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MSHA Proposed Rule
Testing and Evaluation by Independent Laboratories and Non-MSHA Product Safety Standards; Proposed Rule [10/17/2002]
[PDF Version]
Volume 67, Number 201, Page 64195-64213
[[Page 64195]]
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Part II
Department of Labor
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Mine Safety and Health Administration
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30 CFR Parts 6, 7, 18, et al.
Testing and Evaluation by Independent Laboratories and Non-MSHA Product
Safety Standards; Proposed Rule
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DEPARTMENT OF LABOR
Mine Safety and Health Administration
30 CFR Parts 6, 7, 18, 19, 20, 22, 23, 27, 33, 35, and 36
RIN 1219-AA87
Testing and Evaluation by Independent Laboratories and Non-MSHA
Product Safety Standards
AGENCY: Mine Safety and Health Administration (MSHA), Department of
Labor.
ACTION: Proposed rule, notice of hearing and close of comment period.
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SUMMARY: This revised proposed rule would establish alternate
requirements for testing and evaluation of products that MSHA approves
for use in gassy underground mines. It is being published in response
to comments received as the result of a 1994 proposed rule on the same
subject. It would permit manufacturers of certain products, who seek
MSHA approval, to use an independent laboratory to perform, in whole or
part, the necessary testing and evaluation for approval. Testing and
evaluation as used in this proposed rule means testing, evaluation, or
both. This revised proposed rule would also permit manufacturers to
have their products approved based on non-MSHA product safety
standards. This would occur only after MSHA has determined that such
standards are equivalent to its applicable product approval
requirements or can be modified to provide at least the same degree of
protection as those MSHA requirements. The revised rule, as proposed,
should increase the availability of a wider variety of mining products
having enhanced safety features by reducing costs and broadening the
market for mining equipment.
DATES: Comments must be received on or before December 31, 2002. Submit
written comments on the information collection requirements by December
16, 2002.
Two public hearings will be held. One in Denver, Colorado on
January 7, 2003 and another in Washington, Pennsylvania on January 9,
2003. The first hearing will begin at 9 a.m. and end after the last
scheduled speaker appears; no later than 5 p.m. on January 7, 2003.
The second hearing will begin at 9 a.m. and end after the last
scheduled speaker appears; no later than 5 p.m. on January 9, 2003. If
individuals or organizations wish to make an oral presentation for the
record, we ask that you submit your request at least 5 days prior to
the hearing dates. However, you do not have to make a written request
to speak. Any unallotted time will be made available for persons making
same-day requests.
The post-hearing comment period will close 30 days after the second
public hearing on February 10, 2003.
ADDRESSES: Comments. Send comments on the revised proposed rule--
(1) By mail or hand delivery to MSHA, Office of Standards,
Regulations and Variances, 1100 Wilson Boulevard, Room 2352, Arlington,
VA 22209-3939;
(2) By facsimile to MSHA, Office of Standards, Regulations and
Variances, 202-693-9441; or
(3) By electronic mail to comments@msha.gov. If possible, please
supplement written comments with computer files on disk. You may
contact MSHA with any format questions.
Send written comments on the information collection requirements to
both MSHA and the Office of Management and Budget (OMB) as follows:
(1) To OMB by mail addressed to the Office of Information and
Regulatory Affairs, Office of Management and Budget, New Executive
Office Building, 725 17th Street, NW., Washington, DC 20503, Attn: Desk
Officer for MSHA; and
(2) To MSHA by one of the following methods:
(a) By mail or hand delivery to MSHA, Office of Standards,
Regulations and Variances, 1100 Wilson Boulevard, Room 2352, Arlington,
VA 22209-3939;
(b) By facsimile to MSHA, at 202-693-9441; or
(c) By electronic mail to comments@msha.gov.
Hearings. (1) The hearing on January 7, 2003 will be held at the
DoubleTree Hotel Denver, 3203 Quebec Street, Denver, Colorado 80207
(phone: (303) 321-3333).
(2) The hearing on January 9, 2003 will be held at the Holiday Inn
Meadowlands, 340 Racetrack Road, Washington, Pennsylvania 15301 (phone:
(724) 222-6200).
FOR FURTHER INFORMATION CONTACT: Marvin W. Nichols, Jr., Director,
Office of Standards, Regulations, and Variances, MSHA, 1100 Wilson
Boulevard, Room 2352, Arlington, Virginia 22209-3939. Mr. Nichols can
be reached at nichols-marvin@msha.gov (Internet E-mail), 202-693-9440
(voice), or 202-693-9441 (facsimile).
SUPPLEMENTARY INFORMATION: You may obtain copies of the revised
proposed rule and the Preliminary Regulatory Economic Analysis (PREA)
in alternative formats by calling the number in the FOR FURTHER
INFORMATION CONTACT section above. The alternative formats available
are either a large print version of these documents or electronic files
that can be sent to you either on a computer disk or an attachment to
an e-mail. The documents also are available on the Internet at http://
www.msha.gov/REGSINFO.HTM. We intend to place the public comments on
these documents on our website shortly after we receive them.
I. Background
From its creation by Congress in 1910, MSHA's predecessor, the
Bureau of Mines, U.S. Department of Interior (Bureau), was responsible
for the testing and evaluation of mining products. Under the Federal
Mine Safety and Health Act of 1977 (Mine Act), MSHA is responsible for
prescribing the technical design, construction, and the test
requirements for certain products used in underground mines, and for
testing and evaluating them for approval based on those requirements.
These technical requirements are set forth in the Agency's approval
regulations in 30 CFR parts 7 through 36.
MSHA's approval regulations govern the process through which
manufacturers may obtain MSHA approval, certification, acceptance or
evaluation of certain products for use in underground mines. Each of
these separate approval actions has specific application procedures and
technical requirements for testing and evaluation. MSHA currently
conducts the testing and evaluation of products for a fee paid by the
applicant. Following MSHA approval, manufacturers must ensure that the
product continues to conform to the technical requirements tested,
evaluated, and approved by MSHA.
When MSHA receives an application for approval of a product for use
in underground mines, every aspect of the documentation package is
reviewed to determine whether the technical requirements of the
applicable provisions of 30 CFR parts 15 through 36 have been met. Each
drawing and specification in the package is cross-checked against these
requirements and, for some products, samples of the product or parts of
the product are disassembled and examined by MSHA for conformity with
the drawings and specifications. After MSHA verifies that an
applicant's product complies with the design and construction
requirements, MSHA then tests the product to determine whether it
performs according to the approval requirements, unless the design
obviates the need for testing. If the product
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passes the tests and meets all MSHA requirements, MSHA issues an
approval for the product.
Once MSHA has approved a product, the manufacturer is authorized to
place an MSHA approval marking on the product that identifies it as
approved for use in underground mines. Use of the MSHA marking
obligates the manufacturer to maintain the quality of the product as
approved. The MSHA marking indicates to the mining community that the
product has been manufactured according to the drawings and
specifications upon which the approval was based. Any proposed change
to an approved product that causes it to differ from the design or
construction described in the original documentation approved by MSHA
must be submitted to the Agency for approval prior to implementation of
the change. If MSHA approves the change, the Agency issues an extension
of approval or a notice of acceptance of the modified product to the
manufacturer.
In the mid-1980s, the Agency reviewed its product approval program
to determine whether it could be restructured to provide improved
safety to miners without increasing cost to the applicant. That review
resulted in the promulgation in 1988 of 30 CFR part 7, Testing by
Applicant or Third-Party, which represented MSHA's first departure from
its role of front-end prototype testing of products for approval, by
substituting manufacturer or third-party testing of a limited number of
products for the testing that previously had been conducted by MSHA.
The objectives of the program were to permit MSHA to redirect its
resources to its post-approval product audit functions, as well as to
the review of technological improvements in mining products. The
Agency's shift in emphasis was intended to enhance the safety of
products in mines by providing the mining community a greater assurance
that approved products in mines continue to be manufactured as
approved, by detecting any problems in manufactured products more
effectively, and by enabling a more expeditious introduction of new
technology.
Products selected as suitable for applicant or third-party testing
under part 7 were those with characteristics which could be objectively
tested in a routine and readily reproducible manner, with no elements
of subjective analysis. Products whose testing results depend on the
experience, judgement, and knowledge of the personnel executing the
tests, such as testing a complex intrinsically safe circuit, were not
included in the part 7 program.
Under part 7, all product testing is conducted according to MSHA-
specified tests and procedures, using calibrated and accurate
instruments. Moreover, the product testing is subject to Agency. Part 7
is not a self-certification program. The part 7 concept shifts only the
testing of certain products to the applicant or a third party. The
evaluation of the test results and the issuance of the approval remain
the responsibility of the Agency. This revised proposed rule would not
affect the testing aspects of part 7. Part 7, unlike the other approval
parts, would continue to permit testing by the applicant or by third
party laboratories that are not necessarily independent from the
manufacturer.
II. 1994 Proposed Rule
In 1993, MSHA initiated a further review of its approval and
certification activities, including its part 7 applicant or third-party
testing program. Based on this review, the Agency reaffirmed the
objectives of the part 7 concept to increase post-approval product
audits and direct more resources to evaluation of safety and
technological improvements in products for use underground. However,
MSHA determined that while the part 7 program was a step in the right
direction, the limited scope of that program did not free up sufficient
resources to allow MSHA to fully redirect its efforts to meet those
objectives. After considering how best to accomplish those goals, the
Agency decided to initiate rulemaking to modify MSHA's approval program
in two ways, which it did in 1994. Under the 1994 proposed rule,
applicants seeking MSHA product approval would have been required to
use independent laboratories recognized by the Occupational Safety and
Health Administration (OSHA) under its Nationally-Recognized Testing
Laboratories (NRTL) program for the required testing and evaluation.
This would have been in place of MSHA testing and evaluation of
products. As with the part 7 program, however, MSHA would have
continued to verify that approval requirements were met and would have
retained full responsibility for issuing the product approval. Thus,
the 1994 proposed rule would not have constituted a self-certification
program. Second, MSHA or appropriately recognized independent
laboratories would have been permitted, upon an applicant's request, to
test and evaluate a product for approval based on approval requirements
other than the Agency's, as long as those requirements provided an
equal or a greater degree of protection. This would have allowed MSHA
to approve a product meeting the International Electrotechnical
Commission's (IEC) approval standards, or some other approval
requirements different from those specified in MSHA's regulations,
provided that MSHA first had determined that those requirements were
equivalent or could be modified to provide protection equivalent to
that afforded by products tested and evaluated according to MSHA
approval requirements. In this way, the Agency could have taken
advantage of revisions to product safety standards developed by other
countries or standards development organizations to address
technological advances or improvements in product safety. Such an
approach would have permitted the introduction of a wider variety of
improved products into U.S. mines more quickly than if the Agency had
to undertake rulemaking to address each technological advance or
improvement in product safety, capability, and performance.
A notice of proposed rulemaking (NPRM) for a new part 6 was
published on November 30, 1994 (59 FR 61376). The NPRM comment period
was extended to February 21, 1995 (60 FR 8209). A Public Hearing Notice
was published on October 10, 1995 (60 FR 52640), scheduling a public
hearing for November 15, 1995. That hearing was rescheduled to April
30, 1996. (61 FR 15743). The post-hearing comment period ended on May
31, 1996. (61 FR 15743). The rule was not published as a final rule.
Instead, MSHA is publishing this revised proposed rule (hereafter
referred to as the proposed rule).
III. Discussion of Proposed Rule
A. Introduction
The proposed rule would provide a number of significant
improvements to the 1994 proposed rule. There were two major concerns
expressed by a large number of commenters, primarily representing
product manufacturers and mine operators. They objected to the
requirement to employ the services of private sector laboratories, and
expressed concern over the loss of expertise that MSHA would experience
by ceasing to perform tests and evaluations. There was also an
overwhelming concern about the effects the mandatory nature of the 1994
proposed rule would have on their costs and turnaround times. Many
commenters stated that they had previous experience in dealing with
third party laboratories and, in general,
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had experienced higher costs and longer turnaround times in those
instances.
MSHA has revised the 1994 proposed rule to address these concerns,
because we recognize the industry's need to expedite the transfer of
technology into the mining environment. This transfer should improve
the health and safety of miners. The alternate program in this proposed
rule would permit a manufacturer who has had a product tested and
evaluated by an independent laboratory to submit the test reports and
technical information to MSHA to obtain MSHA approval for the product.
MSHA is aware of certain instruments that are currently listed
(approved) by independent laboratories for use in hazardous gas and
dust atmospheres that may also be suitable for use in the mine
environment. These instruments include: portable methane detectors, air
sampling pumps, oxygen deficiency meters, air velocity meters, carbon
monoxide detectors, hydrogen sulfide detectors, powered respirators and
accessories, toxic gas detectors, portable two-way radios, laser
surveying instruments, mine rescue communications system, photometers,
temperature sensing devices, personal audible and visual alarms, heat
detection systems, voice amplifiers, position sensing devices, tape
recorders, pressure sensing devices, data recording instruments,
electrical diagnostic test instruments, sound level meters, sound level
calibrators, audio dosimeters, and cable fault detectors.
MSHA has issued approvals for a number of instruments that were
already listed (approved) by an independent laboratory at the time of
application for MSHA approval. Examples of some of these instruments
are: Motorola MT2000 and HT1000 Hand-held Radios; MSA Microgard
Portable Alarm for warning of low levels of oxygen and high levels of
methane; MSA Escort Elf Portable Pump for sampling of the mine
atmosphere for dust; MSA Passport and Mini Series Personal Alarms for
warning of high levels of toxic and combustible gases; Industrial
Scientific Corporation Model SP402 Sampling Pump for remote monitoring
of oxygen, toxic and combustible gases; and Industrial Scientific
Corporation Model TMX410 Four-Gas Monitor for monitoring and warning of
high levels of toxic and combustible gases and low levels of oxygen.
MSHA is aware that there are many more products, including
instruments, motors, explosion-proof enclosures, conveyor belts and
hydraulic fluids, that are listed by independent laboratories that have
not been submitted for MSHA approval. These products, used in other
industries, can offer safety-related benefits to the mining industry
and are considered potential candidates for the program that would be
created by this rule. By permitting acceptance of independent
laboratory test and evaluation results, MSHA believes that some of
these product manufacturers would be encouraged to submit their
products for MSHA approval.
MSHA is also aware that many instruments and products have been
listed (approved) by independent laboratories to Underwriter's
Laboratories (UL) and Factory Mutual (FM) intrinsic safety standards
for use in Class I (explosive gas-air mixtures) and Class II (explosive
dust-air mixtures) atmospheres. Many of the same tests and design
requirements that MSHA uses under its intrinsic safety regulations are
also used in the UL and FM standards. Under this proposed rule,
applicants seeking MSHA approval of instruments or other products for
intrinsic safety purposes could submit the results of any independent
laboratory's testing and evaluation for intrinsic safety to MSHA as
part of their applications. If after review, MSHA determined that the
testing already conducted was performed properly, MSHA could accept the
test results and would not have to repeat testing in cases where the
tests were the same. This would reduce costs and the time spent by
manufacturers to obtain MSHA approval. If the review raised questions
or concerns about the validity of test and evaluations submitted, MSHA
would need to perform repeat testing. MSHA, of course, would conduct
additional testing and evaluation where the UL and FM intrinsic safety
requirements were not the same as MSHA's.
The most significant change from the 1994 proposed rule is that
MSHA would retain its testing and evaluation capabilities, but would
offer applicants the alternative of submitting an independent
laboratory test and evaluation report for MSHA approval. MSHA would
have the authority to accept the test and evaluation results in lieu of
conducting its own. MSHA also would have the authority to conduct or to
observe any additional or repeat test and evaluation to ensure
compliance with the MSHA requirements.
MSHA carefully analyzed the comments received in response to the
1994 proposed rule and responded in many instances by revising it. The
resultant proposed rule would offer the alternative approval program as
well as the equivalency requirements in essentially the 1994 proposed
form.
Some commenters expressed concern that MSHA might lose expertise if
independent laboratories performed all testing and evaluation. This
proposed rule would retain a major role for MSHA. MSHA would be
analyzing non-MSHA product safety standards to determine equivalency.
This proposed rule would allow MSHA, at the request of the applicant,
to approve products based either on its approval regulations or non-
MSHA product safety standards that have been determined to be
equivalent. Most importantly, MSHA would remain the approval authority,
whether MSHA or an independent laboratory does the testing and
evaluation.
In developing this proposed rule, MSHA has made every effort to
address the comments received on the 1994 proposed rulemaking. Comments
addressing both the costs and the benefits of each provision, as well
as revisions and deletions, were carefully evaluated against the
statutory requirement that nothing in this proposed rule shall reduce
the protection afforded miners by an existing mandatory health or
safety standard.
B. Section-by-Section Discussion
The 1994 proposed rule, which would have required applicants to use
independent laboratories to perform the product testing and evaluation
necessary for issuance of MSHA's product approval, was intended to form
the foundation of a modified approval program providing enhanced
product user protection and more rapid introduction of new technology
into the mining industry. The 1994 proposed rule would also have
required applicants for product approval to submit to MSHA the test and
evaluation data and results obtained from an independent laboratory
recognized by OSHA as an NRTL. The 1994 proposed rule also would have
permitted applicants to request MSHA approval based on testing and
evaluation requirements other than MSHA's once MSHA determined the
other requirements to be equivalent to it own requirements in their
original or modified form.
MSHA received many comments on the 1994 proposed rule from
interested parties, such as mining equipment manufacturers, mine
operators, representatives of miners, professional associations, and
laboratories. Many of these commenters also participated in the hearing
and sent in post-hearing comments on a number of issues. MSHA has
extensively modified the 1994 proposed rule based on these comments.
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Under this proposed rule, manufacturers seeking MSHA approval could
choose to have their products tested and evaluated either by an
independent laboratory or by MSHA. MSHA would be able to accept the
independent laboratory's test and evaluation results in lieu of
performing its own. Also under this proposed rule, the equivalency
concept would remain basically the same as originally proposed.
No approvals would be issued under part 6. Instead, any approval
issued based on part 6 provisions would continue to be approved under
the applicable product approval parts. The necessary conforming
language is being proposed to those other approval parts in this
Federal Register Notice of Proposed Rulemaking.
The following portion of the preamble discusses each provision of
the proposed part 6 rule. The text of the proposed rule is included at
the end of the document.
Section 6.1 Purpose and Effective Date
This section explains that the purpose of this proposal would be to
establish an alternate program for testing and evaluation of products
MSHA approves for use in gassy underground mines. It would permit
manufacturers of certain products who seek MSHA approval to use an
independent laboratory to perform, in whole or in part, the necessary
testing and evaluation for approval. It also would permit manufacturers
to request to have their products approved based on non-MSHA product
safety standards once MSHA has determined that the non-MSHA product
safety standards are equivalent to MSHA's applicable product approval
requirements or can be modified to provide at least the same degree of
protection as MSHA's requirements.
The provisions of this part would apply to any application for
approval or extension of approval filed under 30 CFR parts 18, 19, 20,
22, 23, 27, 33, 35, or 36, and received by MSHA after the effective
date of this rule. It would be effective 60 days after publication of
the final rule in the Federal Register.
Section 6.2 Definitions
This section of the proposed rule would define and clarify the key
terms used in part 6. The 1994 proposed rule included definitions for
``approval'' and ``evaluation.'' Commenters on the 1994 proposed rule
did not direct any comments to these definitions. The definition of
``approval'' remains unchanged. The definition for ``evaluation'' was
removed because MSHA believes the term is self-explanatory.
The additional definitions are provided to clarify certain terms
that were not defined in the 1994 proposed rule or to address new terms
that were not included in the 1994 proposed rule. These would include
``applicant,'' ``approval holder,'' ``equivalent non-MSHA product
safety standard,'' ``independent laboratory,'' ``post-approval product
audit'' and ``product safety standard.''
Applicant. This term would be used to describe an individual or
organization that manufactures or controls the assembly of a product
and that applies to MSHA for approval of that product.
Approval. This term would be used to describe a written document
issued by MSHA which states that a product has met the applicable
requirements of part 18, 19, 20, 22, 23, 27, 33, 35, or 36. The
definition would be based on the existing definitions of ``approval''
in the parts specified above. It is expanded to include
``certification'' and ``acceptance'' because these terms also are used
to denote MSHA approval.
Approval holder. This term would be used to describe an applicant
whose application for approval of a product under part 18, 19, 20, 22,
23, 27, 33, 35, or 36 of this chapter has been approved by MSHA.
Equivalent non-MSHA product safety standard. This term would be
used to describe a non-MSHA product safety standard, or group of
standards, that is determined by MSHA to provide at least the same
degree of protection as the applicable MSHA product approval
requirements in parts 18, 19, 20, 22, 23, 27, 33, 35, and 36, or which
in modified form, provides at least the same degree of protection.
Independent Laboratory. This term would be used to describe a
laboratory that: (1) Has been recognized by a laboratory accrediting
organization (e.g., OSHA NRTL Program, American Association for
Laboratory Accreditation (A2LA), International Electrotechnical
Commission (IEC), etc.) to test and evaluate products to a product
safety standard, and (2) is free from commercial, financial, and other
pressures that may influence the results of the testing and evaluation
process.
Post-approval product audit. This term applies to the examination,
testing, or both, by MSHA of approved products selected by MSHA to
determine whether those products meet the applicable product approval
requirements and have been manufactured as approved.
Product safety standard. This term would be used to describe a
document, or group of documents that specify the requirements for the
testing and evaluation of a product for use in explosive gas and dust
atmospheres, and, when appropriate, include documents addressing the
flammability properties of products.
Section 6.10 Use of Independent Laboratories
Under paragraph (a) of the proposed rule, manufacturers who seek
approval of certain products would be permitted to use an independent
laboratory to perform, in whole or in part, the necessary testing and
evaluation for MSHA product approval. Thus, this proposed rule would no
longer require manufacturers to use independent laboratories. Instead,
it would give manufacturers the option of having either MSHA or an
independent laboratory do the testing and evaluation.
Also, under this proposed rule, if independent laboratories were
used, applicants would need to submit, as part of the approval
application, four items set out in subparagraphs (1), (2), (3), and (4)
of section 6.10(a). They would include written evidence of the
laboratory's independence and current recognition by a laboratory
accrediting organization; a complete technical explanation of how the
product complies with each requirement in the applicable MSHA product
approval requirements; identification of components or features of the
product that are critical to the safety of the product; and all
documentation, including drawings and specifications, which are
required by the applicable approval part under this chapter.
The language in the 1994 proposed rule, requiring that testing and
evaluation of products submitted to MSHA for approval be conducted only
by an independent laboratory recognized as a NRTL under OSHA's program,
has not been included. There was disagreement with the Agency's 1994
proposal to require that manufacturers use NRTLs to test and evaluate
their products prior to requesting MSHA approval. The comments were in
two general categories: First, commenters noted that the use of NRTLs
would be mandatory; and second, that the 1994 proposal relied
exclusively on NRTLs instead of a broader category of independent
laboratories.
One commenter stated that it was not opposed to MSHA's acceptance
of results produced by a NRTL if MSHA preserved the option for
manufacturers to submit their products to MSHA for testing. Various
commenters expressed concern that the exclusive use of NRTLs
[[Page 64200]]
could create a monopoly. Other commenters expressed concern about the
small number of NRTLs and the cost of the equipment necessary to test
specialized mining products. These commenters feared that the NRTLs
would find it too costly to duplicate MSHA testing equipment,
especially when the number of products requiring such testing would be
small. Further, they expressed concern that NRTLs would tend to
specialize in only one kind of testing, resulting in a monopoly and
inhibiting competition. It was also their contention that NRTLs would
be unable to respond to numerous requests from competing manufacturers,
and would thus reduce the availability of competitive products and
limit the mining industry to a few suppliers. Such specialization could
also cause bottlenecks in testing and evaluation if multiple
manufacturers sought approval concurrently. They also feared that the
laboratories would face competing demands for resources and that
laboratories might give priority to non-mining industry products. This
proposed rule would allow manufacturers to choose whether to have MSHA
conduct the testing and evaluation or to have an independent
laboratory, recognized by a laboratory accrediting organization, do so.
The laboratory would not have to be a NRTL.
Although it is no longer proposing that an independent laboratory
used be recognized under OSHA's NRTL program, the Agency determined
that it would be essential for the laboratories performing testing and
evaluation to be recognized by a laboratory accrediting organization.
This is based on comments asserting the need for a system to be in
place to determine the qualifications of laboratories. MSHA agrees that
competent laboratory accrediting organizations exist and continues to
believe that it should not establish its own program and duplicate the
work of others. One commenter recommended this by stating,
``[r]ecognizing existing programs [third-party certification programs]
should be a significant cost reduction to already overburdened
government agencies.''
While MSHA does not want to establish its own laboratory
accreditation program, the Agency believes there are two essential
qualifications that laboratories would have to meet in order for MSHA
and the mining community to have assurance that any product, tested and
evaluated by third party laboratories, would be safe in the mining
environment. First, MSHA believes that the laboratory must be
independent of commercial, financial, or other pressures that could
influence the results of the testing and evaluation process.
Independence of the testing laboratory from the manufacturer is
essential for MSHA and the mining public to have confidence in the
results of testing and evaluation conducted outside the Agency's
Approval and Certification Center. Second, MSHA would need some
evidence that the laboratory is competent to test and evaluate to a
particular product safety standard. This proposed rule would permit
MSHA to accept testing and evaluation performed by an independent
laboratory provided that MSHA receives written evidence of the
laboratory's independence and current recognition by a laboratory
accrediting organization. MSHA agrees with commenters that there are a
number of capable accrediting organizations already in existence and is
proposing to accept testing and evaluation by independent laboratories
that are accredited by any one of them.
Some commenters pointed to MSHA's existing regulation at 30 CFR
part 7 that allows self-testing in certain circumstances, and advocated
expansion of that program. However, that regulation clearly spells out
the circumstances under which MSHA allows manufacturer testing. The
Agency limited such testing to only products that could be objectively
tested in a routine and readily reproducible manner, with no elements
of subjective analysis. With part 7, MSHA provides the exact testing
procedure and components or products either pass or fail. It is not a
self-certification program. MSHA continues to evaluate the test results
and issue the approval.
This part 6 proposed rule would not allow manufacturer testing and
evaluation because of the broad range of products covered by it and
because the testing and evaluation often requires subjective analysis.
For this type of testing and evaluation, MSHA prefers the use of third
party, rather than manufacturer, testing and evaluation results. The
use of a third party to conduct the testing would increase confidence
in the objectivity of the test results.
As indicated in the prior discussion on proposed definitions, this
proposed rule defines an independent laboratory as a laboratory that
has been recognized by a laboratory accrediting organization to test
and evaluate products to a product safety standard and is free from
commercial, financial, and other pressures that may influence the
results of the testing and evaluation process.
Several commenters expressed concern that results from foreign
laboratories would be eliminated with the required use of NRTLs. A
commenter suggested that test results for products certified in other
countries should be accepted by MSHA in lieu of our tests because many
manufacturers market products which have already been certified in
other countries for use in underground mines. Another commenter
suggested that MSHA would have to add enhancements to the Approval and
Certification Center test facilities to accommodate different tests.
One commenter stated that MSHA should accept testing by U.S. and non-
U.S. facilities as an alternative to MSHA testing.
On the other hand, one commenter objected to any foreign
laboratories performing testing and evaluation for MSHA product
approvals. This commenter did not believe that a sufficient level of
protection could be maintained over products tested in foreign
countries for use in U.S. mines. The commenter stated that it would be
much more difficult for MSHA to maintain oversight of the quality of
foreign laboratories' work. This commenter expressed concern that most
foreign laboratories would be inclined to serve the interest of their
own countries rather than conform to U.S. approval requirements,
especially if the rejection of a product would mean a loss in foreign
trade for the country where the laboratory was located. This commenter
questioned how MSHA would ensure that foreign laboratories would have
the facilities, equipment, and qualified persons to conduct the testing
or that test parameters would be met.
MSHA recognizes that some foreign laboratories would meet the
criteria for independent laboratories. Therefore, a manufacturer could
choose to use a foreign laboratory that has been accredited by a
recognized accrediting organization such as the IEC to perform testing
and evaluation to MSHA's requirements. Guide 17025 of the International
Organization for Standardization (ISO)/IEC ``General requirements for
the competence of testing and calibration laboratories'' and ISO/IEC
Guide 65 ``General requirements for bodies operating product
certification systems'' are the main documents used both nationally and
internationally by organizations which accredit laboratories. Moreover,
the United States is a member of the World Trade Organization (WTO).
The Technical Barriers to Trade Agreement applies to members of the WTO
and requires members to ensure that technical regulations are not
prepared, adopted, or applied with a view to or with the effect of
creating unnecessary
[[Page 64201]]
obstacles to international trade. This means that, under the agreement,
standards could not be promulgated that would discriminate between
foreign and domestic manufacturers and laboratories. Therefore, under
this proposed rule, a manufacturer could choose to use independent
laboratories recognized under OSHA's NRTL program or laboratories
accredited by other national or foreign accrediting organizations.
Additionally, commenters expressed concern that MSHA would lose its
expertise if the Agency did not continue to test and evaluate products
as part of the approval process. In response to these concerns, MSHA
emphasizes that it would continue to test and evaluate products at the
manufacturers' request. It would also need to retain testing and
evaluation capability for the purposes of post-product approval audits,
accident investigations, and for purposes of technical assistance. In
addition, as discussed later in Sec. 6.20 of this proposed rule, MSHA
would be evaluating other non-MSHA product safety standards to
determine equivalency, increasing its testing and evaluation expertise.
Commenters cited many concerns about increased costs. They cited a
significant increase in the cost of testing and evaluation done by
independent laboratories compared to the fees imposed by MSHA. MSHA's
costs are set through a process that determines the direct and indirect
hourly costs for the testing, evaluation, and approval of a product.
MSHA does not include profit in the fees. MSHA considered the disparity
in costs between MSHA and independent laboratories for product testing
and evaluation in revising the 1994 proposed rule. Since the revised
proposal would no longer require the use of independent laboratories to
perform all testing and evaluation for MSHA approval, these increased
costs would be eliminated.
MSHA has considered all of these objections to the exclusive
mandatory use of NRTLs, and this proposed rule addresses those
objections. The proposed rule would allow the optional use of a wide
network of independent laboratories, eliminating the concern about
monopolies. It also would provide manufacturers the option to have MSHA
perform some or all of the testing and evaluation necessary for
approval. MSHA believes that assessing other non-MSHA product safety
standards' equivalency to MSHA's approval requirements and continuing
its responsibility for product audits would have maintained MSHA's
expertise. Under this proposed rule, the Agency would continue to be
involved in direct product testing and evaluation if manufacturers
choose to submit their products to MSHA for testing and evaluation,
thus obviating the concern about MSHA expertise. MSHA would also be
investigating new technology. By eliminating the requirement for
exclusive use of NRTLs, MSHA addresses the concerns raised about
audits, cost, and creation of monopolies.
Paragraph (b) of this proposed rule, like the 1994 proposed rule,
would require that product testing and evaluation performed by
independent laboratories for purposes of MSHA approval comply with MSHA
product approval requirements. The proposed rule would not permit an
independent laboratory to change a testing standard or any elements
incorporated into the standard. This is due to the critical nature of
the testing and evaluation of products to be used in a potentially
hazardous underground mining environment.
Paragraph (c) of this proposed rule would require product testing
to be conducted or witnessed by the independent laboratory's personnel.
Revised paragraph (c) would replace the language in the 1994 proposed
paragraph (b) that would have required all testing to be conducted at
the laboratory site. Generally, commenters were in disagreement with
that 1994 proposed requirement. They gave examples of products that
could not be transported to a laboratory. That requirement was derived
from an OSHA NRTL policy that has since been changed. MSHA considered
the comments and has decided to permit off-site testing as long as it
is conducted or witnessed by personnel of the independent laboratory.
Under paragraph (d) of this proposed rule, MSHA would notify
applicants, after the review of information required under paragraph
(a), if additional information and testing would be required. The
applicant would be required to provide the information, arrange any
additional or repeat tests and notify MSHA of the location, date, and
time of the test(s). MSHA could observe additional testing conducted by
an independent laboratory. Further, MSHA could decide to conduct the
additional or repeated tests at the applicant's expense. The applicant
would have to supply any additional components necessary for testing
and evaluation. Without a complete application, MSHA would be unable to
initiate the technical review of the product.
After determining that an application package is complete, MSHA
would initiate a technical review to ensure that the independent
laboratory's testing and evaluation results were both reasonable and
appropriate for the particular product. If the technical review of the
package indicated deficiencies resulting from inadequate data,
illogical or unreasonable testing or evaluation results, or the
omission of required information, the applicant would be notified of
the discrepancy and given a reasonable period of time to provide the
needed information and correct the apparent deficiency. If MSHA
determined that additional or repeat testing would be required, the
applicant would have to arrange for any additional or repeat tests and
notify MSHA of the location, date and time of the test(s). MSHA could
elect to observe additional testing conducted by an independent
laboratory or MSHA could conduct the additional or repeat tests at the
applicant's expense. The applicant would need to supply any additional
components necessary for testing and evaluation.
Following the administrative and technical reviews of the product
approval package, MSHA would issue an approval, or a notice denying
approval, to the applicant. A notice denying approval would state the
reasons on which the denial was based. If an approval were issued, the
approval holder would be authorized and required to place an MSHA
marking on the product which signifies to the user of the product that
it is approved for use in gassy underground mines. The product drawings
and specifications, the independent laboratory's testing and evaluation
results and its statement of product compliance with the applicable
approval requirements, as well as written evidence of the laboratory's
independence and current recognition by an accrediting organization,
would be retained in the approval file at MSHA's Approval and
Certification Center.
Section 6.10(d) of the 1994 proposed rule would have required that
approved products tested and evaluated by NRTLs display both the NRTL
and the MSHA marks. Commenters objected to what they considered
duplicative and confusing markings and raised issues about changes to
products, liability, and proper use of a registered certification mark.
Because this proposed rule would eliminate the required use of NRTLs to
test and evaluate, the 1994 proposed rule provision for a NRTL marking
would no longer be necessary. As a result, the revised proposed rule
would not require that manufacturers use the mark of the independent
laboratory that tested and evaluated the product or its
[[Page 64202]]
components. However, nothing in this proposed rule would prohibit a
manufacturer from using the mark of an independent laboratory if it
chose to do so, as long as it carries the MSHA mark as well. Since the
MSHA marking is the only marking that approval holders would be
required to place on approved products, the marking provision of Sec.
6.10(d) of the 1994 proposed rule has been deleted in this proposed
rule because each applicable approval part contains its own marking
requirement. Further, the requirement that a reference be made on the
NRTL marking to the test standard used in testing and evaluation of the
product for MSHA approval has also been deleted.
Paragraph (e) in the 1994 proposed rule would have required
internal audits, performed by a NRTL as part of the quality control
program required by the OSHA accreditation, to be made available for
review by MSHA. Additionally, the 1994 proposed paragraph (f) would
have required NRTLs recognized by OSHA to perform MSHA testing and
evaluation to formulate and implement a ``follow-up'' program in
accordance with the OSHA requirements of 29 CFR 1910.7(b)(2). The 1994
proposed paragraph (g) would also have required that NRTLs make
available to MSHA for review information gathered by a NRTL during
manufacturing site inspections or field audits of manufactured products
approved by MSHA. These three provisions, relating to the mandatory use
of NRTLs, have not been included in this proposed rule since MSHA is no
longer requiring the exclusive use of NRTLs.
Revised proposed paragraph (e), consistent with the 1994 proposed
paragraph (g), would require that approval holders of products approved
based on independent laboratory testing and evaluation make such
products available for audit upon request by MSHA. This would not occur
more than once a year, except for cause. Such an audit would be
conducted at a mutually agreeable site at no cost to MSHA. This is to
ensure that products bearing the MSHA marking meet the approval
requirements and are manufactured in accordance with the approved
drawings and specifications. Commenters were concerned that the
frequency of audits required by the NRTL would lead to excessive costs
and operational delays caused by the diversion of resources and the
frequent presence of auditors on site. These commenters maintained that
NRTL audits would duplicate audits conducted by MSHA. In response to
comments, MSHA has deleted the requirement for the exclusive use of
NRTLs in the proposed rule and, by doing so, has eliminated the need
for NRTL-mandated audits. Although MSHA would no longer specifically
require manufacturers to adhere to audits required by independent
laboratories, MSHA recognizes that most manufacturers who elect to have
their products listed (approved) by independent laboratories generally
accept those laboratories' audit requirements to maintain their
listing.
MSHA would continue to conduct audits as part of its post-approval
product audit program. MSHA conducts audits to ensure conformity with
the technical requirements upon which the approval was based. Approved
products to be audited by MSHA would be selected by the Agency as
representative of those distributed for use in underground mines. When
an approved product is requested by MSHA for audit from the approval
holder, the Agency would arrange to examine and evaluate it at a
mutually agreed upon time and location and would permit the approval
holder to observe audit-related tests conducted. This examination and
evaluation could take place at an MSHA facility, at the manufacturer's
plant or distribution center, or at any other place agreed upon by MSHA
and the approval holder. The approval holder would be able to obtain
the report resulting from such audits.
A commenter expressed concern that MSHA's post-approval product
audits would serve only to remove foreign approved products after a
defective product is found and had possibly caused serious harm. The
commenter suggested that the rule should provide ``proactive''
protection that is designed to root out such problems before they cause
injury and destruction, particularly when MSHA-approved foreign
products are involved. In response, MSHA believes that safeguards would
be in place to detect a problem prior to a product being placed in a
mine. The independent laboratory, either foreign or domestic, would
have to be recognized by a laboratory accrediting organization, such as
OSHA's NRTL Program, A2LA, or IEC, to test and evaluate products to
specific product safety standards.
Additionally, product testing and evaluation performed by both
foreign and domestic laboratories for purposes of MSHA approval would
have to comply with MSHA product approval requirements. In this regard,
under this proposed rule, MSHA would carefully review all product
testing and evaluation reports submitted in support of product approval
applications prior to an approval decision being made. This would
ensure that such testing and evaluation had been performed in
accordance with MSHA procedures and requirements. Finally, the
manufacturer would be ultimately responsible for any product, under any
of the approval parts covered, regardless of who performs the testing
(i.e., foreign or domestic independent laboratory or MSHA). Once the
product is in the mine, the mine operator is required to maintain the
product in approved condition.
This proposed rule would allow MSHA to more effectively determine
whether products are, in fact, being manufactured as approved. MSHA,
not the manufacturer, would select the product. MSHA also would
continue to obtain approved products from sources other than the
manufacturer. This approach is particularly useful for products that
are ``one of a kind'' or of limited distribution. Because these
products are not readily found at mine suppliers or distributors, they
would be difficult to locate without the assistance of the approval
holder.
In determining which approved products would be subject to audit at
any particular time, MSHA would consider a variety of factors such as
whether the manufacturer has previously produced the approved product
or similar products, whether the approved product is new or part of a
new product line, or whether the approved product is intended for a
unique application or limited distribution. Other considerations could
include product complexity, the manufacturer's previous product audit
results, product population in the mining community, and the time since
the last audit or since the product was first approved.
Based on MSHA's experience, the Agency anticipates few instances in
which more than one approved product would be required to be audited
``for cause'' from any one manufacturer in any one year. There are
circumstances or causes, however, under which additional products for
audit may be necessary to ascertain compliance with the technical
requirements upon which an approval was based. Examples of such
circumstances include verified complaints about the safety of an
approved product, evidence of product changes that have not been
approved, audit test results that warrant further testing to determine
compliance, and evaluation of corrective action taken by an approval
holder. Under these circumstances, the approval holder would have to
provide, at no cost to MSHA, additional approved products so the Agency
could ensure that the
[[Page 64203]]
approval holder is meeting its obligation to manufacture the product as
approved.
When discrepancies are found during MSHA audits of approved
products, MSHA would require that the manufacturer take all necessary
corrective actions. These actions could include, but are not limited
to, the approval holder recalling or retrofitting the approved product
involved, and issuing notices of such action to users. Revocation of
the approval by MSHA may result when discrepancies in approved products
are not corrected.
Revised paragraph (f), is based in part on the 1994 proposed
paragraph (f). It would require approval holders to notify MSHA of all
product defects they discover, once products are approved. We received
very little comment on this section of the 1994 proposed rule. It would
be retained as revised proposed paragraph (f).
One commenter suggested that MSHA be more specific about what is
considered a ``defect.'' A defect is a nonconformance with the MSHA
approved design, including any drawings and specifications. There are
varying degrees of significance of defects. It would be MSHA's intent
that all defects be reported to the Agency.
Because the use of products with defects could create hazards
underground, immediate notification should be made by expedient means,
such as by telephone, e-mail, or fax. The telephone notification should
be followed-up in writing. The oral and written notification should
include a description of the nature and extent of the problem.
In the 1994 proposed rule, paragraph (h) would have required that
approval holders submit to MSHA any change to an approved product from
the documentation on file at MSHA that affects the technical
requirements of the applicable product approval part. MSHA recognizes
that changes to approved products are addressed in the individual
approval parts. Therefore, the 1994 proposed provision was not included
in this revised proposed rule.
In response to comments, it is not the Agency's intent to change
its current method of handling requests for modification of approval.
MSHA would continue to accept changes through its Revised Approval
Modification Program (RAMP), which replaced the Stamped Notification
Acceptance Program (SNAP) and the Stamped Revision Acceptance (SRA)
program.
The 1994 proposed paragraph (i) would have established the basis
and procedures for revocation of NRTL recognition. One commenter asked
what would happen if a laboratory's recognition was revoked by OSHA and
wanted to know the effect on the approvals (listings) granted by that
laboratory. This provision has been deleted in this proposed rule
because MSHA would no longer be requiring NRTL recognition. Moreover,
revocation of a NRTL recognition or accreditation of an independent
laboratory may not necessarily impact the validity of the approval.
However, if MSHA believes that the reason for the revocation could
affect the safety of products tested, MSHA would take appropriate
action on a case-by-case basis. The Agency reserves the right, under
every applicable part, to rescind, for cause, any product approval,
certification, acceptance, or extension granted under that part.
Section 6.20 MSHA Acceptance of Equivalent Non-MSHA Product Safety
Standards.
Section 6.20(a) of this proposed rule is similar to the 1994
proposed Sec. 6.20(a) and states that MSHA would accept non-MSHA
product safety standards, or group of standards, as equivalent after
determining that they: (1) provide at least the same degree of
protection as MSHA's product approval requirements set forth for the
product in other parts of this chapter; or (2) can be modified to
provide at least the same degree of protection as those MSHA
requirements.
Paragraph (b) of this proposed rule provides that MSHA would
publish its intent to review any non-MSHA product safety standard for
equivalency in the Federal Register for the purpose of soliciting
public input. This provision has been added in response to comments to
the 1994 proposed rule. Many commenters expressed a desire to have
input into the equivalency decision-making process. One commenter even
proposed that the Agency use the Mine Act's section 101(c) process for
petitions for modification of standards. Although MSHA has provided for
public input into the equivalency process, it has not accepted the
suggestion that the agency use the section 101(c) procedures. Section
101(c) provides that mine operators or miner representatives, not
equipment manufacturers, may request that MSHA accept a safety practice
that varies from that prescribed by a standard as long as it provides
at least the same measure of protection to the miners. MSHA does not
interpret this section to allow equipment manufacturers to petition the
Agency for the use of non-MSHA product safety standards for products to
be used in multiple mines. MSHA encourages public input in the
equivalency process. It would solicit such input through a Federal
Register notice once it decides to evaluate a particular standard or
group of standards for equivalency. Because MSHA is solely responsible
for the approval of mining products under the Mine Act, MSHA would
retain the ultimate decision on equivalency.
Paragraph (c) of this proposed rule would require that MSHA publish
a listing of all final equivalency determinations in this part 6 and
the applicable approval parts. The listing would state whether MSHA
accepts the non-MSHA product safety standards in their original form,
or would require modifications to demonstrate equivalency. If
modifications were required, they would also be provided in the
listing. MSHA would notify the public of each equivalency determination
and would publish a summary of the basis for its determination in the
Federal Register. MSHA would provide complete equivalency determination
reports upon request to the Approval and Certification Center.
Paragraph (d) of this proposed rule would require that after MSHA
has determined that non-MSHA product safety standards are equivalent
and has notified the public of such determinations in the Federal
Register, applicants could seek MSHA product approval based on such
non-MSHA product safety standards.
Non-MSHA product safety standards would be considered equivalent
when MSHA determines that, in their original or modified form, they
provide at least the same degree of protection as MSHA's product
approval requirements in parts 18, 19, 20, 22, 23, 27, 33, 35 or 36 of
this chapter.
The Agency believes that this proposed rule would encourage a more
rapid introduction of mining products embodying new technology with
enhanced safety features. In addition, testing and evaluation to
``equivalent'' standards, that provide at least the same degree of
protection to miners as those in the various MSHA product approval
regulations could achieve multiple objectives. These would include
metric conversion, greater compatibility with international standards,
and a more competitive posture for U.S. products in the international
market.
There was general agreement with the concept of MSHA approving
products based on equivalent non-MSHA product safety standards, but
many concerns about how it would be implemented. One commenter stated,
``We certainly advocate expanding the design and testing standards that
MSHA can accept.'' The commenter went on to
[[Page 64204]]
point out practical problems in doing so. Another commenter stated that
its organization ``advocates MSHA acceptance of standards other than
those developed exclusively by the agency as the basis for approval of
products,'' but then stated that MSHA should limit the number of
standards for which they would make equivalency determinations. Others
echoed this opinion.
Commenters expressed concern about how MSHA would select the
standards to receive priority for equivalency determinations. MSHA
agrees with commenters that there should be a system for determining
the order in which MSHA selects standards for equivalency
determinations. Revised proposed Sec. 6.20 provides that MSHA would
determine which non-MSHA product safety standards, or groups of
standards, were equivalent or could be modified to be equivalent. The
decision to perform an equivalency evaluation would be based on MSHA's
determination of the overall value of conducting the evaluation. It is
MSHA's intention to base its decision on factors such as the number of
potential applications for approval using a particular non-MSHA product
safety standard, the number of potential products affected, and its
knowledge of the standard and the potential for it being equivalent.
MSHA began this process some time ago in order to compare its approval
requirements to those of other organizations because of the increasing
use of those non-MSHA product safety standards in international trade
and because of requests from the public. The equivalency analysis would
be conducted by the Agency's Approval and Certification Center using
personnel with expertise in the approval requirements involved.
Many commenters asked that MSHA adopt international standards
without requiring any modifications. They argued that standards such as
those of the IEC are widely accepted, even where they differ from
MSHA's. It should be noted that most countries that utilize the base
IEC standards modify them through national deviations that recognize
each country's unique conditions and needs. These national deviations
sometime conflict with each other, making adoption of a single global
standard impractical. In addition, the base IEC standards may not
provide at least the same degree of protection as MSHA's existing
product approval requirements. MSHA's equivalency determinations would
be based on the objectives of its product approval requirements and the
hazards they were designed to address. Section 101(a)(9) of the Mine
Act provides that no new standard can reduce the protection afforded
miners by an existing standard. For this reason, MSHA must assure that
any non-MSHA product safety standard provides at least the same degree
of protection for the miners who may use the product approved under
that standard. MSHA cannot accept product safety standards, domestic or
international, without determining whether they are equivalent or
whether some modifications to those product safety standards are needed
to achieve the objectives of the existing MSHA product approval
requirements. While certain standards, including those accepted by
other mining agencies, may be equivalent, MSHA must make that
determination on a standard-by-standard basis. It is MSHA's belief that
certain product safety standards may well be equivalent without
modifications; others may require modification. The Agency would have
to do a systematic analysis first to make this determination.
MSHA's equivalency analysis would compare the subject product
safety standards, whether domestic or international, and MSHA's
applicable product approval requirements. Where they differ, each
difference would be examined to assess its effect on overall safety,
and the differences as a whole would be assessed. Where the differences
do not impact the objectives of the MSHA requirements, MSHA would issue
a determination that the standard is equivalent to MSHA's approval
requirements. However, if certain design criteria or performance
requirements fail to meet MSHA's objectives or could diminish the
safety of the product in underground mines, MSHA would specify the
modifications necessary to reconcile the differences between the two so
that at least the same degree of protection is provided.
Some commenters argued for the use of international standards and
suggested that MSHA take a more active role on international standards
committees to assure that product safety standards issued by these
bodies reflect MSHA requirements, making it unnecessary for MSHA to add
modifications. Others were concerned that MSHA would select the most
stringent requirements from the MSHA approval requirements and from the
non-MSHA product safety standards of other bodies, thus creating a
hybrid regulation which would be more stringent, but not necessarily
safer. Others stated that MSHA had not demonstrated that its approval
requirements were safer than those of other bodies.
Under this proposed rule, when MSHA evaluates a product safety
standard to determine equivalency, the Agency would be looking at the
standard as a whole and whether it meets the objectives of MSHA's
applicable product approval requirements. The Agency recognizes that
some non-MSHA product safety standards may have more stringent
provisions than MSHA's comparable approval requirements. However, it is
not the Agency's intention to require more stringent protections where
a non-MSHA product safety standard may afford them. MSHA intends to
require modifications only where the non-MSHA standard does not provide
equivalent protection. For manufacturers who choose to design products
to more stringent standards, for purposes other than MSHA approval,
this proposed rule would provide the vehicle for them to obtain MSHA
approval even if their products were not designed specifically to
MSHA's approval requirements. It is not the Agency's intention to
develop a ``hybrid'' regulation, choosing the most stringent
requirements from both the MSHA requirements and non-MSHA standards, as
some commenters feared. The wording in the 1994 proposed Sec. 6.20(b)
would have required modifications to provide the ``same or a greater
degree of protection'' as the applicable product approval requirements.
This proposed rule, on the other hand, would require modifications to
provide at least the same degree of protection as MSHA's product
approval requirements.
One commenter expressed concern that MSHA would require the use of
its procedures for equivalent standards, by way of modifications, thus
creating a standard that would be the same as MSHA's. MSHA does not
plan to specify test procedures or protocols for non-MSHA product
safety standards determined to be equivalent. The equivalency
determination would be based on the overall safety provided by the
standard and the ability of the standard to address the hazards the
MSHA requirements were designed to address. A non-MSHA product safety
standard could be considered equivalent even though all or portions of
its testing and evaluation requirements and procedures may differ from
MSHA's requirements.
Under this proposed rule, after MSHA has determined that equivalent
requirements exist or that certain requirements, other than those in
MSHA approval regulations, can be modified to provide at least the same
degree of protection, the applicant would be given
[[Page 64205]]
the option of requesting that MSHA base its approval on the equivalent,
non-MSHA product safety standard, instead of on MSHA's applicable
product approval requirements. This option would benefit manufacturers
by permitting them to design products to a single set of requirements
for sale in multiple markets (domestic and international as well as
mining and non-mining applications).
Because this proposed rule would permit approval of mining
equipment intended to compete in multiple market areas with differing
approval requirements, the approved product design would incorporate
the highest level of safety required by any of the intended market
areas. For example, if the target areas include mining and non-mining
markets, and the non-mining market has a product safety standard with
more stringent approval requirements than MSHA for a specific product,
MSHA could, at the request of the applicant, issue an approval based on
the more stringent requirements. The approval documentation would state
that the product fulfills both the more stringent requirements in the
non-mining standard and MSHA's approval requirements. In this case, the
approved product sold in mining markets would provide a greater degree
of protection than that specified by MSHA under existing requirements.
Should the non-mining market have product safety standards which are,
in some aspects, less stringent than those of MSHA, the applicant would
be required to fulfill the non-mining standards' requirements and, in
addition, all other requirements deemed necessary to ensure that the
product provides at least the same degree of protection demanded by the
MSHA approval requirements. In this situation, the approved product
would exceed the safety requirements of the non-mining standard and
meet those of MSHA's. The same analysis would apply if the targeted
areas were foreign and domestic markets.
In these situations, MSHA's approval documentation would show that
the product had fulfilled the requirements of any non-MSHA product
safety standard and those of MSHA. In the first instance, the product
marketed in the non-mining application would embody a higher level of
safety, while in the second instance it would embody equivalent safety.
In no case would the product provide less protection than mandated by
MSHA approval requirements.
The following example illustrates how MSHA would evaluate non-MSHA
product safety standards to determine if they provide at least the same
degree of protection as MSHA's product approval requirements. MSHA's
approval regulation under 30 CFR part 18 performs explosion testing of
explosion-proof enclosures using a methane-in-air mixture. The IEC
explosion-proof enclosure standard (IEC 60079-1) requires the use of
more sensitive test gases. That standard specifies the use of methane
to determine ``reference pressures'' and uses a hydrogen/methane fuel
mixture to test for flame propagation. The tests used in both MSHA
requirements and the IEC standard produce higher pressures/temperatures
than would occur during normal operation.
One obvious difference in the two test protocols is MSHA's
criterion to observe for the ``discharge of flame'' (hot glowing gases)
during any of the tests. The IEC standard does not have this
requirement. The reason for this difference is that MSHA tests
enclosures ``as manufactured'' without any intentional gaps and, unlike
the IEC, does not require flamepath gaps to be enlarged to the maximum
specified by design. Therefore, during MSHA testing, flamepaths are not
forced open to any appreciable amount, unless there are defects or
weaknesses in the enclosure. This is important because MSHA's
requirements do not contain provisions for regular prototype pressure
testing to supplement the explosion tests, as do the IEC requirements.
Such pressure testing is specifically designed to identify faulty
products over a broader range of pressures than can be achieved by the
MSHA explosion testing protocol.
Considering the above discussion, MSHA's explosion testing
protocol, with combustible mixtures of methane as the test gas and
using the discharge of flame as an additional criterion to flame
propagation for test failure, sets a high evaluation standard for
explosion-proof enclosures used on mining equipment in the U.S.
However, testing is accomplished without introducing intentional
flamepath flange gaps. In contrast, the IEC standard requires that
tests be conducted with flamepath gaps intentionally enlarged to within
80% to 100% of the maximum specified design. Thus, the IEC test
standard allows for luminous flame to pass, but with insufficient
energy to ignite the surrounding atmosphere and uses a more easily
ignitable test gas than methane. This concession is significant when
flamepath gaps are purposely enlarged for testing. Such a practice
could produce non-incendive luminous gas discharges during testing,
which would be considered unacceptable under MSHA test protocols. MSHA
has no evidence that such a non-incendive luminous gas discharge is
unsafe. The MSHA requirement and the IEC standard could be considered
equivalent because the MSHA requirement to observe no discharge of
flame is offset by the IEC's use of a more easily ignitable test gas
and intentional gap enlargement.
With all other factors equal, MSHA could consider the explosion
test specified by IEC to be equivalent to the explosion test procedure
followed by MSHA in fulfillment of 30 CFR 18.62. In this manner a
single test could verify conformity to the test requirements of both
product standards with no reduction of safety in either case. This
example highlights the methods that would be employed by MSHA when
determining if a non-MSHA product safety standard provides at least the
same degree of protection as MSHA's product approval requirements. In
like fashion, other differences between MSHA requirements and the IEC
standards would be analyzed to determine if they are equivalent or if
modifications to the IEC standards would be required.
This same process would be applied to all non-MSHA product safety
standards that would be evaluated for equivalency. For example, MSHA
requires that a component in an intrinsically safe circuit be tested to
determine that it would not overheat under fault conditions and ignite
a layer of coal dust. UL requires the product to be marked with a
maximum temperature rating (also called a ``T-Code'') or tested using a
different ignitable dust or gas. MSHA would determine if the
temperature rating is below the minimum ignition temperature of a coal
dust layer or if the specified dust layer (e.g., grain dust) used in
the test has a lower ignition temperature than a coal dust layer
currently used in MSHA tests. If equivalency could not be determined,
MSHA would require an additional test using a layer of a specified type
and size of coal dust to ensure at least the same degree of protection
is provided.
MSHA anticipates that savings from use of equivalent non-MSHA
product safety standards could reduce the manufacturer's unit cost by
permitting more standardized construction and, thus, improve the
manufacturer's competitive position. This, together with the need to
provide products meeting the highest level of safety demanded by the
market areas of interest, could encourage a more rapid introduction of
mining products embodying new technology with enhanced safety features.
In general, this
[[Page 64206]]
proposed rule should provide increased opportunity for direct
competition leading to improved safety and performance quality in
mining products.
Many commenters agreed that the equivalency provision would permit
manufacturers to design a machine or product to a single set of
requirements, rather than designing separate machines to comply with
the separate requirements of each market place in which business is
sought. However, a few commenters were concerned that foreign
manufacturers would have an advantage over U.S. manufacturers. One
commenter stated that ``if a foreign manufacturer's product(s) met
different standards, which MSHA considered equal to or more stringent
than the proposed U.S. standard and was granted ``equivalency'' before
domestic manufacturers were able to have their revised specifications
tested and approved, the foreign manufacturer would enjoy a competitive
advantage in the U.S. market.'' The commenter believed that rather than
not discriminating between U.S. and foreign manufacturers, the 1994
proposed rule would actually discriminate against U.S. manufacturers.
The commenter concluded that MSHA must not favor foreign manufacturers
with the competitive advantage or weaken their own audit responsibility
to grant unregulated equivalency. Another commenter stated that if a
conveyor belt had been approved under a non-MSHA product safety
standard which MSHA considered to be equivalent to its requirements,
then the submission of those test results and approval details to MSHA
would result in that manufacturer being granted an MSHA approval
without requiring any MSHA review.
The Agency believes that these commenters misunderstood the intent
of the provision. They interpreted the 1994 proposed language to mean
that if a non-MSHA product safety standard was determined to be
equivalent by MSHA, foreign manufacturers of that product would receive
automatic approval by MSHA without further review of the product. This
is not the case. Under both the 1994 proposed rule and this revised
proposed rule, manufacturers would still be required to apply for MSHA
approval of their products, but then could have MSHA base the approval
on either MSHA approval requirements or the equivalent non-MSHA product
safety standards. MSHA would retain the responsibility of approving or
denying an application based on all information submitted in the
application.
As is the case with existing MSHA approval regulations, this
proposed rule would not discriminate between U.S. and foreign
manufacturers. Any manufacturer, either domestic or foreign, wishing to
acquire an MSHA product approval would be able to take advantage of
this ``equivalency'' program.
Further, this proposed rule would be consistent with the North
American Free Trade Agreement and the Agreement on Technical Barriers
to Trade (TBT).
Equivalency Under Part 7
MSHA has proposed to add the equivalency concept to part 7 which
would operate like the provision for equivalency in proposed Sec.
6.20.
Under this new proposed section, Sec. 7.2 would be amended by
adding a new definition of ``equivalent non-MSHA product safety
standard.'' This term would be used to describe a non-MSHA product
safety standard, or group of standards, that is determined by MSHA to
provide at least the same degree of protection as the applicable MSHA
technical requirements in the subparts of part 7. This definition would
be essentially the same as that in Sec. 6.2 of proposed part 6.
Section 7.10 MSHA acceptance of equivalent non-MSHA product safety
standards.
New proposed Sec. 7.10(a) is similar to the revised proposed Sec.
6.20(a) and would provide that MSHA would accept non-MSHA product
safety standards, or group of standards, as equivalent after
determining that they: (1) Provide at least the same degree of
protection as MSHA's technical requirements for the products in other
subparts of this part; or (2) can be modified to provide at least the
same degree of protection as those MSHA requirements.
Paragraph (b) of the new proposed Sec. 7.10 would provide that
MSHA publish its intent to review any non-MSHA product safety standard
for equivalency in the Federal Register for the purpose of soliciting
public input.
Paragraph (c) of the proposed Sec. 7.10 would provide that MSHA
publish a listing of all equivalency determinations for this part 7.
The listing would state whether MSHA accepts the non-MSHA product
safety standards in their original form, or would require modifications
to demonstrate equivalency. If modifications were required, they would
also be included in this listing for this part 7. MSHA would notify the
public of each equivalency determination and would publish a summary of
the basis for its determination in the Federal Register. MSHA would
provide complete equivalency determination reports upon request to the
Approval and Certification Center.
Paragraph (d) of the new proposed Sec. 7.10 would provide that
after MSHA has determined that non-MSHA product safety standards are
equivalent and has notified the public of such determinations,
applicants could seek MSHA product approval based on such non-MSHA
product safety standards.
MSHA is aware of some foreign and domestic non-MSHA product safety
standards that could be used to test and evaluate products approved
under the various subparts of part 7. These standards are used in other
countries and other industries. Some of these non-MSHA product safety
standards could provide at least the same degree of protection as MSHA
requirements and could provide consistent, repeatable test results.
MSHA intends to operate its proposed equivalency program under part
7, the same as previously described in the discussion of proposed Sec.
6.20 on equivalency.
Derivation Table
The following derivation table lists: (1) Each section number of
this proposed rule and (2) The section number of the 1994 proposed rule
from which the section is derived.
Derivation Table
------------------------------------------------------------------------
This Proposed Rule 1994 Proposed Rule
------------------------------------------------------------------------
6.1....................................... 6.1 & 6.10
6.2 (revised)............................. 6.2
6.10(a) (revised)......................... 6.10(a)
6.10(b) (revised)......................... 6.10(b)
6.10(c) (revised)......................... 6.10(b)
6.10(d) (revised)......................... 6.10(c)
Removed................................... 6.10(d)
Removed................................... 6.10(e)
6.10(e) (revised)......................... 6.10(g)
6.10(f) (revised)......................... 6.10(f)
Removed................................... 6.10(h)
Removed................................... 6.10(i)
6.20(a) (revised)......................... 6.20(a) & (b)
6.20(b)................................... New
6.20(c) (revised)......................... 6.20(c)
6.20(d) (revised)......................... 6.20(a)
7.2....................................... New
7.10...................................... New
18.6(a)(2) (revised)...................... 18.6(a)(2)
18.6(a)(3) (revised)...................... 18.6(a)(3)
18.6(a)(4) (revised)...................... 18.6(a)(4)
18.15(a)(2) revised)...................... 18.15(a)(2)
19.3 (revised)............................ 19.3
19.13(a)(revised)......................... 19.13(a)
20.3 (revised)............................ 20.3
20.14(a) revised)......................... 20.14(a)
Removed................................... 21.4(a), (b), & (c)
Removed................................... 21.10(a)
22.4 (revised)............................ 22.4
22.11(a) (revised)........................ 22.11(a)
[[Page 64207]]
23.3 (revised)............................ 23.3
23.14(a) (revised)........................ 23.14(a)
Removed................................... 26.8(a)
Removed................................... 26.19(a)
27.4(a) (revised)......................... 27.4(a)
27.11(a)(revised)......................... 27.11(a)
Removed................................... 29.11(a)
Removed................................... 29.35(a)
33.6(a) (revised)......................... 33.6(a)
33.12(a) (revised)........................ 33.12(a)
35.6(a) (revised)......................... 35.6(a)
35.12(a)(revised)......................... 35.12(a)
36.6(a)................................... New
36.12(a).................................. New
------------------------------------------------------------------------
Distribution Table
The following distribution table lists: (1) each section number of
the 1994 proposed rule and (2) the section number of this proposed rule
which contains provisions derived from the corresponding 1994 proposed
sections.
Distribution Table
------------------------------------------------------------------------
1994 Proposed Rule This Proposed Rule
------------------------------------------------------------------------
6.1 & 6.10................................ 6.1
6.2....................................... 6.2 (revised)
6.10(a)................................... 6.10(a) (revised)
6.10(b)................................... 6.10(b), (c) (revised)
6.10(c)................................... 6.10(d) (revised)
6.10(d)................................... Removed
6.10(e)................................... Removed
6.10(f)................................... 6.10(f) (revised)
6.10(g)................................... 6.10(e) (revised)
6.10(h)................................... Removed
6.10(i)................................... Removed
6.20(a)................................... 6.20(a), (d) (revised)
6.20(b)................................... 6.20(a) (revised)
6.20(c)................................... 6.20(c) (revised)
18.6(a)(2)................................ 18.6(a)(2) (revised)
18.6(a)(3)................................ 18.6(a)(3) (revised)
18.6(a)(4)................................ 18.6(a)(4) (revised)
18.15(a)(2)............................... 18.15(a)(2) revised)
19.3...................................... 19.3 (revised)
19.13(a).................................. 19.13(a) (revised)
20.3...................................... 20.3 (revised)
20.14(a).................................. 20.14(a) revised)
21.4(a), (b), & (c)....................... Removed
21.10(a).................................. Removed
22.4...................................... 22.4 (revised)
22.11(a).................................. 22.11(a) (revised)
23.3...................................... 23.3 (revised)
23.14(a).................................. 23.14(a) (revised)
26.8(a)................................... Removed
26.19(a).................................. Removed
27.4(a)................................... 27.4(a) (revised)
27.11(a).................................. 27.11(a) (revised)
29.11(a).................................. Removed
29.35(a).................................. Removed
33.6(a)................................... 33.6(a) (revised)
33.12(a).................................. 33.12(a) (revised)
35.6(a)................................... 35.6(a) (revised)
35.12(a).................................. 35.12(a) (revised)
------------------------------------------------------------------------
IV. Paperwork Reduction Act
This proposed rule would result in a total of approximately 29
burden hours and $645 dollars of related costs. A breakdown of the
burden hours and related costs by provision and by applicant size can
be found in Chapter VII of the Preliminary Regulatory Economic Analysis
(PREA) supporting this proposed rule. The paperwork requirements for
applications for approval by MSHA of products and equipment under 30
CFR parts 18, 19, 20, 22, 23, 27, 33, 35, and 36 are cleared under OMB
Control Number 1219-0066. The PREA is located on our Web site at http:/
/www.msha.gov/REGSINFO.HTM. Comments may be sent to the addresses
listed in the Addresses section of the preamble.
Under Sec. 6.10 applicants would have to provide information
stated in paragraphs (a)(1) through (a)(4) for MSHA to accept testing
and evaluation performed by an independent laboratory. Currently,
applicants must submit only information requested in paragraph (a)(4).
If applicants choose to use independent laboratories, information
requested in paragraphs (a)(1) through (a)(3) would be needed because
MSHA would no longer be performing all the testing and evaluation
associated with the approval application. Providing the information
under Sec. 6.10(a)(1) through (a)(3) would result in a total of
approximately 24 burden hours and $457 of associated costs.
Section 6.10(d) states that after review of the information
required under paragraph (a)(1) through (a)(4), MSHA would notify the
applicant if additional information and testing were required. If an
independent laboratory conducts any additional or repeat testing, then
the applicant would have to send the test results to MSHA. Sending any
additional or repeat testing results to MSHA under Sec. 6.10(d) would
result in a total of 2 burden hours and $39 of associated costs.
Section 6.10(g) states that, once the product is approved, the
approval holder would have to notify MSHA of all product defects of
which the approval holder is aware. Notification is assumed to be in
the form of a letter to MSHA. Notifying MSHA of product defects under
Sec. 6.10(g) would result in a total of 3 burden hours and $149 of
associated costs.
V. Executive Order 12866
A. Compliance Costs
Executive Order 12866 requires that regulatory agencies assess both
the costs and benefits of proposed regulations. MSHA has determined
that this proposed rule does not meet the criteria of an economically
significant regulatory action pursuant to Executive Order 12866 Sec.
3(f)(1) in that it would not have an effect on the economy of $100
million or otherwise have any material adverse effect. Although this
proposed rule is not an economically significant action, MSHA has
completed a PREA in which the economic impact of the proposed rule is
estimated. For a complete breakdown of the compliance costs for this
proposed rule see Chapter IV of the PREA. The PREA is available from
MSHA and is summarized as follows.
The proposed rule would result in an annual net cost savings of
about $1.5 million. Applicants seeking MSHA product approval employing
500 or fewer workers would realize a net cost savings of $0.66 million.
Applicants employing more than 500 workers would realize a net cost
savings of $0.86 million.
The net cost savings of $0.66 million, for applicants employing 500
or fewer workers, would consist of cost savings of $0.68 million and
compliance costs of $0.02 million. The net cost savings of $0.86
million, for applicants employing more than 500 workers, would consist
of cost savings of $0.88 million and compliance costs of $0.02 million.
B. Benefits
This proposed rule should encourage non-mining manufacturers with
products that could be applicable to mining to apply for approvals. The
proposed modification of the approval process would expedite the
introduction of technologically-advanced products into the mine, thus
improving miner safety. Finally, the rule would reduce applicants'
costs by eliminating repeat testing and evaluation and the need for
multiple product lines. For a more complete discussion of the Benefits
of this proposed rule, see Chapter III of the PREA.
VI. Regulatory Flexibility Act (RFA) and Small Business Regulatory
Enforcement Fairness Act (SBREFA)
The Regulatory Flexibility Act (RFA) requires regulatory agencies
to consider a rule's economic impact on small entities. Under the RFA,
MSHA must use the Small Business Administration's (SBA's) criterion for
a small entity in determining a rule's economic impact unless, after
consultation with the SBA Office of Advocacy, MSHA establishes an
alternative definition for a small entity and publishes that definition
in the Federal Register for notice and comment.
For the mining industry, SBA defines ``small'' as a mine with 500
or fewer workers. In addition, most applicants
[[Page 64208]]
(manufacturers) that file for an MSHA approval for their products
operate in industries such as those involved in measurement, analysis,
controlling instruments, photographic instruments, commercial and
industrial lighting fixtures, and conveyors. SBA considers the small
business size standard for such industries to be 500 or fewer
employees. To ensure that this proposed rule conforms to the RFA, MSHA
has analyzed the economic impact of the proposed rule on small entities
that are defined as those employing 500 or fewer workers.
A. Factual Basis for Certification
Based on its analysis, MSHA has preliminarily determined that this
proposed rule would not have a significant economic impact on a
substantial number of small entities. MSHA has so certified this
finding to the SBA. The factual basis for this certification is
discussed in Chapter V of the PREA.
B. Unfunded Mandates Reform Act of 1995
For purposes of the Unfunded Mandates Reform Act of 1995, the
revised proposed rule does not include any Federal mandate that would
result in increased expenditures by State, local, or tribal
governments, or increased expenditures by the private sector of more
than $100 million. MSHA is not aware of any State, local, or tribal
governments which manufacture products applicable to mining.
C. Executive Order 13132 (Federalism)
MSHA has reviewed this proposed rule in accordance with Executive
Order 13132 regarding federalism, and has determined that it would not
have ``federalism implications.'' The proposed rule would not ``have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government.'' MSHA is
not aware of any State or local governments which manufacture products
applicable to mining.
D. Executive Order 13045 (Health and Safety Effect on Children)
In accordance with Executive Order 13045, MSHA has evaluated the
environmental health and safety effect of this proposed rule on
children. The Agency has determined that the proposed rule would not
have an adverse impact on children.
E. Executive Order 13175 (Indian Tribal Governments)
MSHA certifies that this proposed rule would not impose substantial
direct compliance costs on Indian tribal governments. MSHA is not aware
of any tribal governments which manufacture products applicable to
mining.
F. Executive Order 12630 (Governmental Actions and Interference with
Constitutionally Protected Property Rights)
This proposed rule is not subject to Executive Order 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights, because it would not involve implementation of a
policy with takings implications.
G. Executive Order 12988 (Civil Justice Reform)
The Agency has reviewed Executive Order 12988, Civil Justice
Reform, and determined that this proposed rule would not unduly burden
the Federal court system. The proposed rule has been written so as to
provide a clear legal standard for affected conduct, and has been
reviewed carefully to eliminate drafting errors and ambiguities.
H. Executive Order 13211 (Energy)
In accordance with Executive Order 13211, MSHA has reviewed this
proposed rule for its energy impacts. MSHA has determined that this
proposed rule would not have any adverse effects on energy supply,
distribution, or use.
I. Executive Order 13272 (Proper Consideration of Small Entities in
Agency Rulemaking)
In accordance with Executive Order 13272, MSHA has thoroughly
reviewed the proposed rule to assess and take appropriate account of
its potential impact on small businesses, small governmental
jurisdictions, and small organizations. As discussed in Chapter V of
the PREA, MSHA has determined that the proposed rule would not have a
significant economic impact on a substantial number of small entities.
VII. Conduct of Public Hearings
The hearings will be conducted in an informal manner. Although
formal rules of evidence or cross examination will not apply, the
presiding official may exercise discretion to ensure the orderly
progress of the hearing and may exclude irrelevant or unduly
repetitious material and questions.
The hearings will begin with an opening statement from MSHA,
followed by an opportunity for members of the public to make oral
presentations. The hearing panel may ask questions of speakers. At the
discretion of the presiding official, the time allocated to speakers
for their presentation may be limited.
The hearings will begin at 9 a.m. and end after the last scheduled
speaker appears; and in any event, not later than 5 p.m.
A verbatim transcript of the proceedings will be prepared and made
a part of the rulemaking record. Copies of the transcript will be
available to the public. The transcript will also be available on
MSHA's Web page at http://www.msha.gov, under Statutory and Regulatory
Information.
MSHA will accept post-hearing written comments and other
appropriate data for the record from any interested party, including
those not presenting oral statements. Written comments will be included
in the rulemaking record.
VIII. Close of Post-hearing Comment Period
The post-hearing comment period will close on February 10, 2003.
List of Subjects in 30 CFR Parts 6, 7, 18, 19, 20, 22, 23, 27, 33,
35, and 36
Mine safety and health, Testing and evaluation by independent
laboratories and the use of equivalent Non-MSHA product safety
standards, Testing by applicant or third party.
Signed at Arlington, Virginia, this 4th day of October, 2002.
John R. Caylor,
Deputy Assistant Secretary of Labor for Mine Safety and Health.
For the reasons set out in the preamble, chapter I of title 30 of
the Code of Federal Regulations is proposed to be amended as follows:
1. Part 6 is added to read as follows:
PART 6--TESTING AND EVALUATION BY INDEPENDENT LABORATORIES AND THE
USE OF EQUIVALENT NON-MSHA PRODUCT SAFETY STANDARDS
Sec.
6.1 Purpose and effective date.
6.2 Definitions.
6.10 Use of independent laboratories.
6.20 MSHA acceptance of equivalent non-MSHA product safety
standards.
Authority: 30 U.S.C. 957.
Sec. 6.1 Purpose and effective date.
This part sets out alternate requirements for testing and
evaluation of products MSHA approves for use in gassy underground
mines. It permits manufacturers of certain products who seek MSHA
approval to use an
[[Page 64209]]
independent laboratory to perform, in whole or part, the necessary
testing and evaluation for approval. It also permits manufacturers to
have their products approved based on non-MSHA product safety standards
once MSHA has determined that the non-MSHA standards are equivalent to
MSHA's applicable product approval requirements or can be modified to
provide at least the same degree of protection as those MSHA
requirements. The provisions of this part may be used by applicants for
product approval under parts 18, 19, 20, 22, 23, 27, 33, 35, and 36 of
this chapter. This part is effective [60 days after publication of the
final rule in the Federal Register.]
Sec. 6.2 Definitions.
The following definitions apply in this part.
Applicant. This term is used to describe an individual or
organization that manufactures or controls the assembly of a product
and that applies to MSHA for approval of that product.
Approval. This term is used to describe a written document issued
by MSHA which states that a product has met the applicable requirements
of part 18, 19, 20, 22, 23, 27, 33, 35, or 36 of this chapter. The
definition is based on the existing definitions of ``approval'' in the
parts specified above. It also includes ``certification'' and
``acceptance'' because these terms also are used to denote MSHA
approval.
Approval holder. An applicant whose application for approval of a
product under parts 18, 19, 20, 22, 23, 27, 33, 35 or 36 of this
chapter has been approved by MSHA.
Equivalent non-MSHA product safety standards. A non-MSHA product
safety standard, or group of standards, that is determined by MSHA to
provide at least the same degree of protection as the applicable MSHA
product approval requirements in parts 18, 19, 20, 22, 23, 27, 33, 35,
and 36 of this chapter, or which in modified form provide at least the
same degree of protection.
Independent laboratory. A laboratory that:
(1) Has been recognized by a laboratory accrediting organization to
test and evaluate products to a product safety standard, and
(2) Is free from commercial, financial, and other pressures that
may influence the results of the testing and evaluation process.
Post-approval product audit. This term applies to the examination,
testing, or both, by MSHA of approved products selected by MSHA to
determine whether those products meet the applicable product approval
requirements and have been manufactured as approved.
Product safety standard. A document, or group of documents, that
specifies the requirements for the testing and evaluation of a product
for use in explosive gas and dust atmospheres, and, when appropriate,
includes documents addressing the flammability properties of products.
Sec. 6.10 Use of independent laboratories.
(a) MSHA will accept testing and evaluation performed by an
independent laboratory for purposes of MSHA product approval provided
that MSHA receives as part of the application:
(1) Written evidence of the laboratory's independence and current
recognition by a laboratory accrediting organization;
(2) Complete technical explanation of how the product complies with
each requirement in the applicable MSHA product approval requirements;
(3) Identification of components or features of the product that
are critical to the safety of the product; and
(4) All documentation, including drawings and specifications, as
submitted to the independent laboratory by the applicant and as
required by the applicable part under this chapter.
(b) Product testing and evaluation performed by independent
laboratories for purposes of MSHA approval must comply with the
applicable MSHA product approval requirements.
(c) Product testing and evaluation must be conducted or witnessed
by the laboratory's personnel.
(d) After review of the information required under paragraphs
(a)(1) through (a)(4) of this section, MSHA will notify the applicant
if additional information or testing is required. The applicant must
provide this information, arrange any additional or repeat tests and
notify MSHA of the location, date, and time of the test(s). MSHA may
observe any additional testing conducted by an independent laboratory.
Further, MSHA may decide to conduct the additional or repeated tests at
the applicant's expense. The applicant must supply any additional
components necessary for testing and evaluation.
(e) Upon request by MSHA, but not more than once a year, except for
cause, approval holders of products approved based on independent
laboratory testing and evaluation must make such products available for
post-approval audit at a mutually agreeable site at no cost to MSHA.
(f) Once the product is approved, the approval holder must notify
MSHA of all product defects of which they become aware.
Sec. 6.20 MSHA acceptance of equivalent non-MSHA product safety
standards.
(a) MSHA will accept non-MSHA product safety standards, or groups
of standards, as equivalent after determining that they:
(1) Provide at least the same degree of protection as MSHA's
product approval requirements in parts 18, 19, 20, 22, 23, 27, 33, 35
or 36 of this chapter; or
(2) Can be modified to provide at least the same degree of
protection as those MSHA requirements.
(b) MSHA will publish its intent to review any non-MSHA product
safety standard for equivalency in the Federal Register for the purpose
of soliciting public input.
(c) A listing of all equivalency determinations will be published
in this part 6 and the applicable approval parts. The listing will
state whether MSHA accepts the non-MSHA product safety standards in
their original form, or whether MSHA will require modifications to
demonstrate equivalency. If modifications are required, they will be
provided in the listing. MSHA will notify the public of each
equivalency determination and will publish a summary of the basis for
its determination. MSHA will provide equivalency determination reports
to the public upon request to the Approval and Certification Center.
(d) After MSHA has determined that non-MSHA product safety
standards are equivalent and has notified the public of such
determinations, applicants may seek MSHA product approval based on such
non-MSHA product safety standards.
PART 7--TESTING BY APPLICANT OR THIRD PARTY
2. The authority citation for part 7 continues to read as follows:
Authority: 30 U.S.C. 957.
3. Amend Sec. 7.2 by adding a new definition to read as follows:
Sec. 7.2 Definitions.
* * * * *
Equivalent non-MSHA product safety standards. A non-MSHA product
safety standard, or group of standards, that is determined by MSHA ot
provide at least the same degree of protection as the applicable MSHA
product technical requirements in the subparts of this part, or can be
modified to provide at least the same degree of protection as those
MSHA requirements.
* * * * *
[[Page 64210]]
4. Amend subpart A by adding a new 7.10 to read as follows:
Sec. 7.10 MSHA acceptance of equivalent non-MSHA product safety
standards.
(a) MSHA will accept non-MSHA product safety standards, or groups
of standards, as equivalent after determining that they:
(1) Provide at least the same degree of protection as MSHA's
applicable technical requirements for a product in the subparts of this
part; or
(2) Can be modified to provide at least the same degree of
protection as those MSHA requirements.
(b) MSHA will publish its intent to review any non-MSHA product
safety standard for equivalency in the Federal Register for the purpose
of soliciting public input.
(c) A listing of all equivalency determinations will be published
in this part 7. The listing will state whether MSHA accepts the non-
MSHA product safety standards in their original form, or whether MSHA
will require modifications to demonstrate equivalency. If modifications
are required, they will be provided in the listing. MSHA will notify
the public of each equivalency determination and will publish a summary
of the basis for its determination. MSHA will provide equivalency
determination reports to the public upon request to the Approval and
Certification Center.
(d) After MSHA has determined that non-MSHA product safety
standards are equivalent and has notified the public of such
determinations, applicants may seek MSHA product approval based on such
non-MSHA product safety standards.
PART 18--ELECTRIC MOTOR-DRIVEN MINE EQUIPMENT AND ACCESSORIES
5. The authority citation for part 18 continues to read as follows:
Authority: 30 U.S.C. 957, 961.
5-a. Amend Sec. 18.6 by revising paragraph (a) to read as follows:
Sec. 18.6 Applications.
(a)(1) Investigation leading to approval, certification, extension
thereof, or acceptance of hose or conveyor belt, will be undertaken by
MSHA only pursuant to a written application accompanied by a check,
bank draft, or money order, payable to the U.S. Mine Safety and Health
Administration to cover the fees. The application shall be accompanied
by all necessary drawings, specifications, descriptions, and related
materials, as set out in this part.
(2) Where the applicant for approval has used an independent
laboratory under part 6 of this chapter to perform, in whole or in
part, the necessary testing and evaluation for approval under this
part, the applicant shall include the information required in 30 CFR
6.10(a).
(3) An applicant may request testing and evaluation to non-MSHA
product safety standards which have been determined by MSHA to be
equivalent, under Sec. 6.20 of this chapter, to MSHA's product
approval requirements under this part.
(4) The application, all related documents, and all correspondence
concerning it shall be addressed to the Approval and Certification
Center, Rural Route 1, Box 251, Industrial Park Road,
Triadelphia, WV 26059.
* * * * *
6. Amend Sec. 18.15 by revising paragraph (a) to read as follows:
Sec. 18.15 Changes after approval or certification.
* * * * *
(a)(1) Application shall be made as for an original approval or
letter of certification requesting that the existing approval or
certification be extended to cover the proposed changes and shall be
accompanied by drawings, specifications, and related information,
showing the changes in detail.
(2) Where the applicant for approval has used an independent
laboratory under part 6 of this chapter to perform, in whole or in
part, the necessary testing and evaluation for approval of changes to
an approved or certified product under this part, the applicant shall
include the information required in 30 CFR 6.10(a).
* * * * *
PART 19--ELECTRIC CAP LAMPS
7. The authority citation for part 19 continues to read as follows:
Authority: 30 U.S.C. 957, 961.
* * * * *
7-a. Revise Sec. 19.3 to read as follows:
Sec. 19.3 Applications.
(a) Before MSHA will undertake the active investigation leading to
approval of any lamp, the manufacturer shall make application by letter
for an investigation leading to approval of its lamp. This application
must be accompanied by a check, bank draft, or money order, payable to
U.S. Mine Safety and Health Administration, to cover all the necessary
fees, shall be sent to Approval and Certification Center, Rural Route
1, Box 251, Industrial Park Road, Triadelphia, WV 26059,
together with the required drawings, one complete lamp, and
instructions for its operation.
(b) Where the applicant for approval has used an independent
laboratory under part 6 of this chapter to perform, in whole or in
part, the necessary testing and evaluation for approval under this
part, the applicant shall include the information required in 30 CFR
6.10(a).
(c) An applicant may request testing and evaluation to non-MSHA
product safety standards which have been determined by MSHA to be
equivalent, under Sec. 6.20 of this chapter, to MSHA's product
approval requirements under this part.
8. Amend Sec. 19.13 by revising paragraph (a) to read as follows:
Sec. 19.13 Instructions for handling future changes in lamp design.
* * * * *
(a)(1) The manufacturer shall write to the Approval and
Certification Center, Rural Route 1, Box 251, Industrial Park
Road, Triadelphia, WV 26059, requesting an extension of the original
approval and stating the change or changes desired. With this letter
the manufacturer should submit a revised drawing or drawings showing
the changes in detail, and one of each of changed lamp parts.
(2) Where the applicant for approval has used an independent
laboratory under part 6 of this chapter to perform, in whole or in
part, the necessary testing and evaluation for approval of changes to
an approved product under this part, the applicant shall include the
information required in 30 CFR 6.10(a).
* * * * *
PART 20--ELECTRIC MINE LAMPS OTHER THAN STANDARD CAP LAMPS
9. The authority citation for part 20 continues to read as follows:
Authority: 30 U.S.C. 957, 961.
9-a. Revise Sec. 20.3 to read as follows:
Sec. 20.3 Applications.
(a) Before MSHA will undertake the active investigation leading to
approval of any lamp, the manufacturer shall make application by letter
for an investigation of the lamp. This application must be accompanied
by a check, bank draft, or money order, payable to the U.S. Mine Safety
and Health Administration, to cover all the necessary fees. It shall be
sent to the Approval and Certification Center, Rural Route 1,
Box 251, Industrial Park Road, Triadelphia, WV 26059, together with the
required drawings, one complete lamp, and instructions for its
operation.
[[Page 64211]]
(b) Where the applicant for approval has used an independent
laboratory under part 6 of this chapter to perform, in whole or in
part, the necessary testing and evaluation necessary for approval under
this part, the applicant shall include the information required Sec.
6.10(a).
(c) An applicant may request testing and evaluation to non-MSHA
product safety standards which have been determined by MSHA to be
equivalent, under Sec. 6.20 of this chapter, to MSHA's product
approval requirements under this part.
10. Amend Sec. 20.14 by revising paragraph (a) to read as follows:
Sec. 20.14 Instructions for handling future changes in lamp design.
* * * * *
(a)(1) The manufacturer shall write to the Approval and
Certification Center, Rural Route 1, Box 251, Industrial Park
Road, Triadelphia, WV 26059, requesting an extension of the original
approval and describing the change or changes proposed. With this
letter the manufacturer should submit a revised drawing or drawings
showing the changes in detail, and one of each of the changed lamp
parts.
(2) Where the applicant for approval has used an independent
laboratory under part 6 of this chapter to perform, in whole or in
part, the necessary testing and evaluation for approval of changes to
an approved product under this part, the applicant shall include the
information required in 30 CFR 6.10(a).
* * * * *
PART 22--PORTABLE METHANE DETECTORS
11. The authority citation for part 22 continues to read as
follows:
Authority: 30 U.S.C. 957, 961.
11-a. Revise Sec. 22.4 to read as follows:
Sec. 22.4 Applications.
(a) Before MSHA will undertake the active investigation leading to
approval of any methane detector, the manufacturer shall make
application by letter for an investigation leading to approval of the
detector. This application must be accompanied by a check, bank draft,
or money order, payable to the U.S. Mine Safety and Health
Administration, to cover all the necessary fees. It shall be sent to
the Approval and Certification Center, Rural Route 1, Box 251,
Industrial Park Road, Triadelphia, WV 26059, together with the required
drawings, one complete detector, and instructions for its operation.
(b) Where the applicant for approval has used an independent
laboratory under part 6 of this chapter to perform, in whole or in
part, the necessary testing and evaluation for approval under this
part, the applicant shall include the information required in 30 CFR
6.10(a).
(c) An applicant may request testing and evaluation to non-MSHA
product safety standards which have been determined by MSHA to be
equivalent, under Sec. 6.20 of this chapter, to MSHA's product
approval requirements under this part.
12. Section 22.11 is amended by revising paragraph (a) to read as
follows:
Sec. 22.11 Instructions on handling future changes in design.
* * * * *
(a)(1) The manufacturer must write to the Approval and
Certification Center, Rural Route 1, Box 251, Industrial Park
Road, Triadelphia, WV 26059, requesting an extension of the original
approval and stating the change or changes desired. With this request,
the manufacturer should submit a revised drawing or drawings showing
changes in detail, together with one of each of the parts affected.
(2) Where the applicant for approval has used an independent
laboratory under part 6 of this chapter to perform, in whole or in
part, the necessary testing and evaluation for approval of changes to
an approved product under this part, the applicant shall include the
information required in 30 CFR 6.10(a).
* * * * *
PART 23--TELEPHONES AND SIGNALING DEVICES
13. The authority citation for part 23 continues to read as
follows:
Authority: 30 U.S.C. 957, 961.
13-a. Revise Sec. 23.3 to read as follows:
Sec. 23.3 Applications.
(a) Before MSHA will undertake the active investigation leading to
approval of any telephone or signaling device, the manufacturer shall
make application by letter for an investigation leading to approval of
the device. This application must be accompanied by a check, bank
draft, or money order, payable to the U.S. Mine Safety and Health
Administration, to cover all the necessary fees. It shall be sent to
the Approval and Certification Center, Rural Route 1, Box 251,
Industrial Park Road, Triadelphia, WV 26059, together with the required
drawings, one complete telephone or signaling device, and instructions
for its operation.
(b) Where the applicant for approval has used an independent
laboratory under part 6 of this chapter to perform, in whole or in
part, the necessary testing and evaluation for approval under this
part, the applicant shall include the information required in 30 CFR
6.10(a).
(c) An applicant may request testing and evaluation to non-MSHA
product safety standards which have been determined by MSHA to be
equivalent, under Sec. 6.20 of this chapter, to MSHA's product
approval requirements under this part.
14. Amend Sec. 23.14 by revising paragraph (a) to read as follows:
Sec. 23.14 Instructions for handling future changes in design.
* * * * *
(a)(1) The manufacturer shall write to the Approval and
Certification Center, Rural Route 1, Box 251, Industrial Park
Road, Triadelphia, WV 26059, requesting an extension of the original
approval and stating the change or changes desired. With this request,
the manufacturer should submit a revised drawing or drawings showing
the changes in detail, together with one of each of the parts affected.
(2) Where the applicant for approval has used an independent
laboratory under part 6 of this chapter to perform, in whole or in
part, the necessary testing and evaluation for approval of changes to
an approved product under this part, the applicant shall include the
information required in 30 CFR 6.10(a).
* * * * *
PART 27--METHANE-MONITORING SYSTEMS
15. The authority citation for part 27 continues to read as
follows:
Authority: 30 U.S.C. 957, 961.
15-a. Amend Sec. 27.4 by revising paragraph (a) to read as
follows:
Sec. 27.4 Applications.
(a)(1) No investigation or testing for certification will be
undertaken by MSHA except pursuant to a written application must be
accompanied by all drawings, specifications, descriptions, and related
materials and also a check, bank draft, or money order payable to the
U.S. Mine Safety and Health Administration, to cover the fees. The
application and all related matters and correspondence concerning it
shall be addressed to the Approval and Certification Center, Rural
Route 1, Box 251, Industrial Park Road, Triadelphia, WV 26059.
(2) Where the applicant for approval has used an independent
laboratory under part 6 of this chapter to perform, in whole or in
part, the necessary testing and evaluation for approval under this
[[Page 64212]]
part, the applicant shall include the information required in 30 CFR
6.10(a).
(3) An applicant may request testing and evaluation to non-MSHA
product safety standards which have been determined by MSHA to be
equivalent, under Sec. 6.20 of this chapter, to the product approval
requirements under this part.
* * * * *
16. Amend 27.11 by revising paragraph (a) to read as follows:
Sec. 27.11 Extension of certification.
* * * * *
(a)(1) Application shall be made as for an original certification,
requesting that the existing certification be extended to cover the
proposed changes. The application shall include complete drawings,
specifications, and related data, showing the changes in detail.
(2) Where the applicant for approval has used an independent
laboratory under part 6 of this chapter to perform, in whole or in
part, the necessary testing and evaluation for approval of changes to
an approved product under this part, the applicant shall include the
information required in 30 CFR 6.10(a).
* * * * *
PART 33--DUST COLLECTORS FOR USE IN CONNECTION WITH ROCK DRILLING
IN COAL MINES
17. The authority citation for part 33 continues to read as
follows:
Authority: 30 U.S.C. 957, 961.
17-a. Amend Sec. 33.6 by revising paragraph (a) to read as
follows:
Sec. 33.6 Applications.
(a)(1) No investigation or testing will be undertaken by MSHA
except pursuant to a written application, which must be (except as
otherwise provided in paragraph (e) of this section) accompanied by a
check, bank draft, or money order, payable to the U.S. Mine Safety and
Health Administration, to cover the fees, and all prescribed drawings,
specifications, and all related materials. The application and all
related matters and all correspondence concerning it shall be sent to
the Approval and Certification Center, Rural Route 1, Box 251,
Industrial Park Road, Triadelphia, WV 26059.
(2) Where the applicant for approval has used an independent
laboratory under part 6 of this chapter to perform, in whole or in
part, the necessary testing and evaluation for approval under this
part, the applicant shall include the information required in 30 CFR
6.10(a).
(3) An applicant may request testing and evaluation to non-MSHA
product safety standards which have been determined by MSHA to be
equivalent, under Sec. 6.20 of this chapter, to MSHA's product
approval requirements under this part.
* * * * *
18. Amend Sec. 33.12 by revising paragraph (a) to read as follows:
Sec. 33.12 Changes after certification.
* * * * *
(a)(1) Application shall be made as for an original certificate,
requesting that the existing certification be extended to cover the
proposed changes, and shall be accompanied by drawings, specifications,
and related data showing the changes in detail.
(2) Where the applicant for approval has used an independent
laboratory under part 6 of this chapter to perform, in whole or in
part, the necessary testing and evaluation for approval of changes to
an approved product under this part, the applicant shall include the
information required in 30 CFR 6.10(a).
* * * * *
PART 35--FIRE-RESISTANT HYDRAULIC FLUIDS
19. The authority citation for part 35 continues to read as
follows:
Authority: 30 U.S.C. 957, 961.
19-a. Amend Sec. 35.6 by revising paragraph (a) to read as
follows:
Sec. 35.6 Applications.
(a)(1) No investigation or testing will be undertaken by MSHA
except pursuant to a written application, which must be accompanied by
a check, bank draft, or money order, payable to the U.S. Mine Safety
and Health Administration, to cover the fees, and all descriptions,
specifications, test samples, and related materials. The application
and all related matters and correspondence concerning it shall be sent
to the Approval and Certification Center, Rural Route 1, Box
251, Industrial Park Road, Triadelphia, WV 26059.
(2) Where the applicant for approval has used an independent
laboratory under part 6 of this chapter to perform, in whole or in
part, the necessary testing and evaluation for approval under this
part, the applicant shall include the information required in 30 CFR
6.10(a).
(3) An applicant may request testing and evaluation to non-MSHA
product safety standards which have been determined by MSHA to be
equivalent, under Sec. 6.20 of this chapter, to MSHA's product
approval requirements under this part.
* * * * *
20. Amend Sec. 35.12 by revising paragraph (a) to read as follows:
Sec. 35.12 Changes after certification.
* * * * *
(a)(1) Application shall be made, as for an original certificate of
approval, requesting that the existing certification be extended to
cover the proposed change. The application shall be accompanied by
specifications and related material as in the case of an original
application.
(2) Where the applicant for approval has used an independent
laboratory under part 6 of this chapter to perform, in whole or in
part, the necessary testing and evaluation for approval of changes to
an approved product under this part, the applicant shall include the
information required in 30 CFR 6.10(a).
* * * * *
PART 36--APPROVAL REQUIREMENTS FOR PERMISSIBLE MOBILE DIESEL-
POWERED TRANSPORTATION EQUIPMENT
21. The authority for part 36 continues to read as follows:
Authority: 30 U.S.C. 957, 961.
21-a. Amend Sec. 36.6 by revising paragraph (a) to read as
follows:
Sec. 36.6 Applications.
(a)(1) No investigation or testing will be undertaken by MSHA
except pursuant to a written application, which must be accompanied by
a check, bank draft, or money order, payable to the U.S. Mine Safety
and Health Administration, to cover the fees, and all descriptions,
specifications, test samples, and related materials. The application
and all related matters and correspondence concerning it shall be sent
to the Approval and Certification Center, Rural Route 1, Box
251, Industrial Park Road, Triadelphia, WV 26059.
(2) Where the applicant for approval has used an independent
laboratory under part 6 of this chapter to perform, in whole or in
part, the necessary testing and evaluation for approval under this
part, the applicant shall include the information required in 30 CFR
6.10(a).
(3) An applicant may request testing and evaluation to non-MSHA
product safety standards which have been determined by MSHA to be
equivalent, under Sec. 6.20 of this chapter, to MSHA's product
approval requirements under this part.
* * * * *
22. Amend Sec. 36.12 by revising paragraph (a) to read as follows:
Sec. 36.12 Changes after certification.
* * * * *
(a)(1) Application shall be made, as for an original certificate of
approval,
[[Page 64213]]
requesting that the existing certification be extended to cover the
proposed change. The application shall be accompanied by specifications
and related material as in the case of an original application.
(2) Where the applicant for approval has used an independent
laboratory under part 6 of this chapter to perform, in whole or in
part, the necessary testing and evaluation for approval of changes to
an approved product under this part, the applicant shall include the
information required in 30 CFR 6.10(a).
* * * * *
[FR Doc. 02-25879 Filed 10-16-02; 8:45 am]
BILLING CODE 4510-43-P
