December 9, 1993

Mr. Robert B. Moffat
Senior Project Engineer
The Robbins Company
Box 97027
22445-76th Avenue
South Kent, Washington 98031

Dear Mr. Moffat:

This is in response to your May 12 letter requesting interpretation of applicable Occupational Safety and Health Administration (OSHA) standards addressing tunnel boring machine equipment selection. I apologize for the delay in responding to your inquiry.

Question 1: Do the conditions specified under this Subpart [29 CFR 1910.7(a)] also apply to 29 CFR 1926.449 for the definition of a "qualified testing laboratory?"

Answer 1: "Yes", because the definition for a "qualified testing laboratory" (1926.449) is equivalent to the definition for a "nationally recognized testing laboratory" (1910.7(a)). The general industry standard (29 CFR 1910) requires that electrical conductors and equipment required or permitted by Subpart S-Electrical be acceptable only if approved (1910.303(a)). One condition of approval of an installation or equipment within the meaning of Subpart S exists if the installation or equipment is accepted, or certified, or listed or labeled, or otherwise determined to be safe by a nationally recognized testing laboratory (1910.399(a)(1)), and the definition and requirements for a nationally recognized testing laboratory are given in 29 CFR 1910.7.

In the case of the construction standard (29 CFR 1926), it is required in Subpart K-Electrical that all electrical conductors and equipment shall be "approved" (29 CFR 1926.403(a)). One condition of approval of an installation or equipment within the meaning of Subpart K exists if the installation or equipment is accepted, or certified, or listed, or labeled, or otherwise determined to be safe by a qualified testing laboratory capable of determining the suitability of materials and equipment for installation and use (29 CFR 1926.449 Acceptable), and the definition for a qualified testing laboratory is given in 29 CFR 1926.449 qualified testing laboratory. Both definitions are basically equivalent.

Question 2: Is it also correct to say that if a complete piece of equipment, such as a methane monitor, which has been tested and approved by another federal agency, such as the Mine Safety and Health Administration (MSHA), then that piece of equipment is also suitable for use in its intended application and is considered an "approved" piece of equipment by OSHA?

Answer 2: If the methane monitor is an electrically operated instrument (including battery powered for operation within a Class I environment) the answer is "No" because the condition governing such approval, as stated in 29 CFR 1926.449 Acceptable, requires that when electrical equipment is of a kind which no qualified testing laboratory accepts, certifies, lists, labels or determines to be safe, it must be inspected or tested by another Federal Agency, or by a State, municipal or other local authority responsible for enforcing occupational safety provisions of the National Electrical Code, and found to be in compliance with the provisions of the National Electrical Code as applied in Subpart K of Part 1926. MSHA, as part of their laboratory testing program for the safe use of electrical equipment in mines, is neither responsible for enforcing occupational safety provisions of the National Electrical Code nor for determining compliance with the provisions of the National Electrical Code.

As indicated in 29 CFR 1926.449, the definitions given in this section for "approved" apply to the use of these terms in Subpart K instead of the definitions given in 29 CFR 1926.32. In addition, in the case of Underground Construction (1926.800), the paragraph dealing with electrical safety (1926.800(s)) specifically states that "This paragraph applies in addition to the general requirements for electrical safety which are found in Subpart K of this part."

Question 3: Is it correct to say that for electrical equipment, such as high voltage cable, which no qualified testing laboratory accepts, certifies, list or labels, the (OSHA) requirement applying to custom-made equipment applies?

Answer 3: The answer is "Yes" if the custom-made electrical equipment (or related installations) is designed, fabricated for, and intended for use by a particular customer, is determined to be safe for its intended use by its manufacturer on the basis of test data which the employer keeps and makes available for inspection to the Assistant Secretary and his authorized representatives. However, the fact that the equipment is of a type which no laboratory accepts, certifies, lists or labels, does not, in and of itself, make the equipment "custom made."

Question 4: Does the definition given for "Accept" in 29 CFR 1926.800 imply that any "equipment" that is MSHA approved is acceptable and thus would also apply to "high voltage cable" which falls within the "equipment" definition? If not, what does this definition refer to?

Answer 4: The answer to the first part of Question 4 is "No." The answer to the second part of Question 4 may be found in Answer 2 and in Answer 3.

If we can be of any further assistance, please contact me or Mr. Dale Cavanaugh of my staff at (202) 219-8136.

Sincerely,



Roy Gurnham, P.E., J.D.
Director
Office of Construction and Maritime
Compliance Assistance




May 12, 1993

U.S. Department of Labor
Office of Construction and Maritime
Compliance Assistance
Room N-3610
200 Constitution Avenue
Washington, D.C. 20210

Attention: Mr. Dale Cavanaugh

Subject: Tunnel Boring Machine (TBM) Equipment Selection

Re: 29 CFR 1910.7; 29 CFR 1926.403; 29 CFR 1926.800

The Robbins Company is a manufacturer of TBM's used in underground excavation and construction. In reviewing the applicable OSHA regulations relevant to the use of our equipment we have questions on the code, and it's interpretation.

29 CFR 1910.7(a) Application This section shall apply only when the term "nationally recognized testing laboratory" is used in other sections of this part.

Question 1: Do the conditions specified under this subpart also apply to subpart 29 CFR 1926.449 for the definition of a "qualified testing laboratory"?

That is, only "nationally recognized testing laboratory" approved electrical equipment is suitable for use in our application unless it is equipment that is considered "acceptable" according to paragraph (c) of 1926.449 which allows the use of custom-made equipment which has been determined to be safe for its intended use by its manufacturer on the basis of test data.

Question 2: Is it also correct to say that if a complete piece of equipment, such as a methane monitor, has been tested and approved by another federal agency, such as MSHA, then that piece of equipment is also suitable for use in its intended application and is considered an "approved" piece of equipment by OSHA? This assumption is based on the definition given in subpart 29 CFR 1926.800(u).

29 CFR 1926.403(a) Approval All electrical conductors and equipment shall be approved. The definition of "approved" refers to the conditions under the definition "acceptable" (29 CFR 1926.449) which under paragraph (c) allows the use of custom-made equipment.

Question 3: Is it correct to say that for electrical equipment, such as high voltage cables, which no qualified testing laboratory accepts, certifies, lists or labels (see paragraph (b)) the code applying to custom-made equipment applies? That is, if we have necessary procedures and test records for our custom-made equipment using this cable, and we certify it suitable for it's intended use then the equipment would comply with OSHA requirements.

29 CFR 1926.800(u) Definitions. "Accept" Any device, equipment, or appliance that is either approved by MSHA and maintained in a permissible condition, or is listed or labeled for the class and location under subpart K of this part.

Question 4: This definition implies that any "equipment" that is MSHA approved is acceptable, and thus would also apply to "high voltage cable" which falls within the "equipment" definition: Is this correct? If not, what does this definition refer to?

Very truly yours,



Robert B. Moffat
Senior Project Engineer