Section 3.04 - Product, Design, and Testing Standards(1)Board Required Product-acceptance. Only products and materials that have been listed by the Board as Product-accepted shall be used for plumbing and gas fitting work performed in the Commonwealth and governed by M.G.L. c. 142 and 248 CMR. The Board accepts products to ensure compliance with M.G.L. c. 142 and 248 CMR. The Board additionally requires manufacturers to provide information/testing to ensure their products meet applicable standards and are safe for public use. In making such acceptances, the Board does not relieve manufacturers of their independent obligations to only sell products that are safe for public use.(a)Record. The Board shall maintain a list of Product-accepted materials or products.(b)Product-acceptance. 1. For products not already listed as Product-accepted by the Board, each manufacturer of materials and equipment used in the construction, installation, alteration, repair, or replacement of any plumbing or gas fitting system shall apply to the Board for product-acceptance of each individual item or model number that is to be made available for installation in the Commonwealth.2. Should the Board grant product-acceptance, the grant shall be valid for such period as designated by the Board. The product will then be listed by the Board as Product-accepted. All permanent Product-approvals granted in the past are null and void.3. No product that is subject to a product acceptance request shall be installed before the Board has voted to grant the product-acceptance request.4. An applicant for a product-acceptance request shall: a. provide a completed product acceptance application in compliance with 248 CMR 3.00;b. a nonrefundable application fee in the amount set by the Commission of Administration and Finance and made payable to the Commonwealth of Massachusetts;c. at the Board's request, appear at the Board meeting wherein the Product acceptance application is scheduled to be discussed; andd. fulfill any testing requirements or meet any applicable standards in their entirety required by the Board.5. All modifications to a previously accepted product(s) or materials, including substantive changes to installation instructions, shall be resubmitted to the Board.6. At the Board's discretion, in lieu of granting an applicant's product acceptance or request, the Board may convert such a request to a request for a Test-site under 248 CMR 3.00.7. In lieu of requiring the renewal of a product's acceptance, the Board may periodically require applicants to certify that: a. the product and its instructions have not been altered since first accepted by the Board; andb. the product continues to meet the requirements of 248 CMR 3.00 through 10.00.(c)Board Suspension/Rescission of Product Acceptance. 1. Board acceptance of a product may be withdrawn whenever any of the following conditions exist: a. Plumbing laws or regulations have changed affecting the legal installation of the product;b. The product has become the subject of a recall by the manufacturer;c. The product has been deemed unsafe or defective by the Consumer Product Safety Commission, a court of competent jurisdiction, or other such legal entity operating under a state or federal law;d. The product has been modified without Board notice and acceptance;e. The installation of the product requires, but cannot meet, provisions of any nonplumbing laws/regulations;f. The manufacturer has not responded to Board requests/investigations, including any Board requests to certify the product continues to comply with 248 CMR 3.04;g. Board acceptance of the product was based on incomplete or incorrect information; orh. The Board has substantial evidence that continued use of the product would pose a threat to the public's health, safety, or welfare.2. The rescission of a product's acceptance may, if necessary for public safety, occur prior to the manufacturer being provided with an opportunity to respond to the Board with grounds that may challenge the rescission. The provision of this opportunity shall not be interpreted to create any hearing or other due process rights other than those required by law.(d) The Board may waive the need for a product to be accepted per 248 CMR 3.04(1) when in the best interests of the public's health, safety, or welfare.(2)Variances. (a) The Board may allow an applicant to use an alternative method, material, system or product that does not comply with 248 CMR 3.00 through 10.00 when: 1. in the Board's opinion there is an unusual or extraordinary circumstance or an established hardship that warrants special terms or conditions; and2. the applicant seeks permission from the Board for using the alternative method, material, system, or product for one instance at one location.(b) No plumbing or gas-fitting work that is subject to a Variance request shall begin before the Board has voted to grant the Variance request. The Board may make an exception to this rule subject to the following limitations:1. The work was performed, prior to a variance being requested, by an individual licensed by the Board operating pursuant to a validly issued permit;2. Variances after the fact shall be granted only if a hardship can be established which would have justified the variance if sought prior to the work being performed. For purposes of 248 CMR 3.04(2)(b)2., any work or costs incurred to remove noncompliant work or costs incurred to obtain compliant products or materials shall not be considered a qualifying hardship.3. The applicant for the variance must be the licensee responsible for the work performed. This applicant must be able to certify the following in writing and using a form approved by the Board in order to qualify for a variance after the fact: a. That the work performed violates specific provisions of M.G.L. c. 142 and/or 248 CMR as cited by the inspector in writing which the applicant must provide to the Board;b. The applicant must certify that he or she understands how the provisions of M.G.L. c. 142 and/or 248 CMR have been violated and that the licensee will ensure all his or her future work will conform to those requirements;c. That the noncompliant work was unintentionally noncompliant due to a condition that the applicant who was responsible for the work could not have reasonably foreseen;d. That the applicant notified the inspector immediately when the work was discovered to be noncompliant; work performed after this notification shall not be eligible for a variance; ande. That the applicant agrees that the nonconforming work is subject to immediate removal if the Board, in its discretion, rejects the variance.4. The availability of such an exception shall not relieve a licensee of their obligation to adhere to applicable plumbing and gas fitting laws and regulations governing their work; failing to adhere to 248 CMR 3.04(2)(b)4. may subject a licensee to disciplinary action.(c) The Variance application shall: 1. be made to the Board before filing for the related Permit application to the Inspector;2. be submitted in writing and using the forms provided by the Board;3. include a copy of the petition for a Variance that was made to the Board of Health or to the Health Department for variance applications that involve plumbing work that is not under the jurisdiction of state inspectors; and4. include a copy of the Board of Health or Health Department's response to the petition for variance applications that involve plumbing work that is not under the jurisdiction of state inspectors. The Board may waive this requirement so long as it may confirm that the petition was made in a timely manner.(d) The applicant for a Variance request shall:1. provide a completed application;2. include a nonrefundable fee in the amount set by the Secretary of Administration and Finance and made payable to the Commonwealth of Massachusetts;3. appear at the Board meeting wherein the Variance application is scheduled to be discussed; and4. fulfill any testing requirements and/or meet any other applicable standards in their entirety required by the Board.(e) Variances shall not be permitted to waive requirements of Massachusetts law, nor shall they be permitted for education or licensing requirements in 248 CMR 3.00 through 11.00.(3)Special-permission. (a) When safety is of special consideration, provisions of 248 CMR 3.00 through 10.00 may require that a Licensee obtain Special-permission from the Board before installing or using a given product, system, design, or method.(b) To obtain Special-permission an applicant shall:1. submit a request to the Board; and2. at the Board's request, appear at a Board meeting where the request is scheduled to be discussed.(c) The Special-permission request shall include:1. a nonrefundable fee in the amount set by the Secretary of Administration and Finance and made payable to the Commonwealth of Massachusetts;2. a completed application;3. a certification that the system was designed or engineered by a qualified individual;4. the submission of a set of construction documents that have been stamped by a Massachusetts Registered Professional Engineer; and5. any other requested documentation.(4)Test-site. (a) The Board may allow an applicant to use an alternative method, material, system or technology that does not comply with 248 CMR to determine its feasibility or safety.(b) A Test-site is appropriate when an applicant anticipates that the alternative method, material, system, or technology may be used for more than one installation and at more than one location.(c) No work that is subject to a Test-site request shall begin before the Board has voted to grant the Test-site request.(d) The Test-site application shall be made to the Board before filing for the related Permit application to the Inspector.(e) The applicant for a Test-site request shall:1. provide a completed application;2. include a nonrefundable fee in the amount set by the Secretary of Administration and Finance and made payable to the Commonwealth of Massachusetts;3. appear at the Board meeting wherein the product Test-site application is scheduled to be discussed; and4. fulfill any testing requirements or applicable standards in their entirety required by the Board.(f) Should testing prove nonconformance of the product, material, system, technology, or method at issue, the test-site grant may be subject to additional tests or rescission.(5)Required Tests.(a) For the purpose of verifying a claim relating to an application made for Product acceptance, Variance, Test-site, or Special-permission, the Board may require that tests be performed and that such Board recognized tests are performed at the expense of the applicant.(b) Any tests required by the Board for the purpose of verifying a claim relating to an application made under 248 CMR 3.04(5) shall be conducted in accordance with industry recognized standards acceptable to the Board.(6)Board Recognized Testing. (a) The Board no longer approves testing laboratories. All previous approvals shall be deemed null and void.(b) The Board will only recognize testing performed by laboratories that have been certified to meet industry-based guidelines to ensure appropriate testing.(c) Laboratory certification shall be performed by:1. Neutral/third-party accreditation bodies;2. Neutral/third-party conformity assessment bodies; and(d) The Board reserves the right to reject tests from laboratories that lose their certification and/or fail to meet standards necessary for reliable testing.(e) The Board may recognize field testing performed by certified third-party testing agencies.Amended by Mass Register Issue 1331, eff. 1/27/2017.Amended by Mass Register Issue 1442, eff. 4/30/2021.