Respiratory Protective Devices

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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