[Federal Register Volume 59, Number 229 (Wednesday, November 30, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-29121]
[[Page Unknown]]
[Federal Register: November 30, 1994]
_______________________________________________________________________
Part II
Department of Labor
_______________________________________________________________________
Mine Safety and Health Administration
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30 CFR Part 6, et al.
Testing and Evaluation by Nationally Recognized Testing Laboratories
and Use of Equivalent Testing and Evaluation Requirements; Proposed
Rule
DEPARTMENT OF LABOR
Mine Safety and Health Administration
30 CFR Parts 6, 18, 19, 20, 21, 22, 23, 26, 27, 29, 33, and 35
RIN 1219-AA87
Testing and Evaluation by Nationally Recognized Testing
Laboratories and Use of Equivalent Testing and Evaluation Requirements
AGENCY: Mine Safety and Health Administration (MSHA), Labor.
ACTION: Proposed rule.
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SUMMARY: This proposed rule would establish new procedures and
requirements for testing and evaluation of products MSHA approves for
use in underground mines. It would require manufacturers of certain
products who seek MSHA approval to use an independent laboratory
recognized by the Occupational Safety and Health Administration (OSHA)
as a Nationally Recognized Testing Laboratory (NRTL) to perform the
necessary testing and evaluation for approval. The NRTL would conduct
the product testing and evaluation currently done by the Agency
according to the appropriate MSHA testing and evaluation requirements.
The proposed rule would revise MSHA's testing and evaluation
responsibilities and allow the Agency to expand its post-approval
product audit program and pursue the evaluation of new and safer
technology as applied to underground mining products. The proposal
would also enable the Agency, upon an applicant's request, to approve
products based upon testing and evaluation requirements other than
MSHA's, provided that the alternative requirements are equivalent to
MSHA's requirements and provide at least the same measure of protection
for the miner. The proposed rule would increase the availability of a
wider variety of mining products having enhanced safety components by
reducing costs and broadening the market for mining equipment.
Conforming amendments to some parts of MSHA's approval regulations are
also being proposed as part of this rulemaking.
DATES: Written comments must be submitted by February 13, 1995.
ADDRESSES: Commenters are encouraged to send comments on a computer
disk along with the hard copy. Send written comments and computer disks
to the Mine Safety and Health Administration, Office of Standards,
Regulations, and Variances, Room 631, 4015 Wilson Boulevard, Arlington,
Virginia 22203.
FOR FURTHER INFORMATION CONTACT: Patricia W. Silvey, Director, Office
of Standards, Regulations, and Variances, MSHA (703) 235-1910.
SUPPLEMENTARY INFORMATION:
I. Paperwork Reduction Act
This proposal contains information collection requirements in
paragraphs (a), (e), and (f) of Sec. 6.10. These paperwork requirements
have been submitted to the Office of Management and Budget (OMB) for
review under section 3504(h) of the Paperwork Reduction Act of 1980.
Currently, when manufacturers seek to have MSHA test and evaluate a
product they must supply MSHA with the necessary documentation. Under
the proposed rule, manufacturers would still need to produce this
documentation. Thus, the manufacturers' burden hours related to
developing documentation needed to perform tests and evaluations would
not change.
Under proposed Sec. 6.10(a), in order for MSHA to issue an approval
to a manufacturer, MSHA would need to review a copy of the NRTL's test
and evaluation results along with the NRTL's statement of product
compliance with MSHA requirements. MSHA anticipates that most
manufacturers would request two copies of the test and evaluation
results and statement of product compliance from the NRTL and forward
one set to MSHA along with the application for approval of its product.
Currently, MSHA spends about 14,750 staff hours testing and
evaluating products. The actual duration of the testing and evaluation
varies significantly from product to product. MSHA expects that the
NRTLs would spend about the same amount of time. Absent an MSHA
regulation requiring approval of products for underground mines, MSHA
estimates that at least 10 percent of manufacturers would still have
their products tested and evaluated by an independent laboratory to
make them more acceptable to the mining industry. Thus, MSHA estimates
that about 13,275 paperwork burden hours per year would be associated
with generating the NRTL test and evaluation records that would be
required under the proposed rule.
Under proposed Sec. 6.10(e), an NRTL would make available for MSHA
review internal audits of the NRTL conducted as a part of its internal
audit program to assure that the required procedures, controls, and
practices are in place. NRTLs recognized by OSHA currently are required
to do internal audits and verify that they were done and, as a result,
already maintain the necessary records to verify that such audits are
performed. Thus, there are no paperwork burden hours associated with
Sec. 6.10(e).
Also, under proposed Sec. 6.10(f), NRTLs must make available for
MSHA review the results of their field audit (follow-up) programs. This
includes reports of factory inspections of manufacturers whose products
the NRTL is testing and evaluating and any field audits of products to
monitor and ensure the proper use of the NRTL's mark. In addition, the
NRTL must notify MSHA expeditiously, for example by telephone or by
fax, and send the Agency any necessary documentation when audits reveal
nonconformities in products issued an MSHA approval. Because NRTLs
currently maintain records of audits performed on products as a normal
business practice, there are no paperwork burden hours related to
maintaining such records. However, as a result of the proposed rule,
the NRTLs would have to notify and send necessary documentation to MSHA
when audits reveal nonconformities in approved products. MSHA estimated
that NRTLs would find product nonconformities in about 12 percent of
audits, and it would take an NRTL about 30 minutes to notify and send
MSHA the necessary documentation. In FY 1993, MSHA audited 709 units of
approved products. Thus, the associated burden hours are estimated to
be about 43 hours.
Comments regarding the proposed paperwork provisions, estimates, or
any other aspect of this collection of information, including
suggestions for reducing these burdens, should be sent to Patricia W.
Silvey, Director, Office of Standards, Regulations, and Variances,
MSHA, Room 631, 4015 Wilson Boulevard, Arlington, Virginia 22203, and
directly to the Office of Information and Regulatory Affairs of OMB,
Attention: Steve Semenuk, Desk Officer for the Mine Safety and Health
Administration, Room 3001, New Executive Office Building, Washington,
DC 20503.
II. Background
From its creation by Congress in 1910, MSHA's predecessor, the
Bureau of Mines, Department of the 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 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
scrutinized 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 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.
About 10 years ago, the Agency reviewed its product approval
program to determine if it could be restructured to provide improved
safety to miners without increasing the level of resources expended.
That review resulted in the promulgation in 1988 of 30 CFR part 7,
Applicant or Third-Party Testing, 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
made this shift in emphasis 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 defective 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, judgment, 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
observation or witnessing. 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. Under
this proposal, part 7 would not be changed.
In 1993, as part of President Clinton's National Performance
Review, 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 has decided to initiate rulemaking to modify MSHA's approval
program in two ways. First, applicants seeking MSHA product approval
would be required to use independent laboratories for the required
testing and evaluation. This would be in lieu of MSHA testing and
evaluation of products. As with the part 7 program, however, MSHA would
continue to verify that approval requirements were met and would retain
full responsibility for issuing the product approval. Thus, this
proposed modified approach would not constitute a self-certification
program. Second, MSHA or appropriately recognized independent
laboratories would be 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 provide an equal
or greater degree of protection. This would allow 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 had
determined previously that those requirements were equivalent or could
be enhanced to provide protection equivalent to that afforded by
products tested and evaluated according to MSHA approval requirements.
In this way, the Agency could take advantage of revisions to product
approval standards developed by other countries or standards
development organizations to address technological advances or
improvements in product safety. Such an approach would permit 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.
III. Discussion of Proposed Rule
Section 6.10 Use of Independent Laboratories
The proposed rule, which would require applicants to use
independent laboratories to perform the product testing and evaluation
necessary for issuance of MSHA's product approval, is 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. This modified approval program would require
applicants for product approval to submit to MSHA, along with their
application and product drawings and specifications, the test and
evaluation data and results developed by a qualified independent
laboratory in addition to the laboratory's statement of product
conformance with MSHA testing and evaluation requirements.
In deciding to propose such a modification to its approval program,
the Agency concluded that it was essential for the laboratories
performing testing and evaluation to be recognized under some type of
accreditation program. The existence of three accreditation programs
administered by the U.S. Government led MSHA to decide to use one of
these programs rather than establish its own program and duplicate the
work of others. The three programs considered were:
(1) The National Institute of Standards and Technology's (NIST)
National Voluntary Conformity Assessment System Evaluation (NV CASE)
program, 15 CFR part 286;
(2) NIST's National Voluntary Laboratory Accreditation Program (NV
LAP), 15 CFR part 285; and
(3) The Occupational Safety and Health Administration's (OSHA)
Nationally Recognized Testing Laboratory Program (NRTL), 29 CFR 1910.7.
The NV CASE program became effective on May 23, 1994. As of July
1994, NIST had received only one letter expressing possible interest in
establishing a specific program under NV CASE. Therefore, no
organization which determines the conformity of products to technical
regulations based on testing and evaluation; i.e., a conformity
assessment body, has yet been accredited by NIST under the NV CASE
program. Moreover, as indicated by NIST in the preamble to the final
rule for NV CASE, the program was intended to assist U.S. manufacturers
in demonstrating that their products meet other countries' technical
requirements for export purposes. Accrediting an organization to
determine the conformity of products with domestic regulatory
requirements, such as MSHA's product approval regulations, was
specifically stated to be outside the scope of the NV CASE program.
Therefore, NV CASE is not suitable for MSHA's purposes in this
rulemaking.
After comparing the other two programs, NIST's NV LAP and OSHA's
NRTL, MSHA has selected the OSHA Nationally Recognized Testing
Laboratory program as the appropriate platform by which private sector,
independent laboratories could provide prototype testing and evaluation
of products for use in mines. The Agency has chosen the OSHA program
over the NIST NV LAP program for several reasons.
First, in order for a laboratory to become recognized or accredited
as an NRTL under OSHA's program, the laboratory must be independent;
i.e., free from influence by manufacturers whose products it tests and
evaluates, by vendors and suppliers, and by employers using approved
products. This independence does not exist under NIST's NV LAP program
to accredit calibration and testing laboratories because manufacturers'
in-house laboratories are eligible to receive accreditation.
Independence of the testing laboratory from the manufacturer is
essential for MSHA and the public to have confidence in testing and
evaluation conducted outside its Approval and Certification Center.
Second, the OSHA NRTL accreditation signifies that the independent
laboratory has the capability (including proper testing equipment and
facilities, trained staff, written testing procedures, and calibration
and quality control programs) to perform testing and evaluation of
products to determine compliance with specified design, construction,
or test requirements. An NRTL does more than just test products. One
key feature distinguishing an NRTL from a testing house, such as one
accredited by NIST under NV LAP, is its ability to evaluate products
during production to ensure that the products conform to technical
standards. The term ``evaluation'' means the systematic examination of
the extent to which a product fulfills specified requirements. Thus, an
NRTL must be qualified both to test products to specific standards and
to certify, after evaluation, that the products meet applicable
requirements.
Finally, an important factor in MSHA's decision to use laboratories
accredited by OSHA is the requirement that NRTLs maintain oversight of
products they test, evaluate, and certify and which carry the NRTL's
marking. One of the goals of MSHA's modified approval proposal is to
provide greater assurance that products actually in service in
underground mines are manufactured as approved. OSHA's program, which
mandates organized product ``follow-up,'' would provide this assurance.
This ``follow-up'' program serves three functions. It (1) implements
control procedures for identifying listed or labeled products; (2) to
the extent necessary, conducts production line inspections to ensure
conformance with test and evaluation standards; and (3) to the extent
necessary, initiates post-marketing field inspections to ensure that
the product continues to meet the test standards and requirements.
Laboratories accredited under the NV LAP program, because they only
test and do not evaluate product compliance, are not required to
conduct product auditing functions such as those an NRTL must perform.
The OSHA procedures for recognizing Nationally Recognized Testing
Laboratories are set forth in Appendix A to 29 CFR 1910.7. (See 53 FR
12123, April 12, 1988.) This appendix provides requirements and
criteria which OSHA uses to evaluate and recognize an NRTL.
Under Appendix A, each applicant for accreditation as an NRTL must
list the specific test standards it intends to use. OSHA then evaluates
the laboratory's capabilities based on the list and an on-site review
by an assessment team. As a part of the accreditation process, the
assessment team visits the applicant laboratory to verify its
capabilities, including facilities, test equipment, calibration
program, product handling procedures, product evaluation procedures,
test procedures, technical reports, technical records, test standards,
quality assurance program, internal audits, complaint resolution
procedures, follow-up program for manufacturers, personnel programs,
and other procedures for producing credible findings and objective,
unbiased reports. Since the inception of the OSHA program in 1988, MSHA
has assisted OSHA in assessing the capability of applicant laboratories
to fulfill the requirements of the NRTL program. In this cooperative
effort, MSHA personnel brought to the OSHA program broad experience in
test procedures and conformity assessment of products to technical
requirements.
After reviewing a laboratory's application and capabilities, OSHA
makes a preliminary decision to grant or deny the application. This
decision is published in the Federal Register for comment. After the
comment period, which must be at least 60 days, the validity of any
comments received is evaluated. These evaluations are used to help
determine whether the applicant has met the criteria for accreditation.
Upon approval, a final announcement is published in the Federal
Register outlining the scope of the recognition and any conditions that
apply to the newly-recognized NRTL.
Each recognition lasts for 5 years. During that time, OSHA
exercises oversight to assess conformance of the NRTL with the terms of
its accreditation. Unresolved issues or discrepancies could result in
withdrawal of the NRTL recognition. At the present time, twelve
laboratories are accredited by OSHA under its NRTL program.
Foreign laboratories also may apply for NRTL accreditation. In
determining eligibility for a foreign-based testing agency or
organization, however, OSHA takes into consideration the policy of the
foreign government regarding both the acceptance in that country of
testing, data, equipment acceptances, and listings and labeling, which
are provided through nationally recognized testing laboratories
recognized by the Assistant Secretary for OSHA, and the accessibility
to government recognition or a similar system in that country by U.S.-
based, safety-related testing agencies, whether recognized by the
Assistant Secretary or not, if such recognition or a similar system is
required by that country. Presently, one foreign laboratory has been
recognized by OSHA as an NRTL. That laboratory is the Canadian
Standards Association (CSA).
B. Section-by-Section Discussion
Section 6.1 Purpose and Effective Date
Under the proposal, this part would establish the procedures and
requirements for independent laboratories to perform testing and
evaluation for MSHA product approval. It also would authorize MSHA,
when requested by an applicant for product approval, to approve a
product based on testing and evaluation requirements other than those
set forth in MSHA product approval regulations if the other
requirements are equivalent to MSHA's or can be enhanced to provide at
least the same degree of protection as MSHA's requirements.
The provisions of this part would apply to all applications for
approval and extensions of approval except those filed under 30 CFR
parts 7, 31, 32, and 36 received by MSHA after [insert the effective
date of this rule]. However, MSHA recognizes that it may take some time
before there are NRTLs accredited by OSHA to perform testing and
evaluation to all the various MSHA product approval regulations. Until
such time as an NRTL has been recognized to perform the necessary
testing and evaluation for a particular product, MSHA would continue to
perform the required testing and evaluation for that product for
approval purposes. Once an NRTL is recognized to perform the required
tests and evaluations for a given product, however, the manufacturer
would be required to have the necessary testing and evaluation
conducted by an NRTL recognized by OSHA to perform those specific tests
and evaluations and to submit the testing and evaluation results and
the statement of product compliance along with its application for
approval or extension of approval. Thus, for example, if an NRTL had
been recognized by OSHA to perform the testing and evaluation of hose
conduit for approval under 30 CFR part 18, then the manufacturer would
be required to use an NRTL to perform those tests and evaluations for
an approval or extension of approval and submit the results to MSHA as
part of its application. On the other hand, if no NRTL had been
accredited to perform the hose conduit testing and evaluation, MSHA
would continue to perform the testing and evaluation required for
product approval.
If only one NRTL is accredited to perform the necessary testing and
evaluation for a particular product, the manufacturer would have to use
that NRTL to conduct the requisite testing and evaluation work. Where
more than one NRTL has been recognized, manufacturers would have a
choice as to which NRTL would perform the work.
Section 6.2 Definitions
The following definitions would apply to the provisions of this
part.
Approval. This term would be used to describe a written document
issued by MSHA which states that a product has met the requirements of
part 18, 19, 20, 21, 22, 23, 26, 27, 29, 33, or 35. It would not apply
to the provisions of 30 CFR part 7. The definition would be based on
the existing definitions of ``approval'' in the parts specified above.
It would be expanded to include ``certification'' and ``acceptance''
because these terms also are used to denote MSHA approval.
Evaluation. This term would mean the systematic examination of the
extent to which a product fulfills the specified requirements for MSHA
product approval.
Section 6.10 Use of Independent Laboratories
Proposed Sec. 6.10(a) would require the applicant seeking MSHA
product approval under part 18, 19, 20, 21, 22, 23, 26, 27, 29, 33, or
35 to provide, as a part of its application, documentation of the
testing and evaluation necessary to ensure compliance with MSHA
requirements. Such testing and evaluation would be performed by an
independent laboratory that has been accredited by OSHA as a Nationally
Recognized Testing Laboratory and has demonstrated its capability to
perform the specific testing and evaluation required by MSHA for the
product for which approval is sought.
To implement this proposed rule, MSHA and OSHA intend to expand by
a subagreement the 1979 Interagency Agreement between MSHA and OSHA
which provides for interagency coordination to develop compatible
safety and health standards, regulations, and policies with respect to
the mutual goals of the two organizations. That subagreement would
include specific provisions for detailing the coordination between the
two agencies with respect to the NRTL program.
In order to become accredited under OSHA's NRTL program to perform
MSHA testing and evaluation, a laboratory would have to submit an
application to OSHA which provides sufficient information and detail
demonstrating that it meets the requirements set forth in 29 CFR
1910.7. As part of its application, the laboratory also would identify
the scope of the NRTL-related activity for which it seeks recognition.
This would include identifying those specific testing and evaluation
methods set forth in MSHA product approval regulations that the
laboratory would use to test and evaluate the product being submitted
for MSHA approval. Based on pre-rulemaking discussions between MSHA and
OSHA, the Assistant Secretary for OSHA would consider MSHA testing and
evaluation requirements set out in 30 CFR parts 18, 19, 20, 21, 22, 23,
26, 27, 29, 33, and 35, or other testing and evaluation requirements
which MSHA determines under 30 CFR 6.20 are equivalent to the
requirements in those approval parts, to be ``alternative test
standards'' as defined in 29 CFR 1910.7(d), which provide an ``adequate
level of safety'' for products to be used in gassy underground mines.
However, unless otherwise specifically indicated by OSHA, the MSHA
testing and evaluation requirements considered as ``alternative test
standards'' shall not be used to test and evaluate products for use in
workplaces other than gassy underground mines subject to MSHA
jurisdiction under the Mine Act.
Under OSHA's Appendix A to Sec. 1910.7, an on-site assessment of
the testing facilities of the applicant laboratory, as well as its
administrative and technical practices, would then be conducted by
OSHA. The assessment team selected to evaluate the capabilities of the
laboratory desiring to test to MSHA approval requirements would be a
joint OSHA/MSHA group, including MSHA personnel skilled in the details
of MSHA testing and evaluation requirements. Although under its
regulation OSHA has the authority to contract with outside personnel to
perform the on-site assessment, OSHA has agreed that this critical
responsibility would not be contracted out to private sector personnel
for evaluating applicant laboratories seeking recognition to perform
MSHA testing and evaluation. The subagreement to the Interagency
Agreement between MSHA and OSHA would specifically eliminate this
option for the MSHA program.
It is the Assistant Secretary for OSHA who has the authority to
grant recognition to an NRTL or to expand, renew, or revoke such
recognition. However, MSHA staff would participate in all aspects of
the process for determining whether an application for recognition of
an NRTL to perform testing and evaluation for MSHA product approval
should be approved. This would include preparation of written reports
of on-site assessment, review of any public comments received regarding
the laboratory's application for accreditation, and participation in
any special review or informal hearing ordered by the Assistant
Secretary for OSHA to address public objection to an applicant's
request for recognition by OSHA. MSHA personnel also would participate
fully in any action to expand, renew, or revoke recognition of an NRTL
to perform the testing and evaluation necessary under MSHA's product
approval regulations. In this manner, MSHA would be assured that the
applicant laboratory is capable and has complete understanding of the
testing and evaluation requirements, procedures, and protocol specified
in MSHA's product approval regulations. All these areas of MSHA
participation in the OSHA process to accredit an NRTL to perform MSHA
testing and evaluation would be delineated in the subagreement between
the agencies.
As required under this paragraph (a) of the proposed rule, once an
NRTL has been recognized by OSHA to perform testing and evaluation for
MSHA approval of a particular product, the manufacturer seeking
approval of that product must submit to MSHA, as part of its
application, the NRTL testing and evaluation results along with a
statement of product compliance with the applicable MSHA approval
requirements. It is at this point that the MSHA review process would
begin.
MSHA would initiate an administrative review of the application
package upon receipt to ensure that the applicant had included all of
the necessary information to process the application. This information
would include, among other things, a complete description of the
product, product drawings and specifications, the NRTL product testing
and evaluation results, the NRTL statement of product compliance with
the applicable MSHA approval requirements, and payment of the
nonrefundable MSHA application fee. If the manufacturer has submitted
an incomplete application package without all the information required,
MSHA immediately would notify the applicant of the deficiency by mail.
MSHA would then hold the deficient application for a reasonable period
of time, without further processing, while awaiting a response from the
manufacturer. If the applicant fails to respond to the MSHA request for
additional information to complete the application package within a
reasonable time, MSHA would cancel the application and the applicant
would forfeit the application fee. Applications submitted without the
required application fee would be considered invalid.
After determining that an application package is complete, MSHA
would initiate a technical review to ensure that the NRTL testing and
evaluation results were both reasonable and appropriate for the
particular product. If technical review of the package indicates
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/or
explain the apparent deficiency. Failure to respond to the MSHA
notification of a discrepant application with the required information
and/or satisfactory explanations within a reasonable period would
result in cancellation of the application and forfeiture of the
application fee.
Following the administrative and technical review of the product
application package, MSHA would issue an approval, or notice denying
approval, to the applicant. A notice denying approval would state the
reasons upon which the denial was based. If an approval is issued, the
approval holder is authorized and required to place an MSHA marking on
the product which signifies to the user of the product that the product
is approved for use in gassy underground mines. The product drawings
and specifications, the NRTL testing and evaluation results, and the
NRTL statement of product compliance with the applicable approval
requirements would be retained in an approval file. The MSHA approval
constitutes a license which authorizes the approval holder to
manufacture, distribute, and sell the product constructed in exact
accordance with the approval documentation on file with MSHA.
Proposed Sec. 6.10(b) would require that NRTL testing and
evaluation of products for MSHA approval be performed only by NRTLs
accredited by OSHA to perform the specific MSHA tests and evaluations.
Because of the critical nature of the testing and evaluation of
products to be used in the underground mining environment, where
hazards such as flammable methane gas may exist, the proposal would not
permit the NRTL to contract out any portion of the testing and
evaluation conducted for applicants seeking MSHA approval.
Additionally, the proposed rule would require the testing and
evaluation to be performed in-house at the facilities of the NRTL
specifically accredited by OSHA to perform the MSHA tests and
evaluations required. In this way, MSHA could continue to ensure that
the NRTL accredited by OSHA as having the capability, including the
necessary equipment and trained personnel, to perform the specific MSHA
tests and evaluations is, in fact, the laboratory conducting the
testing and evaluation work.
Under the proposal, the specific NRTL receiving recognition to
perform MSHA testing and evaluation would be required to perform all
tests and evaluations in strict accordance with MSHA regulations,
including the procedures and protocol used by MSHA in conducting such
testing and evaluation. The proposed rule would not permit an NRTL to
change a testing standard or any elements incorporated in the standard.
Therefore, the provisions of ``II. Supplementary Procedures, A. Test
Standard Changes'' of Appendix A to 29 CFR 1910.7 would not be a part
of the MSHA program.
Proposed Sec. 6.10(c) would reserve the right of MSHA to observe or
verify the testing and evaluation conducted for products approved by
MSHA. This is to ensure that the OSHA-recognized NRTLs continue to
perform tests and evaluations to MSHA requirements in an appropriate
manner. This safeguard would supplement the existing NRTL quality
control program which includes the performance of internal audits as
required by the OSHA recognition.
Proposed Sec. 6.10(d) would require that the manufacturer of the
MSHA-approved product affix a durable NRTL mark as well as a durable
MSHA mark to the product. The test standard used in testing and
evaluating the product for MSHA approval also would be required to be
referenced on the NRTL's marking. This would allow the role of the NRTL
participating in the MSHA approval program to be clearly identified in
the field, both to the user of the approved product and to MSHA
inspection personnel. In addition, this inclusion would protect the
product user from unknowingly using a product bearing the MSHA and
NRTL's marks in an environment for which the product has not been
tested, evaluated, and approved. In this way, product defects
discovered in the field by users or reported to and confirmed by MSHA
could be addressed without delay. MSHA would promptly notify the
manufacturer and associated NRTL of product defects identified or
confirmed by MSHA, so that coordinated corrective action could be
initiated to protect the safety of the miners and ensure the integrity
of the MSHA and NRTL's marks.
Under proposed Sec. 6.10(e), internal audits performed by an NRTL
as part of the quality control program required by the OSHA
accreditation would have to be made available for review by MSHA. This
provision would not require NRTLs to submit copies of all internal
audits to MSHA. Instead, it simply would require an NRTL to make such
audits available to MSHA for review when requested by the Agency. These
internal audits provide documented verification that the OSHA-
recognized NRTL continues to satisfy the requirements of 29 CFR
1910.7(b)(4), is performing within its ``letter of recognition'' and
its quality control program, and has not misrepresented the scope or
conditions of its accreditation. Internal audits under the OSHA NRTL
program are done at appropriate intervals by trained and qualified
persons. Guidelines for the establishment of quality control programs
for laboratories are available in ISO guides 25, 28, and 38.
Under proposed Sec. 6.10(f), NRTLs recognized by OSHA to perform
MSHA testing and evaluation would be required to formulate and
implement a ``follow-up'' program in accordance with the OSHA
requirements of 29 CFR 1910.7(b)(2). In addition, the proposal would
mandate that NRTLs make available to MSHA for review any information
gathered by an NRTL during manufacturing site inspections or field
audits of manufactured products approved by the MSHA. As indicated in
the discussion of paragraph (d) on internal audits, NRTLs would not be
required to submit copies to MSHA of ``follow-up'' reports of
manufacturing site inspections and products audits. They would need
only to provide MSHA with copies upon MSHA's request.
Further, NRTLs would be required to notify MSHA immediately of
product defects discovered so that appropriate corrective action could
be initiated to protect the safety and health of the miners. Because
product defects can create hazards underground, immediate notification
should be by expeditious means, such as by telephone or fax. Telephone
or other contact should then be confirmed in writing. The oral and
written notification should include a description of the nature and
extent of the problem.
The prompt sharing of NRTL product audit information would enhance
the MSHA post-approval product audit program, permit rapid response to
safety problems caused by product defects, and ensure the integrity of
the MSHA and NRTL marks.
Proposed Sec. 6.10(g) would provide that approved products tested
and evaluated by NRTLs recognized by OSHA to perform MSHA testing and
evaluation would be subject to periodic audit by MSHA to determine
conformity with the technical requirements upon which the approval was
based. This aspect of the proposal would complement the ``follow-up''
program required by the OSHA recognition and provide a mechanism for
independent evaluation by MSHA of approved products.
Proposed paragraph (g) would require an approval holder, upon
MSHA's request, to make an approved product available to MSHA for
audit, at no cost to MSHA. MSHA would make such a request no more than
once a year, except for cause. This would be in addition to MSHA's
ongoing quality assurance program through which the Agency can obtain
products for audit at any time at MSHA's expense, and the field audit
program conducted by the specific NRTL upon whose testing and
evaluation MSHA bases its approval action.
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 any 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 any final report resulting from such audits.
The 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 and 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 may
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 it would request at no cost more than one approved product 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 approval 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
approval holder is meeting the 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's recalling or retrofitting the approved
product involved and issuing user notices. Revocation of the approval
by MSHA could result when discrepancies in approved products are not
successfully corrected.
Proposed Sec. 6.10(h) would require all proposed changes to
approved products to be submitted to MSHA for an extension of approval
prior to implementation of the change to ensure that product changes do
not result in hazardous conditions or violations of MSHA requirements
when approved products are used underground. It is important that MSHA
be aware of and approve any changes to the approved product that may
impact on the approval requirements. Such changes would be tested and
evaluated, as necessary, to determine compliance with MSHA approval
requirements. In keeping with the philosophy and intent of this
proposed regulation, testing and evaluation of changes to approved
products would be carried out by an NRTL specifically recognized by
OSHA to perform the necessary tests and evaluations for MSHA product
approval.
Proposed Sec. 6.10(i) would establish the bases and procedures for
revocation of NRTL recognition. The Assistant Secretary for OSHA has
the authority to revoke for cause the recognition of any NRTL
accredited under OSHA's NRTL program, and this would include the
authority to revoke the recognition of an NRTL accredited to perform
testing and evaluation to MSHA approval requirements. Under the
proposal, action to revoke recognition of an NRTL to perform MSHA
testing and evaluation would be taken if the NRTL: (1) Has failed to
continue to substantially satisfy the requirements of 29 CFR 1910.7 or
Appendix A to 1910.7; (2) has failed to reasonably perform the NRTL
testing requirements encompassed within its letter of recognition; (3)
has materially misrepresented itself in its applications or
misrepresented the scope or conditions of its recognition; or (4) has
failed to comply with the requirements set forth in this proposed rule
for recognition as an NRTL to perform testing and evaluation to MSHA
approval requirements.
In initiating action to revoke the recognition of an NRTL to
perform testing and evaluation to MSHA requirements, the proposed rule
would require that the procedures for revocation established in
Appendix A to 1910.7 be followed. Under those procedures, OSHA is
required to provide the recognized NRTL notice in writing of the
alleged deficiencies, giving the NRTL the opportunity to rebut or
correct the alleged deficiencies within a reasonable period. If the
deficiencies are not corrected or reconciled within the time period
provided, OSHA would propose, in writing, to revoke the recognition.
The revocation would be effective in 60 days unless within that period
the recognized NRTL corrects the deficiencies or requests a hearing in
writing. If a hearing is requested, it would be held before an
administrative law judge (ALJ) of the Department of Labor according to
the rules specified in 29 CFR part 1905, subpart C. In the hearing, the
burden of proof would be on OSHA to demonstrate by a preponderance of
the evidence that the recognition should be revoked based on the causes
alleged in the proposed notice of revocation.
Under paragraph E.3., Final Decision, of Appendix A, the ALJ would
issue a decision based on the entirety of the record as to whether the
recognition should be revoked. Exceptions to the ALJ decision would be
accepted for 20 days. If no exceptions were filed, this would become
the final decision of the Assistant Secretary of OSHA. If exceptions
are filed, the ALJ decision, the exceptions filed, and the entire file
would be forwarded to the Assistant Secretary for OSHA for final
decision. A copy of the Assistant Secretary's final decision on the
revocation would be provided to the NRTL and a notification would be
published in the Federal Register announcing the decision.
Section 6.20 Use of Equivalent Testing and Evaluation Requirements
Proposed Sec. 6.20 (a) and (b) would permit MSHA, and appropriately
recognized NRTLs, when requested by the applicant for product approval,
to use international, consensus, or other recognized approval
requirements that differ from those set forth in existing MSHA
regulations to test and evaluate certain mining equipment after MSHA
has determined that such requirements are ``equivalent'' or can be
enhanced to provide equivalency. Part 7 would not be affected by this
proposed provision.
The Agency believes that this proposal would encourage a more rapid
introduction of mining products embodying new technology with enhanced
safety features. In addition, testing and evaluation to ``equivalent''
requirements, that provide the same or a greater degree of protection
to miners as those set forth in the various MSHA product approval
regulations, would stimulate metric conversion, lead to greater
compatibility with international standards, and provide a more
competitive posture for U.S. products in the international market.
Implementation of this provision would enable manufacturers of U.S.
mining equipment or products to obtain MSHA's certification that their
equipment meets both the MSHA regulatory requirements and the
equivalent international, consensus, or other recognized requirements.
MSHA would decide which alternative requirements for product
approval it would evaluate for ``equivalency.'' This decision would be
based on factors such as the potential to provide enhanced safety, the
extent of usage of the alternative requirements, the needs of the U.S.
mining industry, the complexity of the candidate requirements, the
difficulty in ensuring equivalency, and the Agency resources available
to address the determination. The evaluation would be conducted by the
Agency's Approval and Certification Center using personnel with
expertise in the approval requirements involved.
Under this proposal, once MSHA has determined that equivalent
requirements exist or that certain requirements, other than those in
MSHA approval regulations, can be enhanced to provide equivalency, the
applicant would be given the option of requesting that MSHA accept
testing and evaluation of the applicant's product using the
``equivalent'' requirements rather than those found in the applicable
product approval regulations. This option would permit the manufacturer
to design a machine or product to a single set of requirements
acceptable to both MSHA and other market areas, rather than designing
separate machines to comply with the separate requirements of each
market place in which business is sought.
Because this proposal 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 markets include the United States and another
nation that has more stringent approval requirements for a specific
product, MSHA would have the authority, at the request of the
applicant, to issue an approval based on testing and evaluation to the
more stringent requirements. The approval documentation would state
that the product had fulfilled the more stringent requirements in
addition to those of MSHA. In this case, the approved product sold in
the U.S. would have a higher degree of safety than that specified by
MSHA under existing requirements. Should the targeted foreign market
area have product approval requirements which are, in some aspects,
less stringent than those of MSHA, the applicant would be required to
fulfill the foreign target area's requirements and, in addition, any
other tests, evaluations, or enhancements necessary to ensure that the
product is at least as safe as that demanded by the MSHA approval
requirements. In this situation, the approved product would exceed the
safety requirements of the foreign target area and be no less safe than
required by MSHA.
As previously indicated, MSHA approval documentation would show
that the product had fulfilled the requirements of the foreign target
market area and those of MSHA. In the first instance, the product
marketed in the United States would embody a higher level of safety,
while in the second instance it would embody equivalent safety. In no
case would the product be less safe than mandated by MSHA approval
requirements.
The following example illustrates how this concept would work. In
testing and evaluating electrical circuits for intrinsic safety under
30 CFR 18.68, MSHA uses spark test apparatus meeting the requirements
of the International Electrotechnical Commission (IEC), IEC 79-3
(1990). With this apparatus, each rotation of a four-wire electrode
holder produces at least six make-break sparks on a slotted cadmium
disk in the presence of the explosive test gas mixture. The MSHA
procedure requires that the test duration be 1000 rotations of the
four-wire electrode holder and that the polarity of the test circuit be
reversed after 500 rotations. This same apparatus is used to test
intrinsically safe circuits in partial fulfillment of the requirements
of the IEC test, IEC 79-11 (1991), for intrinsic safety. However, the
IEC procedure specifies a test duration of 400 rotations of the four-
wire electrode holder for DC circuits and 1000 rotations for AC
circuits.
With all other factors equal, MSHA could consider the spark test
specified by IEC 79-11 (1991) to be equivalent to the spark-test
procedure followed by MSHA in fulfillment of 30 CFR 18.68, by
increasing the number of rotations of the four-wire electrode holder
used in the IEC DC circuit test by 100 rotations and adding 500
rotations with reversed circuit polarity. For AC circuits, in addition
to the 1000 rotations of the four-wire electrode holder required by
IEC, 500 rotations with reversed polarity tests would be required to
meet the MSHA requirements. The resulting test would exceed some
aspects of both the MSHA and IEC procedures and would fulfill the
requirements of both. In this manner a single test could verify
conformity to the test requirements of both parties with no reduction
of safety in either case. In like fashion, other MSHA and IEC
requirements for the approval of intrinsically safe electrical circuits
could be reconciled to obtain equivalency without adverse impact on
safety.
MSHA anticipates that savings from use of this option would 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, would
encourage a more rapid introduction of mining products embodying new
technology with enhanced safety features. Because of the potential for
a more global market area, MSHA also expects an improved availability
of specialized mining equipment adapted to more safely address unique
mining conditions for which equipment could not be developed without
significant market demand. In general, this proposal should provide
increased opportunity for direct competition leading to improved safety
and performance quality in mining products.
As is the case with existing MSHA approval regulations, this
proposed rule would be nondiscriminatory as 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, the proposal would be consistent with the North American
Free Trade Agreement and the newly negotiated Agreement on Technical
Barriers to Trade (TBT) which will become effective when the Uruguay
Round Agreements enter into force for the United States.
Proposed Sec. 6.20(c) would require that, after a determination of
``equivalency'' is made, the industry be notified of the determination
through publication of a notice in the Federal Register. The notice
would clearly identify the alternative requirements evaluated and
either indicate that they are ``equivalent'' or specify how they would
need to be enhanced to provide equivalency to the corresponding MSHA
product approval requirements. Following publication in the Federal
Register of the alternative requirements determined by MSHA to be
equivalent, MSHA, as well as NRTLs recognized by OSHA to perform the
equivalent testing and evaluation requirements, would be able to
conduct the equivalent testing and evaluation when so requested by an
applicant seeking product approval. The MSHA Federal Register notice of
equivalent requirements also would specify whether an NRTL recognized
by OSHA to perform testing and evaluation to the original MSHA approval
requirements would have to obtain an expansion of its OSHA recognition
to perform testing and evaluation to the ``equivalent'' alternative
requirements.
Conforming Amendments
The changes to MSHA's procedures and requirements for testing and
evaluation of products MSHA approves for use in gassy, underground
mines set forth in this new proposed part 6 also would necessitate
certain conforming amendments to the Agency's approval regulations in
30 CFR parts 18, 19, 20, 21, 22, 23, 26, 27, 29, 33, and 35. These
approval regulations contain application provisions for approval and
extension of approval of products which manufacturers seeking MSHA
approval must follow. Therefore, appropriate revisions to these
application provisions to reference proposed part 6 are being included
as part of this proposed rule.
IV. Fees
The Agency's effort in the initial issuance of the approval would
be reduced significantly because MSHA's role would change from that of
testing and evaluating prototype products to that of oversight,
auditing, and addressing new technology. Thus, MSHA fees charged to
manufacturers would be reduced significantly. Because the Agency no
longer would provide certain kinds of testing and evaluation, its
hourly and flat rate charges for such services would be eliminated.
However, in order to issue a manufacturer an MSHA approval, the Agency
still would have to review the manufacturer's documents. As a result of
the proposed rule, the manufacturer's documents would now include the
NRTL's testing and evaluation results. MSHA estimates that due to the
increased technical and administrative time needed to review the NRTL
testing and evaluation data, its application fee would increase from
$100 to $400. The $400 estimate is based upon a per-hour fee of $50 and
an 8-hour average for technical and administrative review, which
account for the fact that applications vary in complexity and,
therefore, differ in their review time.
V. Executive Order 12866 and the Regulatory Flexibility Act
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 a significant
regulatory action and, therefore, has not prepared a separate analysis
of costs and benefits. The Regulatory Flexibility Act requires
regulatory agencies to consider a rule's impact on small entities. This
proposed rule would not have a significant economic impact on a
substantial number of small entities. The analysis contained in this
preamble meets MSHA's responsibilities under Executive Order 12866 and
the Regulatory Flexibility Act.
Benefits
Under this proposed rule, Nationally Recognized Testing
Laboratories (NRTLs), rather than MSHA, would test and evaluate most
mining products requiring Federal approval. Having more than one entity
available to conduct tests and evaluations would facilitate a more
efficient process of providing the required services and, thus,
expedite the introduction of new and innovative equipment into the
Nation's mines. Moreover, the proposed rule would maintain the existing
level of workplace safety provided by Federal testing and evaluation
because the NRTLs must be recognized by the Department of Labor's
Occupational Safety and Health Administration as being qualified to
perform specific testing and evaluation for MSHA product approval. More
importantly, MSHA still would be fully responsible for approving any
equipment tested and evaluated before it could be used in a mine.
Reducing the number of tests and evaluations it conducts would
allow MSHA to direct its resources more to auditing products actually
used in mines. In addition, NRTLs recognized by OSHA must conduct field
audits as part of their follow-up programs, and under MSHA's proposed
rule any reports of such audits would have to be made available to
MSHA. These field audits would ensure that products in use continue to
meet the specifications of the approval. MSHA believes that increasing
such field audits would enhance safety. Also, shifting resources from
routine testing and evaluation would permit MSHA to direct more
attention to evaluating new technology which may be safer than existing
technology, potentially accelerating the entry of such equipment into
mines.
Further, the proposed rule would permit MSHA to accept product
testing and evaluation based upon approval requirements other than its
own, so long as the alternative requirements provide at least the same
level of safety as MSHA's requirements. In some instances these
requirements may be more stringent than MSHA's. Because products
approved using the more stringent requirements would have to be built
to those requirements, safety would be enhanced. In addition,
acceptance of equivalent or enhanced requirements should allow a wider
spectrum of safe and improved equipment to be used in mining. This also
would eliminate the need for manufacturers to design separate products
to meet the demands of different approval requirements, MSHA's approval
requirements and, for example, an international requirement, where a
single design could provide the necessary level of safety. MSHA expects
that this proposed rule also would facilitate the use of metrification
in the construction of equipment.
Costs
MSHA estimates that the costs of testing, evaluation, and approval
for any particular product would increase under the proposal. However,
these costs would be offset by savings. Charges for testing and
evaluating by NRTLs are often greater than the fees charged by the
Federal Government. NRTLs' operating costs tend to be higher than the
Government's and include a profit component that is not present in the
Government's fees. NRTLs also charge manufacturers for providing
follow-up services with respect to products they have already tested
and evaluated. MSHA expects the costs of testing and evaluating any
particular product to approximately double under the proposal. Further,
although the NRTL, rather than MSHA, would test and evaluate certain
products, time would still be required for MSHA to review approval
applications that, under this proposal, would include the testing and
evaluation data and results prepared by the NRTL and submitted with the
application package. Therefore, MSHA estimates that its application fee
would increase from $100 to $400.
The proposed rule, however, has the potential to provide
substantial cost savings to manufacturers as the program grows to
maturity, which MSHA expects would outweigh any cost increases. In
particular, manufacturers would realize savings from the ability to
design and manufacture a single product to serve multiple markets.
Currently, MSHA may not approve products meeting requirements that are
different from the Agency's own. Therefore, some companies must alter
their products, which currently meet MSHA requirements, to meet the
approval requirements of a foreign market area.
Under the proposed rule, MSHA could approve a product based upon
approval requirements other than its own, provided that the alternative
approval requirements have been determined by MSHA to be equivalent, or
can be enhanced to provide equivalency, by affording the same or a
greater level of safety as MSHA's. Thus, by not having to design
equipment to meet two different approval requirements, manufacturers
could have a more standardized product line, reduce unit costs, and
improve quality control. Most manufacturers, whether large or small,
also should experience cost savings by being able to market their
products sooner because more entities would be providing the services
that MSHA alone currently supplies. The ability to decrease the amount
of time for developing and introducing a product into the market can
cut overall costs for manufacturers. Due to the absence of information
concerning individual manufacturers' product lines, management
objectives, and marketing strategies, MSHA was not able to quantify
these cost savings.
Finally, Executive Order 12866 also requires that regulatory
agencies assess the impact on the Government for any regulation
determined to be a significant regulatory action. MSHA does not believe
that the proposed rule would create any significant cost impacts on the
Government. Rather, this proposed regulation would allow MSHA to
improve its existing post-approval audit program by reallocating its
resources from testing and evaluation to audit responsibilities. The
proposed rule can be implemented under existing Government practices
without any substantial equipment or facility expenditures by the
Government.
MSHA solicits comments on the costs and benefits of this proposed
rule to all manufacturers who produce products requiring MSHA approval.
List of Subjects in 30 CFR Parts 6, 18, 19, 20, 21, 22, 23, 26, 27,
29, 33, and 35
Laboratory, Mine safety and health, Reporting and recordkeeping
requirements, Safety, Testing.
Dated: November 17, 1994.
J. Davitt McAteer,
Assistant Secretary for Mine Safety and Health.
Accordingly, subchapter B, chapter I, title 30 of the Code of
Federal Regulations is proposed to be amended as follows:
1. A new part 6 is added to read as follows:
PART 6--TESTING AND EVALUATION BY NATIONALLY RECOGNIZED TESTING
LABORATORIES AND USE OF EQUIVALENT APPROVAL REQUIREMENTS
Sec.
6.1 Purpose and effective date.
6.2 Definitions.
6.10 Use of independent laboratories.
6.20 Use of equivalent test and evaluation requirements.
Authority: 30 U.S.C. 957.
Sec. 6.1 Purpose and effective date.
This part sets forth the procedures and requirements for
independent laboratories to perform testing and evaluation for MSHA
product approval. It also authorizes MSHA, when requested by an
applicant for product approval, to approve a product based on testing
and evaluation requirements other than those in MSHA product approval
regulations, if they are equivalent to MSHA's requirements or can be
enhanced to provide at least the same degree of protection as MSHA's
requirements. The provisions of this part shall apply to all
applications for approval and extensions of approval received after
[effective date of the final rule].
Sec. 6.2 Definitions.
The following definitions apply in this part.
Approval. A document issued by MSHA which states that a product has
met the requirements of parts 18, 19, 20, 21, 22, 23, 26, 27, 29, 33,
or 35 of this chapter and which authorizes an approval mark identifying
the product as approved. The term includes ``certification'' and
``acceptance.''
Evaluation. The systematic examination of the extent to which a
product fulfills the specified requirements for MSHA product approval.
Sec. 6.10 Use of independent laboratories.
(a) After [effective date of the final rule], to fulfill the
approval requirements of parts 18, 19, 20, 21, 22, 23, 26, 27, 29, 33,
and 35 of this chapter, the testing and evaluation of products
submitted for MSHA approval shall be performed by an independent
laboratory. The independent laboratory must be a Nationally Recognized
Testing Laboratory (NRTL) under the provisions of 29 CFR 1910.7
recognized by the Occupational Safety and Health Administration to
perform the specific tests and evaluations required by the pertinent
approval part or such equivalent requirements accepted by MSHA under
the provisions of Sec. 6.20. The applicant for product approval shall
submit the NRTL testing and evaluation results and statement of product
compliance with its application.
(b) Product testing and evaluation performed by NRTLs shall be
conducted on-site (in-house) by NRTL personnel in accordance with the
specific MSHA testing and evaluation requirements for the product or
such equivalent requirements accepted by MSHA under the provisions of
Sec. 6.20. The provisions of II. Supplementary Procedures, A. Test
Standard Changes of Appendix A to 29 CFR 1910.7 do not apply to NRTL
testing and evaluation for MSHA product approval.
(c) MSHA reserves the right to observe and verify testing and
evaluation conducted by NRTLs for products approved by MSHA.
(d) Products approved by MSHA based on NRTL testing and evaluation
shall bear a durable NRTL identification mark indicating the test
standards used and the MSHA marking required by the appropriate product
approval part.
(e) As a part of the quality control program required by 29 CFR
1910.7(b), NRTLs shall make available to MSHA any internal audits
conducted as a part of their internal audit program to ensure that the
required procedures, controls, and practices are in place.
(f) As a part of the follow-up program required by 29 CFR
1910.7(b)(2), NRTLs shall make available to MSHA any reports of follow-
up inspections of manufacturing sites and any reports of product or
laboratory audits of products carrying the MSHA and NRTL labels. NRTLS
shall notify MSHA immediately of any product defects discovered.
(g) Upon request by MSHA, but not more than once a year, except for
cause, the approval holder shall make products whose approval is based
on testing and evaluation by NRTLs available for audit at a mutually
agreeable site at no cost to MSHA.
(h) Any change to an approved product from the documentation on
file at MSHA that affects the technical requirements of the applicable
product approval part shall be submitted to MSHA by the approval holder
for an extension of approval prior to implementing the change. The NRTL
test and evaluation results addressing the change shall be submitted
for consideration with the application for extension of approval.
(i)(1) The recognition of an NRTL to perform testing and evaluation
to MSHA requirements for product approval may be revoked at any time
for cause if an NRTL--
(i) Has failed to continue to substantially satisfy the
requirements of the OSHA NRTL recognition program set forth in 29 CFR
1910.7 or Appendix A to 1910.7--''OSHA Recognition Process for
Nationally Recognized Testing Laboratories'';
(ii) Has not been reasonably performing the NRTL testing
requirements encompassed within its letter of recognition to perform
testing and evaluation to MSHA requirements for product approval;
(iii) Has materially misrepresented itself in its applications or
misrepresented the scope or conditions of its recognition to perform
testing and evaluation to MSHA requirements for product approval; or
(iv) Has failed to comply with any of the requirements for testing
and evaluation by independent laboratories set forth in Sec. 6.10 of
this part.
(2) In revoking recognition of an NRTL to perform testing and
evaluation to MSHA requirements for product approval, the provisions
established in ``Appendix A, II. Supplementary Procedures, E.
Revocation of Recognition to 29 CFR 1910.7, shall be followed.
Sec. 6.20 Use of equivalent testing and evaluation requirements.
(a) After [effective date of the final rule], upon determination by
MSHA and notification to the industry that testing and evaluation
requirements other than those of parts 18, 19, 20, 21, 22, 23, 26, 27,
29, 33, or 35 of this chapter are available or can be enhanced to
fulfill the objectives of these parts, the equivalent requirements, as
set forth by MSHA, may be used when requested by applicants seeking
product approval.
(b) Testing and evaluation requirements for product approval are
equivalent when MSHA determines that, in their original or enhanced
form, they provide the same or a greater degree of protection as those
set forth for the product in parts 18, 19, 20, 21, 22, 23, 26, 27, 29,
33, or 35 of this chapter.
(c) After a determination of equivalency is made by MSHA,
interested parties shall be notified through publication of a notice in
the Federal Register. The notice shall either indicate that the
alternative testing and evaluation requirements are equivalent in their
original form, or shall specify the enhancements necessary to make the
alternative testing and evaluation requirements equivalent to those
required by the applicable MSHA product approval requirements.
2. The authority citation for parts 18, 19, 20, 21, 22, 23, 26, 27,
29, 33, 35 continues to read as follows:
Authority: 30 U.S.C. 957, 961.
PART 18--[AMENDED]
3. Section 18.6 is amended 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, in duplicate, 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 a laboratory
recognized by the Occupational Safety and Health Administration as a
nationally recognized testing laboratory (NRTL) under part 6 of this
chapter to perform the testing and evaluation necessary for approval
under this part, the application shall also include the testing and
evaluation results and the statement of product compliance from the
NRTL.
(3) An applicant may request testing and evaluation to other
testing and evaluation requirements which have been determined by MSHA
to be equivalent under Sec. 6.20 of this chapter.
(4) The application, all related matters, and all correspondence
concerning it shall be addressed to Approval and Certification Center,
Box 201 B, Industrial Park Road, Dallas Pike, Triadelphia, WV 26059.
* * * * *
4. Section 18.15 is amended 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 a laboratory
recognized by the Occupational Safety and Health Administration as a
nationally recognized testing laboratory (NRTL) under part 6 of this
chapter to perform the testing and evaluation necessary for approval
under this part, the application shall also include the testing and
evaluation results and the statement of product compliance from the
NRTL.
* * * * *
PART 19--[AMENDED]
5. Section 19.3 is revised 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 his lamp. This application
in duplicate, 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, Box
201 B, Industrial Park Road, Dallas Pike, Triadelphia, WV 26059,
together with the required drawing, one complete lamp, and instructions
for its operation.
(b) Where the applicant for approval has used a laboratory
recognized by the Occupational Safety and Health Administration as a
nationally recognized testing laboratory (NRTL) under part 6 of this
chapter to perform the testing and evaluation necessary for approval
under this part, the application shall also include the testing and
evaluation results and the statement of product compliance from the
NRTL.
(c) An applicant may request testing and evaluation to other
testing and evaluation requirements which have been determined by MSHA
to be equivalent under Sec. 6.20 of this chapter.
6. Section 19.13 is amended 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 Approval and Certification
Center, Box 201 B, Industrial Park Road, Dallas Pike, 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 a laboratory
recognized by the Occupational Safety and Health Administration as a
nationally recognized testing laboratory (NRTL) under part 6 of this
chapter to perform the testing and evaluation necessary for approval
under this part, the applicant shall also include the testing and
evaluation results and the statement of product compliance from the
NRTL.
* * * * *
PART 20--[AMENDED]
7. Section 20.3 is revised 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 in duplicate,
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,
shall be sent to Approval and Certification Center, Box 201 B,
Industrial Park Road, Dallas Pike, Triadelphia, WV 26059, together with
the required drawings, one complete lamp, and instructions for its
operation.
(b) Where the applicant for approval has used a laboratory
recognized by the Occupational Safety and Health Administration as a
nationally recognized testing laboratory (NRTL) under part 6 of this
chapter to perform the testing and evaluation necessary for approval
under this part, the application shall also include the testing and
evaluation results and the statement of product compliance from the
NRTL.
(c) An applicant may request testing and evaluation to other
testing and evaluation requirements which have been determined by MSHA
to be equivalent under Sec. 6.20 of this chapter.
8. Section 20.14 is amended 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, Box 201 B, Industrial Park Road, Dallas Pike,
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 a laboratory
recognized by the Occupational Safety and Health Administration as a
nationally recognized testing laboratory (NRTL) under part 6 of this
chapter to perform the testing and evaluation necessary for approval
under this part, the applicant shall also include the testing and
evaluation results and the statement of product compliance from the
NRTL.
* * * * *
PART 21--[AMENDED]
9. Section 21.4 is revised to read as follows:
Sec. 21.4 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 in duplicate,
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,
shall be sent to Approval and Certification Center, Box 201 B,
Industrial Park Road, Dallas Pike, Triadelphia, WV 26059, together with
the required drawings, one complete lamp, and instructions for its
operation.
(b) Where the applicant for approval has used a laboratory
recognized by the Occupational Safety and Health Administration as a
nationally recognized testing laboratory (NRTL) under part 6 of this
chapter to perform the testing and evaluation necessary for approval
under this part, the application shall also include the testing and
evaluation results and the statement of product compliance from the
NRTL.
(c) An applicant may request testing and evaluation to other
testing and evaluation requirements which have been determined by MSHA
to be equivalent under Sec. 6.20 of this chapter.
10. Section 21.10 is amended by revising paragraph (a) to read as
follows:
Sec. 21.10 Instructions for handling future changes in lamp design.
* * * * *
(a)(1) The manufacturer shall write to Approval and Certification
Center, Box 201 B, Industrial Park Road, Dallas Pike, 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 the changed lamp parts.
(2) Where the applicant for approval has used a laboratory
recognized by the Occupational Safety and Health Administration as a
nationally recognized testing laboratory (NRTL) under part 6 of this
chapter to perform the testing and evaluation necessary for approval
under this part, the application shall also include the testing and
evaluation results and the statement of product compliance from the
NRTL.
* * * * *
PART 22--[AMENDED]
11. Section 22.4 is revised 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 in duplicate, 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, shall be sent to
Approval and Certification Center, Box 201 B, Industrial Park Road,
Dallas Pike, Triadelphia, WV 26059, together with the required
drawings, one complete detector, and instructions for its operation.
(b) Where the applicant for approval has used a laboratory
recognized by the Occupational Safety and Health Administration as a
nationally recognized testing laboratory (NRTL) under part 6 of this
chapter to perform the testing and evaluation necessary for approval
under this part, the application shall also include the testing and
evaluation results and the statement of product compliance from the
NRTL.
(c) An applicant may request testing and evaluation to other
testing and evaluation requirements which have been determined by MSHA
to be equivalent under Sec. 6.20 of this chapter.
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 should write to Approval and Certification
Center, Box 201 B, Industrial Park Road, Dallas Pike, 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 a laboratory
recognized by the Occupational Safety and Health Administration as
nationally recognized testing laboratory (NRTL) under part 6 of this
chapter to perform the testing and evaluation necessary for this part,
the applicant shall also include the testing and evaluation results and
the statement of product compliance from the NRTL.
* * * * *
PART 23--[AMENDED]
13. Section 23.3 is revised 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 in duplicate, accompanied by a check, bank
draft, or money order, payable to the U.S. Mine and Safety and Health
Administration, to cover all the necessary fees, shall be sent to
Approval and Certification Center, Box 201 B, Industrial Park Road,
Dallas Pike, 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 a laboratory
recognized by the Occupational Safety and Health Administration as a
nationally recognized testing laboratory (NRTL) under part 6 of this
chapter to perform the testing and evaluation necessary for approval
under this part, the application shall also include the testing and
evaluation results and the statement of product compliance from the
NRTL.
(c) An applicant may request testing and evaluation to other
testing and evaluation requirements which have been determined by MSHA
to be equivalent under Sec. 6.20 of this chapter.
14. Section 23.14 is amended 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 Approval and Certification
Center, Box 201 B, Industrial Park Road, Dallas Pike, 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 a laboratory
recognized by the Occupational Safety and Health Administration as a
nationally recognized testing laboratory (NRTL) under part 6 of this
chapter to perform the testing and evaluation necessary for approval
under this part, the applicant shall also include the testing and
evaluation results and the statement of product compliance from the
NRTL.
* * * * *
PART 26--[AMENDED]
15. Section 26.8 is amended by revising paragraph (a) to read as
follows:
Sec. 26.8 Applications.
(a)(1) No investigation or testing will be undertaken by MSHA
except pursuant to a written application, in duplicate, 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 related material. The application and all
related matters and all correspondence concerning it shall be sent to
Approval and Certification Center, Box 201 B, Industrial Park Road,
Dallas Pike, Triadelphia, WV 26059.
(2) Where the applicant for approval has used a laboratory
recognized by the Occupational Safety and Health Administration as a
nationally recognized testing laboratory (NRTL) under part 6 of this
chapter to perform the testing and evaluation necessary for approval
under this part, the application shall also include the testing and
evaluation results and the statement of product compliance from the
NRTL.
(3) An applicant may request testing and evaluation to other
testing and evaluation requirements which have been determined by MSHA
to be equivalent under Sec. 6.20 of this chapter.
* * * * *
16. Section 26.19 is amended by revising paragraph (a) to read as
follows:
Sec. 26.19 Changes after certification.
* * * * *
(a)(1) Application shall be made, as for an original certification,
requesting that the existing certification be extended to cover the
proposed change. The application shall be accompanied by drawings and
specifications and related material as in the case of an original
application.
(2) Where the applicant for approval has used a laboratory
recognized by the Occupational Safety and Health Administration as a
nationally recognized testing laboratory (NRTL) under part 6 of this
chapter to perform the testing and evaluation necessary for approval
under this part, the application shall also include the testing and
evaluation results and the statement of product compliance from the
NRTL.
* * * * *
PART 27--[AMENDED]
17. Section 27.4 is amended 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, in
duplicate, 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 Approval and Certification Center,
Box 201 B, Industrial Park Road, Dallas Pike, Triadelphia, WV 26059.
(2) Where the applicant for approval has used a laboratory
recognized by the Occupational Safety and Health Administration as a
nationally recognized testing laboratory (NRTL)) under part 6 of this
chapter to perform the testing and evaluation necessary for approval
under this part, the application shall also include the testing and
evaluation results and the statement of product compliance from the
NRTL.
(3) An applicant may request testing and evaluation to other
testing and evaluation requirements which have been determined by MSHA
to be equivalent under Sec. 6.20 of this chapter.
* * * * *
18. Section 27.11 is amended 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 a laboratory
recognized by the Occupational Safety and Health Administration as a
nationally recognized testing laboratory (NRTL) under part 6 of this
chapter to perform the testing and evaluation necessary for approval
under this part, the application shall also include the testing and
evaluation results and the statement of product compliance from the
NRTL.
* * * * *
PART 29--[AMENDED]
19. Section 29.11 is amended by revising paragraph (a) to read as
follows:
Sec. 29.11 Contents of application.
(a)(1) Each application for approval shall contain a complete
written description, including operating instructions, of the analyzer
or detector for which approval is requested together with a set of
drawings and specifications showing full details of construction of the
instrument and of the materials used. Drawings and specifications (and
lists thereof) shall be submitted in duplicate.
(2) Where the applicant for approval has used a laboratory
recognized by the Occupational Safety and Health Administration as a
nationally recognized testing laboratory (NRTL) under part 6 of this
chapter to perform the testing and evaluation necessary for approval
under this part, the application shall also include the testing and
evaluation results and the statement of product compliance from the
NRTL.
(3) An applicant may request testing and evaluation to other
testing and evaluation requirements which have been determined by MSHA
to be equivalent under Sec. 6.20 of this chapter.
* * * * *
20. Section 29.35 is amended by revising paragraph (a) to read as
follows:
Sec. 29.35 Changes or modification of approved analyzers and
detectors; issuance of modification of certificate of approval.
(a)(1) To change any feature of an approved analyzer or detector an
applicant may request a modification of the original certificate of
approval issued by MSHA by filing an application for such modification
in accordance with the provisions of this section.
(2) Where the applicant for approval has used a laboratory
recognized by the Occupational Safety and Health Administration as a
nationally recognized testing laboratory (NRTL) under part 6 of this
chapter to perform the testing and evaluation necessary for approval
under this part, the application shall also include the testing and
evaluation results and the statement of product compliance from the
NRTL.
* * * * *
PART 33--[AMENDED]
21. Section 33.6 is amended 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, in duplicate (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, Box 201 B, Industrial Park Road,
Dallas Pike, Triadelphia, WV 26059.
(2) Where the applicant for approval has used a laboratory
recognized by the Occupational Safety and Health Administration as a
nationally recognized testing laboratory (NRTL) under part 6 of this
chapter to perform the testing and evaluation necessary for approval
under this part, the application shall also include the testing and
evaluation results and the statement of product compliance from the
NRTL.
(3) An applicant may request testing and evaluation to other
testing and evaluation requirements which have been determined by MSHA
to be equivalent under Sec. 6.20 of this chapter.
* * * * *
22. Section 33.12 is amended 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 a laboratory
recognized by the Occupational Safety and Health Administration as a
nationally recognized testing laboratory (NRTL) under part 6 of this
chapter to perform the testing and evaluation necessary for approval
under this part, the application shall also include the testing and
evaluation results and the statement of product compliance from the
NRTL.
* * * * *
PART 35--[AMENDED]
23. Section 35.6 is amended 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, in duplicate, 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 Approval and Certification Center, Box 201 B, Industrial Park Road,
Dallas Pike, Triadelphia, WV 26059.
(2) Where the applicant for approval has used a laboratory
recognized by the Occupational Safety and Health Administration as a
nationally recognized testing laboratory (NRTL) under part 6 of this
chapter to perform the testing and evaluation necessary for approval
under this part, the application shall also include the testing and
evaluation results and the statement of product compliance from the
NRTL.
(3) An applicant may request testing and evaluation to other
testing and evaluation requirements which have been determined by MSHA
to be equivalent under Sec. 6.20 of this chapter.
* * * * *
24. Section 35.12 is amended 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 a laboratory
recognized by the Occupational Safety and Health Administration as a
nationally recognized testing laboratory (NRTL) under part 6 of this
chapter to perform the testing and evaluation necessary for approval
under this part, the application shall also include the testing and
evaluation results and the statement of product compliance from the
NRTL.
* * * * *
[FR Doc. 94-29121 Filed 11-29-94; 8:45 am]
BILLING CODE 4510-43-P
