[Federal Register Volume 60, Number 110 (Thursday, June 8, 1995)]
[Rules and Regulations]
[Pages 30398-30402]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-13286]
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DEPARTMENT OF LABOR
Mine Safety and Health Administration
30 CFR Parts 11, 49, 56, 57, 58, 70, 72, 75
RIN 1219-AA85
Respiratory Protective Devices
AGENCY: Mine Safety and Health Administration, Labor.
ACTION: Final rule.
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SUMMARY: This final rule, in conjunction with the National Institute
for Occupational Safety and Health (NIOSH) final rule published
concurrently in this Federal Register, transfers to NIOSH existing Mine
Safety and Health Administration (MSHA) regulations pertaining to the
testing, performance, and joint MSHA-NIOSH approval of respirators
under the Mine Act. MSHA retains existing provisions related to the
selection, use, and maintenance of respirators for coal and metal and
nonmetal mines. Under the NIOSH rule, MSHA retains joint approval
responsibility for certain mining-related respiratory protective
devices. MSHA's transfer of the respirator approval program to NIOSH
will more accurately reflect the respective roles of the two agencies
in the approval of respirators. A memorandum of understanding (MOU)
between MSHA and NIOSH delineates the roles of both agencies in the
respirator approval program. This MOU is published elsewhere in this
separate part of the Federal Register. MSHA's final rule will not
affect the compliance responsibilities of mine operators.
EFFECTIVE DATE: This final rule is effective on July 10, 1995. The
incorporation by reference of certain [[Page 30399]] publications
listed in the regulations is approved by the Director of the Federal
Register as of July 10, 1995.
FOR FURTHER INFORMATION CONTACT: Patricia W. Silvey, Director, Office
of Standards, Regulations, and Variances, MSHA, 703-235-1910.
SUPPLEMENTARY INFORMATION:
I. Background
Until 1972, the U.S. Bureau of Mines (BOM) was solely responsible
for testing and approving respirators. In 1972, BOM and NIOSH jointly
published 30 CFR part 11 which replaced BOM's rules and procedures and
delineated the responsibilities of the two agencies. Under these
regulations, BOM evaluated respirator performance and NIOSH
administered the quality control provisions. BOM also tested the
intrinsic safety of electrical components of respirators intended for
use in potentially explosive atmospheres in underground mines under the
requirements of 30 CFR part 18.
A memorandum of understanding (MOU) between the two agencies, dated
May 30, 1972, refined their respective roles. In 1973, 30 CFR part 11
was amended and NIOSH acquired primary responsibility for performance
testing of respirators, although all approvals continued to be issued
jointly. BOM retained its responsibility for testing the intrinsic
safety of electrical components of respirators intended for use in
underground gassy mines.
In 1974, the Mining Enforcement and Safety Administration (MESA),
MSHA's predecessor agency, was created and BOM's responsibilities under
30 CFR were transferred to that agency. MESA continued to test the
electrical components of certain respirators for intrinsic safety under
30 CFR part 18 and issue supplemental approvals permitting these
components to be used in underground gassy mines.
When it was created in 1978, MSHA took over the responsibilities
for respirator testing and approval which previously had been conducted
by MESA. In addition, MSHA currently reviews applications for
respirator approvals and has conducted some product evaluations,
laboratory testing, and quality assurance product audits for certain
respirators. The testing and approval activities specified by 30 CFR
part 11 continue to be conducted primarily by NIOSH.
II. Discussion of Final Rule
A. General Discussion
MSHA is transferring the requirements for approval of respirators
from 30 CFR part 11 to NIOSH, which is publishing the requirements
elsewhere in this separate part of the Federal Register as a new 42 CFR
part 84. To effectuate the transfer, MSHA is publishing this final rule
removing 30 CFR part 11. NIOSH also is upgrading the testing
requirements for particulate filters, which improve the current
approach to evaluating the effectiveness of an air-purifying
respirator's filter to remove toxic particulates from the ambient air.
The new testing requirements for particulate filters update existing
provisions to be consistent with two decades of advances in respiratory
protection technology.
Under 42 CFR part 84, MSHA and NIOSH will continue to review and
jointly approve respirators for mine rescue and other mine emergencies
and their associated service-life plans and users manuals. These
respirators include devices such as filter self-rescuers (FSR), self-
contained self-rescuers (SCSR), mine rescue apparatus (long duration,
closed and open circuit devices), and other self-contained breathing
apparatus (SCBA). Retention of joint approval under the NIOSH final
rule preserves MSHA's role in the approval of certain respirators whose
use in mines is an important part of safeguarding the health and safety
of miners. In addition, MSHA will continue to test the intrinsic safety
of electrical components of respirators to be used in underground coal
mines and underground gassy metal and nonmetal mines and issue a
separate MSHA approval under 30 CFR part 18 for such respirator
components.
To facilitate implementing this rule, NIOSH and MSHA have developed
a new MOU which delineates the roles of both agencies in the respirator
approval program. For example, the MOU establishes procedures to be
followed by both agencies for joint approval of respirators used for
mine rescue and other mine emergencies; it establishes guidelines for
consultation and exchange of information between MSHA and NIOSH with
respect to issues dealing with respirator approval and related matters;
and it provides that NIOSH and MSHA notify each other immediately of
field complaints and identified deficiencies concerning approved
respirators.
MSHA and NIOSH have coordinated their rulemaking activities to
ensure that the level of protection provided miners and other affected
workers by the existing standards will not be lessened. In particular,
all technical data and commenter information have been shared by the
respective agencies.
B. Comments to MSHA's Proposed Rule
MSHA received few comments from the mining community and the
public. Most comments were addressed to NIOSH. Generally, comments to
MSHA supported the transfer of the respirator approval program to
NIOSH. One commenter explained that the transfer and redesignation
would enhance accountability for regulatory actions, improve and
expedite the approval process, and consolidate responsibility in one
agency. This same commenter requested an opportunity to participate in
the development of the MOU to ensure that MSHA retains a strong role
with regard to mine-specific respiratory devices because of MSHA's
expertise in the field. A commenter to NIOSH also expressed concern
that MSHA's role would be diminished under the transfer and asked to
participate in the development of the MOU.
MSHA and NIOSH have concluded that the MOU is most appropriately
developed by the two agencies because it is an administrative tool to
delineate their respective roles. The MOU does not impose any
additional obligations on the mining industry. Recognizing the concerns
of commenters, however, the MOU carefully details how MSHA will
continue to have a strong role with respect to respiratory protective
devices used in the mining industry.
A commenter requested that MSHA incorporate by reference the most
recent American National Standards Institute (ANSI) standard for
respiratory protective devices, ``ANSI Z88.2-1992,'' in the
recodification of Secs. 11.2-1 and 11.4 which incorporate by reference
ANSI Z88.2-1969 ``Practices for Respiratory Protection.'' ANSI Z88.2
addresses respiratory protection programs which include the selection,
fit, use, and maintenance of respirators. The 1992 ANSI standard
differs substantively from the 1969 ANSI standard. Incorporating by
reference the 1992 ANSI standard is beyond the scope of this rulemaking
which addresses the administrative transfer of the respirator approval
program to NIOSH and, as discussed below, the nonsubstantive
recodification of Secs. 11.2-1 and 11.4. Although ANSI Z88.2-1969 is
retained in this final rule, MSHA currently is addressing respiratory
protection programs in its air quality rulemaking.
C. Other Sections Affected
The final rule removes 30 CFR part 11; however, it retains those
provisions which relate to the selection, use, and maintenance of
respirators. Section 11.2(a) requires the use of approved respirators
and the maintenance of such [[Page 30400]] respirators in an approved
condition. As discussed previously, Secs. 11.2-1 and 11.4 require the
selection, fitting, use, and maintenance of respirators in accordance
with ANSI Z88.2. Because these provisions are use-related, as opposed
to approval-related, MSHA addresses them in separate standards for the
use of respirators. MSHA had proposed that these provisions be
recodified in 30 CFR parts 70 and 71. Instead, MSHA is recodifying
these provisions in 30 CFR part 72, ``Health Standards for Coal Mines''
to ease understanding and eliminate duplication. This final rule does
not change the requirements for metal and nonmetal mines in 30 CFR 56/
57.5005 which already reference ANSI Z88.2-1969.
This final rule makes conforming, nonsubstantive editorial and
nomenclature revisions to standards in title 30 that reference the use
of respirators approved under 30 CFR part 11 to reflect the transfer of
those standards to 42 CFR part 84. These revisions do not change the
compliance responsibility of mine operators who continue to be required
to provide miners with ``approved'' respirators.
D. Grandfathering of Respirators Approved Under 30 CFR Part 11
Approvals issued under 30 CFR part 11 for all respirators, except
particulate filter respirators, will be unaffected by 42 CFR part 84.
For 3 years from July 10, 1995, NIOSH will continue to authorize
manufacturers to sell, as MSHA-NIOSH ``approved'' devices, particulate
filter respirators which had been approved under 30 CFR part 11. This
will allow adequate time for manufacturers to convert to production of
respirators meeting the new particulate filter requirements of 42 CFR
part 84. Until supplies of particulate filter respirators which had
been approved under 30 CFR part 11 are depleted, MSHA will allow their
use as ``approved'' devices.
As discussed in the preamble to 42 CFR part 84, applications for
approval or extensions of approval received prior to the effective date
of 42 CFR part 84 will be processed under the requirements of 30 CFR
part 11. Applications for approval or extensions of approval received
on or after the effective date of 42 CFR part 84 will be processed
under the provisions of 42 CFR part 84. For additional information on
the transition from 30 CFR part 11 to 42 CFR part 84, see the NIOSH
final rule published elsewhere in this separate part of the Federal
Register.
The new 42 CFR part 84 does not include the provisions of 30 CFR
11.2(b) which allowed gas masks approved under the former BOM Schedule
14F (dated April 23, 1955) to continue to be accepted as ``approved''
devices for use in hazardous atmospheres. MSHA's experience indicates
that few of these 14F gas masks currently are sold or used. As
indicated in the preamble to 42 CFR part 84, published elsewhere in
this separate part of the Federal Register, the approval records on
these BOM-approved respirators no longer exist and, therefore, NIOSH
has no way of monitoring their production to ensure that they continue
to meet the approved design. Thus, the removal of the provisions in 30
CFR 11.2(b) removes the authority to continue marketing these
respirators as ``approved'' devices.
III. Executive Order 12866 and Regulatory Flexibility Act
This is not a significant rule under Executive Order 12866. In
addition, this rule does not have a significant economic impact on a
substantial number of small entities as it only removes the regulations
in 30 CFR part 11; retains certain responsibilities for the use of
respirators in mining; and makes nonsubstantive revisions. The Agency,
therefore, has not prepared a regulatory flexibility analysis.
IV. Paperwork Reduction Act
The recordkeeping and reporting requirements in 30 CFR part 11 have
been transferred to 42 CFR part 84.
List of Subjects
30 CFR Part 11
Administrative practice and procedure, Mine safety and health,
Pesticides and pests, Reporting and recordkeeping requirements.
30 CFR Parts 49, 56, 57, 58, 70, and 75
Mine safety and health, Personal protective equipment, Reporting
and recordkeeping requirements, Respirators.
30 CFR Part 72
Coal, Incorporation by reference, Mine safety and health, Personal
protective equipment, Respirators.
For the reasons set out in the preamble and under the authority of
30 U.S.C. 957, 30 CFR chapter I is amended as follows.
Secs. 11.2-1 and 11.4 [Redesignated as Sec. 72.710]
1. Sections 11.2-1 and 11.4 are redesignated as Sec. 72.710,
paragraphs (a) and (b) respectively, in subpart E of part 72.
PART 11--[REMOVED]
2. Part 11 is removed.
PART 49--[AMENDED]
3. The authority citation for part 49 is revised to read as
follows:
Authority: 30 U.S.C. 811, 825(e), 957.
4. Section 49.6 is amended by revising paragraph (a)(1) to read as
follows:
Sec. 49.6 Equipment and maintenance requirements.
(a) * * *
(1) Twelve self-contained oxygen breathing apparatus, each with a
minimum of 2 hours capacity (approved by MSHA and NIOSH under 42 CFR
part 84, subpart H), and any necessary equipment for testing such
breathing apparatus;
* * * * *
PART 56--[AMENDED]
5. The authority citation for part 56 is revised to read as
follows:
Authority: 30 U.S.C. 811, 957, 961.
6. Section 56.5005 is amended by revising paragraph (a) to read as
follows:
Sec. 56.5005 Control of exposure to airborne contaminants.
* * * * *
(a) Respirators approved by NIOSH under 42 CFR part 84 which are
applicable and suitable for the purpose intended shall be furnished and
miners shall use the protective equipment in accordance with training
and instruction.
* * * * *
PART 57--[AMENDED]
7. The authority citation for part 57 is revised to read as
follows:
Authority: 30 U.S.C. 811, 957, 961.
8. Section 57.5005 is amended by revising paragraph (a) to read as
follows:
Sec. 57.5005 Control of exposure to airborne contaminants.
* * * * *
(a) Respirators approved by NIOSH under 42 CFR part 84 which are
applicable and suitable for the purpose intended shall be furnished and
miners shall use the protective equipment in accordance with training
and instruction.
* * * * *
9. Section 57.5044 is revised to read as follows:
Sec. 57.5044 Respirators.
In environments exceeding 1.0 WL, miners shall wear respirators
approved [[Page 30401]] by NIOSH for radon daughters prior to July 10,
1995 or under the equivalent section of 42 CFR part 84 and such
respirator use shall be in compliance with Sec. 57.5005.
10. Section 57.15030 is revised to read as follows:
Sec. 57.15030 Provision and maintenance of self-rescue devices.
A 1-hour self-rescue device approved by MSHA and NIOSH under 42 CFR
part 84 shall be made available by the operator to all personnel
underground. Each operator shall maintain self-rescue devices in good
condition.
11. Section 57.22315 is amended by revising the second sentence to
read as follows:
Sec. 57.22315 Self-contained breathing apparatus (V-A mines).
* * * Such apparatus shall be approved by MSHA and NIOSH under 42
CFR part 84 and shall be maintained in accordance with manufacturers'
specifications. * * *
PART 58--[AMENDED]
12. The authority citation for part 58 is revised to read as
follows:
Authority: 30 U.S.C. 811, 957, 961.
13. Section 58.610 is amended by revising paragraph (a) to read as
follows:
Sec. 58.610 Abrasive blasting.
(a) Surface and underground mines. When an abrasive blasting
operation is performed, all exposed miners shall use in accordance with
30 CFR 56.5005 or 57.5005 respirators approved for abrasive blasting by
NIOSH under 42 CFR part 84, or the operation shall be performed in a
totally enclosed device with the miner outside the device.
* * * * *
PART 70--[AMENDED]
14. The authority citation for part 70 is revised to read as
follows:
Authority: 30 U.S.C. 811, 813(h), 957, 961.
15. Section 70.300 is revised to read as follows:
Sec. 70.300 Respiratory equipment; respirable dust.
Respiratory equipment approved by NIOSH under 42 CFR part 84 shall
be made available to all persons whenever exposed to concentrations of
respirable dust in excess of the levels required to be maintained under
this part. Use of respirators shall not be substituted for
environmental control measures in the active workings. Each operator
shall maintain a supply of respiratory equipment adequate to deal with
occurrences of concentrations of respirable dust in the mine atmosphere
in excess of the levels required to be maintained under this part.
Sec. 70.300-1 [Removed]
16. Section 70.300-1 is removed.
17. Section 70.305 is revised to read as follows:
Sec. 70.305 Respiratory equipment; gas, dusts, fumes, or mists.
Respiratory equipment approved by NIOSH under 42 CFR part 84 shall
be provided to persons exposed for short periods to inhalation hazards
from gas, dusts, fumes, or mist. When the exposure is for prolonged
periods, other measures to protect such persons or to reduce the hazard
shall be taken.
Sec. 70.305-1 [Removed]
18. Section 70.305-1 is removed.
PART 72--[AMENDED]
19. The authority citation for part 72 is revised to read as
follows:
Authority: 30 U.S.C. 811, 813(h), 957, 961.
20. Section 72.610 is amended by revising paragraph (a) to read as
follows:
Sec. 72.610 Abrasive blasting.
(a) Surface and underground mines. When an abrasive blasting
operation is performed, all exposed miners shall properly use
respirators approved for abrasive blasting by NIOSH under 42 CFR part
84, or the operation shall be performed in a totally enclosed device
with the miner outside the device.
* * * * *
21. Newly redesignated Sec. 72.710 is revised to read as follows:
Sec. 72.710 Selection, fit, use, and maintenance of approved
respirators.
In order to ensure 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 ``Practices for Respiratory Protection ANSI Z88.2-1969,''
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 75--[AMENDED]
22. The authority citation for part 75 is revised to read as
follows:
Authority: 30 U.S.C. 811, 957, 961.
23. Section 75.2 is amended by adding the following definitions in
alphabetical order to read as follows:
Sec. 75.2 Definitions.
* * * * *
Filter Self-Rescuer (FSR). A type of gas mask approved by MSHA and
NIOSH under 42 CFR part 84 for escape only from underground mines and
which provides at least 1 hour of protection against carbon monoxide.
* * * * *
Self-Contained Self-Rescuer (SCSR). A type of closed-circuit, self-
contained breathing apparatus approved by MSHA and NIOSH under 42 CFR
part 84 for escape only from underground mines.
* * * * *
24. Section 75.1714 is amended by revising paragraph (a) to read as
follows:
Sec. 75.1714 Availability of approved self-rescue devices;
instruction in use and location.
(a) Each operator shall make available to each miner who goes
underground, and to visitors authorized to enter the mine by the
operator, an approved self-rescue device or devices which is adequate
to protect such person for 1 hour or longer.
* * * * *
25. Section 75.1714-1 is revised to read as follows:
Sec. 75.1714-1 Approved self-rescue devices.
The requirements of Sec. 75.1714 shall be met by making available
to each person referred to in that section a self-rescue device or
devices, which have been approved by MSHA and NIOSH under 42 CFR part
84, as follows:
(a) A 1-hour SCSR;
(b) A SCSR of not less than 10 minutes and a 1-hour canister; or
(c) Any other self-contained breathing apparatus which provides
protection for a period of 1 hour or longer and which is approved for
use by MSHA as a self-rescue device when used and maintained as
prescribed by MSHA.
26. Section 75.1714-2 is amended by revising the introductory text
of paragraph (e), the introductory text of paragraph (e)(1), paragraphs
(e)(1)(v), (e)(2), (e)(3), (f), and the introductory text of paragraph
(g) to read as follows:
Sec. 75.1714-2 Self-rescue devices; use and location requirements.
* * * * *
(e) A mine operator may apply to the District Manager under
Sec. 75.1101-23 for [[Page 30402]] permission to place the SCSR more
than 25 feet away.
(1) The District Manager shall consider the following factors in
deciding whether to permit an operator to place a SCSR more than 25
feet from a miner:
* * * * *
(v) Proposed location of SCSRs,
* * * * *
(2) Such application shall not be approved by the District Manager
unless it provides that, while underground, all miners whose SCSR is
more than 25 feet away shall have a FSR approved by MSHA and NIOSH
under 42 CFR part 84 sufficient to enable each miner to get to a SCSR.
(3) An operator may not obtain permission under paragraph (e) of
this section to place SCSRs more than 25 feet away from miners on trips
into and out of the mine.
(f) If a SCSR is not carried out of the mine at the end of a
miner's shift, the place of storage must be approved by the District
Manager, a sign with the word ``SELF-RESCUER'' or ``SELF-RESCUERS''
shall be conspicuously posted at each storage place, and direction
signs shall be posted leading to each storage place.
(g) Where devices of not less than 10 minutes and 1 hour are made
available in accordance with Sec. 75.1714-1(b), such devices shall be
used and located as follows:
* * * * *
27. Section 75.1714-3 is amended by revising paragraphs (c) and (d)
to read as follows:
Sec. 75.1714-3 Self-rescue devices; inspection, testing, maintenance,
repair, and recordkeeping.
* * * * *
(c) All FSRs approved by MSHA and NIOSH under 42 CFR part 84,
except devices using vacuum containers as the only method of sealing,
shall be tested at intervals not exceeding 90 days by weighing each
device on a scale or balance accurate to within +1 gram. A device that
weighs more than 10 grams over its original weight shall be removed
from service.
(d) All SCSRs approved by MSHA and NIOSH under 42 CFR part 84 shall
be tested in accordance with instructions approved by MSHA and NIOSH.
Any device which does not meet the specified test requirements shall be
removed from service.
* * * * *
Dated: May 24, 1995.
J. Davitt McAteer,
Assistant Secretary for Mine Safety and Health.
[FR Doc. 95-13286 Filed 6-7-95; 12:10 pm]
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