April 27, 2004

Mr. Lee Hager
248 Church St.
Portland, MI 48875

Dear Mr. Hager:

Thank you for your August 4, 2003 letter to the Occupational Safety and Health Administration (OSHA) regarding the occupational noise standard and the successor owner's responsibility to retain the records from the previous owner. This letter constitutes OSHA's interpretation only of the requirements discussed and may not be applicable to any questions not delineated within your original correspondence. Your questions are restated below followed by OSHA's response. We apologize for the delay in our response.

Scenario: It has become common practice in industry today for purchasers of manufacturing businesses to terminate all employees of the purchased company, and immediately re-hire them as employees of the purchasing company. In this scenario, nothing has changed, other than the ownership of the company; personnel, equipment, and facilities are exactly the same as before, but under new ownership. In some cases, these successor owners operate the hearing conservation program as though it had never existed under the previous owner, including re-establishing baseline hearing tests.

Question 1: What obligation does the successor owner have to retain the medical surveillance records; specifically, hearing tests, from the previous owner?

Answer: Pursuant to 1910.95(m)(5), when an employer ceases to do business, that employer is required to transfer all records stipulated in paragraph (m) to the successor employer. The successor employer is required to retain these records for the remainder of the period of time prescribed in paragraph 1910.95(m)(3). Specifically, this paragraph requires the successor employer to retain noise exposure measurement records for two years following the date of the exposure measurement. Audiometric test records are required to be retained for the duration of the affected employee's employment with the successor employer. Therefore, the successor owner would be aware of the employees' hearing losses. The act of terminating and re-hiring the employees would not relieve a successor employer of responsibility for the employees' hearing.

Question 2: What obligation does the successor owner have to use existing baselines from the previous owner in hearing conservation management?

Answer: The successor owner would normally continue to use the baseline audiograms established by the former employer, unless there is a good-faith and reasonable basis to question the validity of these baseline audiograms. When the successor owner continues to use the baseline audiograms established by the former employer, the successor employer also must continue the established annual schedule for future audiograms. In addition, within six months of a new employee's initial exposure, the successor employer must establish a valid baseline audiogram for any new employee who was not employed by the former employer and who is exposed to sound levels in excess of 85 dBA TWA.

The employer also may continue to use recent noise monitoring results from the former employer, as long as workplace conditions and practices that affect noise levels remain relatively similar, such that noise levels reasonably are not expected to deviate from the old readings to any significant extent.

As you may know, the state of Michigan operates its own occupational safety and health program under a plan approved and monitored by Federal OSHA. Therefore, employees in the State of Michigan must comply with State occupational safety and health requirements. As a condition of plan approval, State plans are required to adopt and enforce occupational safety and health standards that are at least as effective as those promulgated by Federal OSHA. If you would like further information regarding Michigan's occupational safety and health requirements for Occupational Noise Exposure and Hearing Conservation, you may contact the Michigan Department of Labor and Economic Growth at the following address:

David Hollister, Director
Michigan Department of Labor and Economic Growth
P.O. Box 30004 - 4^th Floor, Law Bldg.
Lansing, Michigan 48909
Telephone: (517) 373-7230

Thank you for your interest in occupational safety and health. We hope you find this information helpful. OSHA requirements are set by statute, standards, and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's web site at http://www.osha.gov. If you have any further questions, please feel free to contact the Office of Health Enforcement at (202) 693-2190.

Sincerely,


Richard E. Fairfax, Director
Directorate of Enforcement Programs