[Federal Register Volume 59, Number 99 (Tuesday, May 24, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-11944]


[[Page Unknown]]

[Federal Register: May 24, 1994]


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Part III





Department of Labor





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Mine Safety and Health Administration



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30 CFR Parts 11, 70, and 71




Respiratory Protective Devices; Proposed Rule
DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Parts 11, 70, and 71

 
Respiratory Protective Devices

AGENCY: Mine Safety and Health Administration, Labor.

ACTION: Proposed rule.

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SUMMARY: This proposal would remove existing rules for the joint 
approval of respiratory protective equipment by the Mine Safety and 
Health Administration (MSHA) and the National Institute for 
Occupational Safety and Health (NIOSH), U.S. Department of Health and 
Human Services. The existing rules would be replaced by revised 
approval procedures and technical requirements for respirators being 
proposed by NIOSH in a separate rulemaking. The existing rules, which 
are currently administered jointly by NIOSH and MSHA, would be replaced 
by new rules, which will be administered solely by NIOSH, with joint 
certification and approval by NIOSH and MSHA of certain specified 
mining-related devices. Removal of the existing rules would be 
contingent upon the NIOSH rulemaking becoming final. Existing 
provisions for the selection, use, and maintenance of respirators at 
coal mines would be retained and recodified. This notice should be read 
in conjunction with the proposed rule published by NIOSH elsewhere in 
today's Federal Register.

DATES: Written comments must be submitted on or before July 25, 1994.

ADDRESSES: Send written comments to the Mine Safety and Health 
Administration (MSHA), Office of Standards, Regulations, and Variances, 
room 631, Ballston Tower No. 3, 4015 Wilson Boulevard, Arlington, 
Virginia 22203.

FOR FURTHER INFORMATION CONTACT: Patricia W. Silvey, Director, Office 
of Standards, Regulations, and Variances, MSHA (703) 235-1910.

SUPPLEMENTARY INFORMATION:

I. Background

    The existing rules and procedures in 30 CFR part 11 for approval of 
respiratory protective devices, or respirators, evolved from rules and 
procedures developed by the U.S. Department of the Interior, Bureau of 
Mines. Until 1972, the Bureau of Mines was solely responsible for 
testing and approving respirators. In 1972, the Bureau of Mines and 
NIOSH jointly published 30 CFR part 11. These regulations replaced the 
Bureau of Mines' rules and procedures, and delineated the 
responsibilities of the two agencies. Under these regulations, the 
Bureau of Mines evaluated respirator performance, and NIOSH was 
responsible for administration of the quality control provisions. The 
Bureau of Mines also tested the safety of electrical components of 
respirators intended for use in potentially explosive atmospheres in 
underground gassy mines (intrinsic safety) under the requirements of 30 
CFR part 18.
    A Memorandum of Understanding between the two agencies of May 30, 
1972, refined their respective roles and in 1973, part 11 was amended. 
Under this arrangement, NIOSH undertook primary responsibility for 
performance testing of respirators. Although all approvals continued to 
be issued jointly, the Bureau of Mines principally retained only the 
responsibility to test for intrinsic safety the small number of 
respirators with electrical components intended for use in gassy 
underground mines.
    In 1974, the Mining Enforcement and Safety Administration, MSHA's 
predecessor agency, was created and the responsibilities of the Bureau 
of Mines under part 11 were transferred to that agency. Since it was 
created in 1978, MSHA has continued to test electrical components of 
certain respirators for intrinsic safety and has issued separate 
approvals for respirators meeting the requirements of 30 CFR part 18. 
While MSHA currently reviews applications for respirator approvals and 
has conducted some product evaluations, laboratory testing, quality 
assurance, and product audit for certain respirators, the testing and 
certification activities specified by part 11 are primarily conducted 
by NIOSH.

II. Discussion of Proposal

    Elsewhere in today's Federal Register, NIOSH is proposing in a 
separate rulemaking to transfer requirements for the approval of 
respiratory protective equipment to 42 CFR part 84, and upgrade the 
testing requirements for particulate filters. Under the NIOSH proposal, 
MSHA and NIOSH would continue to review and approve respirators jointly 
for mine emergencies and mine rescue, and their associated service-life 
plans and users' manuals. Among the types of devices which would 
continue to be subject to joint approval are self-contained, self-
rescue devices. Retention of joint approval under the NIOSH proposal 
would preserve MSHA's role in the certification of certain respirators 
whose unique use in mining is an important part of safeguarding the 
health and safety of miners. In addition, MSHA would continue to test 
electrical components of certain respirators to be used in mines and 
issue a separate MSHA approval under 30 CFR part 18 for such 
respirators.
    In implementing the proposed regulation, NIOSH and MSHA will 
develop a new Memorandum of Understanding (MOU) which will reflect the 
roles of both agencies in the respirator approval program. For example, 
the MOU will provide that NIOSH will notify MSHA immediately of field 
complaints and identified deficiencies concerning approved respirators.
    MSHA's rulemaking would remove part 11 from title 30. Removal of 
part 11 would, however, be contingent on publication of the NIOSH 
proposal as a final rule. All existing MSHA respirator use provisions 
in part 11 would be retained and recodified in 30 CFR parts 70 and 71.
    Commenters responding to the separate NIOSH proposal to revise the 
particulate filter provisions should direct those comments to NIOSH, to 
be included in the appropriate rulemaking record. The issue of MSHA's 
role in the approval of respirators will also be the subject of the 
NIOSH proposal and, therefore, commenters should direct responses on 
this issue to both MSHA and NIOSH. Both rulemaking activities will be 
coordinated to ensure that the level of protection afforded to miners 
and other affected workers is maintained at all times during the 
transition period. All technical data and commenter information will be 
shared by the respective agencies.

III. Other Sections Affected

    After the title 42 rulemaking is completed and part 11 is removed, 
MSHA anticipates that conforming nomenclature revisions would be needed 
in standards in title 30 that reference the use of approved 
respirators.
    These conforming nomenclature revisions may require that references 
be made to NIOSH, or that references to MSHA or the Secretary of Labor 
be deleted. Nothing in the anticipated nomenclature revisions would 
change the compliance responsibility of mine operators, who would 
continue to be required to provide miners with ``approved'' 
respirators.

IV. Executive Order 12866 and Regulatory Flexibility Act

    This is not a significant rule under Executive Order 12866. In 
addition, this rule would not have a significant economic impact on a 
substantial number of small entities. Therefore, a regulatory 
flexibility analysis is not been prepared.

V. Paperwork Reduction Act

    The recordkeeping and reporting requirements in 30 CFR part 11 
would be transferred to 42 CFR part 84 under NIOSH. Comments on these 
requirements should be addressed directly to NIOSH.

List of Subjects in 30 CFR Parts 11, 70, and 71

    Administrative practice and procedure, Mine safety and health, 
Reporting and recordkeeping requirements.

    Dated: May 11, 1994.
J. Davitt McAteer,
Assistant Secretary for Mine Safety and Health.

    Accordingly, under the authority of 30 U.S.C. 957, it is proposed 
to amend subchapter B and subchapter O, chapter I, title 30 of the Code 
of Federal Regulations as follows:

[Secs. 11.2-1 and 11.4 Redesignated as Secs. 70.310 and 71.710]

    1. Sections 11.2-1 and 11.4 are redesignated as Secs. 70.310 in 
subpart D of part 70 and 71.710 in subpart H of part 71, respectively.

PART 11--[REMOVED]

    1. Part 11 is removed.

PART 70--[AMENDED]

    1. The authority citation for part 70 continues to read as follows:

    Authority: 30 U.S.C. 811, 813(h), 957, and 961.

    2. Newly redesignated Sec. 70.310 is revised to read as follows:


Sec. 70.310  Selection, fit, use, and maintenance of approved 
respirators.

    In order to assure the maximum amount of respiratory protection, 
approved respirators shall be selected, fitted, used, and maintained in 
accordance with the provisions of the American National Standards 
Institute's ANSI Z88.2-1969, ``Practices for Respiratory Protection,'' 
which is hereby incorporated by reference. This publication may be 
obtained from the American National Standards Institute, Inc., 1430 
Broadway, New York, NY 10018, and may be inspected at any Coal Mine 
Health and Safety District and Subdistrict Office, or at MSHA's Office 
of Standards, 4015 Wilson Boulevard, Arlington, VA, and at the Office 
of the Federal Register, 800 North Capitol Street, NW., suite 700, 
Washington, DC. This incorporation by reference was approved by the 
Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 
1 CFR part 51.

PART 71--[AMENDED]

    1. The authority citation for part 71 is revised to read as 
follows:

    Authority: 30 U.S.C. 811, 957, and 961.

    2. Newly redesignated Sec. 71.710 is revised to read as follows:


Sec. 71.710  Selection, fit, use, and maintenance of approved 
respirators.

    In order to assure the maximum amount of respiratory protection, 
approved respirators shall be selected, fitted, used, and maintained in 
accordance with the provisions of the American National Standards 
Institute's ANSI Z88.2-1969, ``Practices for Respiratory Protection,'' 
which is hereby incorporated by reference. This publication may be 
obtained from the American National Standards Institute, Inc., 1430 
Broadway, New York, NY 10018, and may be inspected at any Coal Mine 
Health and Safety District and Subdistrict Office, or at MSHA's Office 
of Standards, 4015 Wilson Boulevard, Arlington, VA, and at the Office 
of the Federal Register, 800 North Capitol Street, NW., suite 700, 
Washington, DC. This incorporation by reference was approved by the 
Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 
1 CFR part 51.

[FR Doc. 94-11944 Filed 5-19-94; 9:44 am]
BILLING CODE 4510-43-P