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 website at https://www.osha.gov.

March 21, 2019

Mr. Travis McColley
RadioEar
10393 West 70th Street
Eden Prairie, Minnesota 55344

Dear Mr. McColley:

Thank you for your letter to the Occupational Safety and Health Administration (OSHA). Your letter was referred to the Directorate of Enforcement Programs for a response. In your letter you requested information about OSHA's Occupational noise exposure standard, 29 CFR 1910.95, and whether RadioEar's Supra Aural Phone, the DD45, complies with OSHA's requirements in Appendix E, Acoustic Calibration of Audiometers. This letter constitutes OSHA's interpretation only of the requirements discussed and may not be applicable to any question not delineated within your original correspondence. Your paraphrased scenario and question are presented below, followed by our reply.

Scenario: Your letter stated that RadioEar's DD45 conforms to the American National Standards Institute (ANSI) S3.6-2018 Table 5 current calibration values, which was updated four times since the ANSI S3.6-1969. In addition, 29 CFR 1910.95, Appendix E, Tables E-1 and E-2, list two Telephonic Dynamic Headphones (TDH), TDH-39 and TDH-49, and reference ANSI S3.6-1969.

Question: Will OSHA allow the use of RadioEar's DD45 for audiometric testing using the ANSI S3.6-2018 Table 5 values, instead of the ANSI S3.6-1969, TDH-39 and TDH-49 values?

Reply: As a preliminary matter, OSHA does not test, evaluate, or approve of or endorse commercial products. However, OSHA encourages development of improved technologies that enhance workplace safety. In our previous response to you, dated April 23, 2010 (see enclosure), we stated, "[w]here an OSHA standard incorporates an earlier consensus standard, the only way the OSHA standard can be changed to adopt the new version is through rulemaking." While not complying with an OSHA standard is a violation, OSHA considers the revised ANSI S3.6-2018 to be equally protective as the ANSI S3.6-1969. Therefore, an employer complying with ANSI S3.6-2018 will be providing a place of employment as safe as that which would be obtained by complying with ANSI S3.6-1969. OSHA considers this a de minimis condition in respect to OSHA's 29 CFR 1910.95 requirements. De minimis conditions are those where an employer has implemented a measure different than one specified in a standard, that has no direct or immediate impact on safety or health. OSHA does not issue citations, propose penalties, nor require abatement for de minimis conditions.

The State of Minnesota, under an agreement with OSHA, operates an occupational safety and health program in accordance with Section 18 of the Occupational Safety and Health Act of 1970. The Minnesota Occupational Safety and Health program is administered by the Minnesota Department of Labor and Industry. The department's Occupational Safety and Health (OSH) Division is responsible for compliance program administration, conducting enforcement inspections, adoption of standards, and operation of other related OSHA activities. State plans are required to implement regulations that are "at least as effective" as the federal standards. For specific Minnesota OSHA requirements and free consultation services, we recommend that you contact:

Minnesota Department of Labor and Industry, Minnesota OSHA
443 Lafayette Road North
St. Paul, Minnesota 55155-4307
PH: (651) 284-5050
TOLL FREE: (877) 470-6742
FAX: (651) 284-5741

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 letters of interpretation do not create new or additional requirements but rather explain these requirements and how they apply to particular circumstances. This letter constitutes OSHA's interpretation of the requirements discussed. From time to time, letters are affected when the Agency updates a standard, a legal decision impacts a standard, or changes in technology affect the interpretation. To assure that you are using the correct information and guidance, please consult OSHA's website 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,

 

Patrick J. Kapust, Acting Director
Directorate of Enforcement Programs

Enclosure