October 20, 2017

Laurie Wells, Au.D.
3M Personal Safety Division
3M Center, Building 0235-02-E-91
St. Paul, MN 55144-1000

Dear Dr. Wells:

Thank you for your June 13, 2017, letter to the Occupational Safety and Health Administration’s (OSHA) Directorate of Enforcement Programs. Your questions concerned OSHA’s Occupational Noise Exposure Standard, 29 CFR 1910.95, and its requirements related to hearing protection device (HPD) adequacy for selection, as well as determining initial proper fit and training. This reply letter constitutes OSHA’s interpretation only of the requirements discussed and may not be applicable to any question not detailed in your original correspondence. We’ve summarized your background information, below, and paraphrased your questions, followed by our responses.

Background: Your letter states that currently available field fit-testing technologies, such as the 3M™ E-A-Rfit™ Validation System, permits real-time determination of HPD attenuation on individual workers, and your company purports this newer technology to be more accurate than the laboratory-determined Noise Reduction Rating (NRR) method, referenced in Appendix B to 29 CFR 1910.95. You assert that real-time or personal fit testing can also allow employers to improve their training of workers on the proper wear of their HPDs.

Question 1: If employers use a personal fit-testing system, such as 3M’s E-A-Rfit, on individual employees, to evaluate the adequacy of HPD attenuation, would this comply with the OSHA Noise Standard?

Reply: As a preliminary matter, while OSHA has always embraced newer technology that enhances workplace safety, you should know that OSHA is prohibited from formally testing, evaluating, certifying, or approving of products, processes or programs.

Under OSHA’s Noise Standard, the employer must reduce noise exposure through engineering controls, administrative controls, or HPDs to attenuate the occupational noise received by the employee’s ears to within levels specified in Table G-16 and Table G-16A of 29 CFR 1910.95(b)(1). Initially, per paragraph 1910.95(j)(1), employers must provide adequate HPDs to employees based on the specific noise environments in which they will be used, and the product’s attenuation evaluated using a method described in the standard’s Appendix B, Methods for estimating the adequacy of hearing protector attenuation. One method in Appendix B^[1] specifies the U.S. Environmental Protection Agency’s (EPA) laboratory testing requirements for HPDs, as set forth at 40 CFR 211. As you are aware, the EPA requires HPD manufacturers to include the NRR on the HPD packaging. The NRR describes the average sound level reduction (attenuation) provided by the HPD under laboratory test conditions regulated by the EPA (the higher the NRR, the greater the noise reduction).

Regarding your question, whether an employer may use a personal fit-testing system and remain in compliance with the OSHA Noise Standard, this would depend on how the employer uses the system. As stated above, per paragraph 1910.95(j)(1), employers must evaluate the adequacy of attenuation for HPDs before providing them as options for employee use. The standard specifies using a method described in the standard’s Appendix B. A violation of Section 1910.95(j)(1) would exist where an employer does not use a method included in Appendix B.

Be mindful that once the employee selects an HPD from a variety of adequate options, paragraph 1910.95(i)(5) requires the employer to ensure proper initial fitting and correct use of all hearing protectors. The means and methods that employers use to ensure proper initial fitting is a performance-based requirement, so employers may use any means that are most suitable and effective, which may include the use of a personal fit-testing system. For example, if a personal fit-testing system indicates that a proper initial fit is not possible for an employee using the selected adequate HPD (i.e., has an adequate NRR), the employer and employee should select another adequate HPD from the variety of options provided.

Question 2: Can a personal fit-testing system method for HPD evaluation be added to 29 CFR 1910.95, Appendix B: Methods for Estimating the Adequacy of Hearing Protector Attenuation?

Reply: If new audiometric technologies, such as personal fit testing of HPDs under field conditions, provide justification for OSHA to consider regulatory acknowledgement of an alternate protocol for determining the attenuation of HPDs, any such regulatory change would need to be conducted through notice and comment rulemaking. Although a change to the Noise Standard is not currently on the regulatory agenda, OSHA will take your suggestion under consideration for future planning.

Question 3: Can employers use a personal fit-testing system to provide training to employees in the use and care of hearing protector devices?

Reply: Yes. OSHA’s Noise Standard requires employers to provide training in the use and care of all hearing protectors provided to employees, per paragraph 29 CFR 1910.95(i)(4). Paragraph (k)(3)(ii) is the requirement to inform employees on the purpose of hearing protectors, disadvantages, and attenuation of various types, and instructions on selection, fitting, use, and care. The means and methods that employers use to provide this training is a performance-based requirement, so employers may use any means that are most the suitable and effective, which may include the use of a personal fit-testing system.

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 continue to consult OSHA's website at www.osha.gov. If you have any further questions, please feel free to contact our Office of Health Enforcement at 202-693-2190.

Sincerely,

Patrick J. Kapust, Acting Director
Directorate of Enforcement Programs

^[1] Appendix B to 29 CFR 1910.95 also allows employers to evaluate the adequacy of HPD attenuation by using one of three methods developed by the National Institute for Occupational Safety and Health (NIOSH).  See, List of Personal Hearing Protectors and Attenuation Data, HEW Publication No. 76-120, 1975, pages 21-37.