[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]


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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