify crews (on 

rules, air brakes, and parts 238 and 239). 

To add hearing training would extend 

the process to five days, which LIRR 

asserts would be at a significant cost 

and with added administrative burdens. 

As FRA has noted earlier in preamble, 

this rule evolved out of the RSAC 

process, of which several railroad 

representatives were members. Those 

members felt that this rule would not be 

overly burdensome on railroads, 

especially considering that most 

railroads already have HCPs in place. 

Moreover, the RSAC Working Group 

and FRA, as well as the majority of 

other commenters, feel that hearing 

conservation is an important enough 

issue to warrant this rulemaking and its 

associated training. In fact, one 

commenter, a consultant who has 

consulted on over 200 hearing loss 

claims, wrote that, based on his 

observations, he believes that one of the 

two main reasons for cab employees’

hearing loss is a lack of adequate 

training. He asserts that railroad HCPs 

have ‘‘not been comprehensive or 

thorough enough with respect to 

educating on both the need for and how 

to properly use appropriate hearing 

protection devices.’’

Sections 227.119(a)(1) and (2) have 

evolved through the rulemaking process 

and therefore a discussion is warranted. 

In the NPRM, FRA proposed that 

railroads shall offer training annually 

and shall require each employee to 

complete training triennially. This 

differed from OSHA’s requirement, 

which requires employees to complete a 

hearing training program at least once a 

year. 

FRA received numerous comments on 

this matter. On one end of the spectrum 

was the AAR, which suggested that the 

training requirements should be based 

on a calendar year, not 365 days from 

the last training. They explained that 

this would provide flexibility in offering 

and completing the training but would 

not substantially change the intervals 

for any given employee. So, for 

example, if a railroad offered training to 

an employee in June 2006, the railroad 

would be required to offer the next 

training session any time in 2007 up 

until December 2007. 

On other end of the spectrum were 

ASHA, AIHA, AAA, NHCA, CAOHC, 

NIOSH, Aearo Company, and Michael 

Fairchild and Associates, all who 

advocated for FRA to require annual, 

not triennial, training. They all noted 

that training is very important, 

explaining that motivation and 

education of employees is a key element 

to hearing conservation success and is 

one of the most effective and critical 

components of a HCP. Michael Fairchild 

and Associates doubted that employees 

would retain information if not 

reinforced annually. Similarly, NIOSH 

asserted that training would be more 

effective if presented annually, based on 

the acquisition, retention, and 

application of new knowledge and 

skills. The commenters also noted that 

the success or failure of HCPs has been 

shown to depend on the ‘‘buy-in’’ of 

employees. They explained that training 

not only educates employees but it 

serves to reveal problems that 

employees face in complying with 

components of a HCP. The commenters 

also pointed out that an annual 

requirement would be consistent with 

OSHA’s general industry standard as 

well as with other federal agencies such 

as MSHA and DOD. Aearo Company, 

acknowledging FRA’s desire to 

minimize intrusion into the mobile 

railroad workforce, suggested that if 

FRA had to reduce training frequency, 

FRA should compromise at requiring 

training at least every 2 years. 

The RSAC Working Group discussed 

this matter at length. The AAR, an 

active member of the RSAC Working 

Group present during the proposed rule 

discussions, raised a new issue in their 

comments to the proposed rule. The 

AAR asserted that railroads would have 

great difficulty complying with a 12 

month period. Faced with factors such 

as a highly mobile workforce and a lack 

of clinics in certain rural communities, 

railroads would be unable to offer 

training once every 12 months. Other 

RSAC Working Group members, 

however, were concerned that a 

calendar year requirement would create 

the potential for very large gaps between 

training. In a worst case scenario, an 

employee offered training in January 

2006 might have to wait until December 

2007 to be offered training again, a 

period of almost 2 years. Or, an 

employee offered training in December 

2006 could next be offered training in 

January 2007, a period of only two 

months. 

In the spirit of compromise, the RSAC 

Working Group decided on the 

provision that is now in the final rule. 

Each railroad shall offer training to each 

employee at least once each calendar 

year. As to any employee, the interval 

between the date offered for a test in a 

calendar year and the date offered in the 

subsequent calendar year shall be no 

more than 450 days and no less than 

280 days. See § 227.119(a)(1). The 

railroad shall require each employee to 

complete the training at least once every 

1095 days. See § 227.119(a)(2). These 

provisions are identical to those in 

§ 227.109(f)(2) on audiometric testing. 

With respect to the 450-day provision, 

FRA is trying to give railroads sufficient 

time to train the large number of 

railroad employees spread through the 

country while also trying to ensure that 

the training sessions are appropriately 

spaced. This section requires that every 

employee be offered training every 

calendar year but to prevent training in 

two calendar years from being too far 

apart, is providing that the training 

interval may not exceed 450 days. 

In order to prevent railroads from 

offering training too close together, FRA 

has established a minimum interval of 

280 days (or 9 months). This provision 

prevents railroads from offering training 

to an employee back-to-back, e.g., offer 

training in December 2006 and again in 

January 2007. FRA chose 280 days, 

because it allows for equal increments 

of time in relation to the 450 day 

requirement. This 280 day provision is 

not a product of the RSAC Working 

Group consensus. FRA added this 


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66For a discussion on small entities, see the 

section-by-section analysis for § 227.103(a). 

provision after the RSAC Working 

Group meeting. 

Section 227.119(b) is new to FRA’s 

rule; no comparable provision exists in 

OSHA’s standard. Section 227.119(b) 

identifies the times when a railroad 

should initiate training for employees. 

For new employees, a railroad shall 

provide training within six months of 

the employee’s first tour of duty in a 

position identified within the scope of 

this part. For existing employees, a 

railroad shall provide training within 

two years of the effective date of this 

rule, except for railroads with 400,000 

or less employees hours, who shall 

provide training in three years.66 Note 

that FRA has changed some of the 

formatting in this section. The substance 

of the provision remains the same. 

FRA received several comments on 

this paragraph. One comment was to 

change the word ‘‘after’’ to ‘‘of’’ before 

the words ‘‘employee’s first tour of 

duty.’’ FRA took that suggestion and 

changed the rule accordingly. The 

revised provision now permits an 

employer to provide the training before, 

in addition to after, the employee’s first 

tour of duty. 

FRA sought, and received, several 

comments on the start date. FRA asked 

whether railroads should initiate 

training no later than six months after 

the employee’s first occupational 

exposure or whether railroads should 

initiate training prior to the expiration 

of the six months (i.e., when the 

occupational exposure occurs or before 

the occupational exposure first occurs). 

ASHA, AIHA, NHCA, NIOSH, Aearo 

Company, and Theresa Schulz all 

responded that it is best to train 

employees and to fit hearing protection 

before employees enter noise-hazardous 

areas. AIHA wrote that the 6-month and 

2-year windows were ‘‘unnecessary and 

counterproductive.’’ The commenters 

explained that there are negative 

consequences of allowing employees to 

work in noise hazardous environments 

for up to the proposed time periods in 

that it provides a substantial time frame 

for employees to develop bad habits and 

to experience incipient hearing loss. 

Theresa Schulz wrote that, at the very 

minimum, railroads should have to train 

new employees within 6 months. The 

commenters also pointed out the 

importance of training. Aearo Company 

explained that HCP training should be 

viewed and treated as equally as 

important as the other pieces of safety 

information that a new employee 

receives. 

The RSAC Working Group discussed 

this issue and recommended to FRA to 

leave this provision as proposed. The 

RSAC Working Group felt that it was 

not necessary to require early training, 

since the important issue is employee 

protection and employees are otherwise 

protected during this interim, initial 

period through the operation of other 

provisions of the rule. Other provisions 

of the rule ensure that the employee is 

protected. Specifically, if a new 

employee has not yet received a 

baseline audiogram and is exposed to 

sound exceeding an 8-hour TWA of 90 

dB(A), the employee is required to use 

HP. See § 227.115(c)(2)(i). Plus, the 

railroad is supposed to ensure ‘‘proper 

initial fitting and supervise the correct 

use of hearing protectors.’’ See 

§ 227.115(f). Thus, a new employee, if 

exposed to hazardous noise, will receive 

HP and basic instructions on its use. 

Moreover, railroad members of the 

RSAC Working Group felt that this issue 

was moot given standard practice. They 

explained railroads typically provide 

new employees with initial training 

covering all topics when they start their 

jobs, and therefore new employees are 

generally trained before they are 

exposed to noise. Some employees 

might even receive their noise training 

as part of their pre-employment 

training. 

Section 227.119(c) lists the items that 

a railroad should address in its hearing 

conversation training program and 

include in its training materials. This is 

a list of the minimum items that a 

railroad should address; railroads are 

free to include additional items if they 

so wish. The first five items listed in 

§§ 227.119(c)(1) through (5) are the same 

items that OSHA requires in its 

standard. See 29 CFR 1910.95(k)(3). 

Those items are: The effects of noise on 

hearing; the purpose of hearing 

protectors; the advantages, 

disadvantages, and attenuation of 

various types of hearing protectors; 

instructions on selection, fitting, use, 

and case of hearing protectors; and the 

purpose of audiometric testing and an 

explanation of test procedures. 

The remaining six items found in 

§§ 227.119(c)(6) through (11) are 

additional items which FRA has added 

to its standard. and which do not exist 

in OSHA’s standard. 

Given that FRA has added these 

additional training requirements, it is 

not sufficient for railroads to use only a 

‘‘canned’’ OSHA training program 

(although a ‘‘canned’’ OSHA training 

program does suffice as training for the 

OSHA-related elements in the FRA 

training program). A ‘‘canned’’ OSHA 

training program does not contemplate 

the unique needs of the railroad 

operating environment—e.g., the mobile 

nature of his or her work, the variety of 

noise sources to which he or she is 

exposed—while FRA’s training program 

does. These items were added to 

address the unique aspects of the 

railroad operating environment—e.g., 

the mobile nature of the employees’

work, the variety of noise sources to 

which they are exposed, etc. These 

items are discussed in the following 

paragraphs. 

Section 227.119(c)(6) requires 

railroads to provide an explanation of 

noise operational controls, where used. 

This is most relevant for short lines, 

because they are most likely to use noise 

operational controls. 

Section 227.119(c)(7) requires 

railroads to provide employees with 

general information concerning the 

expected range of workplace noise 

exposure levels associated with major 

categories of railroad equipment and 

operations (e.g., switching and road 

assignments, hump yards proximate to 

retarders) and appropriate reference to 

requirements of the railroad concerning 

the use of hearing protectors. As 

originally conceived, this provision 

required railroads to provide employees 

with workplace noise exposure levels, 

including examples of where hearing 

protectors are, or are not, necessary; the 

types of equipment that emit excessive 

noise; and the types of operations that 

produce excessive noise. During 

meetings at the proposed rule stage, 

some Working Group members 

expressed concern that railroads would 

have to provide detailed information 

specific to each employee. That would 

have been administratively difficult for 

railroads. 

After discussing the issue, the RSAC 

Working Group recommended that the 

requirement be expressed in more 

general terms. FRA accepted that 

recommendation. The general language 

addresses the railroad’s administrative 

concerns and also addresses FRA’s 

intention that railroads provide a 

general discussion of the ranges of noise 

exposure levels that an employee might 

encounter. FRA does not intend that a 

railroad provide an individualized 

report to each employee. 

Furthermore, FRA notes that railroads 

may provide details of requirements for 

the use of hearing protectors during 

safety or operating rules training, if the 

railroad so chooses, as long as the 

railroad retains the appropriate records 

required by this part. This should 

address railroad representatives’

concerns about the timing of this 

training. Some railroad representatives 

asserted that this material was already 


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covered at the time of the audiometric 

test. Others asserted that a portion of 

this information was already covered in 

the railroad safety rules training. 

Accordingly, FRA did not specify the 

delivery time for these training 

requirements. A railroad may choose to 

present this information at the safety 

rules training, operating rules training, 

during audiometric testing, and/or at 

any other time. A railroad can even 

present this information to an employee 

at different times, as long as an 

employee can reasonably understand 

the information and make sense of it. 

Section 227.119(c)(8) requires 

railroads to explain the purposes of 

noise monitoring and a general 

description of noise monitoring 

procedures. The intention of this 

provision is that railroads will provide 

employees with an understanding of 

how monitoring is conducted and how 

monitoring helps to identify potentially 

high exposures of excessive doses. 

Railroads do not have to provide 

employees with a complex, technical 

discussion. Rather, railroads should 

provide employees with enough 

information so that they know what will 

occur and what equipment will be used 

during monitoring. 

Section 227.119(c)(9) requires 

railroads to provide information 

concerning the availability of a copy of 

this rule, the requirements of this rule 

as they affect the responsibilities of 

employees, and employees’ rights to 

access records required under this part. 

Because FRA mandates that employees 

participate in the audiometric testing 

program specified in this rule, it is 

important that the railroads, at a 

minimum, explain this rule’s 

requirements as they affect their 

employees. This provision is not too 

different from OSHA’s requirement; 

OSHA’s rule contains a provision 

whereby the employer shall make 

available copies of this standard and 

shall also post a copy in the workplace. 

See 29 CFR 1910.95(l)(1). FRA had, at 

one point, considered a more general 

provision that would have broadly 

required railroads to provide 

information on the requirements of this 

subpart. However, FRA decided that 

this more narrow requirement struck a 

better balance between the need to 

provide employees relevant information 

and the scope of the information that 

railroads will have to provide. 

Section 227.119(c)(10) requires 

railroads to train employees on how to 

determine what can trigger an excessive 

noise report, pursuant to § 229.121(b). 

Section 227.119(c)(11) requires railroads 

to train employees on how to file an 

excessive noise report, pursuant to 

§ 229.121(b). This information will be 

helpful to employees, because it will 

enable them to identify when noise 

exposures are excessive in the 

locomotive cab. Also, it will educate 

employees, so that they know how to 

respond to excessive noise in the 

locomotive cab. These two training 

elements were not found in the NPRM 

consensus document that the RSAC 

forwarded to FRA. Rather, these two 

elements were added after OSHA’s 

review of the NPRM during the prepublication clearance process. 

FRA sought comment on these two 

items which FRA added as a result of 

OSHA’s review of the proposed rule. 

Most commenters, including ASHA, 

AIHA, and Theresa Schulz, supported 

FRA’s decision to include these 

additional items. One commenter wrote 

that the additional requirements were 

‘‘excellent.’’ The commenters went on to 

explain that these requirements will 

allow an employee to recognize 

excessive noise and use HP, which will 

provide an early intervention to prevent 

hearing loss. The AAR requested that 

FRA clarify what would be adequate to 

satisfy § 227.119(c)(10) (i.e., train 

employees on how to determine what 

can trigger an excessive noise report). 

During the post-NPRM RSAC Working 

Group meeting, the AAR withdrew this 

comment, noting that definition in the 

rule and preamble language in the 

NPRM (much of which is reproduced in 

this final rule) sufficiently defines 

excessive noise report. The AAR also 

noted that training should include the 

definition of excessive noise. FRA 

agrees and encourages railroads to share 

not only the definition of ‘‘excessive 

noise’’ with employees but also the 

information contained in the preamble 

discussion on ‘‘excessive noise.’’

Another issue which arose in the 

context of training is delivery method. 

The NPRM did not specify the delivery 

method for training. FRA noted that 

traditional classroom training is the 

most beneficial, followed by interactive 

(e.g., computer) training, and then video 

training. It is FRA’s understanding that 

most class I railroad employees are 

generally trained by viewing a video 

presentation or by operating an 

interactive computer program. 

Railroad representatives felt strongly 

that FRA should not mandate classroom 

training. They felt that any requirement 

that departs from a standardized OSHA 

training program might result in 

significantly increased costs with 

questionable additional benefit. FRA 

sought comment as to whether railroads 

should conduct training through the use 

of traditional classroom methods, video 

presentations, or computer training. 

The AAR replied, objecting to FRA’s 

conclusion ‘‘on the desirability of 

classroom training over training by 

video or computer.’’ The AAR stated 

that there was no empirical data 

presented to the Working Group that 

would support the proposition that 

traditional teaching methods are more 

effective than video or computer 

training. The AAR pointed out that 

there are benefits to video and computer 

training, such as avoiding distractions 

inherent to teaching groups and 

potentially maximizing the attention to 

the training by allowing the employee to 

choose the time of the training. The 

AAR explained that computer and video 

training are well accepted by 

professional educators and felt that they 

should be maintained as options. 

Several other commenters, including 

ASHA, AAA, and AIHA, were in favor 

of interactive training. They stated that 

interactive training is usually more 

effective, if not the ‘‘most effective way 

to communicate the message.’’ They 

explained that live training permits 

employees to interact with the 

instructor and to ask questions. Several 

mentioned that it provides a ‘‘teachable 

moment,’’ where an employee is open to 

receiving information. ASHA and AIHA 

acknowledged, however, that face-toface training can be ‘‘burdensome and 

costly’’ and so ASHA suggested an 

alternative whereby employers would 

provide resources for answering 

employee questions as they arose, 

instead of conducting face-to-face 

training. 

In this final rule, FRA does not 

specify a delivery method for training. 

A railroad can provide the training 

information through any medium it 

chooses. Given the nature of the mobile 

railroad workforce and the cost of this 

type of training, FRA recognizes that 

traditional classroom/live training could 

be costly and administratively 

burdensome. However, FRA reiterates 

its belief that traditional classroom 

training (i.e., face-to-face or live) is an 

excellent and often highly effective 

method of training. Traditional 

classroom training is beneficial, because 

it allows employees to ask questions 

and receive immediate feedback. 

Similarly, training with interactive 

components (e.g., the ability to test 

employees’ knowledge of the subject 

matter as they learn and the ability of 

employees to obtain further information 

during the session) creates a more 

effective learning environment than 

training without those components. 

FRA recognizes that there are many 

creative training options, especially 

given today’s technological capabilities. 

For example, a railroad could use onVerDate Aug<31>2005 15:24 Oct 26, 2006 Jkt 211001 PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 E:\FR\FM\27OCR2.SGM 27OCR2

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line interactive training. Or a railroad 

could supplement a computer or video 

presentation with content experts that 

are available through e-mail or phone. It 

is FRA’s belief that these methods, 

while not necessarily exactly equivalent 

to classroom training, can be effective in 

conveying necessary information to 

employees. 

Section 227.121 Recordkeeping 

This section contains the 

recordkeeping requirements for this 

regulation. Section 227.121(a) sets out 

some general recordkeeping provisions, 

and §§ 227.121(b) through (f) specify the 

records which railroads must maintain 

and retain. FRA is granted authority to 

inspect records by 49 U.S.C. 20107. 

Pursuant to that authority, FRA must act 

within certain parameters when 

inspecting records. FRA must enter 

upon property and inspect records at a 

reasonable time and in a reasonable 

manner and must seek records that are 

relevant to FRA’s investigation. 

Section 227.121(a)(1) addresses the 

availability of records. Section 

227.121(a)(1) provides that a railroad 

shall make all records available for 

inspection and copying/photocopying to 

representatives of FRA upon request; 

make an employee’s records available 

for inspection and copying/ 

photocopying to that employee, former 

employee or such person’s 

representative upon written 

authorization by such employee; make 

exposure measurement records for a 

given run or yard available for 

inspection and copying/photocopying to 

all employees who were present in the 

locomotive cab during the given run 

and/or who work in the same yard; and 

make exposure measurements for 

specific locations available to regional 

or national labor representatives, upon 

request. 

This section has been revised since 

the proposed rule. FRA has formatted it 

slightly differently and has better 

clarified who can have access to which 

records. Along those lines, FRA revised 

the provisions found in 

§ 227.121(a)(1)(i), (ii), and (iv) and 

added § 227.121(a)(1)(iii). The proposed 

rule seemed to permit an individual 

employee to obtain any records 

(including audiometric testing/medical 

records) required under this part of 

another individual employee. FRA did 

not think that was appropriate since it 

raises privacy concerns. What FRA 

intended in the NPRM and what is more 

explicit in this final rule is that 

individual employee would be able to 

receive the records of a monitored run 

if the employee was in the cab during 

the monitoring and/or if the employee 

works in the same yard where the 

monitoring occurred. However, FRA 

never intended for an individual 

employee to be able to obtain the 

individual testing records of another 

employee. FRA notes that it realized the 

need for this change after the RSAC 

Working Group meeting and so this 

change was not the result of the RSAC 

consensus recommendation. 

Section 227.121(a)(2) permits records 

to be kept in electronic form. FRA has 

added language to this section since the 

proposed rule. FRA added this language 

since the post-NPRM RSAC Working 

Group meeting, and so it is not a 

product of the RSAC consensus 

recommendation. With this additional 

language, FRA has clarified the 

requirements for the use of electronic 

records. These requirements are almost 

identical to the electronic recordkeeping 

requirements found in FRA’s existing 

track safety standards, § 213.241(e), 

though FRA has tailored them slightly 

to fit the nature of noise records. Section 

227.121(a)(2) allows each railroad to 

design its own electronic system as long 

as the system meets the specified 

criteria in §§ 227.121(a)(2)(i) through 

(v), which is intended to safeguard the 

integrity and authenticity of each 

record. Section 227.121(a)(3) discusses 

the transfer of records from a railroad 

that ceases to do business. 

Section 227.121(b) requires railroads 

to maintain and retain employee noise 

exposure measurement records. In the 

NPRM, FRA proposed to require 

railroads to retain employee exposure 

measurement records for three years. 

Several commenters voiced strong 

opposition to this proposal. NHCA 

wrote that it was ‘‘unrealistic,’’ and 

Theresa Schulz wrote that it was a 

‘‘questionable practice.’’ Many 

commenters noted that there was a 

marked inconsistency between this 

requirement (i.e., retaining exposure 

records for 2 years) and § 227.121(c)(2) 

(i.e., retaining audiometric test records 

for the duration of the covered 

employee’s employment). 

Wilson, Ihrig, & Associates noted that 

the three-year requirement could be 

detrimental to an employee’s ability to 

file a Federal Employers Liability Act 

(FELA) claim. According to Wilson et 

al., an employee’s FELA claim is 

supported or refuted using previously 

obtained-noise exposure information. If 

employers aren’t required to keep those 

records, they won’t keep them, and then 

employees will have great difficulty 

making a hearing loss claim because 

they will not have information they 

need. Several other commenters, 

including ASHA, Theresa Schulz, 

AIHA, and NHCA, recommended that 

FRA require employers to retain both 

sets of records for the duration of the 

employee’s employment plus 30 years. 

They explained that this would be 

consistent with other health record 

maintenance standards. 

FRA notes that the three-yearretention period in the proposed 

§ 227.121(b)(2) was an oversight. FRA 

and the Working Group had sought to 

track OSHA’s requirement and in doing 

so, FRA failed to take into account the 

connection between OSHA’s general 

industry standard in 29 CFR 

1910.95(m)(3)(i) and OSHA’s access to 

employee exposure and medical records 

standards in 29 CFR 1910.1020(d)(1)(ii). 

While OSHA’s general industry 

standard requires employers to retain 

noise exposure measurements for 2 

years, OSHA’s access to records 

standards requires employers to retain 

employee exposure records for at least 

30 years. FRA should have tracked the 

retention requirements in 29 CFR 

1910.1020, because FRA employee 

exposure measurement records more 

closely resemble employee exposure 

records than noise exposure 

measurement records. Accordingly, FRA 

is correcting its original mistake. 

Section 227.121(b)(2) requires railroads 

to maintain employee exposure 

measurement records for the duration of 

the covered employee’s employment 

plus thirty years. FRA notes that the 

Working Group members indicated that 

most major railroads are already 

retaining these documents for this time 

period, so this requirement will be 

consistent with current practice. 

Section 227.121(c) requires railroads 

to maintain employee audiometric test 

records. Consistent with the retention 

period for § 227.121(b), FRA requires 

railroads to maintain these records for 

the duration of the covered employee’s 

employment plus thirty years. In 

§ 227.121(c)(1), FRA specifies the items 

which railroads must include in the 

audiometric test records. FRA included 

in the NPRM all of OSHA’s items (see 

29 CFR 1910.95(m)(2)(ii)) except for 

one, ‘‘the employee’s most recent noise 

exposure assessment.’’ NHCA, AIHA, 

Theresa Schulz, and ASHA indicated 

that they think FRA should have the 

same recordkeeping requirements as 

OSHA, including the provision which 

FRA eliminated in the NPRM. In 

addition, as NHCA explained, ‘‘this 

important piece of information provides 

assistance to the professional reviewer 

who must make follow-up decisions 

based on the audiometric record.’’

FRA agrees that this information is 

important, however, FRA believes that 

the rule already provides for the 

retention of this item. The railroad will 


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67For purposes of the § 227.121(f) list, a railroad 

must maintain a list of all STSs regardless of workrelatedness. For purposes of part 225, a railroad 

must report STSs that meet the reporting criteria 

(i.e., among other things, only those that are workrelated). See § 225.5 for the definition of 

‘‘occupational hearing loss’’ and § 225.19(d). 

already have a copy of the employee’s 

most recent noise exposure assessment 

pursuant to § 227.121(b). As such, there 

is no need to duplicate the requirement 

in § 227.121(c). In addition, as FRA 

pointed out in the NPRM, it is 

impracticable to expect railroads to 

store the employee’s most recent nose 

exposure assessment with the 

audiometric test records. Realistically 

speaking, the individual performing the 

employee’s audiometric test would not 

have access to the noise measurement 

data and thus would not be able to enter 

it on the audiogram. 

With respect to § 227.121(c), several 

commenters, including AIHA, ASHA, 

and Theresa Schulz, recommended that 

FRA require railroads to include 

additional information in the 

audiometric test records. Specifically, 

they suggested that railroads record: (1) 

The model and serial number of the 

audiometer used for testing; (2) the 

measurements of the background sound 

pressure levels in the audiometric test 

room; and (3) the name of the individual 

supervising the hearing conservation 

program. FRA, in conjunction with the 

Working Group, decided to require 

railroads to include the first item but 

not the second and third item. 

With respect to the first item, there 

was consensus among the members of 

the Working Group that there was value 

in including the model and serial 

number of the audiometer. That 

information can help an employer to 

easily and readily identify a problem 

audiometer. This is especially the case 

where an employer uses several 

audiometers and has intermittent 

problem results. The Working Group 

members also noted that, practically 

speaking, the burden of including this 

information on the audiometric test 

record is minimal. Most audiometers 

already automatically include this 

information on the audiogram. 

Accordingly, FRA, with the Working 

Group consensus, added a provision 

whereby railroads must include the 

model and serial number of the 

audiometer used for testing on the 

audiometric test record. See 

§ 227.121(c)(1)(vi). 

With respect to the second item, the 

Working Group noted that this issue 

was already addressed elsewhere in the 

rule. Section 227.121(c)(1)(v) requires 

railroads to maintain in the audiometric 

test records ‘‘accurate records of the 

measurements of the background sound 

pressure levels in audiometric test 

rooms.’’ As such, FRA thought it was 

unnecessary to include this additional 

item in the audiometric test record. 

With respect to the third item, the 

Working Group felt that it was 

unnecessary to include the name of the 

individual supervising the HCP. It is 

important to include the name of the 

individual conducting the test; 

therefore, the rule, in § 227.121(c)(1)(iii), 

requires railroads to include that 

information. Moreover, it is important to 

ensure that the individual conducting 

the test is qualified, and so the rule 

addresses that issue in § 227.109(c). 

However, neither the Working Group 

nor FRA saw the need to require 

railroads to record the name of the 

individual supervising the HCP, and so 

FRA does not require railroads to 

include this additional item in the 

audiometric test record. 

FRA is ‘‘grandfathering’’ certain preexisting baseline audiograms depending 

on the conditions under which the 

audiometric test for that baseline 

audiogram was conducted. For a 

complete discussion of the 

grandfathering provisions, see the 

section-by-section analysis for 

§ 227.109(e)(2). In short, FRA expects 

railroads to make a good faith effort in 

obtaining the audiometric test records 

for grandfathered baseline audiograms. 

At the same time, FRA understands that, 

in certain cases it might be very 

difficult, if not impossible, since the 

baseline audiograms were, in many 

cases, obtained years ago. Accordingly, 

FRA recognizes that railroads will 

sometimes be unable to provide some of 

the required information from the 

audiometric testing records for 

grandfathered baseline audiograms. 

Section 227.121(d) requires railroads 

to maintain a record of all positions 

and/or persons designated by the 

railroad to be placed in a HCP. The rule 

requires railroads to retain these records 

for the duration of the designation. LIRR 

wrote that, because of the their bidding 

and bumping process, it would be 

administratively burdensome and costly 

for them to comply with this 

requirement. The preamble to the NPRM 

(see 69 FR 35169) had been missing the 

word ‘‘or,’’ which may have been what 

generated this comment. Given the 

‘‘and/or’’ nature of this provision, a 

railroad is compliant with this provision 

if they simply list the positions that are 

required to be placed in a HCP 

(although they can also, or in addition, 

list the persons that are required to be 

placed in a HCP). Neither FRA nor the 

Working Group believe that this is 

overly burdensome, and so FRA is 

retaining the proposed requirement in 

the final rule. 

Section 227.121(e) requires railroads 

to maintain copies of the training 

materials required by § 227.119 and a 

record of all employees trained. The 

final rule requires railroads to retain 

these copies and records for three years. 

This is a requirement that is new to 

FRA’s rule; it is not in OSHA’s general 

industry standard for noise. ASHA, 

AIHA, and Theresa Schulz suggested 

that it might be too burdensome for 

railroads to have to keep copies of all 

the training materials, and so they 

suggested that FRA instead require 

railroads to document the date, content, 

attendees, and faculty for each training 

program. The Working Group 

considered this recommendation but 

decided not to adopt it. FRA agrees and 

accordingly, FRA is leaving this 

provision as proposed in the NPRM. 

Section 227.121(f) requires railroads 

to maintain a list of employees who 

have experienced a standard threshold 

shift (STS) within the prior calendar 

year. A STS should be noted on the list 

for the year in which it occurred; the 

STS need not be re-entered on the list 

for subsequent years. The final rule 

requires railroads to retain this list for 

five years. Although OSHA does not 

require employers to maintain this 

information, FRA requires this 

information, because it can help assess 

the effectiveness of a railroad’s HCP 

over time. This information is not 

reportable per se, under part 225. 

However, it triggers an evaluation as to 

work-relatedness 67 and if it is workrelated, then the railroad would have to 

record/report it as required by part 225. 

With respect to § 227.121(f), FRA sought 

comment as to whether five years was 

an appropriate amount of time for 

railroads to retain a list of STSs. FRA 

did not receive any comments and 

accordingly is leaving it as proposed. 

Appendices to Part 227 

In the proposed rule, FRA had 

adopted appendices A–F from OSHA’s 

noise standard. For the most part, FRA’s 

proposed appendices were virtually 

identical to the appendices for OSHA’s 

general industry standard. FRA has 

since made a number of substantive 

changes to the appendices. Those 

changes are discussed below and/or in 

the relevant section-by-section analysis 

above. Also please note that FRA has renumbered much of the appendices that 

were carried over from the proposed 

rule so that the numbering is consistent 

across appendices. 

With respect to appendices in general, 

one commenter suggested that FRA add 

a non-mandatory appendix that contains 


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68See § III(D) above for a related analysis. 

69 46 FR 4078–1 (January 16, 1981). 

two tables, Tables 1–1 and 1–2, from the 

1998 NIOSH Revised Criteria 

Document.68 The NIOSH tables are 

analogous to Tables A–1 and A–2 in 

mandatory Appendix A in FRA’s rule. 

The difference is that the NIOSH tables 

are based on an 85 dB(A) exposure limit 

and a 3 dB exchange rate, and the FRA 

tables are based on a 90 dB(A) exposure 

limit and a 5 dB exchange rate. NIOSH 

believes that the additional nonmandatory appendix would supply 

additional materials to help users make 

informed decisions about preventing 

hearing loss among railroad employees. 

FRA and the Working Group decided 

not to add these tables based on the 

view that including several conflicting 

tables is more likely to create confusion 

than provide assistance. 

Appendix A to Part 227 

Appendix A is a mandatory appendix 

that provides tables with which an 

employer can compute an employee’s 

noise dose. FRA has made some changes 

to Appendix A, most of which are 

discussed above in the section-bysection analysis for § 227.105. FRA also 

made a purely cosmetic change, which 

is discussed here. At the suggestion of 

Aearo Company and with the agreement 

of the RSAC Working Group, FRA 

italicized all levels above 115 dB(A) in 

Table A–1. FRA (and OSHA, from 

whom FRA adopted this appendix) 

included these levels, not because they 

are permitted levels, but because they 

can be necessary for the computation of 

noise dose. The commenter pointed out 

that OSHA had written in the preamble 

to their 1981 Hearing Conservation 

Amendment 69 that they were italicizing 

these levels, however, there were no 

italics in the regulatory text of OSHA’s 

final rule. By italicizing these levels and 

including a footnote to Table A–1, FRA 

makes it clear that these levels are 

different from the others. It allows FRA 

to avoid giving the impression that these 

levels are permitted. 

Appendix B to Part 227 

Appendix B is a mandatory appendix. 

FRA identifies the methods which 

railroads should use for estimating the 

adequacy of HP attenuation. FRA has 

revised this appendix since the 

proposed rule. For a discussion of the 

changes, see the section-by-section 

analysis for § 227.117. 

Appendix C to Part 227 

Appendix C is a mandatory appendix 

that contains procedures for revising 

baseline audiograms. Appendix C as 

proposed in the NPRM was adopted 

from OSHA’s general industry noise 

standard. Proposed Appendix C 

discussed self-recording audiometers 

and also included one sentence 

addressing a requirement in the event 

that pulsed-tone audiometers are used. 

Several commenters recommended that 

FRA delete all references in the rule to 

self-recording audiometers. The 

commenters explained that selfrecording audiometers are no longer 

produced, supported, or used, and so 

there is no point to reference them. 

Another commenter explained that it 

was unnecessary to discuss the 

‘‘possibility’’ of using pulsed-tone 

audiometers, since they are routinely 

used. 

FRA and the RSAC Working Group 

agreed to incorporate these technical 

changes in the final rule. FRA removed 

all references to self-recording 

audiometers, including references in the 

proposed § 227.111(c) and the proposed 

Appendix C. With the self-recording 

audiometer discussion removed, there 

was almost nothing left in Appendix C. 

FRA modified the remaining sentence to 

address the commenter’s concern by 

removing the phrase ‘‘in the event that 

pulsed-tone audiometers are used’’ and 

moved the modified sentence to 

§ 227.111(b)(1). 

FRA further revised the requirement 

for pulsed-tone audiometers, as a result 

of CAOHC’s comments. CAOHC 

recommended that FRA’s specifications 

for pulsed stimuli should be 200 

milliseconds on and 200 milliseconds 

off. They explained this would be 

consistent with audiometric 

instrumentation. FRA agreed that 

requirement should be expanded but 

chose to do so in a different manner. 

Using the requirement from ANSI S3.6–

2004, FRA wrote that ‘‘Pulsed-tone 

audiometers, where used, should be 

used with the following on and off 

times: F–J and J–K shall each have 

values of 225 ± 35 milliseconds.’’

Because FRA had removed proposed 

Appendix C, FRA also removed the 

language in the proposed § 227.109(d) 

that referred to Appendix C. Rather than 

renumber the remaining paragraphs of 

§ 227.109, FRA has intentionally left 

§ 227.109(d) blank in the final rule. 

In this final rule, FRA has inserted a 

new Appendix C. For a discussion of 

new Appendix C , please see the 

section-by-section analysis for 

§ 227.109(i). 

Appendix D to Part 227 

Appendix D addresses the 

requirements for audiometric test 

rooms; it is a mandatory appendix. FRA 

has added a row to the Table in 

Appendix D. It sets the background 

noise levels for hearing tests conducted 

with insert earphones. For a discussion 

of the changes made in the final rule, 

see the section-by-section analysis for 

§ 227.111(e). 

Appendix E to Part 227 

The proposed Appendix E addressed 

the acoustic calibration of audiometers. 

Most of the information in that 

appendix was based on an outdated 

ANSI standard, and so FRA removed the 

appendix. FRA put the relevant 

requirements for calibration in 

§ 227.111(f)(2). For a discussion of the 

changes in the final rule, see the 

section-by-section analysis for 

§ 227.111(f)(2). 

In this final rule, FRA has placed the 

requirements for insert earphones in 

Appendix E. Appendix E is a mandatory 

appendix that establishes the 

requirements that railroads must use if 

they choose to conduct hearing tests 

with insert earphones. For a discussion 

of this appendix, see the section-bysection analysis for § 227.111(c). 

Appendix F to Part 227 

Appendix F is a non-mandatory 

appendix that employers can use to 

calculate and apply age correction to 

audiograms. For a discussion of the 

comments that FRA received related to 

Appendix F, see the section-by-section 

analysis for § 227.109(j). 

Appendix G to Part 227 

In the final rule, FRA has placed in 

Appendix G the schedule of civil 

penalties that FRA will use in 

connection with part 227. This is 

different than the Appendix G that was 

proposed in the NPRM. The proposed 

Appendix G was an informational index 

that provided employers with basic 

information on complying with the 

noise monitoring provisions contained 

in the rule. It was the same as OSHA’s 

Appendix G. In the proposed rule, FRA 

sought comment on whether or not FRA 

should adopt this appendix. FRA did 

not receive any comments on that issue. 

FRA has since removed the proposed 

Appendix G from this final rule. It 

addressed conventional workplaces, 

rather than the railroad industry. As 

such, it did not accurately characterize 

the noise environment in the locomotive 

cab. In addition, much of the general 

material in that appendix is also 

covered in the preamble discussion of 

this NPRM, and so it is unnecessary to 

repeat in an appendix. 


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70 ‘‘Speech Communications and Signal Detection 

in Noise,’’ G.S. Robinson & J.G. Casali in The Noise 

Manual, 569 (2000). 

Part 229—Railroad Locomotive Safety 

Standards 

Section 229.4 Information Collection 

This section notes the provisions of 

this part that have been submitted to the 

Office of Management and Budget 

(OMB) for compliance with the 

Paperwork Reduction Act of 1995. See 

44 U.S.C. 3501 et seq. 

Section 229.5 Definitions 

The term ‘‘Decibel’’ refers to a unit of 

measurement of sound pressure levels, 

and the term ‘‘dB(A)’’ refers to the 

sound pressure levels in decibels 

measured on the A-weighted scale. 

These terms are commonly accepted 

and widely used by noise professionals. 

The term ‘‘Excessive Noise Report,’’

as used in § 229.121(b), refers to a report 

filed by a locomotive cab occupant that 

indicates that the locomotive is 

producing an unusual level of noise 

such that the noise significantly 

interferes with normal cab 

communications or that the noise raises 

a concern with respect to hearing 

conservation. 

When a cab occupant in a locomotive 

operating in service experiences an 

unusual noise level, he or she may file 

a report with the railroad. In that report, 

the occupant should indicate those 

items which he or she believes are 

substantially contributing to the noise. 

An ‘‘unusual level of noise’’ refers to a 

noise level in the cab that is much 

higher or much different than that to 

which the occupant is normally 

accustomed; it is, for example, a banging 

or squealing sound. It is, however, not 

just any irritating noise. Not only must 

the noise level be excessive and 

unusual, but it must also either (1) 

significantly interfere with normal cab 

communications and/or (2) raise hearing 

conservation concerns. 

A noise level significantly interferes 

with normal cab communications if it 

prevents the locomotive cab occupants 

from safely and effectively conducting 

their job assignments. Noise can degrade 

job safety in several ways. Certain 

parameters, such as high noise levels, 

high-frequency noise; and intermittent, 

unexpected, uncontrollable, or 

continuous noise can jeopardize job 

safety by distracting, disrupting, or 

annoying an individual. In addition, 

noise can be a safety hazard if it 

‘‘masks’’ alarm signals or warning 

shouts. Masking is ‘‘an increase in the 

threshold of audibility of one sound (the 

masked sound) caused by the presence 

of another sound (the masking sound or 

masker).’’ 70 In the railroad operating 

environment, the masked sound can be 

an alarm or warning sound, speech from 

a coworker or over a radio, or a sound 

produced by a machine (e.g., air brake 

exhaust, engine noise). Masking 

becomes a problem when an intentional 

or incident sound that is conveying 

useful information is rendered inaudible 

or when speech that is conveying 

critical information is rendered 

unintelligible. Where noise masks 

necessary speech or other warning 

signals, it disrupts speech, interferes 

with the communication, and prevents 

a cab occupant from safely performing 

his or her job. As these employees 

operate large pieces of equipment and 

transport large quantities of (sometimes 

dangerous) materials, there are serious 

consequences for errors in operation. 

This rule does not identify the precise 

decibel level at which communication is 

deemed to have been ‘‘significantly 

interfered,’’ because it is impossible to 

identify any single number due to the 

fact each individual has a different 

sensitivity to hearing and different 

susceptibility to hearing loss. Moreover, 

the identification of a single decibel 

level would be meaningless to cab 

occupants. As crew members do not 

have measurement instrumentation with 

them on their runs (nor do they know 

how to use them), the crew occupants 

would be unable to determine the 

precise decibel levels during any single 

run. 

A noise level raises hearing 

conservation concerns if, for example, it 

causes the occupant to question the 

effectiveness of his or her hearing 

protection or if the occupant is 

experiencing new noise-related medical 

conditions such as tinnitus (i.e., a 

ringing, buzzing, roaring, or other sound 

in the ear). This rule operates under the 

assumption that the person identifying 

this hearing conservation concern is an 

individual who has been trained in 

hearing protection (as most employees 

likely will be) and understands the basic 

principles of hearing protection and 

attenuation—that is why this person is 

informed enough to determine that there 

is a hearing conservation concern. 

The term ‘‘Upper 99% Confidence 

Limit’’ is a statistical probability 

statement. A confidence limit refers to 

the lower and upper boundaries of a 

statistic confidence interval. A 

confidence interval gives an estimated 

range of values which is likely to 

include an unknown population 

parameter. The estimated range is 

calculated from a given set of sample 

data. For example, if the upper 99% 

confidence limit for the noise level of a 

population of locomotives is 87 dB(A), 

then in a sample of 100 locomotives, at 

least 99 will be found to have a noise 

level of 87 dB(A) or less. 

Section 229.121 Locomotive Cab Noise 

(a) Performance Standards for 

Locomotives 

FRA commends, railroads and 

manufacturers for their efforts in making 

locomotives quieter. In recent years, 

locomotive manufacturers have built 

new locomotives with better sound 

reduction techniques and with lower 

noise exposure levels. Many new 

locomotives now have several of the 

following features, which reduce the cab 

noise exposure level: Horn placement in 

the center of the locomotive; insulation 

of the cab; insulation of the cab floor; 

venting the exhaust from the air brake 

system outside of the cab; and 

installation of air conditioning in the 

cab to allow cab windows to be closed. 

In addition to the above features, 

manufacturers have developed and 

offered ‘‘quiet cabs,’’ which isolate the 

cab occupant from noise sources of both 

high and low frequencies. One 

manufacturer, in particular, has 

developed a locomotive cab that is 

vibrationally isolated from the 

locomotive body, thereby resulting in 

substantially less noise in the cab and 

arguably less vibration in the cab. The 

manufacturer has recently discontinued 

offering this feature. Another 

manufacturer has developed a 

locomotive design that isolates the 

diesel engine, which decreases the 

transfer of noise and vibration 

throughout the locomotive. 

Manufacturers claim that they can 

achieve normal noise exposure levels of 

75 dB(A) in these locomotive cabs. At 

the time of the issuance of this rule, 

these units are not yet pervasive 

throughout the industry. 

Section 229.21(a)(1) establishes a 

design requirement for all locomotives 

that are manufactured by a specified 

date. That date is 12 months after this 

rule is published in the Federal 

Register. The proposed rule had set that 

date at January 1, 2005. Given that time 

has passed, FRA decided to extend that 

date. This section provides that all 

locomotives of each design or model 

shall average less than or equal to 85 

dB(A), with an upper 99% confidence 

limit of 87 dB(A). This performance 

standard ensures that newly-built 

locomotives will not produce excessive 

noise levels. For the most part, this 

section imposes requirements that 


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reflect current equipment and design, 

and, therefore, they should not impose 

a substantial burden on railroads or 

locomotive manufacturers. FRA has 

specifically chosen to use the terms 

‘‘design’’ and ‘‘model.’’ While the term 

‘‘model’’ tends to be accepted 

terminology in the U.S., the term 

‘‘design’’ is used more internationally, 

and, therefore, the inclusion of both 

terms provides a more complete 

understanding of this provision. 

FRA received two comments on this 

requirement. First, an individual BLET 

member suggested that FRA require 

railroads to check all locomotives in a 

fleet, not just a percentage. It is a 

common industry practice and an 

accepted statistical practice to use a 

sampling strategy, and FRA does not see 

any reason to veer from that practice. In 

this rule, FRA specifies a quality control 

process that is consistent with good 

practice in modern manufacturing. FRA 

proposed a 99% upper confidence limit 

for determining that new locomotives 

are being produced in accordance with 

the following characteristics: Where the 

mean noise level equals 85 dB and the 

upper limit equals 87 dB, there is a 1% 

chance that sample of locomotives will 

exceed a mean noise level of 87 dB (1 

in 100 samples of appropriate size). This 

procedure is desirable, because it allows 

a quality control check on the 

manufacture of the locomotives with 

regard to the rule without imposing 

undue expense on the manufacturer. 

There would surely be undue expense 

on the manufacturer if the manufacturer 

had to test all locomotives. 

Second, Wilson, Ihrig, & Associates 

wrote that the design requirement of 85 

dB(A) with an upper 99% confidence 

limit of 87 dB(A) should be a minimum 

requirement. They assert that 

locomotives that have been tested to 

lower levels should be required to 

maintain those lower levels. They 

further explained that locomotives with 

isolated cabs are well known to achieve 

noise levels well below 85 dB(A), and 

they believe those locomotives should 

be required to maintain that lower level. 

The RSAC Working Group has 

recommended, and the FRA has agreed, 

to leave this provision as proposed. FRA 

and the Working Group is satisfied with 

the previous consensus that was 

achieved and do not see any reason at 

this point to revise this provision. 

Section 229.121(a)(1) also includes 

requirements for a build provision. A 

manufacturer may determine the 

average by testing a representative 

sample of locomotives or an initial 

series of locomotives, provided that 

there are suitable manufacturing quality 

controls and verification procedures in 

place to ensure product consistency. To 

determine whether the standard in this 

regulation is met, the railroad may rely 

on certification from the equipment 

manufacturer for a production run. 

Section 229.121(a)(2) discusses the 

issue of alterations on locomotives that 

are manufactured in accordance with 

paragraph (a)(1). If the average sound 

level for a particular locomotive design 

or model is less than 82 dB(A), a 

railroad shall not make any alterations 

that cause the average sound level for 

that locomotive design or model to 

exceed 82 dB(A). If the average sound 

level for a particular locomotive design 

or model is 82 dB(A) to 85 dB(A), 

inclusive, then a railroad shall not make 

any alterations that cause the average 

sound level for that locomotive design 

or model to increase to 85 dB(A). The 

purpose underlying this provision is 

FRA’s desire that railroads retain 

equipment’s essential quiet cab status 

through the life of that locomotive and 

especially after the railroad performs 

maintenance on the locomotive. Please 

note that FRA has re-formatted this 

section slightly since the proposed rule 

and after the post-NPRM RSAC Working 

Group meeting. The changes are 

intended to better clarify this provision 

and do not change the substance of this 

section. 

For purposes of the maintenance 

conducted pursuant to § 229.121(a), 

replacement in kind is not considered to 

be an alteration. Replacement in kind 

refers to a situation where an individual 

removes a part and replaces that part 

with the identical part of the same make 

and model. That identical part must be 

of equivalent or better quality. 

In developing this provision, the 

RSAC Working Group considered 

several other possible provisions. One of 

those provisions stated that the railroad 

should not alter any portion of the 

equipment originally designed to reduce 

interior noise unless the alteration 

essentially maintained the existing 

noise level or decreased the existing 

noise level. As that provision was 

somewhat vague, the Working Group 

sought to better define the term 

‘‘alteration.’’ FRA suggested that an 

alteration would be permissible if it 

only resulted in a modest increase in 

noise. A modest increase referred to the 

lesser amount as between an increase of 

3 dB or 85 dB(A). An alteration could 

not increase the noise level by more 

than 3 dB and where the noise level was 

83 dB(A), an alteration could not 

increase the noise level by more than 2 

dB. If the noise level was 84 dB(A), an 

alteration could not increase the noise 

level by more than 1 dB. In all cases, the 

maximum permissible noise level 

would be 85 dB(A). Certain railroad 

representatives of the Working Group 

opposed this provision, because they 

felt that it limited their ability to 

conduct maintenance on equipment. To 

address those concerns and to produce 

a better defined standard, FRA is using 

the provision now found in the rule 

text, which was the provision ultimately 

recommended by the RSAC. 

The AAR was not pleased with this 

maintenance provision for newly-built 

locomotives and suggested that FRA 

instead set the maintenance limit at the 

same level as the level for new 

equipment level, 85 dB(A). The AAR 

believes that 82 dB(A) is ‘‘an artificial 

number that is not grounded in hearing 

science’’ and that ignores other 

potentially important realities. As 

example, they explained that if there 

was a new technology that permitted 

increased safety to occupants or 

increased fuel efficiency but resulted in 

sound levels about 82 dB(A), railroads 

could buy this new technology on 

newly-built equipment but could not 

modify existing newly-built equipment 

to include it. The AAR stated that their 

experience has shown that ‘‘reducing 

sound levels cannot be permitted to 

drive design changes focused on a single 

issue (in this case, noise) at the expense 

of reliability and other safety issues.’’

The AAR, an active participant in the 

RSAC Working Group throughout the 

entire process for this rulemaking, was 

present during the post-NPRM Working 

Group meeting. The AAR reiterated the 

point above, stating that they believe 85 

dB(A) is a ‘‘safe level’’ from a noise 

perspective, and so they believe it 

should be the standard for the design 

and the maintenance of locomotives. 

Other Working Group members 

expressed serious reservations about 

that change, explaining that this 

proposed rule was a compromise 

document, of which the 85 dB(A) 

provision represented a great deal of 

compromise. The Working Group had 

initially considered, among other things, 

setting the noise level for newly built 

locomotives at 75 dB(A), but had 

lowered that level as a result of 

concerns of Working Group members. 

To attempt to change the terms now 

would veer from the spirit of the 

compromise and from what the RSAC 

Working Group had decided was the 

most appropriate level. Given that 

background and given the fact that there 

was no new information upon which to 

act, the Working Group decided to leave 

this level as proposed. 

Section 229.121(a)(3) directs railroads 

and manufacturers to conduct static 

testing, as specified in Appendix H. 

Appendix H to part 229 contains a set 


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71See § III(C) for a discussion of the engineering 

controls task force. 

of procedures for conducting in-cab 

static test measurements on 

locomotives. Through the static test, 

railroads and manufacturers can 

determine whether newly-built 

locomotives meet the requirements of 

§ 229.121. The rule states that a railroad 

or manufacturer shall follow the 

Appendix H static test protocols to 

determine compliance with paragraph 

(a)(1). The rule also states that a railroad 

or manufacturer shall also follow the 

Appendix H static test protocols to 

determine compliance with paragraph 

(a)(2), but only to the extent reasonably 

necessary to evaluate the effect of 

alterations during maintenance. In sum, 

then, a railroad or manufacturer must 

conduct static testing pursuant to 

paragraph (a)(1) and may conduct static 

testing to determine compliance with 

paragraph (a)(2) if they find it is needed. 

FRA did not receive any comments on 

this provision and therefore it remains 

as proposed in the NPRM. 

(b) Maintenance of Locomotives 

Section 229.121(b) governs the noiserelated maintenance requirements for 

locomotives. Please note that FRA has 

made some minor editorial changes in 

this section since the proposed rule and 

after the post-NPRM RSAC Working 

Group meeting. These changes are 

meant to clarify the language in the rule. 

They are minor in nature and do not 

change any of the substantive 

provisions. 

Upon receiving an excessive noise 

report pursuant to § 229.121(b)(1), a 

railroad must immediately correct any 

conditions that are required to be 

immediately corrected under part 229. 

Examples are broken or missing 

windows or broken or loose handholds 

that are hitting the car body. For all 

other items, the railroad can allow the 

locomotive to operate until that 

locomotive’s next 92-day periodic 

inspection (as per § 229.23). At that 

time, the railroad must inspect the 

locomotive and attempt to identify the 

item or items that it believes is 

substantially contributing to the noise. 

The mechanical employee inspecting 

the locomotive will be held to the 

standard of a reasonably prudent and 

competent mechanical employee. When 

the railroad can identify that item, FRA 

expects that the railroad will repair and/ 

or replace that item. FRA understands 

that there might be situations in which 

a railroad brings a locomotive to the 

shop and makes reasonable efforts to 

identify a condition but is unable to do 

so. FRA does not intend to penalize a 

railroad in those situations. The railroad 

shall maintain a record of the excessive 

noise report, as well as records of any 

maintenance or attempted maintenance. 

(Records are discussed further in 

§ 229.121(b)(4)). 

If the repair of the item supposedly 

contributing to the noise requires 

significant shop or material resources 

that are not readily available, the 

railroad is not required to repair that 

locomotive at the 92-day periodic 

inspection. In that situation, the railroad 

shall schedule its maintenance of that 

item to coincide with other major 

equipments repairs commonly used for 

the particular type of maintenance 

needed. The types of repairs to which 

FRA is referring include difficult-toaccess equipment; vibration-isolating 

systems such as bushings or elastomers; 

and situations where the railroad had to 

replace the insulation padding under 

the cab or remove the insulation from 

the inside of the cab walls. 

A few commenters suggested that 

FRA should require railroads to perform 

regular, routine maintenance on 

locomotives (such as adding window 

seals or installing minor installation) as 

a means of noise control. One 

locomotive engineer wrote that he 

believes that maintenance would greatly 

reduce the noise levels in locomotive 

cabs. Another engineer wrote that he 

believes that interior noise, such as 

‘‘worn bearing in the refrigerator’’ is the 

most harmful to one’s ears, followed by 

‘‘ ‘undercarriage squeaks’ ’’ at certain 

speeds and over certain bumps in the 

track.’’ The RSAC Working Group, along 

with the FRA, considered this 

recommendation, but decided to leave 

the language as proposed. The Working 

Group put a great deal of time and 

thought into developing these 

maintenance standards. Without any 

new information upon which to act, the 

FRA and RSAC Working Group do not 

think it is appropriate to revise this 

provision. 

Section 229.121(b)(2) identifies 

specific conditions which might lead a 

locomotive cab occupant to file an 

excessive noise report. This list is not 

meant to be exhaustive; other items not 

on this list may also lead an employee 

to file an excessive noise report. These 

listed maintenance items, along with the 

design and build requirements in 

§ 229.121(a), FRA believes, embody the 

concept of OSHA’s engineering controls. 

Whereas OSHA imposes a general 

requirement on employers to use 

engineering controls, FRA identifies 

specific items that railroads must 

address. This particular list evolved out 

of discussions of an engineering 

controls task force, a smaller group 

within the RSAC Working Group.71 This 

list contains items that are likely to 

deteriorate over time and thus would 

contribute to the noise level in the cab. 

This includes: defective cab window 

seals, defective cab door seals, broken or 

inoperative windows, deteriorated 

insulation or insulation that has been 

removed for other reasons, and 

unsecured panels in the cab. The list 

also notes that air brakes that vent 

inside the cab can be a noise source. 

The task force recommended the list 

of items to the Working Group, which 

in turn recommended them to the 

RSAC. The RSAC accepted this list and 

recommended it to FRA. FRA adopted 

the RSAC’s list, though with one 

exception. FRA removed ‘‘unsecured 

appurtenances in the cab’’ from the list. 

One of FRA’s existing regulations, 

§ 229.7, addresses this item, so FRA 

believes it is unnecessary to also 

include that item here. Section 229.7 

identifies prohibited acts for locomotive 

safety standards. It provides that a 

locomotive and its appurtenances must 

be in proper condition and safe to 

operate. 

While some of the other listed items 

might appear duplicative of other 

regulatory provisions, they are, in fact, 

not fully addressed by FRA’s existing 

regulations. For example, cab doors are 

mentioned in § 229.119(a); that section 

provides that ‘‘cab doors shall be 

equipped with a secure and operable 

latching device.’’ While a secure and 

operable latching device is one 

component of a door, there are several 

other components to a door; some of 

which could result in noisy conditions, 

such as door hinges, missing doors, or 

a damaged door. Another item on the 

list is cab windows; they are mentioned 

in § 229.119(b), which provides that 

windows of the lead locomotive shall 

provide an undistorted view of the 

right-of-way for the crew from their 

normal position in the cab, and in 

section 223, which discusses window 

glazing. But there are other conditions 

that might exist. Worn window framing 

that permits a window to rattle is 

probably not viewed as a defect under 

FRA’s existing regulations but it might 

be an unwanted noise source. The other 

listed items—cab window seals, cab 

door seals, and insulation—are not 

currently covered in this context in any 

of FRA’s existing regulations. 

Section 229.121(b)(3) prescribes the 

railroad response to an excessive noise 

report. The rule provides that a railroad 

has an obligation to respond to an 

excessive noise report that a locomotive 


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cab occupant files with the railroad. 

This sentence, which was not contained 

in the RSAC’s recommendation for the 

NPRM, makes explicit a railroad’s 

obligation to make an appropriate 

response to cab occupant noise 

concerns. FRA added this sentence as a 

result of OSHA’s review of the NPRM. 

The rest of this section was part of the 

consensus document from the RSAC. 

The rule also provides that a railroad 

meets its obligation to appropriately 

respond to an excessive noise report if 

the railroad makes a good faith effort to 

identify the cause of the reported noise. 

In addition, if the railroad successfully 

determines the cause of the reported 

noise, then the railroad meets its 

obligation to respond to the excessive 

noise report if it repairs or replaces the 

items causing the noise. 

Section 229.121(b)(3) addresses a 

concern that railroad representatives 

raised during Working Group 

discussions. The representatives were 

concerned that they might be cited for 

violations in situations where they had 

inspected a condition (in response to a 

excessive noise report) but were unable 

to find a problem or where they had 

inspected the locomotive, identified the 

problem, and repaired that problem 

only to later find out that the noise 

concern continued to persist. It is not 

FRA’s intention to cite railroads in these 

situations. The purpose of this 

regulation is to address unusually noisy 

conditions in the cab and commensurate 

with that, to ensure that railroads make 

concerted, good faith efforts to identify 

and, if possible, correct, such noisy 

conditions. 

Section 229.121(b)(4) contains the 

recordkeeping requirements for this 

section. The basic requirement is 

located in § 229.121(b)(4)(i). Railroads 

shall maintain a record of any excessive 

noise report, inspection, test, 

maintenance, replacement, or repair that 

occurred pursuant to § 229.121(b)(1). In 

that record, the railroad shall include 

the date on which the employee filed 

the excessive noise report; and the date 

on which the railroad conducted the 

inspection, test, maintenance, 

replacement, and/or repair. The railroad 

shall note any attempts to identify 

conditions and any attempts to correct 

conditions. The railroad may maintain 

these records in written or electronic 

form. If a railroad elects to maintain the 

records electronically, the railroad must 

satisfy the conditions listed in 

§ 227.121(a)(2)(i) through (v). These 

conditions are almost identical to the 

electronic recordkeeping requirements 

found in FRA’s existing track safety 

standards, § 213.241(e). These 

conditions are intended to safeguard the 

integrity and authenticity of each 

record. 

Pursuant to § 229.121(b)(4)(ii), 

railroads shall retain these records for 

92 days if they are made pursuant to 

§ 229.21; or for one year if they are made 

pursuant to § 229.23. During RSAC 

Working Group discussions, several 

members suggested that railroads retain 

these records for two years. Other 

members suggested that a two-year 

retention requirement was 

unreasonable. The RSAC Working 

Group discussed this two-year retention 

option and instead decided to 

recommend the 92 day/1 year retention 

proposal. FRA adopted the RSAC 

Working Group’s recommendation. FRA 

believes the 92 day/1 year retention 

proposal is most appropriate, because it 

is consistent with the retention 

requirements in existing FRA 

locomotive inspection regulations at 

§ 229.21 (‘‘Daily Inspection’’) and 

§ 229.23 (‘‘Periodic inspection: 

General’’). 

There were commenters on both sides 

of the issue regarding the record 

retention period. Wilson, Ihrig, & 

Associates wrote that the proposed 

retention periods were too short and 

that FRA should require railroads to 

keep these records for the life of the 

locomotive. With those records, 

railroads could then follow a trail of 

noise problems and identify 

locomotives with chronic noise 

problems. Wilson et al pointed out that 

proposed retention period is 

particularly inadequate given current 

computer technology. 

During RSAC Working Group 

discussions, some members noted that 

they do retain repair records for 

extended periods of times. However, 

Working Group members felt that they 

did not want to require railroads to keep 

records for extended periods of times. 

Because they believe it makes the most 

sense to treat repairs items related to 

noise the same as other related items in 

part 229, the RSAC Working Group, and 

FRA, decided to leave this requirement 

as proposed. 

On the other side of the issue, LIRR 

asserted that the retention requirement 

was too long and that it would result in 

an administrative burden and 

significant cost for their commuter 

railroad. In addition, LIRR asserted that 

the re-creation of potential noise reports 

of crews might be impossible during 

static testing, thereby resulting in an 

additional maintenance burden. For 

example, the crew scenario might 

include an Automatic Speed Control 

warning sound while the whistle is 

blowing, the bell is ringing, and the 

engine is in high throttle position, but 

that would not necessarily be replicable 

during static testing. 

The RSAC Working Group, with FRA, 

again concluded that it is best to retain 

the proposed language. Railroad 

interests are represented on the RSAC 

by several railroad representatives, who 

had agreed to this position. Moreover, 

this recordkeeping requirement is 

consistent with existing requirements 

under §§ 229.21 and 229.23. 

Presumably, railroads have a framework 

in place for maintaining records for this 

time frame and so railroads should 

easily be able to add these excessive 

noise reports to that framework. Finally, 

FRA notes that there is no static testing 

requirement associated with the 

requirements in § 229.121(b). The static 

testing requirements apply to 

§ 229.121(a). 

Section 229.121(b)(4)(iii) requires 

railroads to establish an internal, 

auditable monitorable system that tracks 

the above-mentioned records, i.e., the 

noise-related maintenance tasks. The 

system should include, at a minimum, 

information such as the locomotive 

number, the date of the complaint or 

inspection (from which the maintenance 

task arose), the items thought to have 

caused the problem, and the actions 

taken to correct the problem. These 

records can be maintained in writing or 

electronically. As this is an auditable 

system, FRA will review these records 

as part of compliance audits. 

Nothing in § 227.121(b) should be 

read to discourage or limit the use of 

equipment improvements or 

innovations that arise after publication 

of the final rule. In addition, nothing in 

§ 227.121(b) should be read to 

compromise existing duties found in 

part 229 to make prompt repairs to other 

components and systems (e.g., to 

malfunctioning turbo chargers) that 

generate noise in the cab and along the 

wayside. 

Appendix B to Part 229 

FRA has amended the existing 

schedule of civil penalties in Appendix 

B to Part 229 and listed the penalties 

that FRA will use in connection with 

§ 229.121. 

Appendices F–G to Part 229 

Appendices F through G are being 

reserved for future use. 

Appendix H to Part 229 

Appendix H is a set of procedures for 

conducting in-cab static test 

measurements of locomotives. Railroads 

and locomotive manufacturers should 

use this protocol to determine whether 

they have built and, where necessary, 

maintained locomotives that meet the 


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72See 40 CFR part 201, EPA’s ‘‘Noise Emission 

Standards for Transportation Equipment; Interstate 

Rail Carriers,’’ and 49 CFR part 210, FRA’s 

‘‘Railroad Noise Emission Compliance Regulation.’’

73See ‘‘Railroad Noise Control: The Handbook for 

the Measurement, Analysis, and Abatement of 

Railroad Noise,’’ Report No. DOT/FRA/ORD–82/02–

H (1982). See also ‘‘Measurement of HighwayRelated Noise,’’ Report No. DOT/VNTSC/FHWA–

96–5 (1996). 

74Many of the recommended practices, which 

were removed from this appendix, are discussed in 

the paragraphs below. They include the following: 

the SLM should be calibrated annually, and/or the 

SLM should be used with a tripod mountings or 

positioned with a secure handhold. This provision 

was ripe for removal, since it is often covered in 

the manufacturer’s instructions and is also 

discussed in ANSI S1.43–1997 (Reaffirmed 2002), 

‘‘Specifications for Integrating-Averaging Sound 

Level Meters.’’

75For example, the relevant IEC standards were 

International Standard IEC 61672–1 (2002–05) 

(concerning SLMs) and International Standard IEC 

60942 (1997–11) (concerning microphone 

windscreens and acoustic calibrators). 

performance standards prescribed in 

§ 229.121(a). In formulating this 

protocol, FRA looked to several sources, 

including the procedures used by 

General Electric and General Motors’

Electric Motor Division, other 

regulations concerning railroad noise 

measurement,72 and various 

measurement manuals and technical 

reports on transportation noise 

measurement and analysis.73

FRA presented an initial draft of 

Appendix H at a RSAC Working Group 

meeting in July 2002. At that meeting, 

the Working Group established an 

Appendix H task force to further 

develop the procedures. The Task Force, 

which consisted of FRA, railroad, 

locomotive manufacturers, and labor 

representatives met several times and 

produced several drafts. The Task Force 

made recommendations to the Working 

Group, which in turn made 

recommendations to the full RSAC. 

RSAC ultimately recommended a 

version of Appendix H to FRA that FRA 

found acceptable. FRA considered all of 

the factors and arguments raised in 

these extensive discussions and 

produced this appendix. With the 

exception of changing the measurement 

metric, FRA did not make any changes 

to this appendix between the proposed 

rule and final rule. 

Earlier drafts of the appendix set forth 

procedures that covered a wide range of 

topics and addressed many elements 

associated with measurement. Those 

drafts contained specific provisions for 

data collection, compliance, 

environmental criteria, test site 

requirements, and record keeping. Most 

notably, those drafts contained 

recommended measurement practices 

for each of those provisions. 

Some members of the Working Group 

expressed concern with that approach. 

They asserted that it was unnecessary to 

include most of those recommended 

measurement practices in the protocol, 

since some of those recommended 

practices are common practices already 

used in the industry, are frequently 

incorporated in ANSI standards, and are 

often explained in manufacturer’s 

instructions.74

After discussing these concerns, the 

Working Group reformulated its 

approach. The RSAC ultimately agreed 

with this reformulated approach and 

recommended it to FRA. FRA adopted 

that recommendation. The overall goal 

for Appendix H changed from the 

development of an all-encompassing 

specific, step-by-step measurement 

procedure for testing entities to the 

development of a minimum set of 

measurement requirements necessary 

for compliance with § 229.121(a). The 

testing entities could use these 

requirements as a basis for developing 

their own more detailed measurement 

procedures, if they so desired. 

Accordingly, the recommended 

practices were revised, modified, and in 

some cases, removed. The paragraphs 

below will discuss many of the 

recommended practices that were found 

in the earlier versions of the appendix 

but have been removed from this 

version. 

While most of these recommended 

practices have been removed from this 

document, FRA still acknowledges their 

utility and encourages railroads and 

manufacturers to use them. FRA would 

like to emphasize that if the agency 

were to conduct a compliance test (or 

re-test), its representatives (i.e., 

inspectors) would probably employ 

many of these recommended practices, 

along with the minimum standards set 

out in Appendix H. FRA is likely to use 

these measurement practices, because 

they constitute good measurement 

practices and add to the validity, 

accuracy, and repeatability of 

measurements. As an aside, FRA notes 

that railroads and manufacturers are free 

to use procedures that are more 

stringent than those provided in this 

protocol. 

I. Measurement Instrumentation 

This section discusses the 

instrumentation that the testing entity 

should use when conducting 

measurements. This testing entity shall 

use an integrating sound level meter 

(iSLM) that meets the requirements of 

ANSI S1.43–1997 (Reaffirmed 2002), 

‘‘Specification for Integrating-Averaging 

Sound Level Meters’’ and shall calibrate 

the iSLM with an acoustic calibrator 

that meets the requirements of ANSI 

S1.40–1984 (Reaffirmed 2001), 

‘‘Specification for Acoustical 

Calibrators.’’ The testing entity should 

use a Type 1 instrument, but where a 

Type 1 instrument is not available, the 

testing entity may use a Type 2 

instrument. 

An earlier draft of the appendix 

included more specific calibration 

requirements, meter specifications, and 

mounting/orientation requirements. The 

provisions in that draft required the 

testing entity to follow the 

manufacturer’s instruction for mounting 

and orienting the microphone; to 

calibrate the sound level measurement 

system at least annually (as well as 

conduct field/routine calibration); and 

to use iSLMs that have the capability to 

store for later retrieval the A-weighted, 

equivalent sound level and maximum 

sound level. In addition, the draft 

suggested that the testing entity use an 

iSLM with tripod mountings or with a 

secured handhold. Some members of 

the RSAC Working Group suggested the 

removal of these specific requirements. 

As one RSAC Working Group member 

explained, these provisions are not 

relevant to this section because they 

apply to procedures, not 

instrumentation specifications. FRA 

decided that, overall, the removal of 

these provisions would not be 

detrimental since most of these items 

are already addressed within the ANSI 

standard, and many of these items 

would be addressed in other sections of 

this appendix. The original draft also 

contained citations to certain 

International Organization for 

Standardization (ISO) and International 

Electrotechnical Commission (IEC) 

standards.75 At the request of an RSAC 

Working Group member, FRA removed 

these citations. The RSAC Working 

Group member had explained that ISO 

and IEC standards were unnecessary 

and that the ANSI standards were 

sufficient. 

FRA sought comment from the public 

on whether FRA should include ANSI 

standards only or whether FRA should 

also include reference to these ISO and/ 

or IEC standards. The AAR submitted 

comments, reiterating its support for 

using ANSI standards only. ASHA and 

AIHA also noted its approval of using 

ANSI standards only. Given that 

response, FRA decided not to add cites 

to the additional standards. In this final 

rule, FRA has cited only to ANSI 

standards. 

The decision whether to require a 

Type 1 or Type 2 instrument generated 

a great deal of discussion. FRA had 

considered requiring the use of Type 1 


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76Federal Aviation Administration (FAA) 

standards require the use of Type 1 instruments. 

See 14 CFR part 36, Appendix G, Section 

G36.105(b). Federal Highway Administration 

(FHWA) standards recommend the use of Type 1 

meters. See ‘‘Measurement of Highway-Related 

Noise,’’ Report No. DOT/VNTSC/FHWA–96–5 

(1996) for the specific FHWA criteria and 

recommendations. 

77See e.g., 49 CFR 393.94(c)(4); 40 CFR 201.22(a); 

and 49 CFR 229.129(b). 

instruments, because they are more 

precise instruments and because they 

are used by other U.S. DOT modes.76

Some RSAC Working Group members 

felt strongly that testing entities should 

not be required to use Type 1 

instruments. They asserted that the 

minimal benefit derived from using 

Type 1 instruments did not justify the 

expensive cost of Type 1 instruments. 

They asserted that there would be little 

variance in the readings for the two 

instruments, yet a Type 1 instrument 

would cost $600 to $3,000 more than a 

Type 2 instrument. In addition, they 

pointed to other noise-related federal 

regulations that allow the use of Type 2 

devices.77 After extensive discussions, 

the Working Group agreed to the 

proposal in its current state. The RSAC 

Working Group adopted that proposal, 

as did the FRA. The proposal reflects a 

compromise between FRA’s initial 

preference to use Type 1 instruments 

and certain industry member’s concerns 

about a Type 1 requirement. 

II. Test Site Requirements 

This section sets forth the 

requirements for the testing site where 

in-cab static measurements are 

conducted. This section specifies the 

placement of the locomotive, the 

installation of locomotive 

appurtenances, the operational 

requirements for locomotives, and the 

condition of the testing environment. 

Number 1 provides that a locomotive 

should not be positioned in an area 

where large reflective surfaces are 

directly adjacent to or within 25 feet of 

the locomotive cab, and number 2 

provides that a locomotive should not 

be positioned where other locomotives 

or rail cars are present on directly 

adjacent tracks next to or within 25 feet 

of the locomotive cab. 

FRA had considered more specific 

requirements for numbers 1 and 2. FRA 

considered an initial draft listed types of 

large reflective surfaces from which the 

test site should be free (barriers, hills, 

signboards, parked vehicles, 

locomotives, or rail cars on adjacent 

tracks, bridges, or buildings); required 

both sides of the locomotive to be clear 

of large reflective surfaces (for a 

minimum distance of 400 feet); and 

excluded locomotives and rail cars 

directly in front of or behind the test 

locomotive from that 400 foot 

requirement. Subsequent drafts also 

considered minimum distances of 100 

feet, 25 feet, and zero feet. FRA decided 

that the 25 foot requirement was the 

most appropriate distance, because it 

did not impose a financial burden on 

the testing entities (as a 100 or 400 foot 

requirement would have) yet it still 

provided a minimum distance of 

separation between the locomotive and 

reflective surfaces. Also, 25 feet is a 

smaller distance, so it allows for an 

easily-duplicated test area. An earlier 

draft also specified track conditions (tie 

and ballast track that is free of track 

work, bridges, and trestles) and 

recommended the removal of all 

unnecessary equipment from the cab. 

The intent of these more restrictive 

provisions for numbers 1 and 2 was to 

ensure that there was an adequate 

distance between the tested locomotive 

and other noise sources and/or 

reflective surfaces. This would isolate 

in-cab noise (due to the locomotive) 

from other contaminating noise sources, 

which in turn, would produce the best 

quality measurements. 

Members of the RSAC Working Group 

raised several concerns with these 

provisions. They felt that several of 

these requirements were ambiguous. 

They also explained that noise sources 

and reflecting objects, for the most part, 

affect measurements by making the incab noise levels higher, so if a 

locomotive complies with FRA’s 

regulatory requirements when measured 

in these noisy circumstances, then the 

locomotive is performing better than 

expected. In addition, they stated that 

the creation of a specified test area free 

of large, reflecting surfaces and other 

noise sources would create an economic 

burden on the testing entities. Following 

lengthy discussions, Working Group 

consensus, and RSAC approval, FRA 

adopted the current proposal—i.e., the 

testing entity has discretion to decide 

whether it wants to conduct these 

measurements in a test area that is free 

of reflecting objects and noise sources or 

in a test area that is a less ideal 

environment. 

Number 3 specifies the condition of 

locomotive appurtenances during 

testing. It provides that ‘‘[a]ll windows, 

doors, cabinets, seals, etc., must be 

installed in the locomotive and be 

closed.’’ Numbers 4 and 5 contain 

operational requirements. They specify 

that a locomotive must be warmed up to 

standard operating temperature and that 

the heating/ventilation/air conditioning 

(HVAC) system must be operating on 

high. FRA has included these 

operational requirements to ensure that 

a tested locomotive’s performance is 

typical of a normally-operating 

locomotive, and to ensure that any 

results are replicable based on a 

standardized locomotive operational 

criteria. 

Number 6 provides that ‘‘[t]he 

locomotive shall not be tested in any 

site specifically designed to artificially 

lower in-cab noise levels.’’ For example, 

a site should not contain sound 

absorbent materials. This concept was 

originally contemplated in more specific 

terms, i.e., the ‘‘test site railroad track 

shall be tie and ballast, free of special 

track work and bridges or trestles.’’ The 

purpose of that concept was to ensure 

that testing entities did not create 

conditions that artificially lower the 

noise measurements. In order to capture 

this concept in broader and more 

generic terms, the FRA drafted this 

provision with this current language. 

III. Procedures for Measurement 

This section provides detailed 

measurement procedures to be used 

during testing. Number 1 specifies the 

settings for the integrating-averaging 

sound level meters (iSLM). FRA has 

made a change to this provision since 

the NPRM. FRA changed the metric here 

and in two other locations (§§ III(8) and 

(9)). In the proposed rule, FRA used Lav.

Lav is a non-ANSI metric that was 

developed for this regulation in order to 

accommodate certain RSAC Working 

Group members’ desire to use a 5 dB 

exchange rate for this measurement. In 

this final rule, FRA is using the LAeq, T.

LAeq, T is a standardized metric defined 

in ANSI S1.1–1994, ‘‘Acoustical 

Terminology’’ and is a commonly used 

acoustic metric. 

One commenter explained that the Lav

was an inappropriate measure. He stated 

that most sound level meters do not 

have the capability to measure the Lav; 

they instead measure the LAeq, T. Under 

the requirement in the proposed rule, 

railroads would have had to purchase 

completely new equipment, which 

would be very costly. Another 

commenter wrote that use of the Lav was 

not justified technically, since the 

acoustical community would normally 

use LAeq, T. FRA, and the Working 

Group, agreed with these commenters 

and changed Appendix H accordingly. 

Numbers 2 and 3 address the 

calibration procedure for iSLMs. 

Calibration is a method of validating the 

performance of the measurement 

equipment and is important, because it 

verifies the accuracy of measurements. 

Both field system (routine) and 

laboratory (comprehensive) calibration 

should be conducted on iSLMs. 


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Number 4 identifies the four locations 

at which microphones should be placed 

and measurements taken. There are four 

measurements in the cab: above the left 

seat, above the right seat, between the 

seats, and near the center of the back 

wall. FRA had considered the inclusion 

of two additional microphone 

positions—one above the toilet and one 

in the front vestibule of the locomotive 

cab. As explained by various RSAC 

Working Group members, these 

positions are not representative of 

positions inside the locomotive cab 

where crew members spend a 

substantial amount of time; they are 

merely transient points through which 

cab employees pass through to enter or 

exit the cab or to go to the bathroom. In 

addition, these locations vary by 

locomotive, including some locomotives 

that do not have these positions. 

Accordingly, FRA did not include those 

two measurement positions. 

Number 5 specifies that the 

individual conducting the test should be 

as far away as possible from the 

measurement microphone. This is so 

that the individual does not impact the 

measurement, e.g., shield the 

microphone from noise sources. For the 

same reason, the procedure also 

specifies that only two people can be 

inside the locomotive cab during 

testing. 

Number 6 requires the manufacturer 

or railroad to test a locomotive under 

self-loading conditions if the locomotive 

is equipped with self-load. The purpose 

of this provision is to ensure that the incab noise level during testing is 

representative of the in-cab noise level 

during operation (i.e., under load). 

Conducting the test in self-load mode 

simulates the operation of a locomotive 

that is pulling cars. It is important that 

the noise measurements are obtained 

under self-load, because the locomotive 

is under additional stress and generates 

more noise while under self-load. In-cab 

noise levels of a locomotive that is selfloaded are noticeably louder than those 

in a locomotive that is not self-loaded 

and so this provision is necessary. 

If the locomotive is not equipped with 

the ability to operate in the self-load 

mode, the manufacturer or railroad shall 

test the locomotive with ‘‘no-load’’ and 

add three decibels to the measured 

level. ‘‘No-load’’ is defined as maximum 

RPM, with no electric load. The AAR 

submitted a report to FRA in June 2003. 

The report, ‘‘Locomotive Static Noise 

Tests,’’ provided data on the noise 

levels for locomotives that are selfloading and those that are not selfloading. The testing data showed little 

correlation between the condition of 

various cab features and noise levels, 

however the data indicated a mean and 

median sound level difference of two 

decibels between locomotives under 

load and locomotives not under load. 

FRA had proposed a four decibel 

adjustment (i.e., the mean of 

approximately two decibels plus one 

standard deviation of 1.518). The 

Working Group, and ultimately the 

RSAC, recommended an adjustment of 

three decibels. 

After considering the RSAC Working 

Group recommendation, FRA decided to 

use a three decibel adjustment. 

However, FRA is also requiring 

manufacturers and railroads to record 

the load conditions during testing. The 

records requirement is located in the 

record keeping section; it states that a 

testing entity should maintain records of 

testing conditions and procedures, 

including whether or not the locomotive 

was tested under self loading 

conditions. (See § IV, number 5). 

Number 7 requires manufacturers and 

railroads to record the sound level at the 

highest horsepower or throttle setting. 

These settings were selected, because 

they produce the highest noise level 

inside the locomotive cab. 

Number 8 specifies the metric, 

sampling rate, and measurement 

duration for in-cab static measurements. 

FRA has changed the metric from Lav to 

LAeq, T, as discussed in § III(1) above. 

LAeq, T represents a level of continuous 

constant sound that is equivalent to the 

same amount of A-weighted acoustic 

energy of the actual time-varying source. 

For this rulemaking, the following 

equation should be used to calculate 

LAeq, T. 

L

T

t Aeq T i

i

N Li

, =× × log 







 = 

10 ∑

1 10 10

1

10

Where: 

N = number of time intervals over which the 

measurements are taken, 

ti = time duration of the I-th interval, 

T = the total time duration of the 

measurement (i.e.: = t1 + t2 + * * * + tN), 

and 

Li = the A-weighted sound level of the I-th 

interval. 

LAeq, T should be measured, either 

directly or by using a one second 

sampling interval, for a minimum 

duration of 30 seconds (LAeq, 30s). The 

sampling rate and measurement 

duration rate specify how often samples 

are taken over a specified time range 

and are used to compute the equivalent 

sound level. FRA determined that, due 

to the continuous nature of in-cab noise, 

a 30-second measurement duration was 

sufficient to accurately represent in-cab 

noise levels. 

The LAeq, T equation obtained from the 

relevant ANSI standard (ANSI S1.1–

1994, ‘‘Acoustical Terminology’’) is a 

calculus equation while the LAeq, T

equation used in FRA’s rule is a noncalculus equation. The two equations 

are equivalent, as described below. 

The LAeq, T equation from the relevant 

ANSI standard is as follows: 

L

T

t

p

p Aeq T i

i

N A

o

i

, =× × log















= 

10 ∑

1 10

1

2

2

Where: 

T = the total time duration of the 

measurement; 

pA(t)= instantaneous, A-weighted sound 

pressure as a function of time (t); and 

po = the reference pressure. 

This equation deals with a continuous 

sound pressure as a function of time 

(pA(t)), and the integral of that 

continuous sound pressure over the 

measurement interval divided by the 

duration represents an average of that 

sound pressure. When looking at 

discretely sampled sound pressure data, 

this average may be represented by a 

sum of the discrete samples divided by 

the measurement duration. See below. 

L

T

p t

p

dt Aeq T

A

o

T

, = ×log

 ( ) 











 ∫ 10 1 10

2

2 0

Where: 

N = number of time intervals over which the 

measurements are taken; 

ti = time duration of the I-th interval; 

T = the total time duration of the 

measurement (i.e.: = t1 + t2 + * * * + tN); 

pA i = the A-weighted sound pressure of the 

I-th interval. 

Sound pressure level is related to 

sound pressure by the following 

equation: 

p

p

A

o

i Li

2

2

10 = 10

Where: Li = the A-weighted sound level of 

the I-th interval. 

The combination of the two above 

equations produces the equation for 

calculating LAeq, T presented in this 

rulemaking. 

Number 9 specifies the standard for 

determining compliance with 49 CFR 

229.121(a). It provides that the highest 

(i.e., loudest) measurement of the four 

LAeq, 30s measurements in the locomotive 

cab should be used as the end metric to 

determine whether the locomotive 

complies with § 229.121(a). Although 

this standard uses a measurement that is 

not representative of all four 

measurements in the locomotive cab, it 

provides a measurement that is most 


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representative of how loud it can be in 

a locomotive cab. It accounts for the 

worse noise levels in the locomotive 

cab. Also, the ‘highest LAeq, 30s standard’

has the advantage of requiring little 

processing. In addition, locomotive 

manufacturers currently use the ‘highest 

LAeq, 30s standard.’ Please note that, as 

discussed in § III(1) above, FRA has 

changed the metric from Lav to LAeq, T. 

While drafting the NPRM, FRA had 

considered energy-averaging across the 

four measurement positions. While 

energy-averaging is a very good 

representation of the overall noise levels 

in the locomotive cab (because it 

averages together all the energy levels), 

averaging, in general, is not 

representative of the worst, or loudest, 

noise levels in the cab. Accordingly, 

FRA chose not to energy-average across 

the four positions. 

Number 10 provides that if a 

locomotive fails to meet the 

requirements of § 229.121, the 

locomotive may be re-tested according 

to the requirements of Section II of this 

appendix, ‘‘Test Site Requirements.’’

This concept originated as a provision 

allowing a re-test in an area free of 

reflective surfaces and noise sources for 

a locomotive that fails a test. That 

provision provided that: ‘‘If the test fails 

under original acoustical field 

conditions, adverse weather, or other 

factors that may have contributed to the 

failure, the test may be repeated in an 

acoustic free field, fair weather, etc.’’

RSAC Working Group members 

explained that railroads and 

manufacturers already conduct these 

types of tests, and they wanted to ensure 

that this appendix allowed them to 

continue doing so. As an alternative to 

that provision, the RSAC Working 

Group considered permitting such a test 

as long as the test area was well-defined, 

e.g., where the test area was defined as 

an area free of large reflecting surfaces 

or noise sources and that there was a 

minimum distance of 200 feet around 

the locomotive. That proposal was also 

rejected, because some RSAC Working 

Group members felt that the 200-foot 

minimum distance was too restrictive. 

Ultimately, then, FRA decided to 

include the provision contained here in 

number 9 (in the ‘‘Procedures for 

Measurement’’ section); it provides that 

a railroad or manufacturer may re-test a 

locomotive if that locomotive fails a 

static test. FRA also decided that the 

testing entity must record the suspected 

reason for the failure in its records. That 

requirement is located in the record 

keeping section (see § IV, number 7). 

IV. Recordkeeping 

This section requires testing entities 

to maintain records of their testing. 

They must retain these records for a 

minimum of three years and may keep 

these records in either written or 

electronic form. Those records include: 

the name of the person conducting the 

test and date of the test; the description 

of the tested locomotive; the description 

of the sound level meter and calibrator; 

the recorded measurement during 

calibration and for each microphone 

location during operating conditions; 

any other information necessary to 

describe the testing conditions and 

procedures (e.g., whether the 

locomotive was tested under selfloading conditions); and, where 

applicable, the suspected reason for a 

test failure (where a locomotive fails a 

test and can be re-tested under § III(9)). 

V. Removed Sections 

There were several provisions which 

were considered but ultimately were not 

included in the appendix. In particular, 

there were two notable sections: 

Environmental Criteria and Quantities 

Measured, as well as the requirement of 

pre- and post-background testing. 

A. Environmental Criteria 

The Environmental Criteria specified 

optimal meteorological conditions that 

should be followed during testing. The 

criteria provided that meteorological 

conditions, such as precipitation or 

wind, should not interact with the 

locomotive or rail car such that they are 

audible from within the cab. The 

purpose of specifying this criteria was to 

prevent those factors from interfering 

with the measurements and invalidating 

the test. In general, conducting noise 

measurements under favorable 

meteorological conditions is a good, and 

common, practice. However, some 

RSAC Working Group members 

believed that these conditions should be 

left up to the testing entity’s best 

judgement. Moreover, they asserted that 

they did not believe that entities would 

conduct noise testing during severe 

weather conditions that would be 

audible in the cab. Because these 

conditions would only serve to raise the 

noise level inside the cab (and would 

only make it more difficult, not easier, 

for a locomotive to pass a test), this 

requirement was not included in the 

appendix. 

The Environmental Criteria also 

provided that the air temperature and 

relative humidity inside the cab should 

be within the manufacturer’s 

recommended operational ranges for the 

iSLM or the individual measurement 

instrumentation. This requirement was 

initially placed in the appendix to 

account for the temperature and 

humidity restrictions specified by 

microphone and acoustic measurement 

instrumentation manufacturers in their 

supplemental literature. Members of the 

RSAC Working Group acknowledged 

that these restrictions are mentioned in 

the ANSI standard and are part of the 

proper operation of a sound level meter. 

As a result, FRA decided that it was 

unnecessary to repeat these 

requirements in this appendix. 

B. Quantities Measured 

The ‘‘Quantities Measured’’ section 

specified the metrics that should be 

used in the measurement procedure. It 

noted that all instances of exterior noise 

contamination that is audible inside the 

cab should be noted and that any noise 

level above 115 dB(A) would invalidate 

the noise test. All of the information 

contained in this section was already 

stated in other parts of the appendix and 

NPRM, so FRA decided to simplify the 

appendix and remove this section. 

C. Pre- and Post-Background Testing 

FRA had considered pre- and postbackground testing requirements. There 

was much discussion about this 

requirement, and ultimately, the RSAC 

Working Group recommended not to 

include it in this protocol. In an early 

proposal, this provision required 

manufacturers and railroads to observe 

the sound levels before and after the 

static test measurements (at each of the 

in-cab measurement locations) and 

ensure that those sound levels were at 

least 10 dB(A) below the sound level 

observed during the in-cab static 

measurements. Manufacturers and 

railroads were to measure the pre- and 

post-tests when the locomotive was shut 

down, and the sound level 

measurements were to be representative 

of the ambient noise in the cab during 

the test. In a later revised form, this 

provision required manufacturers and 

railroads to establish baseline noise 

levels in the cab (on a locomotive that 

has been shut down) after completing 

the testing at the high horsepower/ 

throttle setting. 

FRA presented this requirement 

because of the utility of background 

noise measurements; they provide key 

pieces of information that can be vital 

to the procedure and the validity of the 

measurements. First, pre- and post-noise 

measurements ensure that ambient 

noise does not interfere with the test 

measurement. If the background noise is 

the same (or at least very similar) during 

the pre- and post-background noise 

measurement, one can infer that the 


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63120 Federal Register / Vol. 71, No. 208 / Friday, October 27, 2006 / Rules and Regulations 

78 13 CFR part 121. 

79For further information on the calculation of 

the specific dollar limit please see 49 CFR Part 

1201. 

80See 49 CFR parts 217, 219, and 220. 

background noise did not impact the 

noise measurement test. Second, preand post-testing, along with notation of 

extraneous noise contamination during 

the test measurement, ensures that the 

measurements are not affected by 

additional noise sources that are 

atypical of the in-cab noise 

environment. If there is a variation 

between the pre- and post-noise 

measurements and there are notations of 

extraneous noises during the test 

measurement, that might indicate that 

there were changes in the test 

environment (e.g., changing weather 

conditions, additional noise sources, 

etc.). Third, the use of pre- and posttesting ensures that the measurements 

obtained are actually from the source 

that is being measured. They ensure that 

the sound levels measured in the 

locomotive cab are actually due to the 

loaded locomotive, and not due to some 

other noise source. 

Several RSAC Working Group 

members did not want to include a preand post-background noise 

measurement requirement in the 

appendix. They explained that they 

were not concerned with background 

noise if it did not impact the 

locomotive’s ability to pass the test. 

They further asserted that a background 

noise level shift, even if it were 10 dB 

or more, is still probably below the 

criterion level and thus, is most likely 

irrelevant to whether or not the 

locomotive meets the criteria of this 

protocol. They also explained that, if 

there were external noise occurrences 

during the static test and those external 

noise occurrences effected the test, then 

the testing entity would simply conduct 

another test. Finding these arguments 

persuasive, FRA has decided to remove 

the pre- and post-background testing 

requirement, in accordance with RSAC 

Working Group’s recommendation. 

VI. Regulatory Impact and Notices 

A. Executive Order 12866 and DOT 

Regulatory Policies and Procedures 

This rule has been evaluated in 

accordance with existing policies and 

procedures, and determined to be 

significant under both Executive Order 

12866 and DOT policies and procedures 

(44 FR 11034; February 26, 1979). FRA 

has prepared and placed in the docket 

a regulatory analysis addressing the 

economic impact of this final rule. For 

access to the docket to read the 

regulatory analysis, go to http:// 

dms.dot.gov at any time or to Room PL–

401 on the plaza level of the Nassif 

Building, 400 Seventh Street, SW., 

Washington, DC, between 9 am and 5 

pm, Monday through Friday, except 

Federal holidays. 

As part of the regulatory impact 

analysis, FRA has assessed quantitative 

measurements of costs expected from 

the adoption of this final rule. Over a 

twenty-year period, the Present Value 

(PV) of the estimated costs is $15.4 

million. The analysis also includes 

qualitative discussions and quantified 

examples of the benefits for this final 

rule. The analysis concludes that an 

average savings of 24 noise-induced 

hearing loss cases per year would cover 

the average annual costs of the final 

rule. 

The costs anticipated from adopting 

this final rule include: implementation 

of noise monitoring programs, 

implementation of hearing conservation 

programs, audiometric testing, hearing 

protection, provisions of hearing 

conservation training, and additional 

locomotive maintenance related to noise 

issues. 

The major benefit anticipated from 

implementing this final rule will be the 

savings from a reduction in noiseinduced hearing loss cases among 

railroad operating employees. Other 

quantifiable benefits include: reductions 

in employee absenteeism due to noise 

exposures, reductions in employee 

injuries related to noise exposures, and 

reductions in human factor caused train 

accidents. In addition, qualitative 

benefits should accrue from improved 

cab crew communications; increased 

employee performance due to decreased 

noise exposures; decreased vision issues 

related to noise exposures; and 

decreased stress and fatigue. 

B. Regulatory Flexibility Act of 1980 and 

Executive Order 13272 

The Regulatory Flexibility Act of 1980 

(5 U.S.C. 601 et seq.) requires a review 

of proposed and final rules to assess 

their impact on small entities. FRA has 

prepared and placed in the docket a 

Regulatory Flexibility Assessment (RFA) 

which assesses the small entity impact. 

For access to the docket to read the 

RFA, go to http://dms.dot.gov at any 

time or to Room PL–401 on the plaza 

level of the Nassif Building, 400 

Seventh Street, SW., Washington, DC, 

between 9 am and 5 pm, Monday 

through Friday, except Federal holidays. 

Executive Order No. 13272, ‘‘Proper 

Consideration of Small Entities in 

Agency Rulemaking,’’ requires a Federal 

agency, inter alia, to notify the Chief 

Counsel for Advocacy of the U.S. Small 

Business Administration (SBA) of any of 

its draft rules that would have a 

significant economic impact on a 

substantial number of small entities, to 

consider any comments provided by the 

SBA, and to include in the preamble to 

the rule the agency’s response to any 

written comments by the SBA unless 

the agency head certifies that including 

such material would not serve the 

public interest. See 67 FR 53461 

(August 16, 2002). 

The SBA stipulates in its Table of Size 

Standards 78 that the largest a ‘‘forprofit’’ railroad business firm can be, 

and still be classified as a ‘‘small 

entity,’’ is 1,500 employees for ‘‘LineHaul Operating’’ Railroads and 500 

employees for ‘‘Switching and Terminal 

Establishments.’’ ‘‘Small entity’’ is 

defined in 5 U.S.C. 601 as a small 

business concern that is independently 

owned and operated and is not 

dominant in its field of operation. SBA’s 

‘‘size standards’’ may be altered by 

Federal agencies in consultation with 

the SBA and in conjunction with public 

comment. Pursuant to that authority, 

FRA has published a final policy which 

formally establishes ‘‘small entities’’ as 

being railroads which meet the line 

haulage revenue requirements of a Class 

III railroad. See 68 FR 24891 (May 9, 

2003). Currently, the revenue 

requirements are $20 million or less in 

annual operating revenue. The $20 

million limit is based on the Surface 

Transportation Board’s (STB’s) 

threshold of a Class III railroad carrier, 

which is adjusted by applying the 

railroad revenue deflator adjustment.79

The same dollar limit on revenues is 

established to determine whether a 

railroad shipper or contractor is a small 

entity. However, in this rule, FRA is 

using a different size standard. 

Consistent with FRA’s proposal in the 

NPRM, FRA is defining small entities as 

those having ‘‘less than 400,000 annual 

employee hours.’’ FRA has used this 

standard in the past 80 to alleviate 

reporting requirements. By using this 

standard for small railroads, FRA is 

capturing most small entities that would 

be defined by the SBA as small 

businesses. Since FRA published this 

alternate standard in the NPRM, FRA 

has sought and received written 

permission from the SBA to use the 

alternative size standard for purposes of 

this rulemaking. FRA did not receive 

any comments during the public 

comments related to this issue or 

request. 

For this rulemaking there are 

approximately 410 small railroads that 

could potentially be affected by this 


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81 680 railroads¥220 (Tourist, Steam & Historic) 

railroads¥50 (large, medium, passenger and 

commuter) = 410 railroads. 

82See FRA’s Regulatory Impact Analysis, 

Appendix C. 

regulation.81 FRA does not expect this 

regulation to impose a significant 

burden on these small railroads. Tourist, 

Steam and Historic operations are not 

required to meet any of the 

requirements. Thus, approximately 220 

very small railroad operations will incur 

no burden from this rulemaking. 

This final rule will also not extend to 

contractors who operate historic 

equipment in occasional service, as long 

as those contractors have been provided 

with hearing protection and are required 

(where necessary) to use the hearing 

protection while operating the historic 

equipment. Most of these type of 

contractors are very small businesses 

operated by self-employed current, 

former, or retired railroad employees. 

These operations would certainly be 

classified as a small business. FRA does 

not know how many of these types of 

operations could potentially be affected 

by this final rule. Since this regulation 

is not extending coverage to these 

operations, none of them would be 

impacted. 

FRA’s final rule requires railroads to 

establish a hearing conservation 

program for railroad operating 

employees’ who have noise exposures 

that equal or exceed an 8-hour timeweighted average of 85 dB(A), i.e., the 

action level. Railroad noise monitoring 

data 82 indicates that only about 45 

percent of the employee assignments 

would require inclusion in a hearing 

conservation program. Therefore, FRA 

expects that less than 50 percent of the 

affected employees on small railroads 

will be included in a hearing 

conservation program. FRA expects that 

after initial noise exposure monitoring, 

some small railroads will not need to 

establish hearing conservation 

programs, because none of their work 

assignments will meet or exceed the 

action level. 

This final rule contains a few 

reporting and recordkeeping 

requirements. The requirements that do 

exist primarily involve records that are 

needed for medical purposes, 

compliance assessment, and program 

evaluation. 

The impacts from this final rule are 

primarily a result of complying with the 

requirements for establishing hearing 

conservation programs and the elements 

of these programs. In general, the costs 

are proportional to the number of 

employees that would be affected on a 

railroad. Thus, the impacts on small 

entities should be relatively less than 

they would be for medium and large 

railroads. However, most large and some 

medium railroads currently have 

voluntary and/or OSHA hearing 

conservation programs, which would 

simplify and ease compliance with this 

final rule. FRA anticipates that the 

burdens would be from developing 

hearing conservation programs, 

conducting noise monitoring, providing 

hearing protectors, and locomotive 

noise maintenance related to responding 

excessive noise reports. 

The two requirements that have the 

greatest impact are the audiometric 

testing requirement and the training 

requirement. The purpose of FRA’s 

audiometric testing program section is 

to provide the requirements for railroads 

to establish and maintain an 

audiometric testing program for 

employees that are covered by the 

hearing conservation program. It 

requires railroads to establish a baseline 

audiogram and then to conduct periodic 

audiograms. It also specifies the 

requirements for conducting, evaluating, 

and following-up with the audiograms. 

FRA estimates that the average cost of 

audiograms, (i.e., hearing tests) is $40 

each, and that each audiogram will take 

an average of 25 minutes. FRA also 

requires railroads to conduct periodic 

audiometric testing of covered 

employees at least once every three 

years. FRA requires that audiograms be 

offered annually to all covered 

employees. 

FRA’s training program, in general, is 

similar to OSHA’s hearing conservation 

training program. FRA requires each 

employee to complete the hearing 

training program at least once every 

three years. By contrast, OSHA requires 

employees to complete a hearing 

training program at least once a year. 

FRA anticipates that the short line 

railroad association will develop a 

generic program for training that its 

members can utilize. 

For compliance purposes, this final 

rule provides an exception for Tourist, 

Steam and Historic railroad operations. 

In addition, railroads with less than 

400,000 annual employee hours will 

receive additional time to comply with 

the three most significant burdens and 

costs. First, these railroads will have an 

additional 18 months to establish 

hearing conservation programs. Second, 

these railroads will have an additional 

12 months to establish valid baseline 

audiograms for employees that have 

been placed in the FRA hearing 

conservation program. Third, these 

railroads will have an additional 12 

months to establish hearing 

conservation training programs. The 

rulemaking process for this final rule 

included outreach to small entities. The 

proposal for the NPRM and this final 

rule was produced by the RSAC. 

Representation on this committee 

included the ASLRRA. 

This final Regulatory Flexibility 

Assessment (RFA) concludes that the 

rule would not have a significant 

economic impact on a substantial 

number of small entities. Thus, the FRA 

certifies that this final rule is not 

expected to have an ‘‘significant’’

economic impact on a ‘‘substantial’’

number of small entities. In order to 

determine the significance of the 

economic impact for the final rule’s 

RFA, FRA reviewed and considered all 

pertinent comments from all interested 

parties concerning the potential 

economic impact on small entities. 

As noted above Executive Order No. 

13272 requires Federal agencies to 

notify the SBA Office of Advocacy of 

any of its draft rules that would have a 

significant economic impact on a 

substantial number of small entities. 

Since FRA has determined that this 

final rule would not have significant 

impact on a substantial number of small 

entities, FRA has not provided any 

notification to the SBA. 

C. Paperwork Reduction Act of 1995 

The information collection 

requirements in this final rule will be 

submitted to the Office of Management 

and Budget (OMB) under the Paperwork 

Reduction Act of 1995, 44 U.S.C. 3501 

et seq. The sections that contain the new 

information collection requirements and 

the estimated time to fulfill each 

requirement are as follows: 

CFR Section—49 CFR Respondent 

universe Total annual responses Average time per response Total annual burden hours 

Total annual burden 

cost 

227.13—Waivers .............................. 460 Railroads ......... 5 petitions ............................... 1 hour ..................................... 5 $190 

227.103—Noise Monitoring Program 460 Railroads ......... 460 programs ......................... 2 hours/8 hours/600 hours ..... 5,165 0 (incl. in RIA) 

—Notification to Employee of 

Monitoring.

460 Railroads ......... 905 lists .................................. 30 minutes .............................. 453 17,214 


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CFR Section—49 CFR Respondent 

universe Total annual responses Average time per response Total annual burden hours 

Total annual burden 

cost 

227.107—Hearing Conservation Program (HCP).460 Railroads ......... 461 HCPs ............................... 150 hours/2 hours/31 hours/ 

7.5 hours.

2,875 0 (incl. in RIA). 

—Revised Hearing Conservation Programs (HCPs).460 Railroads ......... 92 HCPs ................................. 1.74 hours ............................... 160 0 (incl. in RIA). 

227.109—Audiometric Testing 

Prog.—Existing Employees; Baseline Audiograms.

78,000 Employees 60,000 audiograms + 6,000 

audiograms.

7 min./25 min .......................... 7,000 + 2,500 0 (incl. in RIA). 

—Periodic Audiograms .............. 78,000 Employees 8,000 audiograms ................... 25 minutes .............................. 3,333 0 (incl. in RIA). 

—Evaluation of Audiograms ...... 78,000 Employees 2,330 evaluations + 93 retests 6 min./2.5 hours ...................... 466 0 (incl. in RIA). 

—Problem Audiograms ............. 8,000 Employees ... 45 documents ......................... 10 minutes .............................. 8 304. 

—Follow-up Procedures—Notifications.8,000 Employees ... 93 notifications ........................ 15 minutes .............................. 24 912. 

—Fitting/Training of Employees: 

Hearing Protectors.

240 Employees ...... 240 training sess .................... 2 minutes ................................ 8 0 (incl. in RIA). 

—Referrals for Clinical/ 

Otological Examinations.

240 Employees ...... 20 referrals/result .................... 2 hours .................................... 40 4,800. 

—Notification to Employee of 

Need: Otological Exam.

240 Employees ...... 20 notifications ........................ 5 minutes ................................ 2 76. 

—New Audiometric Interpretation.240 Employees ...... 20 notifications ........................ 20 notifications ........................ 2 76. 

227.111—Audiometric Test Requirements.1,000 Mobile Vans 1,000 tests .............................. 45 minutes .............................. 750 52,500. 

227.117—Hearing Protection Attenuation Evaluation.460 Railroads ......... 50 evaluations ........................ 30 minutes .............................. 25 1,750. 

—Re-Evaluations ....................... 460 Railroads ......... 10 re-evaluations .................... 30 minutes .............................. 5 350. 

227.119—Hearing Conservation 

Training Prog—Development.

460 Railroads ......... 461 programs ......................... 8 hours/2 hours/116 hours/1 

hour.

956 0 (incl. in RIA). 

—Employee Training ................. 460 Railroads ......... 26,000 trained employees ...... 30 minutes .............................. 13,000 0 (incl. in RIA). 

—Periodic Training .................... 460 Railroads ......... 7,000 tr. empl ......................... 30 minutes .............................. 3,500 0 (incl. in RIA). 

227.121—Record Keeping—Authorization: Records.460 Railroads ......... 10 requests + 10 responses ... 10 min. + 15 min .................... 5 130. 

—Requests for Copies of Reports.460 Railroads ......... 150 requests + 150 responses 21 min. + 45 min .................... 166 0 (incl. in RIA). 

—Records Transfer When Carrier Becomes Defunct.460 Railroads ......... 10 records ............................... 24 minutes .............................. 4 152. 

—Railroad Audiometric Test 

Records.

460 Railroads ......... 26,000 records ........................ 2 minutes ................................ 867 0 (incl. in RIA). 

—Hearing Conservation Program (HCP) Records.460 Railroads ......... 54,000 records ........................ 45 seconds ............................. 675 0 (incl. in RIA). 

—HCP Training Records of Employees.460 Railroads ......... 26,000 records ........................ 30 seconds ............................. 217 8,246. 

—Records: Standard Threshold 

Shifts of Employees.

460 Railroads ......... 280 records ............................. 7 minutes ................................ 33 0 (incl. in RIA). 

229.121—Locomotive Cab Noise—

Tests/Certifications.

3 Equipment Manuf 700 tests/certific ...................... 40 min. + 5 min ...................... 111 7,770. 

—Equipment Maintenance: Excessive Noise Reports.460 Railroads ......... 3,000 reports + 3,000 records 10 min. + 5 min ...................... 750 22,500. 

—Maintenance Records ............ 460 Railroads ......... 3,750 records .......................... 8 minutes ................................ 500 0 (incl. in RIA). 

—Internal Auditable Monitoring 

Systems.

570 Railroads ......... 570 systems ........................... 36 min. + 8.25 hour ................ 572 0 (incl. in RIA). 

Appendix H—Static Test Protocols/ 

Records.

700 Locomotives .... 2 retests + 2 ........................... 35 min. + 5 min ...................... 1 0 (incl. in RIA). 

All estimates include the time for 

reviewing instructions; searching 

existing data sources; gathering or 

maintaining the needed data; and 

reviewing the information. For 

information or a copy of the paperwork 

package submitted to OMB, contact Mr. 

Robert Brogan, FRA’s Information 

Clearance Officer, at 202–493–6292. 

OMB is required to make a decision 

concerning the collection of information 

requirements contained in this proposed 

rule between 30 and 60 days after 

publication of this document in the 

Federal Register. 

FRA is not authorized to impose a 

penalty on persons for violating 

information collection requirements 

which do not display a current OMB 

control number, if required. FRA 

intends to obtain current OMB control 

numbers for any new information 

collection requirements resulting from 

this rulemaking action prior to the 

effective date of this final rule. The 

OMB control number, when assigned, 

will be announced by separate notice in 

the Federal Register. 

D. Federalism Implications 

Executive Order 13132, ‘‘Federalism’’

(64 FR 43255, Aug. 10, 1999), requires 

FRA to develop an accountable process 

to ensure ‘‘meaningful and timely input 

by State and local officials in the 

development of regulatory policies that 

have federalism implications.’’ ‘‘Policies 

that have federalism implications’’ are 

defined in the Executive Order to 

include regulations that have 

‘‘substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government.’’ Under Executive 

Order 13132, the agency may not issue 

a regulation with Federalism 

implications that imposes substantial 

direct compliance costs and that is not 

required by statute, unless the Federal 

government provides the funds 

necessary to pay the direct compliance 

costs incurred by State and local 

governments, the agency consults with 

State and local governments, or the 

agency consults with State and local 

government officials early in the process 

of developing the proposed regulation. 

Where a regulation has Federalism 

implications and preempts State law, 

the agency seeks to consult with State 

and local officials in the process of 

developing the regulation. 

This is a rule with preemptive effect. 

Subject to a limited exception for 


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essentially local safety hazards, its 

requirements will establish a uniform 

Federal safety standard that must be 

met, and State requirements covering 

the same subject are displaced, whether 

those standards are in the form of State 

statutes, regulations, local ordinances, 

or other forms of State law, including 

State common law. Preemption is 

addressed in § 227.7 ‘‘Preemptive 

effect,’’ as it was in the NPRM. As stated 

in the corresponding preamble language 

for § 227.7, section 20106 of Title 49 of 

the United States Code provides that all 

regulations prescribed by the Secretary 

related to railroad safety preempt any 

State law, regulation, or order covering 

the same subject matter, except a 

provision necessary to eliminate or 

reduce an essentially local safety hazard 

that is not incompatible with a Federal 

law, regulation, or order and that does 

not unreasonably burden interstate 

commerce. This is consistent with past 

practice at FRA, and within the 

Department of Transportation. 

FRA has analyzed this final rule in 

accordance with the principles and 

criteria contained in Executive Order 

13132. The RSAC, which recommended 

the final rule, has as permanent 

members two organizations representing 

State and local interests: the American 

Association of State Highway and 

Transportation Officials (AASHTO), and 

the Association of State Rail Safety 

Managers (ASRSM). The RSAC regularly 

provides recommendations to the FRA 

Administrator for solutions to regulatory 

issues that reflect significant input from 

its State members. 

E. Environmental Impact 

FRA has evaluated these regulations 

in accordance with its procedures for 

ensuring full consideration of the 

environmental impact of FRA actions, 

as required by the National 

Environmental Policy Act (42 U.S.C. 

4321 et seq.), other environmental 

statutes, Executive Orders, and DOT 

Order 5610.1c. This final rule meets the 

criteria that establish this as a non-major 

action for environmental purposes. 

F. Unfunded Mandates Reform Act of 

1995 

Pursuant to Section 201 of the 

Unfunded Mandates Reform Act of 1995 

(Pub. L. 104–4, 2 U.S.C. 1531), each 

Federal agency ‘‘shall, unless otherwise 

prohibited by law, assess the effects of 

Federal regulatory actions on State, 

local, and tribal governments, and the 

private sector (other than to the extent 

that such regulations incorporate 

requirements specifically set forth in 

law).’’ Section 202 of the Act (2 U.S.C. 

1532) further requires that ‘‘before 

promulgating any general notice of 

proposed rulemaking that is likely to 

result in the promulgation of any rule 

that includes any Federal mandate that 

may result in the expenditure by State, 

local, and tribal governments, in the 

aggregate, or by the private sector, of 

$100,000,000 or more (adjusted 

annually for inflation) in any 1 year, and 

before promulgating any final rule for 

which a general notice of proposed 

rulemaking was published, the agency 

shall prepare a written statement’’

detailing the effect on State, local, and 

tribal governments and the private 

sector. This final rule will not result in 

the expenditure, in the aggregate, of 

$128,100,000 or more in any one year, 

and thus preparation of such a 

statement is not required. 

G. Energy Impact 

Executive Order 13211 requires 

Federal agencies to prepare a Statement 

of Energy Effects for any ‘‘significant 

energy action.’’ See 66 FR 28355; May 

22, 2001. Under the Executive Order a 

‘‘significant energy action’’ is defined as 

any action by an agency that 

promulgates or is expected to lead to the 

promulgation of a final rule or 

regulation, including notices of inquiry, 

advance notices of proposed 

rulemaking, and notices of proposed 

rulemaking: (1)(i) That is a significant 

regulatory action under Executive Order 

12866 or any successor order, and (ii) is 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy; or (2) that is designated by the 

Administrator of the Office of 

Information and Regulatory Affairs as a 

significant energy action. FRA has 

evaluated this final rule in accordance 

with Executive Order 13211. FRA has 

determined that this final rule is not 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy. Consequently, FRA has 

determined that this final rule is not a 

‘‘significant energy action’’ within the 

meaning of the Executive Order. 

H. Privacy Act 

Anyone is able to search the 

electronic form of all comments 

received into any of DOT’s dockets by 

the name of the individual submitting 

the comment (or signing the comment, 

if submitted on behalf of an association, 

business, labor union, etc). You may 

review DOT’s complete Privacy Act 

Statement published in the Federal 

Register on April 11, 2000 (Volume 65, 

Number 70, Pages 19477–78) or you 

may visit http://dms.dot.gov. 

List of Subjects 

49 CFR Part 227 

Incorporation by reference, 

Locomotives, Noise Control, 

Occupational Safety and Health, 

Penalties, Railroad safety, Reporting and 

recordkeeping requirements. 

49 CFR Part 229 

Incorporation by reference, 

Locomotives, Penalties, Railroad safety, 

Reporting and recordkeeping 

requirements. 

The Rule 

■ For the reasons discussed in the 

preamble, the Federal Railroad 

Administration amends chapter II, 

subtitle B of Title 49, Code of Federal 

Regulations, as follows: 

■ 1. Part 227 is added to read as follows: 

PART 227—OCCUPATIONAL NOISE 

EXPOSURE 

Subpart A—General 

Sec. 

227.1 Purpose and scope. 

227.3 Application. 

227.5 Definitions. 

227.7 Preemptive effect. 

227.9 Penalties. 

227.11 Responsibility for compliance. 

227.13 Waivers. 

227.15 Information collection. 

Subpart B—Occupational Noise Exposure 

for Railroad Operating Employees 

227.101 Scope and applicability. 

227.103 Noise monitoring program. 

227.105 Protection of employees. 

227.107 Hearing conservation program. 

227.109 Audiometric testing program. 

227.111 Audiometric test requirements. 

227.113 Noise operational controls. 

227.115 Hearing protectors. 

227.117 Hearing protector attenuation. 

227.119 Training program. 

227.121 Recordkeeping. 

Appendix A to Part 227—Noise Exposure 

Computation 

Appendix B to Part 227—Methods for 

Estimating the Adequacy of Hearing 

Protector Attenuation 

Appendix C to Part 227—Audiometric 

Baseline Revision 

Appendix D to Part 227—Audiometric Test 

Rooms 

Appendix E to Part 227—Use of Insert 

Earphones for Audiometric Testing 

Appendix F to Part 227—Calculations and 

Application of Age Corrections to 

Audiograms 

Appendix G to Part 227—Schedule of Civil 

Penalties 

Authority: 49 U.S.C. 20103, 20103 (note), 

20701–20702; 49 CFR 1.49. 

Subpart A—General 

§ 227.1 Purpose and scope. 

(a) The purpose of this part is to 

protect the occupational health and 


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safety of employees whose predominant 

noise exposure occurs in the locomotive 

cab. 

(b) This part prescribes minimum 

Federal health and safety noise 

standards for locomotive cab occupants. 

This part does not restrict a railroad or 

railroad contractor from adopting and 

enforcing additional or more stringent 

requirements. 

§ 227.3 Application. 

(a) Except as provided in paragraph 

(b) of this section, this part applies to all 

railroads and contractors to railroads. 

(b) This part does not apply to—

(1) A railroad that operates only on 

track inside an installation that is not 

part of the general railroad system of 

transportation; 

(2) A rapid transit operation in an 

urban area that is not connected to the 

general railroad system of 

transportation; 

(3) A rapid transit operation in an 

urban area that is connected to the 

general system and operates under a 

shared use waiver; 

(4) A railroad that operates tourist, 

scenic, historic, or excursion operations, 

whether on or off the general railroad 

system of transportation; or 

(5) Foreign railroad operations that 

meet the following conditions: 

Employees of the foreign railroad have 

a primary reporting point outside of the 

U.S. but are operating trains or 

conducting switching operations in the 

U.S.; and the government of that foreign 

railroad has implemented requirements 

for hearing conservation for railroad 

employees; the foreign railroad 

undertakes to comply with those 

requirements while operating within the 

U.S.; and FRA’s Associate 

Administrator for Safety determines that 

the foreign requirements are consistent 

with the purpose and scope of this part. 

A ‘‘foreign railroad’’ refers to a railroad 

that is incorporated in a place outside 

the U.S. and is operated out of a foreign 

country but operates for some distance 

in the U.S. 

§ 227.5 Definitions. 

As used in this part—

Action level means an eight-hour 

time-weighted-average sound level 

(TWA) of 85 dB(A), or, equivalently, a 

dose of 50 percent, integrating all sound 

levels from 80 dB(A) to 140 dB(A). 

Administrator means the 

Administrator of the Federal Railroad 

Administration or the Administrator’s 

delegate. 

Artifact means any signal received or 

recorded by a noise measuring 

instrument that is not related to 

occupational noise exposure and may 

adversely impact the accuracy of the 

occupational noise measurement. 

Audiogram means a record of 

audiometric testing, showing the 

thresholds of hearing sensitivity 

measured at discrete frequencies, as 

well as other recordkeeping 

information. 

Audiologist means a professional, 

who provides comprehensive diagnostic 

and treatment/rehabilitative services for 

auditory, vestibular, and related 

impairments and who 

(1) Has a Master’s degree or doctoral 

degree in audiology and 

(2) Is licensed as an audiologist by a 

State; or in the case of an individual 

who furnishes services in a State which 

does not license audiologists, has 

successfully completed 350 clock hours 

of supervised clinical practicum (or is in 

the process of accumulating such 

supervised clinical experience), 

performed not less than 9 months of 

supervised full-time audiology services 

after obtaining a master’s or doctoral 

degree in audiology or a related field, 

and successfully completed a national 

examination in audiology approved by 

the Secretary of the U.S. Department of 

Health and Human Services. 

Audiometry means the act or process 

of measuring hearing sensitivity at 

discrete frequencies. Audiometry can 

also be referred to as audiometric 

testing. 

Baseline audiogram means an 

audiogram, recorded in accordance with 

§ 227.109, against which subsequent 

audiograms are compared to determine 

the extent of change of hearing level. 

Class I, Class II, and Class III railroads 

have the meaning assigned by the 

regulations of the Surface 

Transportation Board (49 CFR part 120; 

General Instructions 1–1). 

Continuous noise means variations in 

sound level that involve maxima at 

intervals of 1 second or less. 

Decibel (dB) means a unit of 

measurement of sound pressure levels. 

dB(A) means the sound pressure level 

in decibels measured on the A-weighted 

scale. 

Employee means any individual who 

is engaged or compensated by a railroad 

or by a contractor to a railroad to 

perform any of the duties defined in this 

part. 

Exchange rate means the change in 

sound level, in decibels, which would 

require halving or doubling of the 

allowable exposure time to maintain the 

same noise dose. For purposes of this 

part, the exchange rate is 5 decibels. 

FRA means the Federal Railroad 

Administration. 

Hearing protector means any device 

or material, which is capable of being 

worn on the head, covering the ear canal 

or inserted in the ear canal; is designed 

wholly or in part to reduce the level of 

sound entering the ear; and has a 

scientifically accepted indicator of its 

noise reduction value. 

Hertz (Hz) means a unit of 

measurement of frequency numerically 

equal to cycles per second. 

Medical pathology means a condition 

or disease affecting the ear which is 

medically or surgically treatable. 

Noise operational controls means a 

method used to reduce noise exposure, 

other than hearing protectors or 

equipment modifications, by reducing 

the time a person is exposed to 

excessive noise. 

Occasional service means service of 

not more than a total of 20 days in a 

calendar year. 

Otolaryngologist means a physician 

specializing in diagnosis and treatment 

of disorders of the ear, nose, and throat. 

Periodic audiogram is a record of 

follow-up audiometric testing 

conducted at regular intervals after the 

baseline audiometric test. 

Person means an entity of any type 

covered under 1 U.S.C. 1, including but 

not limited to the following: a railroad; 

a manager, supervisor, official, or other 

employee or agent of a railroad; an 

owner, manufacturer, lessor, or lessee of 

railroad equipment, track, or facilities; 

an independent contractor providing 

goods or services to a railroad; and any 

employee of such owner, manufacturer, 

lessor, lessee, or independent 

contractor. 

Professional Supervisor of the 

Audiometric Monitoring Program in a 

hearing conservation program means an 

audiologist, otolaryngologist, or a 

physician with experience and expertise 

in hearing and hearing loss. 

Qualified Technician is a person who 

is certified by the Council for 

Accreditation in Occupational Hearing 

Conservation or equivalent organization; 

or who has satisfactorily demonstrated 

competence in administering 

audiometric examinations, obtaining 

valid audiograms, and properly using, 

maintaining, and checking calibration 

and proper functioning of the 

audiometers used; and is responsible to 

the Professional Supervisor of the 

Audiometric Testing Program. 

Railroad means any form of nonhighway ground transportation that runs 

on rails or electromagnetic guide-ways 

and any entity providing such 

transportation, including: 

(1) Commuter or other short-haul 

railroad passenger service in a 

metropolitan or suburban area and 

commuter railroad service that was 


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operated by the Consolidated Rail 

Corporation on January 1, 1979; and 

(2) High speed ground transportation 

systems that connect metropolitan areas, 

without regard to whether those systems 

use new technologies not associated 

with traditional railroads. The term 

‘‘railroad’’ is also intended to mean a 

person that provides transportation by 

railroad, whether directly or by 

contracting out operation of the railroad 

to another person. The term does not 

include rapid transit operations in an 

urban area that are not connected to the 

general railroad system of 

transportation. 

Representative personal sampling 

means measurement of an employee’s 

noise exposure that is representative of 

the exposures of other employees who 

operate similar equipment under similar 

conditions. 

Sound level or Sound pressure level 

means ten times the common logarithm 

of the ratio of the square of the 

measured A-weighted sound pressure to 

the square of the standard reference 

pressure of twenty micropascals, 

measured in decibels. For purposes of 

this regulation, SLOW time response, in 

accordance with ANSI S1.43–1997 

(Reaffirmed 2002), ‘‘Specifications for 

Integrating-Averaging Sound Level 

Meters,’’ is required. The Director of the 

Federal Register approves this 

incorporation by reference of this 

standard in this section in accordance 

with 5 U.S.C. 552(a) and 1 CFR part 51. 

You may obtain a copy of the 

incorporated standard from the 

American National Standards Institute 

at 1819 L Street, NW., Washington, DC 

20036 or http://www.ansi.org. You may 

inspect a copy of the incorporated 

standard at the Federal Railroad 

Administration, Docket Room, 1120 

Vermont Ave., NW., Suite 700, 

Washington, DC 20005, or at the 

National Archives and Records 

Administration (NARA). For 

information on the availability of this 

material at NARA, call 202–741–6030, 

or go to http://www.archives.gov/

federal_register/

code_of_federal_regulations/

ibr_locations.html. 

Standard threshold shift (STS) means 

a change in hearing sensitivity for the 

worse, relative to the baseline 

audiogram, or relative to the most recent 

revised baseline (where one has been 

established), of an average of 10 dB or 

more at 2000, 3000, and 4000 Hz in 

either ear. 

Time-weighted-average eight-hour (or 

8-hour TWA) means the sound level, 

which, if constant over 8 hours, would 

result in the same noise dose as is 

measured. For purposes of this part, the 

exchange rate is 5 decibels. 

Tourist, scenic, historic, or excursion 

operations means railroad operations 

that carry passengers, often using 

antiquated equipment, with the 

conveyance of the passengers to a 

particular destination not being the 

principal purpose. 

§ 227.7 Preemptive effect. 

Under 49 U.S.C. 20106, issuance of 

these regulations preempts any State 

law, regulation, or order covering the 

same subject matter, except an 

additional or more stringent law, 

regulation, or order that is necessary to 

eliminate or reduce an essentially local 

safety hazard; is not incompatible with 

a law, regulation, or order of the United 

States Government; and does not 

impose an unreasonable burden on 

interstate commerce. 

§ 227.9 Penalties. 

(a) Any person who violates any 

requirement of this part or causes the 

violation of any such requirement is 

subject to a civil penalty of at least $550 

and not more than $11,000 per 

violation, except that: penalties may be 

assessed against individuals only for 

willful violations, and, where a grossly 

negligent violation or a pattern of 

repeated violations has created an 

imminent hazard of death or injury to 

persons, or has caused death or injury, 

a penalty not to exceed $27,000 per 

violation may be assessed. Each day a 

violation continues shall constitute a 

separate offense. See appendix H to this 

part for a statement of agency civil 

penalty policy. 

(b) Any person who knowingly and 

willfully falsifies a record or report 

required by this part may be subject to 

criminal penalties under 49 U.S.C. 

21311. 

§ 227.11 Responsibility for compliance. 

Although the duties imposed by this 

part are generally stated in terms of the 

duty of a railroad, any person, including 

a contractor for a railroad, who performs 

any function covered by this part must 

perform that function in accordance 

with this part. 

§ 227.13 Waivers. 

(a) A person subject to a requirement 

of this part may petition the 

Administrator for a waiver of 

compliance with such requirement. The 

filing of such a petition does not affect 

that person’s responsibility for 

compliance with that requirement while 

the petition is being considered. 

(b) Each petition for waiver under this 

section must be filed in the manner and 

contain the information required by part 

211 of this chapter. 

(c) If the Administrator finds that a 

waiver of compliance is in the public 

interest and is consistent with railroad 

safety, the Administrator may grant the 

waiver subject to any conditions the 

Administrator deems necessary. 

§ 227.15 Information collection. 

(a) The information collection 

requirements of this part were reviewed 

by the Office of Management and 

Budget pursuant to the Paperwork 

Reduction Act of 1980 (44 U.S.C. 3501 

et seq.) and are assigned OMB control 

number 2130–NEW. 

(b) The information collection 

requirements are found in the following 

sections: §§ 227.13, 227.103, 227.107, 

227.109, 227.111, 227.117, 227.119, and 

227.121. 

Subpart B—Occupational Noise 

Exposure for Railroad Operating 

Employees. 

§ 227.101 Scope and applicability. 

(a) This subpart shall apply to the 

noise-related working conditions of—

(1) Any person who regularly 

performs service subject to the 

provisions of the hours of service laws 

governing ‘‘train employees’’ (see 49 

U.S.C. 21101(5) and 21103), but, subject 

to a railroad’s election in paragraph 

(a)(3) of this section, does not apply to: 

(i) Employees who move locomotives 

only within the confines of locomotive 

repair or servicing areas, as provided in 

§§ 218.5 and 218.29(a) of this chapter, or 

(ii) Employees who move a 

locomotive or group of locomotives for 

distances of less than 100 feet and this 

incidental movement of a locomotive or 

locomotives is for inspection or 

maintenance purposes, or 

(iii) Contractors who operate historic 

equipment in occasional service, 

provided that the contractors have been 

provided with hearing protectors and, 

where necessary, are required to use the 

hearing protectors while operating the 

historic equipment; 

(2) Any direct supervisor of the 

persons described in paragraph (a)(1) of 

this section whose duties require 

frequent work in the locomotive cab; 

and 

(3) At the election of the railroad, any 

other person (including a person 

excluded by paragraph (a)(1) of this 

section) whose duties require frequent 

work in the locomotive cab and whose 

primary noise exposure is reasonably 

expected to be experienced in the cab, 

if the position occupied by such person 

is designated in writing by the railroad, 

as required by § 227.121(d). 


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(b) Occupational noise exposure and 

hearing conservation for employees not 

covered by this subpart is governed by 

the appropriate occupational noise 

exposure regulation of the U.S. 

Department of Labor, Occupational 

Safety and Health Administration 

located at 29 CFR 1910.95. 

§ 227.103 Noise monitoring program. 

(a) Schedule. A railroad shall develop 

and implement a noise monitoring 

program to determine whether any 

employee covered by the scope of this 

subpart may be exposed to noise that 

may equal or exceed an 8-hour TWA of 

85 dB(A), in accordance with the 

following schedule: 

(1) Class 1, passenger, and commuter 

railroads no later than February 26, 

2008. 

(2) Railroads with 400,000 or more 

annual employee hours that are not 

Class 1, passenger, or commuter 

railroads no later than August 26, 2008. 

(3) Railroads with fewer than 400,000 

annual employee hours no later than 

August 26, 2009. 

(b) Sampling strategy. 

(1) In its monitoring program, the 

railroad shall use a sampling strategy 

that is designed to identify employees 

for inclusion in the hearing 

conservation program and to enable the 

proper selection of hearing protection. 

(2) Where circumstances such as high 

worker mobility, significant variations 

in sound level, or a significant 

component of impulse noise make area 

monitoring generally inappropriate, the 

railroad shall use representative 

personal sampling to comply with the 

monitoring requirements of this section, 

unless the railroad can show that area 

sampling produces equivalent results. 

(c) Noise measurements. 

(1) All continuous, intermittent, and 

impulse sound levels from 80 decibels 

to 140 decibels shall be integrated into 

the noise measurements. 

(2) Noise measurements shall be made 

under typical operating conditions 

using: 

(i) A sound level meter conforming, at 

a minimum, to the requirements of 

ANSI S1.4–1983 (Reaffirmed 2001) 

(incorporated by reference, see 

§ 227.103(h)), Type 2, and set to an Aweighted SLOW response; 

(ii) An integrated sound level meter 

conforming, at a minimum, to the 

requirements of ANSI S1.43–1997 

(Reaffirmed 2002) (incorporated by 

reference, see § 227.103(h)), Type 2, and 

set to an A-weighted slow response ; or 

(iii) A noise dosimeter conforming, at 

a minimum, to the requirements of 

ANSI S1.25–1991 (Reaffirmed 2002) 

(incorporated by reference, see 

§ 227.103(h)) and set to an A-weighted 

SLOW response. 

(3) All instruments used to measure 

employee noise exposure shall be 

calibrated to ensure accurate 

measurements. 

(d) The railroad shall repeat noise 

monitoring, consistent with the 

requirements of this section, whenever 

a change in operations, process, 

equipment, or controls increases noise 

exposures to the extent that: 

(1) Additional employees may be 

exposed at or above the action level; or 

(2) The attenuation provided by 

hearing protectors being used by 

employees may be inadequate to meet 

the requirements of § 227.103. 

(e) In administering the monitoring 

program, the railroad shall take into 

consideration the identification of work 

environments where the use of hearing 

protectors may be omitted. 

(f) Observation of monitoring. The 

railroad shall provide affected 

employees or their representatives with 

an opportunity to observe any noise 

dose measurements conducted pursuant 

to this section. 

(g) Reporting of monitoring results. 

(1) The railroad shall notify each 

monitored employee of the results of the 

monitoring. 

(2) The railroad shall post the 

monitoring results at the appropriate 

crew origination point for a minimum of 

30 days. The posting should include 

sufficient information to permit other 

crews to understand the meaning of the 

results in the context of the operations 

monitored. 

(h) Incorporation by reference. The 

materials listed in this section are 

incorporated by reference in the 

corresponding sections noted. These 

incorporations by reference were 

approved by the Director of the Federal 

Register in accordance with 5 U.S.C. 

552(a) and 1 CFR part 51. You may 

obtain a copy of the incorporated 

materials from the American National 

Standards Institute at 1819 L Street, 

NW., Washington, DC 20036 or http:// 

www.ansi.org. You may inspect a copy 

of the incorporated standards at the 

Federal Railroad Administration, Docket 

Room, 1120 Vermont Ave., NW., Suite 

700, Washington, DC 20005, or at the 

National Archives and Records 

Administration (NARA). For 

information on the availability of this 

material at NARA, call 202–741–6030, 

or go to http://www.archives.gov/ 

federal_register/ 

code_of_federal_regulations/ 

ibr_locations.html. 

(1) ANSI S1.4–1983 (Reaffirmed 

2001), Specification for Sound Level 

Meters, incorporation by reference (IBR) 

approved for § 227.103(c)(2)(i). 

(2) ANSI S1.43–1997 (Reaffirmed 

2002), Specifications for IntegratingAveraging Sound Level Meters, IBR 

approved for § 227.103(c)(2)(ii). 

(3) ANSI S1.25–1991 (Reaffirmed 

2002), Specification for Personal Noise 

Dosimeters, IBR approved for 

§ 227.103(c)(2)(iii). 

§ 227.105 Protection of employees. 

(a) A railroad shall provide 

appropriate protection for its employees 

who are exposed to noise, as measured 

according to § 227.103, that exceeds the 

limits specified in appendix A of this 

part. 

(b) In assessing whether exposures 

exceed 115 dB(A), as set forth in 

paragraph (a) of this section and 

appendix A to this part, the apparent 

source of the noise exposures shall be 

observed and documented and 

measurement artifacts may be removed. 

(c) Except as set forth in paragraph (d) 

of this section, exposure to continuous 

noise shall not exceed 115dB(A). 

(d) Exposures to continuous noise 

greater than 115 dB(A) and equal to or 

less than 120 dB(A) are permissible, 

provided that the total daily duration 

does not exceed 5 seconds. 

§ 227.107 Hearing conservation program. 

(a) Consistent with the requirements 

of the noise monitoring program 

required by § 227.103, the railroad shall 

administer a continuing, effective 

hearing conservation program, as set 

forth in §§ 227.109 through 227.121, for 

all employees exposed to noise at or 

above the action level. 

(b) For purposes of the hearing 

conservation program, employee noise 

exposure shall be computed in 

accordance with the tables in appendix 

A of this part, and without regard to any 

attenuation provided by the use of 

hearing protectors. 

§ 227.109 Audiometric testing program. 

(a) Each railroad shall establish and 

maintain an audiometric testing 

program as set forth in this section and 

include employees who are required to 

be included in a hearing conservation 

program pursuant to § 227.107. 

(b) Cost. The audiometric tests shall 

be provided at no cost to employees. 

(c) Tests. Audiometric tests shall be 

performed by: 

(1) An audiologist, otolaryngologist, 

or other physician who has experience 

and expertise in hearing and hearing 

loss; or 

(2) A qualified technician. 

(d) [Reserved] 

(e) Baseline audiogram. This 

paragraph (e) applies to employees who 


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are required by § 227.107 to be included 

in a hearing conservation program. 

(1) New employees. 

(i) Except as provided in paragraph 

(e)(1)(ii), for employees hired after 

February 26, 2007, the railroad shall 

establish a valid baseline audiogram 

within 6 months of the new employee’s 

first tour of duty. 

(ii) Where mobile test vans are used 

to meet the requirement in paragraph 

(e)(1)(i), the railroad shall establish a 

valid baseline audiogram within one 

year of the new employee’s first tour of 

duty. 

(2) Existing employees. 

(i) For all employees without a 

baseline audiogram as of February 26, 

2007, Class 1, passenger, and commuter 

railroads, and railroads with 400,000 or 

more annual employee hours shall 

establish a valid baseline audiogram by 

February 26, 2009; and railroads with 

less than 400,000 annual employee 

hours shall establish a valid baseline 

audiogram by February 26, 2010. 

(ii) If an employee has had a baseline 

audiogram as of February 26, 2007, and 

it was obtained under conditions that 

satisfy the requirements found in 29 

CFR 1910.95(h), the railroad must use 

that baseline audiogram. 

(iii) If the employee has had a 

baseline audiogram as of February 26, 

2007, and it was obtained under 

conditions that satisfy the requirements 

in 29 CFR 1910.95(h)(1), but not the 

requirements found in 29 CFR 

1910.95(h)(2) through (5), the railroad 

may elect to use that baseline audiogram 

provided that the Professional 

Supervisor of the Audiometric 

Monitoring Program makes a reasonable 

determination that the baseline 

audiogram is valid and is clinically 

consistent with other materials in the 

employee’s medical file. 

(3) Testing to establish a baseline 

audiogram shall be preceded by at least 

14 hours without exposure to 

occupational noise in excess of the 

action level. Hearing protectors may be 

used as a substitute for the requirement 

that baseline audiograms be preceded by 

14 hours without exposure to 

occupational noise. 

(4) The railroad shall notify its 

employees of the need to avoid high 

levels of non-occupational noise 

exposure during the 14-hour period 

immediately preceding the audiometric 

examination. 

(f) Periodic audiogram. 

(1) The railroad shall offer an 

audiometric test to each employee 

included in the hearing conservation 

program at least once each calendar 

year. The interval between the date 

offered to any employee for a test in a 

calendar year and the date offered in the 

subsequent calendar year shall be no 

more than 450 days and no less than 

280 days. 

(2) The railroad shall require each 

employee included in the hearing 

conservation program to take an 

audiometric test at least once every 1095 

days. 

(g) Evaluation of audiogram. 

(1) Each employee’s periodic 

audiogram shall be compared to that 

employee’s baseline audiogram to 

determine if the audiogram is valid and 

to determine if a standard threshold 

shift has occurred. This comparison 

may be done by a qualified technician. 

(2) If the periodic audiogram 

demonstrates a standard threshold shift, 

a railroad may obtain a retest within 90 

days. The railroad may consider the 

results of the retest as the periodic 

audiogram. 

(3) The audiologist, otolaryngologist, 

or physician shall review problem 

audiograms and shall determine 

whether there is a need for further 

evaluation. A railroad shall provide all 

of the following information to the 

person performing this review: 

(i) The baseline audiogram of the 

employee to be evaluated; 

(ii) The most recent audiogram of the 

employee to be evaluated; 

(iii) Measurements of background 

sound pressure levels in the 

audiometric test room as required in 

appendix D of this part: Audiometric 

Test Rooms; and 

(iv) Records of audiometer 

calibrations required by § 227.111. 

(h) Follow-up procedures. 

(1) If a comparison of the periodic 

audiogram to the baseline audiogram 

indicates that a standard threshold shift 

has occurred, the railroad shall inform 

the employee in writing within 30 days 

of the determination. 

(2) Unless a physician or audiologist 

determines that the standard threshold 

shift is not work-related or aggravated 

by occupational noise exposure, the 

railroad shall ensure that the following 

steps are taken: 

(i) Employees not using hearing 

protectors shall be fitted with hearing 

protectors, shall be trained in their use 

and care, and shall be required to use 

them. 

(ii) Employees already provided with 

hearing protectors shall be refitted, shall 

be retrained in the use of hearing 

protectors offering greater attenuation, if 

necessary, and shall be required to use 

them. 

(iii) If subsequent audiometric testing 

is necessary or if the railroad suspects 

that a medical pathology of the ear is 

caused or aggravated by the wearing of 

hearing protectors, the railroad shall 

refer the employee for a clinical 

audiological evaluation or an otological 

examination. 

(iv) If the railroad suspects that a 

medical pathology of the ear unrelated 

to the use of hearing protectors is 

present, the railroad shall inform the 

employee of the need for an otological 

examination. 

(3) If subsequent audiometric testing 

of an employee, whose exposure to 

noise is less than an 8-hour TWA of 90 

dB, indicates that a standard threshold 

shift is not persistent, the railroad shall 

inform the employee of the new 

audiometric interpretation and may 

discontinue the required use of hearing 

protectors for that employee. 

(i) Revised baseline. A railroad shall 

use the following methods for revising 

baseline audiograms: 

(1) Periodic audiograms from 

audiometric tests conducted through 

February 26, 2009, may be substituted 

for the baseline measurement by the 

Professional Supervisor of the 

Audiometric Monitoring Program who 

is evaluating the audiogram if: 

(i) The standard threshold shift 

revealed by the audiogram is persistent; 

or 

(ii) The hearing threshold shown in 

the periodic audiogram indicates 

significant improvement over the 

baseline audiogram. 

(2) Baseline audiograms from 

audiometric tests conducted after 

February 26, 2009, shall be revised in 

accordance with the method specified 

in appendix C of this part: Audiometric 

Baseline Revision. 

(j) Standard threshold shift. In 

determining whether a standard 

threshold shift has occurred, allowance 

may be made for the contribution of 

aging (presbycusis) to the change in 

hearing level by correcting the annual 

audiogram according to the procedure 

described in appendix F of this part: 

Calculation and Application of Age 

Correction to Audiograms. 

§ 227.111 Audiometric test requirements. 

(a) Audiometric tests shall be pure 

tone, air conduction, hearing threshold 

examinations, with test frequencies 

including 500, 1000, 2000, 3000, 4000, 

6000, and 8000 Hz. Tests at each 

frequency shall be taken separately for 

each ear. 

(b) Audiometric tests shall be 

conducted with audiometers (including 

microprocessor audiometers) that meet 

the specifications of and are maintained 

and used in accordance with ANSI 

S3.6–2004 ‘‘Specification for 

Audiometers.’’ The Director of the 

Federal Register approves the 


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63128 Federal Register / Vol. 71, No. 208 / Friday, October 27, 2006 / Rules and Regulations 

incorporation by reference of this 

standard in accordance with 5 U.S.C. 

552(a) and 1 CFR part 51. You may 

obtain a copy of the incorporated 

standard from the American National 

Standards Institute at 1819 L Street, 

NW., Washington, DC 20036 or http:// 

www.ansi.org. You may inspect a copy 

of the incorporated standard at the 

Federal Railroad Administration, Docket 

Room, 1120 Vermont Ave., NW., Suite 

700, Washington, DC 20005, or at the 

National Archives and Records 

Administration (NARA). For more 

information on the availability of this 

material at NARA, call 202–741–6030, 

or go to http://www.archives.gov/

federal_register/

code_of_federal_regulations/

ibr_locations.html. 

(1) Pulsed-tone audiometers should be 

used with the following on and off 

times: F–J and J–K shall each have 

values of 225 ± 35 milliseconds (ms). 

(2) Use of insert earphones shall be 

consistent with the requirements listed 

in appendix E of this part: Use of Insert 

Earphones for Audiometric Testing. 

(c) Audiometric examinations shall be 

administered in a room meeting the 

requirements listed in appendix D of 

this part: Audiometric Test Rooms. 

(d) Audiometer calibration. 

(1) The functional operation of the 

audiometer shall be checked before each 

day’s use by testing a person with 

known, stable hearing thresholds or by 

appropriate calibration device, and by 

listening to the audiometer’s output to 

make sure that the output is free from 

distorted or unwanted sounds. 

Deviations of 10 decibels or greater 

require an acoustic calibration. 

(2) Audiometer calibration shall be 

checked acoustically at least annually 

according to the procedures described 

in ANSI S3.6–2004. Frequencies below 

500 Hz and above 8000 Hz may be 

omitted from this check. The 

audiometer must meet the sound 

pressure accuracy requirements of 

section 7.2 of ANSI S3.6–2004 of 3 dB 

at any test frequency between 500 and 

5000 Hz and 5 dB at any test frequency 

6000 Hz and higher for the specific type 

of transducer used. For air-conduction 

supra-aural earphones, the 

specifications in Table 6 of ANSI S3.6–

2004 shall apply. For air-conduction 

insert earphones, the specifications in 

Table 7 of ANSI S3.6–2004 shall apply. 

Audiometers that do not meet these 

requirements must undergo an 

exhaustive calibration. 

(3) Exhaustive Calibration. An 

exhaustive calibration shall be 

performed in accordance with ANSI 

S3.6–2004, according to the following 

schedule: 

(i) At least once every two years on 

audiometers not used in mobile test 

vans. Test frequencies below 500 Hz 

and above 6000 Hz may be omitted from 

this calibration. 

(ii) At least annually on audiometers 

used in mobile test vans. 

§ 227.113 Noise operational controls. 

(a) Railroads may use noise 

operational controls at any sound level 

to reduce exposures to levels below 

those required by Table A–1 of 

appendix A of this part. 

(b) Railroads are encouraged to use 

noise operational controls when 

employees are exposed to sound 

exceeding an 8-hour TWA of 90 dB(A). 

§ 227.115 Hearing protectors. 

(a) General requirements for hearing 

protectors. 

(1) The railroad shall provide hearing 

protectors to employees at no cost to the 

employee. 

(2) The railroad shall replace hearing 

protectors as necessary. 

(3) When offering hearing protectors, 

a railroad shall consider an employee’s 

ability to understand and respond to 

voice radio communications and 

audible warnings. 

(4) The railroad shall give employees 

the opportunity to select their hearing 

protectors from a variety of suitable 

hearing protectors. The selection shall 

include devices with a range of 

attenuation levels. 

(5) The railroad shall provide training 

in the use and care of all hearing 

protectors provided to employees. 

(6) The railroad shall ensure proper 

initial fitting and supervise the correct 

use of all hearing protectors. 

(b) Availability of hearing protectors. 

A railroad shall make hearing protectors 

available to all employees exposed to 

sound levels that meet or exceed the 

action level. 

(c) Required use at action level. A 

railroad shall require the use of hearing 

protectors when an employee is exposed 

to sound levels that meet or exceed the 

action level, and the employee has: 

(1) Not yet had a baseline audiogram 

established pursuant to § 227.109; or 

(2) Experienced a standard threshold 

shift and is required to use hearing 

protectors under § 227.109(h). 

(d) Required use for TWA of 90 dB(A). 

The railroad shall require the use of 

hearing protectors when an employee is 

exposed to sound levels equivalent to an 

8-hour TWA of 90 dB(A) or greater. The 

hearing protectors should be used to 

reduce sound levels to within those 

levels required by appendix A of this 

part. 

§ 227.117 Hearing protector attenuation. 

(a) A railroad shall evaluate hearing 

protector attenuation for the specific 

noise environments in which the 

protector will be used. The railroad 

shall use one of the evaluation methods 

described in appendix B of this part; 

‘‘Methods for Estimating the Adequacy 

of Hearing Protector Attenuation.’’

(b) Hearing protectors shall attenuate 

employee exposure to an 8-hour TWA of 

90 decibels or lower, as required by 

§ 227.115. 

(c) For employees who have 

experienced a standard threshold shift, 

hearing protectors must attenuate 

employee exposure to an 8-hour timeweighted average of 85 decibels or 

lower. 

(d) The adequacy of hearing protector 

attenuation shall be re-evaluated 

whenever employee noise exposures 

increase to the extent that the hearing 

protectors provided may no longer 

provide adequate attenuation. A railroad 

shall provide more effective hearing 

protectors where necessary. 

§ 227.119 Training program. 

(a) The railroad shall institute an 

occupational noise and hearing 

conservation training program for all 

employees included in the hearing 

conservation program. 

(1) The railroad shall offer the training 

program to each employee included in 

the hearing conservation program at 

least once each calendar year. The 

interval between the date offered to any 

employee for the training in a calendar 

year and the date offered in the 

subsequent calendar year shall be no 

more than 450 days and no less than 

280 days. 

(2) The railroad shall require each 

employee included in the hearing 

conservation program to complete the 

training at least once every 1095 days. 

(b) The railroad shall provide the 

training required by paragraph (a) of this 

section in accordance with the 

following: 

(1) For employees hired after February 

26, 2007, within six months of the 

employee’s first tour of duty in a 

position identified within the scope of 

this part. 

(2) For employees hired on or before 

February 26, 2007, by Class 1, 

passenger, and commuter railroads, and 

railroads with 400,000 or more annual 

employee hours, by no later than 

February 26, 2009; 

(3) For employees hired on or before 

February 26, 2007, by railroads with 

fewer than 400,000 annual employee 

hours, by no later than February 26, 

2010. 


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(c) The training program shall include 

and the training materials shall reflect, 

at a minimum, information on all of the 

following: 

(1) The effects of noise on hearing; 

(2) The purpose of hearing protectors; 

(3) The advantages, disadvantages, 

and attenuation of various types of 

hearing protectors; 

(4) Instructions on selection, fitting, 

use, and care of hearing protectors; 

(5) The purpose of audiometric 

testing, and an explanation of the test 

procedures; 

(6) An explanation of noise 

operational controls, where used; 

(7) General information concerning 

the expected range of workplace noise 

exposure levels associated with major 

categories of railroad equipment and 

operations (e.g., switching and road 

assignments, hump yards near retarders, 

etc.) and appropriate reference to 

requirements of the railroad concerning 

use of hearing protectors; 

(8) The purpose of noise monitoring 

and a general description of monitoring 

procedures; 

(9) The availability of a copy of this 

part, an explanation of the requirements 

of this part as they affect the 

responsibilities of employees, and 

employees’ rights to access records 

under this part; 

(10) How to determine what can 

trigger an excessive noise report, 

pursuant to § 229.121(b); and 

(11) How to file an excessive noise 

report, pursuant to § 229.121(b). 

§ 227.121 Recordkeeping. 

(a) General requirements. 

(1) Availability of records. Each 

railroad required to maintain and retain 

records under this part shall: 

(i) Make all records available for 

inspection and copying/photocopying to 

representatives of the FRA, upon 

request; 

(ii) Make an employee’s records 

available for inspection and copying/ 

photocopying to that employee, former 

employee, or such person’s 

representative upon written 

authorization by such employee; 

(iii) Make exposure measurement 

records for a given run or yard available 

for inspection and copying/ 

photocopying to all employees who 

were present in the locomotive cab 

during the given run and/or who work 

in the same yard; and 

(iv) Make exposure measurement 

records for specific locations available 

to regional or national labor 

representatives, upon request. These 

reports shall not contain identifying 

information of an employee unless an 

employee authorizes the release of such 

information in writing. 

(2) Electronic records. All records 

required by this part may be kept in 

electronic form by the railroad. A 

railroad may maintain and transfer 

records through electronic transmission, 

storage, and retrieval provided that: 

(i) The electronic system be designed 

so that the integrity of each record is 

maintained through appropriate levels 

of security such as recognition of an 

electronic signature, or other means, 

which uniquely identify the initiating 

person as the author of that record. No 

two persons shall have the same 

electronic identity; 

(ii) The electronic system shall ensure 

that each record cannot be modified in 

any way, or replaced, once the record is 

transmitted and stored; 

(iii) Any amendment to a record shall 

be electronically stored apart from the 

record which it amends. Each 

amendment to a record shall be 

uniquely identified as to the person 

making the amendment; 

(iv) The electronic system shall 

provide for the maintenance of records 

as originally submitted without 

corruption or loss of data; and 

(v) Paper copies of electronic records 

and amendments to those records, that 

may be necessary to document 

compliance with this part shall be made 

available for inspection and copying/ 

photocopying by representatives of the 

FRA. 

(3) Transfer of records. If a railroad 

ceases to do business, it shall transfer to 

the successor employer all records 

required to be maintained under this 

subpart, and the successor employer 

shall retain them for the remainder of 

the period prescribed in this part. 

(b) Exposure measurements records. 

The railroad shall: 

(1) Maintain an accurate record of all 

employee exposure measurements 

required by § 227.103; and 

(2) Retain these records for the 

duration of the covered employee’s 

employment plus thirty years. 

(c) Audiometric test records. The 

railroad shall: 

(1) Maintain employee audiometric 

test records required by § 227.109, 

including: 

(i) The name and job classification of 

the employee; 

(ii) The date of the audiogram; 

(iii) The examiner’s name; 

(iv) The date of the last acoustic or 

exhaustive calibration of the 

audiometer; 

(v) Accurate records of the 

measurements of the background sound 

pressure levels in audiometric test 

rooms; 

(vi) The model and serial number of 

the audiometer used for testing; and 

(2) Retain the records required by 

§ 227.107 for the duration of the covered 

employee’s employment plus thirty 

years. 

(d) Positions and persons designated 

records. The railroad shall: 

(1) Maintain a record of all positions 

or persons or both designated by the 

railroad to be placed in a Hearing 

Conservation Program pursuant to 

§ 227.107; and 

(2) Retain these records for the 

duration of the designation. 

(e) Training program materials 

records. The railroad shall: 

(1) Maintain copies of all training 

program materials used to comply with 

§ 227.119(c) and a record of employees 

trained; and 

(2) Retain these copies and records for 

three years. 

(f) Standard threshold shift records. 

The railroad shall: 

(1) Maintain a record of all employees 

who have been found to have 

experienced a standard threshold shift 

within the prior calendar year and 

include all of the following information 

for each employee on the record: 

(i) Date of the employee’s baseline 

audiogram; 

(ii) Date of the employee’s most recent 

audiogram; 

(iii) Date of the establishment of a 

standard threshold shift; 

(iv) The employee’s job code; and 

(v) An indication of how many 

standard threshold shifts the employee 

has experienced in the past, if any; and 

(2) Retain these records for five years. 

Appendix A to Part 227—Noise 

Exposure Computation 

This appendix is mandatory. 

I. Computation of Employee Noise Exposure 

A. Noise dose is computed using Table A–

1 as follows: 

1. When the sound level, L, is constant 

over the entire work day, the noise dose, D, 

in percent, is given by: D = 100 C/T, where 

C is the total length of the work day, in 

hours, and T is the duration permitted 

corresponding to the measured sound level, 

L, as given in Table A–1. 

2. When the work day noise exposure is 

composed of two or more periods of noise at 

different levels, the total noise dose over the 

work day is given by: 

D = 100 (C1/T1 + C2/T2 + . . . + Cn/Tn), 

where Cn indicates the total time of exposure 

at a specific noise level, and Tn indicates the 

duration permitted for that level as given by 

Table A–1. 

B. The eight-hour TWA in dB may be 

computed from the dose, in percent, by 

means of the formula: TWA = 16.61 log10 (D/ 

100) + 90. For an eight-hour work day with 

the noise level constant over the entire day, 

the TWA is equal to the measured sound 

level. 


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C. Exposure to impulsive or impact noise 

should not exceed 140 dB peak sound 

pressure level. 

D. Any time that an employee spends 

deadheading shall be included in the 

calculation of the noise dose. 

E. A table relating dose and TWA is given 

in Section II of this Appendix. 

TABLE A–11

A-weighted sound level, L 

(decibel) 

Duration 

permitted 

T 

(hour) 

80 ............................................ 32 

81 ............................................ 27 .9 

82 ............................................ 24 .3 

83 ............................................ 21 .1 

84 ............................................ 18 .4 

85 ............................................ 16 

86 ............................................ 13 .9 

87 ............................................ 12 .1 

88 ............................................ 10 .6 

89 ............................................ 9 .2 

90 ............................................ 8 

91 ............................................ 7 .0 

92 ............................................ 6 .1 

93 ............................................ 5 .3 

94 ............................................ 4 .6 

95 ............................................ 4 

96 ............................................ 3 .5 

97 ............................................ 3 .0 

98 ............................................ 2 .6 

99 ............................................ 2 .3 

100 .......................................... 2 

101 .......................................... 1 .7 

102 .......................................... 1 .5 

103 .......................................... 1 .3 

104 .......................................... 1 .1 

105 .......................................... 1 

106 .......................................... 0 .87 

107 .......................................... 0 .76 

108 .......................................... 0 .66 

109 .......................................... 0 .57 

110 .......................................... 0 .5 

111 .......................................... 0 .44 

112 .......................................... 0 .38 

113 .......................................... 0 .33 

114 .......................................... 0 .29 

115 .......................................... 0 .25 

116 .......................................... 0 .22 

117 .......................................... 0 .19 

118 .......................................... 0 .16 

119 .......................................... 0 .14 

120 .......................................... 0 .125 

121 .......................................... 0 .11 

122 .......................................... 0 .095 

123 .......................................... 0 .082 

124 .......................................... 0 .072 

125 .......................................... 0 .063 

126 .......................................... 0 .054 

127 .......................................... 0 .047 

128 .......................................... 0 .041 

129 .......................................... 0 .036 

130 .......................................... 0 .031 

140 .......................................... 0 .078 

1 Numbers above 115 dB(A) are italicized to 

indicate that they are noise levels that are not 

permitted. The italicized numbers are included 

only because they are sometimes necessary 

for the computation of noise dose. 

In the above table the duration permitted, 

T, is computed by 

T L = ( ) −

8

2 90 5/

where L is the measured A-weighted sound 

level. 

II. Conversion Between ‘‘Dose’’ and ‘‘8-Hour 

Time-Weighted Average’’ Sound Level 

A. Compliance with subpart B of part 227 

is determined by the amount of exposure to 

noise in the workplace. The amount of such 

exposure is usually measured with a 

dosimeter which gives a readout in terms of 

‘‘dose.’’ In order to better understand the 

requirements of the regulation, dosimeter 

readings can be converted to an ‘‘8-hour 

TWA.’’

B. In order to convert the reading of a 

dosimeter into TWA, see Table A–2, below. 

This table applies to dosimeters that are set 

by the manufacturer to calculate dose or 

percent exposure according to the 

relationships in Table A–1. So, for example, 

a dose of 91 percent over an eight-hour day 

results in a TWA of 89.3 dB, and a dose of 

50 percent corresponds to a TWA of 85 dB. 

C. If the dose as read on the dosimeter is 

less than or greater than the values found in 

Table A–2, the TWA may be calculated by 

using the formula: TWA = 16.61 log10 (D/ 

100) + 90 where TWA = 8-hour timeweighted average sound level and D = 

accumulated dose in percent exposure. 

TABLE A–2.—CONVERSION FROM

‘‘PERCENT NOISE EXPOSURE’’ OR

‘‘DOSE’’ TO ‘‘8-HOUR TIME-WEIGHTED AVERAGE SOUND LEVEL’’ (TWA) 

Dose or percent noise 

exposure TWA 

10 .................................................... 73.4 

15 .................................................... 76.3 

20 .................................................... 78.4 

25 .................................................... 80.0 

30 .................................................... 81.3 

35 .................................................... 82.4 

40 .................................................... 83.4 

45 .................................................... 84.2 

50 .................................................... 85.0 

55 .................................................... 85.7 

60 .................................................... 86.3 

65 .................................................... 86.9 

70 .................................................... 87.4 

75 .................................................... 87.9 

80 .................................................... 88.4 

81 .................................................... 88.5 

82 .................................................... 88.6 

83 .................................................... 88.7 

84 .................................................... 88.7 

85 .................................................... 88.8 

86 .................................................... 88.9 

87 .................................................... 89.0 

88 .................................................... 89.1 

89 .................................................... 89.2 

90 .................................................... 89.2 

91 .................................................... 89.3 

92 .................................................... 89.4 

93 .................................................... 89.5 

94 .................................................... 89.6 

95 .................................................... 89.6 

96 .................................................... 89.7 

97 .................................................... 89.8 

98 .................................................... 89.9 

TABLE A–2.—CONVERSION FROM

‘‘PERCENT NOISE EXPOSURE’’ OR

‘‘DOSE’’ TO ‘‘8-HOUR TIME-WEIGHTED AVERAGE SOUND LEVEL’’

(TWA)—Continued 

Dose or percent noise 

exposure TWA 

99 .................................................... 89.9 

100 .................................................. 90.0 

101 .................................................. 90.1 

102 .................................................. 90.1 

103 .................................................. 90.2 

104 .................................................. 90.3 

105 .................................................. 90.4 

106 .................................................. 90.4 

107 .................................................. 90.5 

108 .................................................. 90.6 

109 .................................................. 90.6 

110 .................................................. 90.7 

111 .................................................. 90.8 

112 .................................................. 90.8 

113 .................................................. 90.9 

114 .................................................. 90.9 

115 .................................................. 91.1 

116 .................................................. 91.1 

117 .................................................. 91.1 

118 .................................................. 91.2 

119 .................................................. 91.3 

120 .................................................. 91.3 

125 .................................................. 91.6 

130 .................................................. 91.9 

135 .................................................. 92.2 

140 .................................................. 92.4 

145 .................................................. 92.7 

150 .................................................. 92.9 

155 .................................................. 93.2 

160 .................................................. 93.4 

165 .................................................. 93.6 

170 .................................................. 93.8 

175 .................................................. 94.0 

180 .................................................. 94.2 

185 .................................................. 94.4 

190 .................................................. 94.6 

195 .................................................. 94.8 

200 .................................................. 95.0 

210 .................................................. 95.4 

220 .................................................. 95.7 

230 .................................................. 96.0 

240 .................................................. 96.3 

250 .................................................. 96.6 

260 .................................................. 96.9 

270 .................................................. 97.2 

280 .................................................. 97.4 

290 .................................................. 97.7 

300 .................................................. 97.9 

310 .................................................. 98.2 

320 .................................................. 98.4 

330 .................................................. 98.6 

340 .................................................. 98.8 

350 .................................................. 99.0 

360 .................................................. 99.2 

370 .................................................. 99.4 

380 .................................................. 99.6 

390 .................................................. 99.8 

400 .................................................. 100.0 

410 .................................................. 100.2 

420 .................................................. 100.4 

430 .................................................. 100.5 

440 .................................................. 100.7 

450 .................................................. 100.8 

460 .................................................. 101.0 

470 .................................................. 101.2 

480 .................................................. 101.3 


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1OSHA and FRA use the same definition for 

Standard Threshold Shift (STS). FRA’s definition is 

located in § 227.5. OSHA’s definition is located in 

29 CFR 1910.95(g)(10)(i). 

2FRA and OSHA use the same age-correction 

provisions. FRA’s is found in appendix F of part 

227 and OSHA’s in appendix F of 29 CFR 1910.95. 

TABLE A–2.—CONVERSION FROM

‘‘PERCENT NOISE EXPOSURE’’ OR

‘‘DOSE’’ TO ‘‘8-HOUR TIME-WEIGHTED AVERAGE SOUND LEVEL’’

(TWA)—Continued 

Dose or percent noise 

exposure TWA 

490 .................................................. 101.5 

500 .................................................. 101.6 

510 .................................................. 101.8 

520 .................................................. 101.9 

530 .................................................. 102.0 

540 .................................................. 102.2 

550 .................................................. 102.3 

560 .................................................. 102.4 

570 .................................................. 102.6 

580 .................................................. 102.7 

590 .................................................. 102.8 

600 .................................................. 102.9 

610 .................................................. 103.0 

620 .................................................. 103.2 

630 .................................................. 103.3 

640 .................................................. 103.4 

650 .................................................. 103.5 

660 .................................................. 103.6 

670 .................................................. 103.7 

680 .................................................. 103.8 

690 .................................................. 103.9 

700 .................................................. 104.0 

710 .................................................. 104.1 

720 .................................................. 104.2 

730 .................................................. 104.3 

740 .................................................. 104.4 

750 .................................................. 104.5 

760 .................................................. 104.6 

770 .................................................. 104.7 

780 .................................................. 104.8 

790 .................................................. 104.9 

800 .................................................. 105.0 

810 .................................................. 105.1 

820 .................................................. 105.2 

830 .................................................. 105.3 

840 .................................................. 105.4 

850 .................................................. 105.4 

860 .................................................. 105.5 

870 .................................................. 105.6 

880 .................................................. 105.7 

890 .................................................. 105.8 

900 .................................................. 105.8 

910 .................................................. 105.9 

920 .................................................. 106.0 

930 .................................................. 106.1 

940 .................................................. 106.2 

950 .................................................. 106.2 

960 .................................................. 106.3 

970 .................................................. 106.4 

980 .................................................. 106.5 

990 .................................................. 106.5 

999 .................................................. 106.6 

Appendix B to Part 227—Methods for 

Estimating the Adequacy of Hearing 

Protector Attenuation 

This appendix is mandatory. 

Employers must select one of the following 

three methods by which to estimate the 

adequacy of hearing protector attenuation. 

I. Derate by Type 

Derate the hearing protector attenuation by 

type using the following requirements: 

A. Subtract 7 dB from the published Noise 

Reduction Rating (NRR). 

B. Reduce the resulting amount by: 

1. 20% for earmuffs, 

2. 40% for form-able earplugs, or 

3. 60% for all other earplugs. 

C. Subtract the remaining amount from the 

A-weighted TWA. You will have the 

estimated A-weighted TWA for that hearing 

protector. 

II. Method B From ANSI S12.6–1997 

(Reaffirmed 2002) 

Use Method B, which is found in ANSI 

S12.6–1997 (Reaffirmed 2002) ‘‘Methods for 

Measuring the Real-Ear Attenuation of 

Hearing Protectors.’’ The Director of the 

Federal Register approves the incorporation 

by reference of this standard in accordance 

with 5 U.S.C. 552(a) and 1 CFR part 51. You 

may obtain a copy of the incorporated 

standard from the American National 

Standards Institute at 1819 L Street, NW., 

Washington, DC 20036, or http:// 

www.ansi.org. You may inspect a copy of the 

incorporated standard at the Federal Railroad 

Administration, Docket Room, 1120 Vermont 

Ave., Suite 700, Washington, DC 20005, or at 

the National Archives and Records 

Administration (NARA). For information on 

the availability of this material at NARA, call 

202–741–6030, or go to http:// 

www.archives.gov/federal_register/code_of_

federal_regulations/ibr_locations.html. 

III. Objective Measurement 

Use actual measurements of the level of 

noise exposure (as an A-weighted SLOW 

response dose) inside the hearing protector 

when the employee wears the hearing 

protector in the actual work environment. 

Appendix C to Part 227—Audiometric 

Baseline Revision 

This appendix is mandatory beginning on 

February 26, 2009. 

I. General 

A. A professional reviewer (audiologist, 

otolaryngologist, or physician) shall use these 

procedures when revising baseline 

audiograms. 

B. Although these procedures can be 

programmed by a computer to identify 

records for potential revision, the final 

decision for revision rests with a human 

being. Because the goal of the guidelines is 

to foster consistency among different 

professional reviewers, human override of 

the guidelines must be justified by specific 

concrete reasons. 

C. These procedures do not apply to: The 

identification of standard threshold shifts 

(STS) other than an FRA STS 1 or to the 

calculation of the 25-dB average shifts that 

are reportable on the Form FRA F 6180.55a. 

D. Initially, the baseline is the latest 

audiogram obtained before entry into the 

hearing conservation program. If no 

appropriate pre-entry audiogram exists, the 

baseline is the first audiogram obtained after 

entry into the hearing conservation program. 

Each subsequent audiogram is reviewed to 

detect improvement in the average (average 

of thresholds at 2, 3, and 4 kHz) and to detect 

an FRA STS. The two ears are examined 

separately and independently for 

improvement and for worsening. If one ear 

meets the criteria for revision of baseline, 

then the baseline is revised for that ear only. 

Therefore, if the two ears show different 

hearing trends, the baseline for the left ear 

may be from one test date, while the baseline 

for the right ear may be from a different test 

date. 

E. Age corrections do not apply in 

considering revisions for improvement (Rule 

1). The FRA-allowed age corrections from 

appendix F of Part 227 2 may be used, if 

desired, before considering revision for 

persistent STS. Rule 2 operates in the same 

way, whether age corrections are used or not. 

II. Rule 1: Revision for Persistent 

Improvement 

If the average of the thresholds for 2, 3, and 

4 kHz for either ear shows an improvement 

of 5 dB or more from the baseline value, and 

the improvement is present on one test and 

persistent on the next test, then the record 

should be identified for review by the 

audiologist, otolaryngologist, or physician for 

potential revision of the baseline for 

persistent improvement. The baseline for that 

ear should be revised to the test which shows 

the lower (more sensitive) value for the 

average of thresholds at 2, 3, and 4 kHz 

unless the audiologist, otolaryngologist, or 

physician determines and documents 

specific reasons for not revising. If the values 

of the three-frequency average are identical 

for the two tests, then the earlier test becomes 

the revised baseline. 

III. Rule 2: Revision for Persistent Standard 

Threshold Shift 

A. If the average of thresholds for 2, 3, and 

4 kHz for either ear shows a worsening of 10 

dB or more from the baseline value, and the 

STS persists on the next periodic test (or the 

next test given at least 6 months later), then 

the record should be identified for review by 

the audiologist, otolaryngologist, or 

physician for potential revision of the 

baseline for persistent worsening. Unless the 

audiologist, otolaryngologist, or physician 

determines and documents specific reasons 

for not revising, the baseline for that ear 

should be revised to the test which shows the 

lower (more sensitive) value for the average 

of thresholds at 2, 3, and 4 kHz. If both tests 

show the same numerical value for the 

average of 2, 3, and 4 kHz, then the 

audiologist, otolaryngologist, or physician 

should revise the baseline to the earlier of the 

two tests, unless the later test shows better 

(more sensitive) thresholds for other test 

frequencies. 

B. Following an STS, a retest within 90 

days of the periodic test may be substituted 

for the periodic test if the retest shows better 

(more sensitive) results for the average 

threshold at 2, 3, and 4 kHz. 

C. If the retest is used in place of the 

periodic test, then the periodic test is 

retained in the record, but it is marked in 


rmajette on PROD1PC67 with RULES2
63132 Federal Register / Vol. 71, No. 208 / Friday, October 27, 2006 / Rules and Regulations 

such a way that it is no longer considered in 

baseline revision evaluations. If a retest 

within 90 days of periodic test confirms an 

FRA STS shown on the periodic test, the 

baseline will not be revised at that point 

because the required six-month interval 

between tests showing STS persistence has 

not been met. The purpose of the six-month 

requirement is to prevent premature baseline 

revision when STS is the result of temporary 

medical conditions affecting hearing. 

D. Although a special retest after six 

months could be given, if desired, to assess 

whether the STS is persistent, in most cases, 

the next annual audiogram would be used to 

evaluate persistence of the STS. 

Appendix D to Part 227—Audiometric 

Test Rooms 

This appendix is mandatory. 

A. Rooms used for audiometric testing 

shall not have background sound pressure 

levels exceeding those in Table D–1 when 

measured by equipment conforming at least 

to the Type 2 requirements of ANSI S1.4–

1983 (Reaffirmed 2001) and to the Class 2 

requirements of ANSI S1.11–2004, 

‘‘Specification for Octave-Band and 

Fractional-Octave-Band Analog and Digital 

Filters.’’

B. The Director of the Federal Register 

approves the incorporation by reference of 

ANSI S1.4–1983 (Reaffirmed 2001) and 

S.1.11–2004 in this section in accordance 

with 5 U.S.C. 552(a) and 1 CFR part 51. You 

may obtain a copy of the incorporated 

standard from the American National 

Standards Institute at 1819 L Street, NW., 

Washington, DC 20036 or http:// 

www.ansi.org. You may inspect a copy of the 

incorporated standard at the Federal Railroad 

Administration, Docket Room, 1120 Vermont 

Ave., NW., Suite 700, Washington, DC 20005, 

or at the National Archives and Records 

Administration (NARA). For information on 

the availability of this material at NARA, call 

202–741–6030, or go to http:// 

www.archives.gov/federal_register/ 

code_of_federal_regulations/ 

ibr_locations.html. 

TABLE D–1.—MAXIMUM ALLOWABLE OCTAVE-BAND SOUND PRESSURE LEVELS FOR AUDIOMETRIC TEST ROOMS

Octave-band center frequency (Hz) 500 1000 2000 4000 8000 

Sound pressure levels—supra-aural earphones ............................................... 40 40 47 57 62 

Sound pressure levels—insert earphones ......................................................... 50 47 49 50 56 

Appendix E to Part 227—Use of Insert 

Earphones for Audiometric Testing 

This appendix is mandatory. 

Section 227.111(d) allows railroads to use 

insert earphones for audiometric testing. 

Railroads are not required to use insert 

earphones, however, where they elect to use 

insert earphones, they must comply with the 

requirements of this appendix. 

I. Acceptable Fit 

A. The audiologist, otolaryngologist, or 

other physician responsible for conducting 

the audiometric testing, shall identify ear 

canals that prevent achievement of an 

acceptable fit with insert earphones, or shall 

assure that any technician under his/her 

authority who conducts audiometric testing 

with insert earphones has the ability to 

identify such ear canals. 

B. Technicians who conduct audiometric 

tests must be trained to insert the earphones 

correctly into the ear canals of test subjects 

and to recognize conditions where ear canal 

size prevents achievement of an acceptable 

insertion depth (fit). 

C. Insert earphones shall not be used for 

audiometric testing of employees with ear 

canal sizes that prevent achievement of an 

acceptable insertion depth (fit). 

II. Proper Use 

The manufacturer’s guidelines for proper 

use of insert earphones must be followed. 

III. Audiometer Calibration 

A. Audiometers used with insert earphones 

must be calibrated in accordance with ANSI 

S3.6–2004, ‘‘Specification for Audiometers.’’

The Director of the Federal Register approves 

the incorporation by reference of this 

standard in this section in accordance with 

5 U.S.C. 552(a) and 1 CFR part 51. You may 

obtain a copy of the incorporated standard 

from the American National Standards 

Institute at 1819 L Street, NW., Washington, 

DC 20036 or http://www.ansi.org. You may 

inspect a copy of the incorporated standard 

at the Federal Railroad Administration, 

Docket Room, 1120 Vermont Ave., NW., 

Suite 700, Washington, DC 20005, or at the 

National Archives and Records 

Administration (NARA). For information on 

the availability of this material at NARA, call 

202–741–6030, or go to http:// 

www.archives.gov/federal_register/ 

code_of_federal_regulations/ 

ibr_locations.html. 

B. Audiometers used with insert earphones 

must be calibrated using one of the couplers 

listed in Table 7 of ANSI S3.6–2004. 

C. The acoustical calibration shall be 

conducted annually. 

D. The functional calibration must be 

conducted before each day’s use of the 

audiometer. 

IV. Background Noise Levels 

Testing shall be conducted in a room 

where the background ambient noise octaveband sound pressures levels meet appendix 

D to this part. 

V. Conversion From Supra Aural Earphones 

At the time of conversion from supra-aural 

to insert earphones, testing must be 

performed with both types of earphones. 

A. The test subject must have a quiet 

period of at least 14 hours before testing. 

Hearing protectors may be used as a 

substitute for the quiet period. 

B. The supra-aural earphone audiogram 

shall be compared to the baseline audiogram, 

or the revised baseline audiogram if 

appropriate, to check for a Standard 

Threshold Shift (STS). In accordance with 

§ 227.109(f)(2), if the audiogram shows an 

STS, retesting with supra-aural earphones 

must be performed within 90 days. If the 

resulting audiogram confirms the STS, then 

it is adopted as the current test instead of the 

prior one. 

C. If retesting with supra-aural earphones 

is performed, then retesting with insert 

earphones must be performed at that time to 

establish the baseline for future audiometric 

tests using the insert earphones. 

VI. Revised Baseline Audiograms 

A. If an STS is confirmed by the re-test 

with supra-aural earphones, the audiogram 

may become the revised baseline audiogram 

per the requirements of § 227.109(i) for all 

future hearing tests with supra-aural 

earphones. The insert-earphone audiogram 

will become the new reference baseline 

audiogram for all future hearing tests 

performed with insert earphones. 

B. If an STS is not indicated by the test 

with supra-aural earphones, the baseline 

audiogram remains the reference baseline 

audiogram for all future supra-aural earphone 

tests, until such time as an STS is observed. 

In this case, the insert-earphone audiogram 

taken at the same time will become the new 

reference baseline audiogram for all future 

hearing tests performed with insert 

earphones. 

C. Transitioning Employees with Partial 

Shifts. Employers must account for the 

workers who are in the process of developing 

an STS (e.g., demonstrate a 7 dB average 

shift), but who at the time of the conversion 

to insert earphones do not have a 10 dB 

average shift. Employers who want to use 

insert earphones must enter the 7 dB shift 

information in the employee’s audiometric 

test records although it is not an ‘‘STS’’. 

When the next annual audiogram using insert 

earphones shows an average threshold shift 

at 2000, 3000 and 4000 Hz of 3 dB, 

completing the full shift (7 dB + 3 dB), 

employers must then label that average shift 

as an STS. This triggers the follow-up 

procedures at § 227.109(h). 

VII. Records 

All audiograms (including both those 

produced through the use of insert earphones 

and supra-aural headsets), calculations, puretone individual and average threshold shifts, 

full STS migrations, and audiometric 

acoustical calibration records, are to be 

preserved as records and maintained 

according to § 227.121(c). 


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Appendix F to Part 227—Calculations 

and Application of Age Corrections to 

Audiograms 

This appendix is non-mandatory. 

In determining whether a standard 

threshold shift (STS) has occurred, allowance 

may be made for the contribution of aging to 

the change in hearing level by adjusting the 

most recent audiogram. If the employer 

chooses to adjust the audiogram, the 

employer shall follow the procedure 

described below. This procedure and the age 

correction tables were developed by the 

National Institute for Occupational Safety 

and Health in a criteria document. See 

‘‘Criteria for a Recommended Standard: 

Occupational Exposure to Noise,’’

Department of Health and Human Services 

(NIOSH) Publication No. 98–126. For each 

audiometric test frequency: 

I. Determine from Tables F–1 or F–2 the 

age correction values for the employee by: 

A. Finding the age at which the most 

recent audiogram was taken and recording 

the corresponding values of age corrections at 

1000 Hz through 6000 Hz; 

B. Finding the age at which the baseline 

audiogram was taken and recording the 

corresponding values of age corrections at 

1000 Hz through 6000 Hz. 

II. Subtract the values found in step (I)(B) 

from the value found in step (I)(A). 

III. The differences calculated in step (II) 

represented that portion of the change in 

hearing that may be due to aging. 

Example: Employee is a 32-year-old male. 

The audiometric history for his right ear is 

shown in decibels below. 

Employee’s age 

Audiometric test frequency 

(Hz) 

1000 2000 3000 4000 6000 

26 ....................................................................................................................... 10 5 5 10 5 

27* ...................................................................................................................... 0 0 0 5 5 

28 ....................................................................................................................... 0 0 0 10 5 

29 ....................................................................................................................... 5 0 5 15 5 

30 ....................................................................................................................... 0 5 10 20 10 

31 ....................................................................................................................... 5 10 20 15 15 

32* ...................................................................................................................... 5 10 10 25 20 

a. The audiogram at age 27 is considered 

the baseline since it shows the best hearing 

threshold levels. Asterisks have been used to 

identify the baseline and most recent 

audiogram. A threshold shift of 20 dB exists 

at 4000 Hz between the audiograms taken at 

ages 27 and 32. 

b. (The threshold shift is computed by 

subtracting the hearing threshold at age 27, 

which was 5, from the hearing threshold at 

age 32, which is 25). A retest audiogram has 

confirmed this shift. The contribution of 

aging to this change in hearing may be 

estimated in the following manner: 

c. Go to Table F–1 and find the age 

correction values (in dB) for 4000 Hz at age 

27 and age 32. 

Frequency 

(Hz) 

1000 2000 3000 4000 6000 

Age 32 ................................................................................................................ 6 5 7 10 14 

Age 27 ................................................................................................................ 5 4 6 7 11 

Difference .................................................................................................... 1 1 1 3 3 

d. The difference represents the amount of 

hearing loss that may be attributed to aging 

in the time period between the baseline 

audiogram and the most recent audiogram. In 

this example, the difference at 4000 Hz is 3 

dB. This value is subtracted from the hearing 

level at 4000 Hz, which in the most recent 

audiogram is 25, yielding 22 after 

adjustment. Then the hearing threshold in 

the baseline audiogram at 4000 Hz (5) is 

subtracted from the adjusted annual 

audiogram hearing threshold at 4000 Hz (22). 

Thus the age-corrected threshold shift would 

be 17 dB (as opposed to a threshold shift of 

20 dB without age correction). 

TABLE F–1.—AGE CORRECTION VALUES IN DECIBELS FOR MALES

Years 

Audiometric test frequencies 

(Hz) 

1000 2000 3000 4000 6000 

20 or younger ..................................................................................................... 5 3 4 5 8 

21 ....................................................................................................................... 5 3 4 5 8 

22 ....................................................................................................................... 5 3 4 5 8 

23 ....................................................................................................................... 5 3 4 6 9 

24 ....................................................................................................................... 5 3 5 6 9 

25 ....................................................................................................................... 5 3 5 7 10 

26 ....................................................................................................................... 5 4 5 7 10 

27 ....................................................................................................................... 5 4 6 7 11 

28 ....................................................................................................................... 6 4 6 8 11 

29 ....................................................................................................................... 6 4 6 8 12 

30 ....................................................................................................................... 6 4 6 9 12 

31 ....................................................................................................................... 6 4 7 9 13 

32 ....................................................................................................................... 6 5 7 10 14 

33 ....................................................................................................................... 6 5 7 10 14 

34 ....................................................................................................................... 6 5 8 11 15 

35 ....................................................................................................................... 7 5 8 11 15 


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63134 Federal Register / Vol. 71, No. 208 / Friday, October 27, 2006 / Rules and Regulations 

TABLE F–1.—AGE CORRECTION VALUES IN DECIBELS FOR MALES—Continued 

Years 

Audiometric test frequencies 

(Hz) 

1000 2000 3000 4000 6000 

36 ....................................................................................................................... 7 5 9 12 16 

37 ....................................................................................................................... 7 6 9 12 17 

38 ....................................................................................................................... 7 6 9 13 17 

39 ....................................................................................................................... 7 6 10 14 18 

40 ....................................................................................................................... 7 6 10 14 19 

41 ....................................................................................................................... 7 6 10 14 20 

42 ....................................................................................................................... 8 7 11 16 20 

43 ....................................................................................................................... 8 7 12 16 21 

44 ....................................................................................................................... 8 7 12 17 22 

45 ....................................................................................................................... 8 7 13 18 23 

46 ....................................................................................................................... 8 8 13 19 24 

47 ....................................................................................................................... 8 8 14 19 24 

48 ....................................................................................................................... 9 8 14 20 25 

49 ....................................................................................................................... 9 9 15 21 26 

50 ....................................................................................................................... 9 9 16 22 27 

51 ....................................................................................................................... 9 9 16 23 28 

52 ....................................................................................................................... 9 10 17 24 29 

53 ....................................................................................................................... 9 10 18 25 30 

54 ....................................................................................................................... 10 10 18 26 31 

55 ....................................................................................................................... 10 11 19 27 32 

56 ....................................................................................................................... 10 11 20 28 34 

57 ....................................................................................................................... 10 11 21 29 35 

58 ....................................................................................................................... 10 12 22 31 36 

59 ....................................................................................................................... 11 12 22 32 37 

60 or older .......................................................................................................... 11 13 23 33 38 

TABLE F–2.—AGE CORRECTION VALUES IN DECIBELS FOR FEMALES

Years 

Audiometric test frequencies 

(Hz) 

1000 2000 3000 4000 6000 

20 or younger ..................................................................................................... 7 4 3 3 6 

21 ....................................................................................................................... 7 4 4 3 6 

22 ....................................................................................................................... 7 4 4 4 6 

23 ....................................................................................................................... 7 5 4 4 7 

24 ....................................................................................................................... 7 5 4 4 7 

25 ....................................................................................................................... 8 5 4 4 7 

26 ....................................................................................................................... 8 5 5 4 8 

27 ....................................................................................................................... 8 5 5 5 8 

28 ....................................................................................................................... 8 5 5 5 8 

29 ....................................................................................................................... 8 5 5 5 9 

30 ....................................................................................................................... 8 6 5 5 9 

31 ....................................................................................................................... 8 6 6 5 9 

32 ....................................................................................................................... 9 6 6 6 10 

33 ....................................................................................................................... 9 6 6 6 10 

34 ....................................................................................................................... 9 6 6 6 10 

35 ....................................................................................................................... 9 6 7 7 11 

36 ....................................................................................................................... 9 7 7 7 11 

37 ....................................................................................................................... 9 7 7 7 12 

38 ....................................................................................................................... 10 7 7 7 12 

39 ....................................................................................................................... 10 7 8 8 12 

40 ....................................................................................................................... 10 7 8 8 13 

41 ....................................................................................................................... 10 8 8 8 13 

42 ....................................................................................................................... 10 8 9 9 13 

43 ....................................................................................................................... 11 8 9 9 14 

44 ....................................................................................................................... 11 8 9 9 14 

45 ....................................................................................................................... 11 8 10 10 15 

46 ....................................................................................................................... 11 9 10 10 15 

47 ....................................................................................................................... 11 9 10 11 16 

48 ....................................................................................................................... 12 9 11 11 16 

49 ....................................................................................................................... 12 9 11 11 16 

50 ....................................................................................................................... 12 10 11 12 17 

51 ....................................................................................................................... 12 10 12 12 17 

52 ....................................................................................................................... 12 10 12 13 18 

53 ....................................................................................................................... 13 10 13 13 18 

54 ....................................................................................................................... 13 11 13 14 19 

55 ....................................................................................................................... 13 11 14 14 19 


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TABLE F–2.—AGE CORRECTION VALUES IN DECIBELS FOR FEMALES—Continued 

Years 

Audiometric test frequencies 

(Hz) 

1000 2000 3000 4000 6000 

56 ....................................................................................................................... 13 11 14 15 20 

57 ....................................................................................................................... 13 11 15 15 20 

58 ....................................................................................................................... 14 12 15 16 21 

59 ....................................................................................................................... 14 12 16 16 21 

60 or older .......................................................................................................... 14 12 16 17 22 

Appendix G to Part 227—Schedule of 

Civil Penalties 

Section Violation Willful 

violation 

Subpart A—General 

227.3 Application: 

(b)(4) Failure to meet the required conditions for foreign railroad operations ......................................................... $2,500 $5,000 

Subpart B—General Requirements 

227.103 Noise monitoring program: 

(a) Failure to develop and/or implement a noise monitoring program .................................................................... 7,500 10,000 

(b) Failure to use sampling as required ................................................................................................................... 2,500 5,000 

(c) Failure to integrate sound levels and/or make noise measurements as required ............................................. 2,500 5,000 

(d) Failure to repeat noise monitoring where required ............................................................................................ 2,500 5,000 

(e) Failure to consider work environments where hearing protectors may be omitted ........................................... 2,500 5,000 

(f) Failure to provide opportunity to observe monitoring .......................................................................................... 2,000 4,000 

(g) Reporting of Monitoring Results: 

(1) Failure to notify monitored employee .......................................................................................................... 2,500 5,000 

(2) Failure to post results as required ............................................................................................................... 2,500 5,000 

227.105 Protection of employees: 

(a) Failure to provide appropriate protection to exposed employee ........................................................................ 7,500 10,000 

(b) Failure to observe and document source(s) of noise exposures ....................................................................... 2,500 5,000 

(c)–(d) Failure to protect employee from impermissible continuous noise .............................................................. 5,000 7,500 

227.107 Hearing conservation program: 

(a) Failure to administer a HCP ............................................................................................................................... 7,500 10,000 

(b) Failure to compute noise exposure as required ................................................................................................. 3,500 7,000 

227.109 Audiometric testing program: 

(a) Failure to establish and/or maintain an audiometric testing program ................................................................ 7,500 10,000 

(b) Failure to provide audiometric test at no cost to employee ............................................................................... 2,500 5,000 

(c) Failure to have qualified person perform audiometric test ................................................................................. 2,500 5,000 

(d) [Reserved] ........................................................................................................................................................... .................... ....................

(e) Failure to establish baseline audiogram as required ......................................................................................... 3,500 7,000 

(f) Failure to offer and/or require periodic audiograms as required ......................................................................... 2,500 5,000 

(g) Failure to evaluate audiogram as required ......................................................................................................... 2,500 5,000 

(h) Failure to comply with follow-up procedures as required ................................................................................... 2,500 5,000 

(i) Failure to use required method for revising baseline audiograms ...................................................................... 2,500 5,000 

227.111 Audiometric test requirements: 

(a) Failure to conduct test as required ..................................................................................................................... 2,500 5,000 

(b) Failure to use required equipment ...................................................................................................................... 2,500 5,000 

(c) Failure to administer test in room that meets requirements ............................................................................... 2,500 5,000 

(d) Complete failure to calibrate ............................................................................................................................... 5,000 7,500 

(1) Failure to perform daily calibration as required ........................................................................................... 2,000 4,000 

(2) Failure to perform annual calibration as required ....................................................................................... 2,000 4,000 

(3) Failure to perform exhaustive calibration as required ................................................................................. 2,000 4,000 

227.115 Hearing protectors (HP): 

(a) Failure to comply with general requirements ..................................................................................................... 3,000 6,000 

(b) Failure to make HP available as required .......................................................................................................... 2,500 5,000 

(c) Failure to require use of HP at action level ........................................................................................................ 5,000 7,500 

(d) Failure to require use of HP at TWA of 90 dB(A) .............................................................................................. 5,000 7,500 

227.117 Hearing protector attenuation: 

(a) Failure to evaluate attenuation as required ........................................................................................................ 2,500 5,000 

(b)–(c) Failure to attenuate to required level ........................................................................................................... 2,500 5,000 

(d) Failure to re-evaluate attenuation ....................................................................................................................... 2,500 5,000 

227.119 Training program: 

(a) Failure to institute a training program as required ............................................................................................. 5,000 7,500 

(b) Failure to provide training within required time frame ........................................................................................ 2,500 5,000 

(c) Failure of program and/or training materials to include required information .................................................... 2,500 5,000 

227.121 Recordkeeping: 

(a) General Requirements: 

(1) Failure to make record available as required .............................................................................................. 2,500 5,000 


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Section Violation Willful 

violation 

(3) Failure to transfer or retain records as required ......................................................................................... 2,000 4,000 

(b)–(f) Records: 

(1) Failure to maintain record or failure to maintain record with required information ..................................... 2,000 4,000 

(2) Failure to retain records for required time period ....................................................................................... 2,000 4,000 

PART 229—[AMENDED] 

■ 2. The authority citation for part 229 

continues to read as follows: 

Authority: 49 U.S.C. 20102–03, 20107, 

20133, 20137–38, 20143, 20701–03, 21301–

02, 21304; 49 CFR 1.49. 

■ 3. Section 229.4 is amended by 

revising paragraph (b) to read as follows: 

§ 229.4 Information collection. 

* * * * * 

(b) The information collection 

requirements are found in the following 

sections: §§ 229.9, 229.17, 229.21, 

229.23, 229.25, 229.27, 229.29, 229.31, 

229.33, 229.55, 229.103, 229.105, 

229.113, 229.121, 229.135, and 

appendix H to part 229. 

■ 4. Section 229.5 is amended by 

adding, in alphabetical order, the 

following definitions. 

§ 229.5 Definitions. 

* * * * * 

dB(A) means the sound pressure level 

in decibels measured on the A-weighted 

scale. 

* * * * * 

Decibel (dB) means a unit of 

measurement of sound pressure levels. 

* * * * * 

Excessive noise report means a report 

by a locomotive cab occupant that the 

locomotive is producing an unusual 

level of noise that significantly 

interferes with normal cab 

communications or that is a concern 

with respect to hearing conservation. 

* * * * * 

Upper 99% confidence limit means 

the noise level below which 99% of all 

noise level measurements must lie. 

* * * * * 

■ 5. Section 229.121 is revised to read 

as follows: 

§ 229.121 Locomotive cab noise 

(a) Performance Standards for 

Locomotives. 

(1) When tested for static noise in 

accordance with paragraph (a)(3) of this 

section, all locomotives of each design 

or model that are manufactured after 

October 29, 2007, shall average less than 

or equal to 85 dB(A), with an upper 

99% confidence limit of 87 dB(A). The 

railroad may rely on certification from 

the equipment manufacturer for a 

production run that this standard is met. 

The manufacturer may determine the 

average by testing a representative 

sample of locomotives or an initial 

series of locomotives, provided that 

there are suitable manufacturing quality 

controls and verification procedures in 

place to ensure product consistency. 

(2) In the maintenance of locomotives 

that are manufactured in accordance 

with paragraph (a)(1) of this section, a 

railroad shall not make any alterations 

that cause the average sound level for 

that locomotive design or model to 

exceed: 

(i) 82 dB(A) if the average sound level 

for a locomotive design or model is less 

than 82 dB(A); or 

(ii) 85 dB(A) if the average sound 

level for a locomotive design or model 

is 82 dB(A) to 85 dB(A), inclusive, 

(3) The railroad or manufacturer shall 

follow the static test protocols set forth 

in appendix H of this part to determine 

compliance with paragraph (a)(1) of this 

section; and, to the extent reasonably 

necessary to evaluate the effect of 

alterations during maintenance, to 

determine compliance with paragraph 

(a)(2) of this section. 

(b) Maintenance of Locomotives. 

(1) If a railroad receives an excessive 

noise report, and if the condition giving 

rise to the noise is not required to be 

immediately corrected under part 229, 

the railroad shall maintain a record of 

the report, and repair or replace the item 

identified as substantially contributing 

to the noise: 

(i) on or before the next periodic 

inspection required by § 229.23; or 

(ii) if the railroad determines that the 

repair or replacement of the item 

requires significant shop or material 

resources that are not readily available, 

at the time of the next major equipment 

repair commonly used for the particular 

type of maintenance needed. 

(2) Conditions that may lead a 

locomotive cab occupant to file an 

excessive noise report include, but are 

not limited to: defective cab window 

seals; defective cab door seals; broken or 

inoperative windows; deteriorated 

insulation or insulation that has been 

removed for other reasons; broken or 

inoperative doors; and air brakes that 

vent inside of the cab. 

(3) A railroad has an obligation to 

respond to an excessive noise report 

that a locomotive cab occupant files. 

The railroad meets its obligation to 

respond to an excessive noise report, as 

set forth in paragraph (b)(1) of this 

section, if the railroad makes a good 

faith effort to identify the cause of the 

reported noise, and where the railroad 

is successful in determining the cause, 

if the railroad repairs or replaces the 

items cause the noise. 

(4) Recordkeeping. 

(i) A railroad shall maintain a written 

or electronic record of any excessive 

noise report, inspection, test, 

maintenance, replacement, or repair 

completed pursuant to § 229.121(b) and 

the date on which that inspection, test, 

maintenance, replacement, or repair 

occurred. If a railroad elects to maintain 

an electronic record, the railroad must 

satisfy the conditions listed in 

§ 227.121(a)(2)(i) through (v). 

(ii) The railroad shall retain these 

records for 92 days if they are made 

pursuant to § 229.21, or for one year if 

they are made pursuant to § 229.23. 

(iii)The railroad shall establish an 

internal, auditable, monitorable system 

that contains these records. 

■ 6. Appendix B to part 229 is amended 

by revising the entry related to § 229.121 

to read as follows: 

Appendix B to Part 229—Schedule of 

Civil Penalties 

* * * * * 

Section Violation Willful 

violation 

* * * * * * * 

229.121 Locomotive Cab Noise: 

(a) Performance Standards 


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Section Violation Willful 

violation 

(1) Failure to meet sound level ......................................................................................................................... 5,000 7,500 

(2) Improper maintenance alterations ............................................................................................................... 2,500 5,000 

(3) Failure to comply with static test protocols ................................................................................................. 2,500 5,000 

(b) Maintenance of Locomotives 

(1) Failure to maintain excessive noise report record or respond to report as required .................................. 2,500 5,000 

(3) Failure to make good faith effort as required .............................................................................................. 2,500 5,000 

(4) Failure to maintain record as required ........................................................................................................ 2,000 4,000 

* * * * * * * 

* * * * * 

■ 7. Appendices F and G are added to 

part 229 and reserved. 

■ 8. Appendix H is added to part 229 to 

read as follows: 

Appendix H to Part 229: Static Noise 

Test Protocols—In-Cab Static 

This appendix prescribes the procedures 

for the in-cab static measurements of 

locomotives. 

I. Measurement Instrumentation 

The instrumentation used should conform 

to the following: An integrating-averaging 

sound level meter shall meet all the 

requirements of ANSI S1.43–1997 

(Reaffirmed 2002), ‘‘Specifications for 

Integrating-Averaging Sound Level Meters,’’

for a Type 1 Instrument. In the event that a 

Type 1 instrument is not available, the 

measurements may be conducted with a 

Type 2 instrument. The acoustic calibrator 

shall meet the requirement of the ANSI 

S1.40–1984 (Reaffirmed 2001), ‘‘Specification 

for Acoustical Calibrators.’’ The Director of 

the Federal Register approves the 

incorporation by reference of ANSI S1.43–

1997 (Reaffirmed 2002) and ANSI S1.40–

1984 (Reaffirmed 2001) in this section in 

accordance with 5 U.S.C. 552(a) and 1 CFR 

part 51. You may obtain a copy of the 

incorporated standards from the American 

National Standards Institute at 1819 L Street, 

NW., Washington, DC 20036 or http:// 

www.ansi.org. You may inspect a copy of the 

incorporated standards at the Federal 

Railroad Administration, Docket Room, 1120 

Vermont Ave., NW., Suite 700, Washington, 

DC 20005, or at the National Archives and 

Records Administration (NARA). For 

information on the availability of this 

material at NARA, call 202–741–6030, or go 

to http://www.archives.gov/federal_register/ 

code_of_federal_regulations/ 

ibr_locations.html 

II. Test Site Requirements 

The test site shall meet the following 

requirements: 

(1) The locomotive to be tested should not 

be positioned where large reflective surfaces 

are directly adjacent to or within 25 feet of 

the locomotive cab. 

(2) The locomotive to be tested should not 

be positioned where other locomotives or rail 

cars are present on directly adjacent tracks 

next to or within 25 feet of the locomotive 

cab. 

(3) All windows, doors, cabinets seals, etc., 

must be installed in the locomotive cab and 

be closed. 

(4) The locomotive must be running for 

sufficient time before the test to be at normal 

operating temperature. 

(5) The heating, ventilation and air 

conditioning (HVAC) system or a dedicated 

heating or air conditioner system must be 

operating on high, and the vents must be 

open and unobstructed. 

(6) The locomotive shall not be tested in 

any site specifically designed to artificially 

lower in-cab noise levels. 

III. Procedures for Measurement 

(1) LAeq, T is defined as the A-weighted, 

equivalent sound level for a duration of T 

seconds, and the sound level meter shall be 

set for A-weighting with slow response. 

(2) The sound level meter shall be 

calibrated with the acoustic calibrator 

immediately before and after the in-cab static 

tests. The calibration levels shall be recorded. 

(3) Any change in the before and after 

calibration level(s) shall be less than 0.5 dB. 

(4) The sound level meter shall be 

measured at each of the following locations: 

(A) 30 inches above the center of the left 

seat; 

(B) Centered in the middle of the cab 

between the right and left seats, and 56 

inches above the floor; 

(C) 30 inches above the center of the right 

seat; and 

(D) One foot (0.3 meters) from the center 

of the back interior wall of the cab and 56 

inches above the floor. See Figure 1. 

(5) The observer shall stand as far from the 

microphone as possible. No more than two 

people (tester, observers or crew members) 

shall be inside the cab during measurements. 

(6) The locomotive shall be tested under 

self-loading conditions if so equipped. If the 

locomotive is not equipped with self load, 


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the locomotive shall be tested with no-load 

(No-load defined as maximum RPM—no 

electric load) and an adjustment of 3 dB 

added to the measured level. 

(7) The sound level shall be recorded at the 

highest horsepower or throttle setting. 

(8) After the engine speed has become 

constant and the in-cab noise is continuous, 

LAeq, T shall be measured, either directly or 

using a 1 second sampling interval, for a 

minimum duration of 30 seconds at each 

measurement position (LAeq, 30s). 

(9) The highest LAeq, 30s of the 4 

measurement positions shall be used for 

determining compliance with § 229.121(a). 

(10) A locomotive that has failed to meet 

the static test requirements of this regulation 

may be re-tested in accordance with the 

requirements in section II of this appendix. 

IV. Recordkeeping 

To demonstrate compliance, the entity 

conducting the test shall maintain records of 

the following data. The records created under 

this procedure shall be retained and made 

readily accessible for review for a minimum 

of three years. All records may be maintained 

in either written or electronic form. 

(1) Name(s) of persons conducting the test, 

and the date of the test. 

(2) Description of locomotive being tested, 

including: make, model number, serial 

number, and date of manufacture. 

(3) Description of sound level meter and 

calibrator, including: make, model, type, 

serial number, and manufacturer’s calibration 

date. 

(4) The recorded measurement during 

calibration and for each microphone location 

during operating conditions. 

(5) Other information as appropriate to 

describe the testing conditions and 

procedure, including whether or not the 

locomotive was tested under self-loading 

conditions, or not. 

(6) Where a locomotive fails a test and is 

re-tested under the provisions of § III(9) of 

this appendix, the suspected reason(s) for the 

failure. 

Issued in Washington, DC, on September 

29, 2006. 

Joseph H. Boardman, 

Federal Railroad Administrator. 

[FR Doc. 06–8612 Filed 10–26–06; 8:45 am] 

BILLING CODE 4910–06–P 


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