[Federal Register Volume 68, Number 116 (Tuesday, June 17, 2003)]
[Rules and Regulations]
[Pages 36408-36423]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-15006]



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Part III





Department of Labor





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Mine Safety and Health Administration



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30 CFR Parts 6, 7, 18, et al.



Testing and Evaluation by Independent Laboratories and Non-MSHA Product 
Safety Standards; Final Rule

  Federal Register / Vol. 68, No. 116 / Tuesday, June 17, 2003 / Rules 
and Regulations  

[[Page 36408]]


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DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Parts 6, 7, 18, 19, 20, 22, 23, 27, 33, 35, and 36

RIN 1219-AA87


Testing and Evaluation by Independent Laboratories and Non-MSHA 
Product Safety Standards

AGENCY: Mine Safety and Health Administration (MSHA), Department of 
Labor.

ACTION: Final rule.

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SUMMARY: This final rule establishes alternate requirements for testing 
and evaluation of products that MSHA approves for use in gassy 
underground mines. It is being published in response to comments 
received as the result of a 1994 proposed rule and an October 17, 2002, 
revised proposed rule on the same subject. It allows manufacturers of 
certain products, who seek MSHA approval under Title 30 of the Code of 
Federal Regulations (30 CFR), the option of using an independent 
laboratory to perform, in whole or part, the necessary testing and 
evaluation for approval which MSHA would normally perform so that such 
products can be used in gassy mines in the United States. Testing and 
evaluation as used in this final rule means testing, evaluation, or 
both. This final rule also permits manufacturers to have their products 
approved based on non-MSHA product safety standards. This will occur 
only after MSHA has determined that such standards are equivalent to 
its applicable product approval requirements or can be modified to 
provide at least the same degree of protection as those MSHA 
requirements. The final rule should increase the availability of a 
wider variety of mining products having enhanced safety features by 
reducing costs and broadening the market for mining equipment.

EFFECTIVE DATE: This regulation is effective August 18, 2003.

FOR FURTHER INFORMATION CONTACT: Marvin W. Nichols, Jr., Director, 
Office of Standards, Regulations, and Variances, MSHA, 1100 Wilson 
Boulevard, Room 2352, Arlington, Virginia 22209-3939. Mr. Nichols can 
be reached at [email protected] (Internet e-mail), 202-693-9440 
(voice), or 202-693-9441 (fax). You may obtain copies of the final rule 
in alternative formats by calling this number. The alternative formats 
available are either a large print version of the final rule or the 
final rule in an electronic file on computer disk. The final rule also 
is available on the Internet at http://www.msha.gov/REGSINFO.HTM.

SUPPLEMENTARY INFORMATION:

I. Background

    From its creation by Congress in 1910, MSHA's predecessor, the 
Bureau of Mines, U.S. Department of the Interior, was responsible for 
the testing and evaluation of mining products. Under the Federal Mine 
Safety and Health Act of 1977 (Mine Act), MSHA is responsible for 
prescribing the technical design, construction, and the test 
requirements for certain products used in underground mines, and for 
testing and evaluating them for approval based on those requirements. 
These technical requirements are set forth in the Agency's approval 
regulations in 30 CFR parts 7 through 36.
    MSHA's approval regulations govern the process through which 
manufacturers may obtain MSHA approval, certification, acceptance or 
evaluation of certain products for use in underground mines. Each of 
these separate approval actions has specific application procedures and 
technical requirements for testing and evaluation. MSHA currently 
conducts the testing and evaluation of products for a fee paid by the 
applicant. Following MSHA approval, manufacturers must ensure that the 
product continues to conform to the technical requirements tested, 
evaluated, and approved by MSHA.
    When MSHA receives an application for approval of a product for use 
in underground mines, every aspect of the documentation package is 
reviewed to determine whether the product meets the technical 
requirements of the applicable provisions of 30 CFR parts 15 through 
36. 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.
    In the mid-1980s, the Agency reviewed its product approval program 
to determine whether it could be restructured to provide improved 
safety to miners without increasing cost to the applicant. That review 
resulted in the promulgation in 1988 of 30 CFR part 7, Testing by 
Applicant or Third-Party, which represented MSHA's first departure from 
its role of front-end prototype testing of products for approval, by 
substituting manufacturer or third-party testing of a limited number of 
products for the testing that previously had been conducted by MSHA.
    The objectives of the program were to permit MSHA to redirect its 
resources to its post-approval product audit functions, as well as to 
the review of technological improvements in mining products. The 
Agency's shift in emphasis was intended to enhance the safety of 
products in mines by providing the mining community a greater assurance 
that approved products in mines continue to be manufactured as 
approved, by detecting any problems in manufactured products more 
effectively, and by enabling a more expeditious introduction of new 
technology.
    Products selected as suitable for applicant or third-party testing 
under part 7 were those with characteristics which could be objectively 
tested in a routine and readily reproducible manner, with no elements 
of subjective analysis. Products whose testing results depend on the 
experience, judgement, and knowledge of the personnel executing the 
tests, such as testing a complex intrinsically safe circuit, were not 
included in the part 7 program.
    Under part 7, all product testing is conducted according to MSHA-
specified tests and procedures, using calibrated and accurate 
instruments. Moreover, the product testing is subject to Agency 
observation. Part 7 is not a self-certification program. The part 7 
concept shifts only the testing of certain

[[Page 36409]]

products to the applicant or a third party. The evaluation of the test 
results and the issuance of the approval remain the responsibility of 
the Agency. This final rule will not affect the testing aspects of part 
7. Part 7, unlike the other approval parts, will continue to permit 
testing by the applicant or by third party laboratories that are not 
necessarily independent from the manufacturer.
    In 1993, MSHA initiated a further review of its approval and 
certification activities, including its part 7 applicant or third-party 
testing program. Based on this review, the Agency reaffirmed the 
objectives of the part 7 concept to increase post-approval product 
audits and direct more resources to evaluation of safety and 
technological improvements in products for use underground. However, 
MSHA determined that while the part 7 program was a step in the right 
direction, the limited scope of that program did not free up sufficient 
resources to allow MSHA to fully redirect its efforts to meet those 
objectives. After considering how best to accomplish those goals, the 
Agency decided to initiate rulemaking to modify MSHA's approval program 
in two ways, which it did in 1994. Under a 1994 proposed rule titled 
``Testing and Evaluation by Nationally Recognized Testing Laboratories 
and Use of Equivalent Testing and Evaluation Requirements,'' applicants 
seeking MSHA product approval would have been required to use 
independent laboratories recognized by the Occupational Safety and 
Health Administration (OSHA) under its Nationally-Recognized Testing 
Laboratories (NRTL) program for the required testing and evaluation. 
This would have been in place of MSHA testing and evaluation of 
products. As with the part 7 program, however, MSHA would have 
continued to verify that approval requirements were met and would have 
retained full responsibility for issuing the product approval. Thus, 
the 1994 proposed rule would not have constituted a self-certification 
program. Second, MSHA or appropriately recognized independent 
laboratories would have been permitted, upon an applicant's request, to 
test and evaluate a product for approval based on approval requirements 
other than the Agency's, as long as those requirements provided an 
equal or a greater degree of protection. This would have allowed MSHA 
to approve a product meeting the International Electrotechnical 
Commission's (IEC) approval standards, or some other approval 
requirements different from those specified in MSHA's regulations, 
provided that MSHA first had determined that those requirements were 
equivalent or could be modified to provide protection equivalent to 
that afforded by products tested and evaluated according to MSHA 
approval requirements. In this way, the Agency could have taken 
advantage of revisions to product safety standards developed by other 
countries or standards development organizations to address 
technological advances or improvements in product safety. Such an 
approach would have permitted the introduction of a wider variety of 
improved products into U.S. mines more quickly than if the Agency had 
to undertake rulemaking to address each technological advancement or 
improvement in product safety, capability, and performance.
    A notice of proposed rulemaking (NPRM) for a new part 6 was 
published on November 30, 1994 (59 FR 61376). The NPRM comment period 
was extended to February 21, 1995 (60 FR 8209). A Public Hearing Notice 
was published on October 10, 1995 (60 FR 52640), scheduling a public 
hearing for November 15, 1995. That hearing was rescheduled to April 
30, 1996. (61 FR 15743). The post-hearing comment period ended on May 
31, 1996. (61 FR 15743). The 1996 proposed rule was not published as a 
final rule.
    MSHA introduced a revised proposed rule in the Federal Register on 
October 17, 2002. This revised proposed rule offered applicants for 
MSHA product approval alternate requirements for testing and evaluation 
of products that MSHA approves for use in gassy underground mines. 
Based on comments from the public to the 1994 proposed rule, the 
revised proposed rule provided a number of revisions to the original 
proposed rule. The major changes in the revised proposed rule are 
outlined below.
    First, the revised proposal would be voluntary. Manufacturers could 
choose to use independent laboratories to perform all or part of the 
testing and evaluation necessary for approval, or could elect to have 
MSHA perform the necessary testing and evaluation. Second, applicants 
would not have to use only independent laboratories that were National 
Recognized Testing Laboratories under OSHA's program, but could choose 
an independent laboratory recognized by other laboratory accreditation 
programs, such as that of the American National Standards Institute 
(ANSI) or the International Electrotechnical Commission (IEC). Third, 
only MSHA would conduct required post-approval product audits. Audits 
conducted by independent laboratories would not be required under the 
revised proposal. Fourth, only the MSHA mark would be required on MSHA-
approved products, not both the MSHA and independent laboratory mark. 
Finally, the revised proposal would allow public input into the process 
of making equivalency determinations of non-MSHA product safety 
standards. MSHA would notify the public through publication in the 
Federal Register of MSHA's intent to review a particular non-MSHA 
standard for equivalency and provide an opportunity for public input on 
that issue.
    However, like part 7, under both the 1994 proposed rule and the 
revised proposed rule, the review of any testing and evaluation 
performed by an independent laboratory and the issuance of the MSHA 
product approval would still remain the full responsibility of MSHA's 
Approval and Certification Center.
    MSHA requested comments from the public (67 FR 64196). MSHA 
received two general comments regarding this revised proposed rule. The 
public comment period closed on December 31, 2002. MSHA held two public 
hearings. One was on January 7, 2003, in Denver, Colorado. The other 
hearing was held on January 9, 2003, in Washington, Pennsylvania. No 
comments or statements regarding the revised proposal were provided by 
any party at either of the public hearings. The post-hearing comment 
period closed on February 10, 2003.

II. Discussion of Final Rule

A. Introduction

    Under this final rule, manufacturers seeking MSHA approval could 
choose to have their products tested and evaluated either by an 
independent laboratory or by MSHA. MSHA will be able to accept the 
independent laboratory's test and evaluation results in lieu of 
performing its own.
    This final rule recognizes the industry's need to expedite the 
transfer of technology into the mining environment. This transfer 
should improve the health and safety of miners. The alternate program 
in this final rule will permit a manufacturer who has had a product 
tested and evaluated by an independent laboratory to submit the test 
reports and technical information to MSHA to obtain MSHA approval for 
the product.
    MSHA is aware of certain instruments that are currently listed 
(approved) by independent laboratories for use in hazardous gas and 
dust atmospheres that may also be suitable for use in the

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mine environment. These instruments include: Portable methane 
detectors, air sampling pumps, oxygen deficiency meters, air velocity 
meters, carbon monoxide detectors, hydrogen sulfide detectors, powered 
respirators and accessories, toxic gas detectors, portable two-way 
radios, laser surveying instruments, mine rescue communications 
systems, photometers, temperature sensing devices, personal audible and 
visual alarms, heat detection systems, voice amplifiers, position 
sensing devices, tape recorders, pressure sensing devices, data 
recording instruments, electrical diagnostic test instruments, sound 
level meters, sound level calibrators, audio dosimeters, and cable 
fault detectors.
    MSHA has issued approvals for a number of instruments that were 
already listed (approved) by an independent laboratory at the time of 
application for MSHA approval. Examples of some of these instruments 
are: Motorola MT2000 and HT1000 Hand-held Radios; MSA Microgard 
Portable Alarm for warning of low levels of oxygen and high levels of 
methane; MSA Escort Elf Portable Pump for sampling of the mine 
atmosphere for dust; MSA Passport and Mini Series Personal Alarms for 
warning of high levels of toxic and combustible gases; Industrial 
Scientific Corporation Model SP402 Sampling Pump for remote monitoring 
of oxygen, toxic and combustible gases; and Industrial Scientific 
Corporation Model TMX410 Four-Gas Monitor for monitoring and warning of 
high levels of toxic and combustible gases and low levels of oxygen.
    MSHA recognizes that there are many more products, including 
instruments, motors, explosion-proof enclosures, conveyor belts and 
hydraulic fluids, that are listed by independent laboratories that have 
not been submitted for MSHA approval. These products, used in other 
industries, can offer safety-related benefits to the mining industry 
and are considered potential candidates for the program that is created 
by this rule. By permitting acceptance of independent laboratory test 
and evaluation results, MSHA believes that some of these product 
manufacturers will be encouraged to submit their products for MSHA 
approval.
    MSHA is also aware that many instruments and products have been 
listed (approved) by independent laboratories to Underwriter's 
Laboratories (UL) and Factory Mutual (FM) intrinsic safety standards 
for use in Class I (explosive gas-air mixtures) and Class II (explosive 
dust-air mixtures) atmospheres. Many of the same tests and design 
requirements that MSHA uses under its intrinsic safety regulations are 
also used in the UL and FM standards. Under this final rule, applicants 
seeking MSHA approval of instruments or other products for intrinsic 
safety purposes could submit the results of any independent 
laboratory's testing and evaluation for intrinsic safety to MSHA as 
part of their applications. If, after review, MSHA determined that the 
testing already conducted was performed properly, MSHA could accept the 
test results and will not have to repeat testing in cases where the 
tests were the same. This will reduce costs and the time spent by 
manufacturers to obtain MSHA approval. If the review raised questions 
or concerns about the validity of test and evaluations submitted, MSHA 
will need to perform repeat testing. MSHA, of course, will conduct 
additional testing and evaluation where the UL and FM intrinsic safety 
requirements were not the same as MSHA's.
    Under this final rule, MSHA will retain its testing and evaluation 
capabilities, but will offer applicants the alternative of submitting 
independent laboratory test and evaluation results for MSHA approval. 
MSHA will have the authority to accept the test and evaluation results 
in lieu of conducting its own tests and evaluations. MSHA also will 
have the authority to conduct or to observe any additional or repeat 
test and evaluation to ensure compliance with the MSHA requirements.
    This final rule will also permit manufacturers to request MSHA 
approval based on non-MSHA product safety standards. This will occur 
only after MSHA has determined that such standards are equivalent to 
its applicable product approval requirements or can be modified to 
provide at least the same degree of protection as those MSHA 
requirements.
    No approvals will be issued under part 6. Instead, any approval 
issued based on part 6 provisions will continue to be approved under 
the applicable product approval parts. The necessary conforming 
language to those other approval parts is published in this Federal 
Register notice of final rulemaking.
    In developing this final rule, MSHA has made every effort to 
address the comments received on the October 17, 2002, revised 
proposal. Two commenters submitted comments regarding the revised 
proposed rule.
    One commenter expressed its support for the revised proposed rule 
indicating that ``* * * the Revised Proposed Rule contained language 
which addressed all of our concerns.'' The commenter was in agreement 
with allowing manufacturers to utilize independent laboratory testing 
facilities while maintaining the test facility at MSHA. It agreed that 
requiring the use of OSHA's Nationally Recognized Testing Laboratories 
(NRTLs) which must conduct semi-annual audits was unnecessary since 
MSHA conducts its own audits. The commenter was also supportive of 
MSHA's proposal to approve equipment designed to non-MSHA product 
safety standards, particularly international standards, once MSHA has 
determined that they provide at least the same degree of protection, in 
their original or modified form, as MSHA's product approval 
requirements. The commenter indicated that the proposed provision on 
equivalency would assist in maintaining a single product line for use 
in multiple countries. This commenter also urged MSHA to ``pursue 
working toward harmonizing with the world in regard to globalized 
standards,'' specifically suggesting that MSHA join the IECEx scheme 
that permits one global standard and allows member countries to accept 
the certification issued by other member countries.
    The second commenter expressed its concern regarding the competency 
of independent laboratories when compared with that of MSHA's own 
testing and evaluation capabilities. It indicated that MSHA and its 
predecessors have almost a century of experience and developed 
knowledge regarding the evaluation of mining products. The commenter 
recognized that independent laboratories may have the appropriate 
expertise to test to MSHA requirements, but asserted that the lack of 
mining-specific knowledge would reduce the industry's confidence in the 
test and evaluation results. This commenter was further concerned about 
the potential for ``institutional atrophy'' that could occur within 
MSHA with the reduction in testing and evaluation experience. The 
commenter expressed concern with a potential conflict of interest that 
could result from an independent laboratory being hired by a 
manufacturer. The commenter expressed similar concerns that a 
laboratory could be influenced to ``gloss over negative aspects of a 
mining product'' in an effort to keep the manufacturer as a customer.
    MSHA has carefully evaluated the concern expressed about accepting 
third party testing results. Under this final rule, before an 
independent laboratory's test and evaluation results will be 
considered, the manufacturer must provide evidence to MSHA that the

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laboratory is independent from outside influences and has been 
accredited by a laboratory accrediting organization to test to the 
particular standard. Test and evaluation results from an outside 
laboratory will be scrutinized by MSHA. The results, required by the 
final rule to be submitted to MSHA, will include the complete report 
which outlines the conduct of each test. The test and evaluation 
results will be used by MSHA to determine compliance with the 
applicable product approval requirements on which the MSHA approval is 
based. MSHA will have the option to require the independent laboratory 
to repeat or conduct additional tests if there is any reason to 
question the supplied test data. MSHA will also have the option of 
performing the repeat or additional tests. In addition, MSHA's post-
approval product audit program will ensure that approved products are 
produced in compliance with all approval requirements.
    The use of third party laboratories in the MSHA approval process 
has proven to be successful under 30 CFR, part 7, Testing by Applicant 
or Third Party. This regulation, which permits an applicant to submit 
their own test results or those from a third party, has been in place 
since 1988. There have been notably few instances of questionable 
laboratory test results of part 7 approved products in more than 14 
years of experience with the regulation. The few cases dealt with the 
laboratory's lack of understanding of a particular test standard. In 
these cases, MSHA's oversight resulted in corrections to the 
laboratory's test process and the issues were resolved prior to any 
part 7 product approval.
    For the reasons stated above, MSHA has no reason to anticipate 
problems with competency or conflict of interest associated with 
independent laboratory testing and evaluation.

B. Section-by-Section Discussion

    The following portion of the preamble discusses each provision of 
the final part 6 rule. The text of the final rule is included at the 
end of the document.

Sec.  6.1 Purpose and Effective Date

    This section explains that the purpose of this final rule is to 
establish an alternate program for testing and evaluation of products 
MSHA approves for use in gassy underground mines. It permits 
manufacturers of certain products who seek MSHA approval to use an 
independent laboratory to perform, in whole or in part, the necessary 
testing and evaluation for approval. It also permits manufacturers to 
request to have their products approved based on non-MSHA product 
safety standards once MSHA has determined that the non-MSHA product 
safety standards are equivalent to MSHA's applicable product approval 
requirements or can be modified to provide at least the same degree of 
protection as MSHA's requirements. No comments on the specific language 
in Sec.  6.1 were received. Therefore, the final language remains 
unchanged from the revised proposed rule.
    The provisions of this part apply to any application for approval 
or extension of approval filed under 30 CFR part 18, 19, 20, 22, 23, 
27, 33, 35, or 36, and received by MSHA after the effective date of 
this rule. It will become effective 60 days after publication of the 
final rule in the Federal Register.

Sec.  6.2 Definitions

    This section of the final rule defines and clarifies the key terms 
used in part 6.
    Applicant. This term is used to describe an individual or 
organization that manufactures or controls the assembly of a product 
and that applies to MSHA for approval of that product.
    Approval. This term is used to describe a written document issued 
by MSHA which states that a product has met the applicable requirements 
of part 18, 19, 20, 22, 23, 27, 33, 35, or 36. The definition is based 
on the existing definitions of ``approval'' in the parts specified 
above. It is expanded to include ``certification'' and ``acceptance'' 
because these terms are also used to denote MSHA approval.
    Approval holder. This term is used to describe an applicant whose 
application for approval of a product under part 18, 19, 20, 22, 23, 
27, 33, 35, or 36 of this chapter has been approved by MSHA.
    Equivalent non-MSHA product safety standard. This term is used to 
describe a non-MSHA product safety standard, or group of standards, 
that is determined by MSHA to provide at least the same degree of 
protection as the applicable MSHA product approval requirements in 
parts 18, 19, 20, 22, 23, 27, 33, 35, and 36, or which in modified 
form, provide at least the same degree of protection.
    Independent Laboratory. This term is used to describe a laboratory 
that: (1) has been recognized by a laboratory accrediting organization 
(e.g., OSHA NRTL, American National Standards Institute (ANSI), 
International Electrotechnical Commission (IEC), etc.) to test and 
evaluate products to a product safety standard, and (2) is free from 
commercial, financial, and other pressures that may influence the 
results of the testing and evaluation process.
    Post-approval product audit. This term applies to the examination, 
testing, or both, by MSHA of approved products selected by MSHA to 
determine whether those products meet the applicable product approval 
requirements and have been manufactured as approved.
    Product safety standard. This term is used to describe a document, 
or group of documents, that specify the requirements for the testing 
and evaluation of a product for use in explosive gas and dust 
atmospheres, and, when appropriate, include documents addressing the 
flammability properties of products.
    No comments on the specific language of the proposed definitions in 
Sec.  6.2 were received. Therefore, the language in each of the 
definitions in the final rule remains unchanged from the revised 
proposed rule.

Sec.  6.10 Use of Independent Laboratories

    Under paragraph (a) of this section, manufacturers who seek 
approval of certain products will be permitted to use an independent 
laboratory to perform, in whole or in part, the necessary testing and 
evaluation for MSHA product approval. This final rule does not require 
manufacturers to use independent laboratories. Instead, it gives 
manufacturers the option of having either MSHA or an independent 
laboratory do the testing and evaluation.
    Also, under this final rule, if independent laboratories are used, 
applicants need to submit, as part of the approval application, four 
items set out in paragraphs (a)(1), (2), (3), and (4) of Sec.  6.10. 
They include written evidence of the laboratory's independence and 
current recognition by a laboratory accrediting organization; a 
complete technical explanation of how the product complies with each 
requirement in the applicable MSHA product approval requirements; 
identification of components or features of the product that are 
critical to the safety of the product; and all documentation, including 
drawings and specifications, which are required by the applicable 
approval part under this chapter.
    The Agency determined that it is essential for the laboratories 
performing testing and evaluation to be recognized by a laboratory 
accrediting organization. These organizations determine the 
qualifications of laboratories. Several competent laboratory 
accrediting programs exist including, but not limited to, those 
operated by OSHA; the American National Standards Institute

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(ANSI); and the International Electrotechnical Commission (IEC).
    The Agency believes that there are two essential qualifications 
that laboratories must meet in order for MSHA and the mining community 
to have assurance that any product, tested and evaluated by third party 
laboratories, is safe for use in the mining environment. First, MSHA 
believes that the laboratory must be independent of commercial, 
financial, or other pressures that could influence the results of the 
testing and evaluation process. Independence of the testing laboratory 
from the manufacturer is essential, under this part 6, for MSHA and the 
mining public to have confidence in the results of testing and 
evaluation conducted outside the Agency's Approval and Certification 
Center. Unlike part 7, independence of the laboratories is required 
under part 6 due to the subjective nature of the tests and evaluations 
performed, and often require the use of engineering judgement. Second, 
MSHA needs some evidence that the laboratory is competent to test and 
evaluate to a particular product safety standard. This final rule 
permits MSHA to accept testing and evaluation performed by an 
independent laboratory provided that MSHA receives written evidence of 
the laboratory's independence and current recognition by a laboratory 
accrediting organization.
    MSHA recognizes that some foreign laboratories meet the criteria 
for independent laboratories. Therefore, a manufacturer could choose to 
use a foreign laboratory as long as it is free from commercial, 
financial and other pressures that could influence the testing and 
evaluation process and has been accredited by a recognized accrediting 
organization such as the IEC to perform testing and evaluation to 
MSHA's requirements. Guide 17025 of the International Organization for 
Standardization (ISO)/IEC ``General requirements for the competence of 
testing and calibration laboratories'' and ISO/IEC Guide 65 ``General 
requirements for bodies operating product certification systems'' are 
the main documents used both nationally and internationally by 
organizations which accredit laboratories. Moreover, the United States 
is a member of the World Trade Organization (WTO). The Technical 
Barriers to Trade Agreement applies to members of the WTO and requires 
members to ensure that technical regulations are not prepared, adopted, 
or applied with a view to or with the effect of creating unnecessary 
obstacles to international trade. This means that, under the agreement, 
standards could not be promulgated that discriminate between foreign 
and domestic manufacturers and laboratories.
    MSHA emphasizes that it will continue to test and evaluate products 
at the manufacturers' request. It also needs to retain testing and 
evaluation capability for the purposes of post-approval product audits, 
accident investigations, and for purposes of technical assistance. In 
addition, as discussed later in Sec.  6.20 of this final rule, MSHA 
will be evaluating other non-MSHA product safety standards to determine 
equivalency, increasing its testing and evaluation expertise.
    The final rule allows the optional use of a wide network of 
independent laboratories, eliminating the concern about monopolies. It 
also provides manufacturers the option to have MSHA perform some or all 
of the testing and evaluation necessary for approval. MSHA believes 
that assessing other non-MSHA product safety standards' equivalency to 
MSHA's approval requirements and continuing its responsibility for 
product audits will maintain MSHA's expertise in mine equipment safety. 
Under this final rule, the Agency will continue to be involved in 
direct product testing and evaluation if manufacturers choose to submit 
their products to MSHA for testing and evaluation. No comments on the 
specific language in Sec.  6.10(a) were received. Therefore, the final 
language remains unchanged from the revised proposed rule.
    Paragraph (b) of this section requires that product testing and 
evaluation performed by independent laboratories for purposes of MSHA 
approval comply with MSHA product approval requirements. The final rule 
does not permit an independent laboratory to change a testing standard 
or any elements incorporated into the standard. This is due to the 
critical nature of the testing and evaluation of products to be used in 
a potentially hazardous underground mining environment. No comments on 
the specific language in Sec.  6.10(b) were received. Therefore, the 
final language remains unchanged from the revised proposed rule.
    Paragraph (c) of this section requires product testing to be 
conducted or witnessed by the independent laboratory's personnel. No 
comments on the specific language in Sec.  6.10(c) were received. 
Therefore, the final language remains unchanged from the revised 
proposed rule.
    Under paragraph (d) of this section, MSHA will notify applicants, 
after the review of information required under paragraph (a), if 
additional information and testing will be required. The applicant will 
be required to provide the information. The applicant will have to 
supply any additional components necessary for testing and evaluation. 
Without a complete application, MSHA will be unable to initiate the 
technical review of the product.
    After determining that an application package is complete, MSHA 
will initiate a technical review to ensure that the independent 
laboratory's testing and evaluation results were both reasonable and 
appropriate for the particular product. If the technical review of the 
package indicates deficiencies resulting from inadequate data, 
illogical or unreasonable testing or evaluation results, or the 
omission of required information, the applicant will be notified of the 
discrepancy and given a reasonable period of time to provide the needed 
information and correct the apparent deficiency. If MSHA determines 
that additional or repeat testing is required, the applicant will have 
to arrange for any additional or repeat tests and notify MSHA of the 
location, date and time of the test(s). MSHA could elect to observe 
additional testing conducted by an independent laboratory or MSHA could 
conduct the additional or repeat tests at the applicant's expense. The 
applicant will need to supply any additional components necessary for 
testing and evaluation. No comments on the specific language in Sec.  
6.10(d) were received. Therefore, the final language remains unchanged 
from the revised proposed rule.
    Following the administrative and technical reviews of the product 
approval package, MSHA will issue an approval, or a notice denying 
approval, to the applicant. A notice denying approval will state the 
reasons on which the denial is based. If an approval is issued, the 
approval holder will be authorized and required to place an MSHA mark 
on the product which signifies to the user of the product that it is 
approved for use in gassy underground mines. The product drawings and 
specifications, the independent laboratory's testing and evaluation 
results, and its statement of product compliance with the applicable 
approval requirements, as well as written evidence of the laboratory's 
independence and current recognition by an accrediting organization, 
will be retained in the approval file at MSHA's Approval and 
Certification Center.
    The final rule does not require that manufacturers use the mark of 
the independent laboratory that tested and evaluated the product or its 
components. However, nothing in this

[[Page 36413]]

final rule prohibits a manufacturer from using the mark of an 
independent laboratory if it chooses to do so, as long as it carries 
the MSHA mark as well.
    Paragraph (e) requires that approval holders of products approved 
based on independent laboratory testing and evaluation make such 
products available for audit upon request by MSHA. This will not occur 
more than once a year, except for cause. Such an audit will be 
conducted at a mutually agreeable site at no cost to MSHA. This is to 
ensure that products bearing the MSHA marking meet the approval 
requirements and are manufactured in accordance with the approved 
drawings and specifications. Although MSHA will not specifically 
require manufacturers to adhere to audits required by independent 
laboratories, MSHA recognizes that most manufacturers who elect to have 
their products listed (approved) by independent laboratories generally 
accept those laboratories' audit requirements to maintain their 
listing.
    MSHA will continue to conduct audits as part of its post-approval 
product audit program. MSHA conducts audits to ensure conformity with 
the technical requirements upon which the approval was based. Approved 
products to be audited by MSHA will 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 will arrange to examine and evaluate it at a 
mutually agreed upon time and location and will permit the approval 
holder to observe audit-related tests. 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 will be able to obtain the report 
resulting from such audits.
    Product testing and evaluation performed by both foreign and 
domestic laboratories for purposes of MSHA approval will have to comply 
with MSHA product approval requirements. In this regard, under this 
final rule, MSHA will carefully review all product testing and 
evaluation reports submitted in support of product approval 
applications prior to an approval decision being made. This will ensure 
that such testing and evaluation has been performed in accordance with 
MSHA procedures and requirements. Finally, the manufacturer will be 
ultimately responsible for any product, under any of the approval parts 
covered, regardless of who performs the testing (i.e., foreign or 
domestic independent laboratory or MSHA). Once the product is in the 
mines, the mine operator is required to maintain the product in 
approved condition.
    This final rule provision for post-approval product audits will 
allow MSHA to more effectively determine whether products are, in fact, 
being manufactured as approved. MSHA, not the manufacturer, will select 
the product. MSHA also will 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 are difficult to locate without the 
assistance of the approval holder.
    In determining which approved products will be subject to audit at 
any particular time, MSHA will consider a variety of factors such as, 
but not limited to, whether the manufacturer has previously produced 
the approved product or similar products, whether the approved product 
is new or part of a new product line, or whether the approved product 
is intended for a unique application or limited distribution. Other 
considerations could include product complexity, the manufacturer's 
previous product audit results, product population in the mining 
community, and the time since the last audit or since the product was 
first approved.
    Based on MSHA's experience, the Agency anticipates few instances in 
which more than one approved product will be required to be audited 
``for cause'' from any one manufacturer in any one year. There are 
circumstances or causes, however, under which additional products for 
audit may be necessary to ascertain compliance with the technical 
requirements upon which an approval is based. Examples of such 
circumstances include verified complaints about the safety of an 
approved product, evidence of product changes that have not been 
approved, audit test results that warrant further testing to determine 
compliance, and evaluation of corrective action taken by an approval 
holder. Under these circumstances, the approval holder will have to 
provide, at no cost to MSHA, additional approved products so the Agency 
could ensure that the approval holder is meeting its obligation to 
manufacture the product as approved.
    When discrepancies are found during MSHA audits of approved 
products, MSHA will require that the manufacturer take all necessary 
corrective actions. These actions could include, but are not limited 
to, the approval holder recalling or retrofitting the approved product 
involved, and issuing notices of such action to users. Revocation of 
the approval by MSHA may result when discrepancies in approved products 
are not corrected. No comments on the specific language in Sec.  
6.10(e) were received. Therefore, the final language remains unchanged 
from the revised proposed rule.
    Paragraph (f) requires approval holders to notify MSHA of all 
product defects they discover, once products are approved. A defect is 
a nonconformance with the MSHA approved design, including any drawings 
and specifications. There are varying degrees of significance of 
defects. It is MSHA's intent that all defects be reported to the 
Agency.
    Because the use of products with defects could create hazards 
underground, immediate notification should be made by expedient means, 
such as by telephone, e-mail, or fax. The telephone notification should 
be followed-up in writing. The oral and written notification should 
include a description of the nature and extent of the problem. No 
comments on the specific language in Sec.  6.10(f) were received. 
Therefore, the final language remains unchanged from the revised 
proposed rule.

Sec.  6.20 MSHA Acceptance of Equivalent Non-MSHA Product Safety 
Standards

    Section 6.20(a) of this section states that MSHA will accept non-
MSHA product safety standards, or groups of standards, as equivalent 
after determining that they: (1) Provide at least the same degree of 
protection as MSHA's product approval requirements set forth for the 
product in other parts of this chapter; or (2) can be modified to 
provide at least the same degree of protection as those MSHA 
requirements.
    Non-MSHA product safety standards will be considered equivalent 
when MSHA determines that, in their original or modified form, they 
provide at least the same degree of protection as MSHA's product 
approval requirements in part 18, 19, 20, 22, 23, 27, 33, 35 or 36 of 
this chapter. No comments on the specific language in Sec.  6.20(a) 
were received. Therefore, the final language remains unchanged from the 
revised proposed rule.
    Paragraph (b) provides that MSHA will publish its intent to review 
any non-MSHA product safety standard for equivalency in the Federal 
Register for the purpose of soliciting public input. MSHA encourages 
public input in the equivalency process. It will solicit such

[[Page 36414]]

input through a Federal Register notice once it decides to evaluate a 
particular standard or group of standards for equivalency. Because MSHA 
is solely responsible for the approval of mining products under the 
Mine Act, MSHA will retain the ultimate decision on equivalency. No 
comments on the specific language in Sec.  6.20(b) were received. 
Therefore, the final language remains unchanged from the revised 
proposed rule.
    Paragraph (c) requires that MSHA publish a listing of all final 
equivalency determinations in this part 6 and the applicable approval 
parts. The listing will state whether MSHA accepts the non-MSHA product 
safety standards in their original form, or will require modifications 
to demonstrate equivalency. If modifications are required, they will 
also be provided in the listing. MSHA will notify the public of each 
equivalency determination and will publish a summary of the basis for 
its determination in the Federal Register. MSHA's Approval and 
Certification Center will provide complete equivalency determination 
reports upon request. No comments on the specific language in Sec.  
6.20(c) were received. Therefore, the final language remains unchanged 
from the revised proposed rule.
    Paragraph (d) requires that after MSHA has determined that non-MSHA 
product safety standards are equivalent and has notified the public of 
such determinations in the Federal Register, applicants can seek MSHA 
product approval based on such non-MSHA product safety standards. No 
comments on the specific language in Sec.  6.20(d) were received. 
Therefore, the final language remains unchanged from the revised 
proposed rule.
    The Agency believes that this final rule will encourage a more 
rapid introduction of mining products embodying new technology with 
enhanced safety features. In addition, testing and evaluation to 
``equivalent'' standards, that provide at least the same degree of 
protection to miners as those in the various MSHA product approval 
regulations could achieve multiple objectives. These include metric 
conversion, greater compatibility with international standards, and a 
more competitive posture for U.S. products in the international market.
    Section 6.20 provides that MSHA will determine which non-MSHA 
product safety standards, or groups of standards, are equivalent or can 
be modified to be equivalent. The decision to perform an equivalency 
evaluation will be based on MSHA's determination of the overall value 
of conducting the evaluation. It is MSHA's intention to base its 
decision on factors such as the number of potential applications for 
approval using a particular non-MSHA product safety standard, the 
number of potential products affected, and its knowledge of the 
standard and the potential for it being equivalent. MSHA began this 
process some time ago in order to compare its approval requirements to 
those of other organizations because of the increasing use of those 
non-MSHA product safety standards in international trade and because of 
requests from the public. The equivalency analysis will be conducted by 
the Agency's Approval and Certification Center using personnel with 
expertise in the approval requirements involved.
    MSHA's equivalency determinations will be based on the objectives 
of its product approval requirements and the hazards they were designed 
to address. Section 101(a)(9) of the Mine Act provides that no new 
standard can reduce the protection afforded miners by an existing 
standard. For this reason, MSHA must assure that any non-MSHA product 
safety standard provides at least the same degree of protection for the 
miners who may use the product approved under that standard. MSHA 
cannot accept product safety standards, domestic or international, 
without determining whether they are equivalent or whether some 
modifications to those product safety standards are needed to achieve 
the objectives of the existing MSHA product approval requirements. 
While certain standards, including those accepted by other mining 
agencies, may be equivalent, MSHA must make that determination on a 
standard-by-standard basis. It is MSHA's belief that certain product 
safety standards may well be equivalent without modifications; others 
may require modification. The Agency will do a systematic analysis 
first to make this determination.
    MSHA's equivalency analysis will compare the subject product safety 
standards, whether domestic or international, and MSHA's applicable 
product approval requirements. Where they differ, each difference will 
be examined to assess its effect on overall safety, and the differences 
as a whole will be assessed. Where the differences do not impact the 
objectives of the MSHA requirements, MSHA will issue a determination 
that the standard is equivalent to MSHA's approval requirements. 
However, if certain design criteria or performance requirements fail to 
meet MSHA's objectives or could diminish the safety of the product in 
underground mines, MSHA will specify the modifications necessary to 
reconcile the differences between the two so that at least the same 
degree of protection is provided.
    Under this final rule, when MSHA evaluates a product safety 
standard to determine equivalency, the Agency will be looking at the 
standard as a whole and whether it meets the objectives of MSHA's 
applicable product approval requirements. The Agency recognizes that 
some non-MSHA product safety standards may have more stringent 
provisions than MSHA's comparable approval requirements. However, it is 
not the Agency's intention to require more stringent protections where 
a non-MSHA product safety standard may afford them. MSHA intends to 
require modifications only where the non-MSHA standard does not provide 
equivalent protection. For manufacturers who choose to design products 
to more stringent standards, for purposes other than MSHA approval, 
this final rule provides the vehicle for them to obtain MSHA approval 
even if their products were not designed specifically to MSHA's 
approval requirements. It is not the Agency's intention to develop a 
``hybrid'' regulation, choosing the most stringent requirements from 
both the MSHA requirements and non-MSHA standards. This final rule 
requires modifications to provide at least the same degree of 
protection as MSHA's product approval requirements.
    After MSHA has determined that equivalent requirements exist or 
that certain requirements, other than those in MSHA approval 
regulations, can be modified to provide at least the same degree of 
protection, the applicant will be given the option of requesting that 
MSHA base its approval on the equivalent, non-MSHA product safety 
standard, instead of on MSHA's applicable product approval 
requirements. This option will benefit manufacturers by permitting them 
to design products to a single set of requirements for sale in multiple 
markets (domestic and international as well as mining and non-mining 
applications). This option will also benefit miners by encouraging a 
more rapid introduction of mining products embodying new technology 
with enhanced safety features.
    Because this final rule permits approval of mining equipment 
intended to compete in multiple market areas with differing approval 
requirements, the approved product design will incorporate the highest 
level of safety required by any of the intended market areas. For 
example, if the target areas

[[Page 36415]]

include mining and non-mining markets, and the non-mining market has a 
product safety standard with more stringent approval requirements than 
MSHA for a specific product, MSHA could, at the request of the 
applicant, issue an approval based on the more stringent requirements. 
The approval documentation will state that the product fulfills both 
the applicable approval requirements in the non-mining standard and 
MSHA's approval requirements. In this case, the approved product sold 
in mining markets will provide a greater degree of protection than that 
specified by MSHA under existing requirements. Should the non-mining 
market have product safety standards which are, in some aspects, less 
stringent than those of MSHA, the applicant will be required to fulfill 
the non-mining standards' requirements and, in addition, all other 
requirements deemed necessary to ensure that the product provides at 
least the same degree of protection demanded by the MSHA approval 
requirements. In this situation, the approved product will exceed the 
safety requirements of the non-mining standard and meet those of MSHA. 
The same analysis will apply if the targeted areas were foreign and 
domestic markets.
    In these situations, MSHA's approval documentation will show that 
the product had fulfilled the requirements of any non-MSHA product 
safety standard and those of MSHA. In the first instance, the product 
marketed in the non-mining application will embody a higher level of 
safety, while in the second instance it will embody equivalent safety. 
In no case will the product provide less protection than mandated by 
MSHA approval requirements.
    The following example illustrates how MSHA will evaluate non-MSHA 
product safety standards to determine if they provide at least the same 
degree of protection as MSHA's product approval requirements. MSHA's 
approval regulation under 30 CFR part 18 requires explosion testing of 
explosion-proof enclosures using a methane-in-air mixture. The IEC 
explosion-proof enclosure standard (IEC 60079-1) requires the use of 
more sensitive test gases. That standard specifies the use of methane 
to determine ``reference pressures'' and uses a hydrogen/methane fuel 
mixture to test for flame propagation. The tests used in both MSHA 
requirements and the IEC standard produce higher pressures/temperatures 
than occur during normal operation.
    One obvious difference in the two test protocols is MSHA's 
criterion to observe for the ``discharge of flame'' (hot glowing gases) 
during any of the tests. The IEC standard does not have this 
requirement. The reason for this difference is that MSHA tests 
enclosures ``as manufactured'' without any intentional gaps and, unlike 
the IEC, does not require flamepath gaps to be enlarged to the maximum 
specified by design. Therefore, during MSHA testing, flamepaths are not 
forced open to any appreciable amount, unless there are defects or 
weaknesses in the enclosure. This is important because MSHA's 
requirements do not contain provisions for regular prototype pressure 
testing to supplement the explosion tests, as do the IEC requirements. 
Such pressure testing is specifically designed to identify faulty 
products over a broader range of pressures than can be achieved by the 
MSHA explosion testing protocol.
    Considering the above discussion, MSHA's explosion testing 
protocol, with combustible mixtures of methane as the test gas and 
using the discharge of flame as an additional criterion to flame 
propagation for test failure, sets a high evaluation standard for 
explosion-proof enclosures used on mining equipment in the U.S. 
However, testing is accomplished without introducing intentional 
flamepath flange gaps. In contrast, the IEC standard requires that 
tests be conducted with flamepath gaps intentionally enlarged to within 
80% to 100% of the maximum specified design. Thus, the IEC test 
standard allows for luminous flame to pass, but with insufficient 
energy to ignite the surrounding atmosphere and uses a more easily 
ignitable test gas than methane. This concession is significant when 
flamepath gaps are purposely enlarged for testing. Such a practice 
could produce non-incendive luminous gas discharges during testing, 
which would be considered unacceptable under MSHA test protocols. MSHA 
has no evidence that such a non-incendive luminous gas discharge is 
unsafe. The MSHA requirement and the IEC standard could be considered 
equivalent because the MSHA requirement to observe no discharge of 
flame is offset by the IEC's use of a more easily ignitable test gas 
and intentional gap enlargement.
    With all other factors equal, MSHA could consider the explosion 
test specified by IEC to be equivalent to the explosion test procedure 
followed by MSHA in fulfillment of 30 CFR 18.62. In this manner a 
single test could verify conformity to the test requirements of both 
product standards with no reduction of safety in either case.
    This example highlights the methods that will be employed by MSHA 
when determining if a non-MSHA product safety standard provides at 
least the same degree of protection as MSHA's product approval 
requirements. In like fashion, other differences between MSHA 
requirements and the IEC standards will be analyzed to determine if 
they are equivalent or if modifications to the IEC standards will be 
required.
    This same process will be applied to all non-MSHA product safety 
standards that will be evaluated for equivalency. For example, MSHA 
requires that a component in an intrinsically safe circuit be tested to 
determine that it will not overheat under fault conditions and ignite a 
layer of coal dust. UL requires the product to be marked with a maximum 
temperature rating (also called a ``T-Code'') or tested using a 
different ignitable dust or gas. MSHA will determine if the temperature 
rating is below the minimum ignition temperature of a coal dust layer 
or if the specified dust layer (e.g., grain dust) used in the test has 
a lower ignition temperature than a coal dust layer currently used in 
MSHA tests. If equivalency could not be determined, MSHA will require 
an additional test using a layer of a specified type and size of coal 
dust to ensure at least the same degree of protection is provided.
    MSHA anticipates that cost savings from use of equivalent non-MSHA 
product safety standards could reduce the manufacturer's unit cost by 
permitting more standardized construction (i.e., single product line) 
and, thus, improve the manufacturer's competitive position. This, 
together with the need to provide products meeting the highest level of 
safety demanded by the market areas of interest, could encourage a more 
rapid introduction of mining products embodying new technology with 
enhanced safety features. In general, this final rule should provide 
increased opportunity for direct competition leading to improved safety 
and performance quality in mining products.
    Under this final rule, manufacturers who apply for MSHA approval of 
their products can have MSHA base the approval on either MSHA approval 
requirements or the equivalent non-MSHA product safety standards. MSHA 
will retain the responsibility of approving or denying an application 
based on all information submitted in the application.
    As is the case with existing MSHA approval regulations, this final 
rule will not discriminate between U.S. and foreign manufacturers. Any 
manufacturer, either domestic or

[[Page 36416]]

foreign, wishing to acquire an MSHA product approval will be able to 
take advantage of this ``equivalency'' program.
    Further, this final rule will be consistent with the North American 
Free Trade Agreement (NAFTA) and the Agreement on Technical Barriers to 
Trade (TBT).
Equivalency Under Part 7
    Under the final rule, an equivalency provision is provided in part 
7 which will operate like the provision for equivalency in Sec.  6.20.
    Under this provision, Sec.  7.2 will be amended by adding a 
definition of ``equivalent non-MSHA product safety standards.'' This 
term is used to describe a non-MSHA product safety standard, or group 
of standards, that is determined by MSHA to provide at least the same 
degree of protection as the applicable MSHA technical requirements in 
the subparts of part 7. This definition is essentially the same as that 
in Sec.  6.2 of part 6. No comments on the specific language in Sec.  
7.2 were received. Therefore, the final language remains unchanged from 
the revised proposed rule.

Section 7.10 MSHA Acceptance of Equivalent Non-MSHA Product Safety 
Standards

    Section 7.10(a) is similar to Sec.  6.20(a) and provides that MSHA 
will accept non-MSHA product safety standards, or group of standards, 
as equivalent after determining that they: (1) Provide at least the 
same degree of protection as MSHA's technical requirements for the 
products in other subparts of this part; or (2) can be modified to 
provide at least the same degree of protection as those MSHA 
requirements. No comments on the specific language of Sec.  7.10(a) 
were received. Therefore, the final language remains unchanged from the 
revised proposed rule.
    Paragraph (b) of Sec.  7.10 provides that MSHA publish its intent 
to review any non-MSHA product safety standard for equivalency in the 
Federal Register for the purpose of soliciting public input. No 
comments on the specific language in Sec.  7.10(b) were received. 
Therefore, the final language remains unchanged from the revised 
proposed rule.
    Paragraph (c) of Sec.  7.10 provides that MSHA publish a listing of 
all equivalency determinations for this part 7. The listing will state 
whether MSHA accepts the non-MSHA product safety standards in their 
original form, or will require modifications to demonstrate 
equivalency. If modifications are required, they will also be included 
in this listing for part 7. MSHA will notify the public of each 
equivalency determination and will publish a summary of the basis for 
its determination in the Federal Register. MSHA's Approval and 
Certification Center will provide complete equivalency determination 
reports upon request. No comments on the specific language in Sec.  
7.10(c) were received. Therefore, the final language remains unchanged 
from the revised proposed rule.
    Paragraph (d) of Sec.  7.10 provides that after MSHA has determined 
that non-MSHA product safety standards are equivalent and has notified 
the public of such determinations, applicants can seek MSHA product 
approval based on such non-MSHA product safety standards. No comments 
on the specific language in Sec.  7.10(d) were received. Therefore, the 
final language remains unchanged from the revised proposed rule.
    MSHA is aware of some foreign and domestic non-MSHA product safety 
standards that could be used to test and evaluate products approved 
under the various subparts of part 7. These standards are used in other 
countries and other industries. Some of these non-MSHA product safety 
standards can provide at least the same degree of protection as MSHA 
requirements and can provide consistent, repeatable test results.
    MSHA intends to operate its equivalency program under part 7, the 
same as previously described in the discussion of Sec.  6.20 on 
equivalency.

III. Paperwork Reduction Act

    This final rule will result in a total of approximately 29 burden 
hours and $654 dollars of related costs. A breakdown of the burden 
hours and related costs by provision and by applicant size can be found 
in Chapter VII of the Regulatory Economic Analysis (REA) supporting 
this final rule. The REA is located on our Web site at  http://
www.msha.gov/regsinfo.htm.
    This rule contains no substantive changes to the paperwork 
requirements contained in parts 18, 19, 20, 22, 23, 27, 33, 35, and 36 
which are currently approved under OMB Control Number 1219-0066. The 
paperwork requirements contained in Sec.  6.10 have been submitted to 
the Office of Management and Budget (OMB) for review under 44 U.S.C. 
3504(h) of the Paperwork Reduction Act of 1995, as amended. Persons are 
not obligated to comply with them until approved by OMB.
    Under Sec.  6.10 applicants will have to provide information stated 
in paragraphs (a)(1) through (a)(4) for MSHA to accept testing and 
evaluation performed by an independent laboratory. Currently, 
applicants must submit only information requested in paragraph (a)(4). 
If applicants choose to use independent laboratories, information 
requested in paragraphs (a)(1) through (a)(3) will be needed because 
MSHA will no longer be performing all the testing and evaluation 
associated with the approval application. Providing the information 
under Sec.  6.10(a)(1) through (a)(3) will result in a total of 
approximately 24 burden hours and $458 of associated costs.
    Section 6.10(d) states that after review of the information 
required under paragraph (a)(1) through (a)(4), MSHA will notify the 
applicant if additional information and testing are required. If an 
independent laboratory conducts any additional or repeat testing, then 
the applicant will have to send the test results to MSHA. Sending any 
additional or repeat testing results to MSHA under Sec.  6.10(d) will 
result in a total of 2 burden hours and $39 of associated costs.
    Section 6.10(f) states that, once the product is approved, the 
approval holder will have to notify MSHA of all product defects of 
which the approval holder is aware. Notification is assumed to be in 
the form of a letter to MSHA. Notifying MSHA of product defects under 
Sec.  6.10(f) will result in a total of 3 burden hours and $157 of 
associated costs.

IV. Executive Order 12866

A. Compliance Costs

    Executive Order 12866 requires that regulatory agencies assess both 
the costs and benefits of regulations. MSHA has determined that this 
final rule does not meet the criteria of an economically significant 
regulatory action pursuant to Executive Order 12866 section 3(f)(1) in 
that it will not have an effect on the economy of $100 million or 
otherwise have any material adverse effect. Although this final rule is 
not an economically significant action, MSHA has completed a REA in 
which the economic impact of the final rule is estimated. For a 
complete breakdown of the compliance costs for this final rule see 
chapter IV of the REA. The REA is summarized as follows.
    The final rule will result in an annual net cost savings of about 
$1.5 million. Applicants seeking MSHA product approval employing 500 or 
fewer workers will realize a net cost savings of $0.66 million. 
Applicants employing more than 500 workers will realize a net cost 
savings of $0.86 million.

[[Page 36417]]

    The net cost savings of $0.66 million, for applicants employing 500 
or fewer workers, consists of cost savings of $0.68 million and 
compliance costs of $0.02 million. The net cost savings of $0.86 
million, for applicants employing more than 500 workers, consists of 
cost savings of $0.88 million and compliance costs of $0.02 million.

B. Benefits

    This final rule should encourage non-mining manufacturers with 
products that could be applicable to mining to apply for approvals. The 
modification of the approval process will expedite the introduction of 
technologically-advanced products into the mine, thus improving miner 
safety. Finally, the rule will reduce applicants' costs by eliminating 
repeat testing and evaluation and the need for multiple product lines. 
For a more complete discussion of the Benefits of this final rule, see 
chapter III of the REA.

V. Regulatory Flexibility Act (RFA) and Small Business Regulatory 
Enforcement Fairness Act (SBREFA)

    The Regulatory Flexibility Act (RFA) requires regulatory agencies 
to consider a rule's economic impact on small entities. Under the RFA, 
MSHA must use the Small Business Administration's (SBA's) criterion for 
a small entity in determining a rule's economic impact unless, after 
consultation with the SBA Office of Advocacy, MSHA establishes an 
alternative definition for a small entity and publishes that definition 
in the Federal Register for notice and comment.
    For the mining industry, SBA defines ``small'' as a mine with 500 
or fewer workers. In addition, most applicants (manufacturers) that 
file for an MSHA approval for their products operate in industries such 
as those involved in measurement, analysis, controlling instruments, 
photographic instruments, commercial and industrial lighting fixtures, 
and conveyors. SBA considers the small business size standard for such 
industries to be 500 or fewer employees. To ensure that this final rule 
conforms to the RFA, MSHA analyzed the economic impact of the final 
rule on small entities that are defined as those employing 500 or fewer 
workers.

A. Factual Basis for Certification

    Based on its analysis, MSHA has determined that this final rule 
will not have a significant economic impact on a substantial number of 
small entities. MSHA has so certified this finding to the SBA. The 
factual basis for this certification is discussed in chapter V of the 
REA.

B. Unfunded Mandates Reform Act of 1995

    For purposes of the Unfunded Mandates Reform Act of 1995, the final 
rule does not include any Federal mandate that will result in increased 
expenditures by State, local, or tribal governments, or increased 
expenditures by the private sector of more than $100 million. MSHA is 
not aware of any State, local, or tribal governments which manufacture 
products applicable to mining.

C. Executive Order 13132 (Federalism)

    MSHA has reviewed this final rule in accordance with Executive 
Order 13132 regarding federalism, and has determined that it will not 
have ``federalism implications.'' The final rule will not ``have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government.'' MSHA is 
not aware of any State or local governments which manufacture products 
applicable to mining.

D. Executive Order 13045 (Health and Safety Effect on Children)

    In accordance with Executive Order 13045, MSHA has evaluated the 
environmental health and safety effect of this final rule on children. 
The Agency has determined that the final rule will not have an adverse 
impact on children.

E. Executive Order 13175 (Indian Tribal Governments)

    MSHA certifies that this final rule will not impose substantial 
direct compliance costs on Indian tribal governments. MSHA is not aware 
of any tribal governments which manufacture products applicable to 
mining.

F. Executive Order 12630 (Governmental Actions and Interference With 
Constitutionally Protected Property Rights)

    This final rule is not subject to Executive Order 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights, because it will not involve implementation of a policy 
with takings implications.

G. Executive Order 12988 (Civil Justice Reform)

    The Agency has reviewed Executive Order 12988, Civil Justice 
Reform, and determined that this final rule will not unduly burden the 
Federal court system. The final rule has been written so as to provide 
a clear legal standard for affected conduct, and has been reviewed 
carefully to eliminate drafting errors and ambiguities.

H. Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use)

    In accordance with Executive Order 13211, MSHA has reviewed this 
final rule for its energy impacts. MSHA has determined that this final 
rule will not have any adverse effects on energy supply, distribution, 
or use.

List of Subjects in 30 CFR Parts 6, 7, 18, 19, 20, 22, 23, 27, 33, 
35, and 36

    Mine Safety and Health, Reporting and Recordkeeping Requirements, 
Research

    Signed in Arlington, Virginia, this 9th day of June, 2003.
Dave D. Lauriski,
Assistant Secretary of Labor for Mine Safety and Health.


0
For the reasons set out in the preamble, chapter I of title 30 of the 
Code of Federal Regulations is amended as follows:
0
1. Part 6 is added to read as follows:

PART 6--TESTING AND EVALUATION BY INDEPENDENT LABORATORIES AND NON-
MSHA PRODUCT SAFETY STANDARDS

Sec.
6.1 Purpose and effective date.
6.2 Definitions.
6.10 Use of independent laboratories.
6.20 MSHA acceptance of equivalent non-MSHA product safety 
standards.

    Authority: 30 U.S.C. 957.


Sec.  6.1  Purpose and effective date.

    This part sets out alternate requirements for testing and 
evaluation of products MSHA approves for use in gassy underground 
mines. It permits manufacturers of certain products who seek MSHA 
approval to use an independent laboratory to perform, in whole or part, 
the necessary testing and evaluation for approval. It also permits 
manufacturers to have their products approved based on non-MSHA product 
safety standards once MSHA has determined that the non-MSHA standards 
are equivalent to MSHA's applicable product approval requirements or 
can be modified to provide at least the same degree of protection as 
those MSHA requirements. The provisions of this part may be used by 
applicants for product approval under parts 18, 19, 20, 22, 23, 27, 33, 
35, and 36. This rule is effective August 18, 2003.

[[Page 36418]]

Sec.  6.2  Definitions.

    The following definitions apply in this part.
    Applicant. An individual or organization that manufactures or 
controls the assembly of a product and applies to MSHA for approval of 
that product.
    Approval. A written document issued by MSHA which states that a 
product has met the applicable requirements of part 18, 19, 20, 22, 23, 
27, 33, 35, or 36. The definition is based on the existing definitions 
of ``approval'' in the parts specified above. It is expanded to include 
``certification'' and ``acceptance'' because these terms also are used 
to denote MSHA approval.
    Approval holder. An applicant whose application for approval of a 
product under part 18, 19, 20, 22, 23, 27, 33, 35 or 36 of this chapter 
has been approved by MSHA.
    Equivalent non-MSHA product safety standards. A non-MSHA product 
safety standard, or group of standards, that is determined by MSHA to 
provide at least the same degree of protection as the applicable MSHA 
product approval requirements in parts 18, 19, 20, 22, 23, 27, 33, 35, 
and 36, or which in modified form provide at least the same degree of 
protection.
    Independent laboratory. A laboratory that:
    (1) has been recognized by a laboratory accrediting organization to 
test and evaluate products to a product safety standard, and
    (2) is free from commercial, financial, and other pressures that 
may influence the results of the testing and evaluation process.
    Post-approval product audit. The examination, testing, or both, by 
MSHA of approved products selected by MSHA to determine whether those 
products meet the applicable product approval requirements and have 
been manufactured as approved.
    Product safety standard. A document, or group of documents, that 
specifies the requirements for the testing and evaluation of a product 
for use in explosive gas and dust atmospheres, and, when appropriate, 
includes documents addressing the flammability properties of products.


Sec.  6.10  Use of independent laboratories.

    (a) MSHA will accept testing and evaluation performed by an 
independent laboratory for purposes of MSHA product approval provided 
that MSHA receives as part of the application:
    (1) Written evidence of the laboratory's independence and current 
recognition by a laboratory accrediting organization;
    (2) Complete technical explanation of how the product complies with 
each requirement in the applicable MSHA product approval requirements;
    (3) Identification of components or features of the product that 
are critical to the safety of the product; and
    (4) All documentation, including drawings and specifications, as 
submitted to the independent laboratory by the applicant and as 
required by the applicable part under this chapter.
    (b) Product testing and evaluation performed by independent 
laboratories for purposes of MSHA approval must comply with the 
applicable MSHA product approval requirements.
    (c) Product testing and evaluation must be conducted or witnessed 
by the laboratory's personnel.
    (d) After review of the information required under paragraphs 
(a)(1) through (a)(4) of this section, MSHA will notify the applicant 
if additional information or testing is required. The applicant must 
provide this information, arrange any additional or repeat tests and 
notify MSHA of the location, date, and time of the test(s). MSHA may 
observe any additional testing conducted by an independent laboratory. 
Further, MSHA may decide to conduct the additional or repeated tests at 
the applicant's expense. The applicant must supply any additional 
components necessary for testing and evaluation.
    (e) Upon request by MSHA, but not more than once a year, except for 
cause, approval holders of products approved based on independent 
laboratory testing and evaluation must make such products available for 
post-approval audit at a mutually agreeable site at no cost to MSHA.
    (f) Once the product is approved, the approval holder must notify 
MSHA of all product defects of which they become aware.


Sec.  6.20  MSHA acceptance of equivalent non-MSHA product safety 
standards.

    (a) MSHA will accept non-MSHA product safety standards, or groups 
of standards, as equivalent after determining that they:
    (1) Provide at least the same degree of protection as MSHA's 
product approval requirements in parts 18, 19, 20, 22, 23, 27, 33, 35 
and 36 of this chapter; or
    (2) Can be modified to provide at least the same degree of 
protection as those MSHA requirements.
    (b) MSHA will publish its intent to review any non-MSHA product 
safety standard for equivalency in the Federal Register for the purpose 
of soliciting public input.
    (c) A listing of all equivalency determinations will be published 
in this part 6 and the applicable approval parts. The listing will 
state whether MSHA accepts the non-MSHA product safety standards in 
their original form, or whether MSHA will require modifications to 
demonstrate equivalency. If modifications are required, they will be 
provided in the listing. MSHA will notify the public of each 
equivalency determination and will publish a summary of the basis for 
its determination. MSHA will provide equivalency determination reports 
to the public upon request to the Approval and Certification Center.
    (d) After MSHA has determined that non-MSHA product safety 
standards are equivalent and has notified the public of such 
determinations, applicants may seek MSHA product approval based on such 
non-MSHA product safety standards.

PART 7--TESTING BY APPLICANT OR THIRD PARTY

0
2-3. The authority for part 7 continues to read as follows:

    Authority: 30 U.S.C. 957.


0
4. Amend Sec.  7.2 by adding a new definition to read as follows:


Sec.  7.2  Definitions.

* * * * *
    Equivalent non-MSHA product safety standards. A non-MSHA product 
safety standard, or group of standards, that is determined by MSHA to 
provide at least the same degree of protection as the applicable MSHA 
product technical requirements in the subparts of this part, or can be 
modified to provide at least the same degree of protection as those 
MSHA requirements.
* * * * *

0
5. Amend subpart A by adding a new Sec.  7.10 to read as follows:


Sec.  7.10  MSHA acceptance of equivalent non-MSHA product safety 
standards.

    (a) MSHA will accept non-MSHA product safety standards, or groups 
of standards, as equivalent after determining that they:
    (1) Provide at least the same degree of protection as MSHA's 
applicable technical requirements for a product in the subparts of this 
part; or
    (2) Can be modified to provide at least the same degree of 
protection as those MSHA requirements.
    (b) MSHA will publish its intent to review any non-MSHA product 
safety standard for equivalency in the Federal Register for the purpose 
of soliciting public input.

[[Page 36419]]

    (c) A listing of all equivalency determinations will be published 
in this part 7. The listing will state whether MSHA accepts the non-
MSHA product safety standards in their original form, or whether MSHA 
will require modifications to demonstrate equivalency. If modifications 
are required, they will be provided in the listing. MSHA will notify 
the public of each equivalency determination and will publish a summary 
of the basis for its determination. MSHA will provide equivalency 
determination reports to the public upon request to the Approval and 
Certification Center.
    (d) After MSHA has determined that non-MSHA product safety 
standards are equivalent and has notified the public of such 
determinations, applicants may seek MSHA product approval based on such 
non-MSHA product safety standards.

PART 18--ELECTRIC MOTOR-DRIVEN MINE EQUIPMENT AND ACCESSORIES

0
6. The authority for part 18 continues to read as follows:

    Authority: 30 U.S.C. 957, 961.


0
7. Amend Sec.  18.6 by revising paragraph (a) to read as follows:


Sec.  18.6  Applications.

    (a)(1) Investigation leading to approval, certification, extension 
thereof, or acceptance of hose or conveyor belt, will be undertaken by 
MSHA only pursuant to a written application accompanied by a check, 
bank draft, or money order, payable to the U.S. Mine Safety and Health 
Administration to cover the fees. The application shall be accompanied 
by all necessary drawings, specifications, descriptions, and related 
materials, as set out in this part.
    (2) Where the applicant for approval has used an independent 
testing laboratory under part 6 of this chapter to perform, in whole or 
in part, the necessary testing and evaluation for approval under this 
part, the applicant must provide to MSHA as part of the approval 
application:
    (i) Written evidence of the laboratory's independence and current 
recognition by a laboratory accrediting organization;
    (ii) Complete technical explanation of how the product complies 
with each requirement in the applicable MSHA product approval 
requirements;
    (iii) Identification of components or features of the product that 
are critical to the safety of the product; and
    (iv) All documentation, including drawings and specifications, as 
submitted to the independent laboratory by the applicant and as 
required by this part.
    (3) An applicant may request testing and evaluation to non-MSHA 
product safety standards which have been determined by MSHA to be 
equivalent, under Sec.  6.20 of this chapter, to MSHA's product 
approval requirements under this part.
    (4) The application, all related documents, and all correspondence 
concerning it shall be addressed to the Approval and Certification 
Center, Rural Route 1, Box 251, Industrial Park Road, 
Triadelphia, WV 26059.
* * * * *

0
8. Amend Sec.  18.15 by revising paragraph (a) to read as follows:


Sec.  18.15  Changes after approval or certification.

* * * * *
    (a)(1) Application shall be made as for an original approval or 
letter of certification requesting that the existing approval or 
certification be extended to cover the proposed changes and shall be 
accompanied by drawings, specifications, and related information, 
showing the changes in detail.
    (2) Where the applicant for approval has used an independent 
laboratory under part 6 of this chapter to perform, in whole or in 
part, the necessary testing and evaluation for approval of changes to 
an approved or certified product under this part, the applicant must 
provide to MSHA as part of the approval application:
    (i) Written evidence of the laboratory's independence and current 
recognition by a laboratory accrediting organization;
    (ii) Complete technical explanation of how the product complies 
with each requirement in the applicable MSHA product approval 
requirements;
    (iii) Identification of components or features of the product that 
are critical to the safety of the product; and
    (iv) All documentation, including drawings and specifications, as 
submitted to the independent laboratory by the applicant and as 
required by this part.
* * * * *

PART 19--ELECTRIC CAP LAMPS

0
9. The authority for part 19 continues to read as follows:

    Authority: 30 U.S.C. 957, 961.


0
10. Revise Sec.  19.3 to read as follows:


Sec.  19.3  Applications.

    (a) Before MSHA will undertake the active investigation leading to 
approval of any lamp, the manufacturer shall make application by letter 
for an investigation leading to approval of its lamp. This application, 
accompanied by a check, bank draft, or money order, payable to U.S. 
Mine Safety and Health Administration, to cover all the necessary fees, 
shall be sent to Approval and Certification Center, Rural Route 
1, Box 251, Industrial Park Road, Triadelphia, WV 26059, 
together with the required drawings, one complete lamp, and 
instructions for its operation.
    (b) Where the applicant for approval has used an independent 
laboratory under part 6 of this chapter to perform, in whole or in 
part, the necessary testing and evaluation for approval under this 
part, the applicant must provide to MSHA as part of the approval 
application:
    (1) Written evidence of the laboratory's independence and current 
recognition by a laboratory accrediting organization;
    (2) Complete technical explanation of how the product complies with 
each requirement in the applicable MSHA product approval requirements;
    (3) Identification of components or features of the product that 
are critical to the safety of the product; and
    (4) All documentation, including drawings and specifications, as 
submitted to the independent laboratory by the applicant and as 
required by this part.
    (c) An applicant may request testing and evaluation to non-MSHA 
product safety standards which have been determined by MSHA to be 
equivalent, under Sec.  6.20 of this chapter, to MSHA's product 
approval requirements under this part.

0
11. Amend Sec.  19.13 by revising paragraph (a) to read as follows:


Sec.  19.13  Instructions for handling future changes in lamp design.

* * * * *
    (a)(1) The manufacturer shall write to the Approval and 
Certification Center, Rural Route 1, Box 251, Industrial Park 
Road, Triadelphia, WV 26059, requesting an extension of the original 
approval and stating the change or changes desired. With this letter 
the manufacturer should submit a revised drawing or drawings showing 
the changes in detail, and one of each of the changed lamp parts.
    (2) Where the applicant for approval has used an independent 
laboratory under part 6 of this chapter to perform, in whole or in 
part, the necessary testing and evaluation for approval of changes to 
an approved product under this part, the applicant must provide to MSHA 
as part of the approval application:

[[Page 36420]]

    (i) Written evidence of the laboratory's independence and current 
recognition by a laboratory accrediting organization;
    (ii) Complete technical explanation of how the product complies 
with each requirement in the applicable MSHA product approval 
requirements;
    (iii) Identification of components or features of the product that 
are critical to the safety of the product; and
    (iv) All documentation, including drawings and specifications, as 
submitted to the independent laboratory by the applicant and as 
required by this part.
* * * * *

PART 20--ELECTRIC MINE LAMPS OTHER THAN STANDARD CAP LAMPS

0
12. The authority for part 20 continues to read as follows:

    Authority: 30 U.S.C. 957, 961.


0
13. Revise Sec.  20.3 to read as follows:


Sec.  20.3  Applications.

    (a) Before MSHA will undertake the active investigation leading to 
approval of any lamp, the manufacturer shall make application by letter 
for an investigation of the lamp. This application, 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 the Approval and Certification Center, Rural Route 1, Box 
251, Industrial Park Road, Triadelphia, WV 26059, together with the 
required drawings, one complete lamp, and instructions for its 
operation.
    (b) Where the applicant for approval has used an independent 
laboratory under part 6 of this chapter to perform, in whole or in 
part, the necessary testing and evaluation for approval under this 
part, the applicant must provide to MSHA as part of the approval 
application:
    (1) Written evidence of the laboratory's independence and current 
recognition by a laboratory accrediting organization;
    (2) Complete technical explanation of how the product complies with 
each requirement in the applicable MSHA product approval requirements;
    (3) Identification of components or features of the product that 
are critical to the safety of the product; and
    (4) All documentation, including drawings and specifications, as 
submitted to the independent laboratory by the applicant and as 
required under this part.
    (c) An applicant may request testing and evaluation to non-MSHA 
product safety standards which have been determined by MSHA to be 
equivalent, under Sec.  6.20 of this chapter, to MSHA's product 
approval requirements under this part.

0
14. Amend Sec.  20.14 by revising paragraph (a) to read as follows:


Sec.  20.14  Instructions for handling future changes in lamp design.

* * * * *
    (a)(1) The manufacturer shall write to the Approval and 
Certification Center, Rural Route 1, Box 251, Industrial Park 
Road, Triadelphia, WV 26059, requesting an extension of the original 
approval and describing the change or changes proposed. With this 
letter the manufacturer should submit a revised drawing or drawings 
showing the changes in detail, and one of each of the changed lamp 
parts.
    (2) Where the applicant for approval has used an independent 
laboratory under part 6 of this chapter to perform, in whole or in 
part, the necessary testing and evaluation for approval of changes to 
an approved product under this part, the applicant must provide to MSHA 
as part of the approval application:
    (i) Written evidence of the laboratory's independence and current 
recognition by a laboratory accrediting organization;
    (ii) Complete technical explanation of how the product complies 
with each requirement in the applicable MSHA product approval 
requirements;
    (iii) Identification of components or features of the product that 
are critical to the safety of the product; and
    (iv) All documentation, including drawings and specifications, as 
submitted to the independent laboratory by the applicant and as 
required by this part.
* * * * *

PART 22--PORTABLE METHANE DETECTORS

0
15. The authority for part 22 continues to read as follows:

    Authority: 30 U.S.C. 957, 961.


0
16. Revise Sec.  22.4 to read as follows:


Sec.  22.4  Applications.

    (a) Before MSHA will undertake the active investigation leading to 
approval of any methane detector, the manufacturer shall make 
application by letter for an investigation leading to approval of the 
detector. This application, 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 the Approval and 
Certification Center, Rural Route 1, Box 251, Industrial Park 
Road, Triadelphia, WV 26059, together with the required drawings, one 
complete detector, and instructions for its operation.
    (b) Where the applicant for approval has used an independent 
laboratory under part 6 of this chapter to perform, in whole or in 
part, the necessary testing and evaluation for approval under this 
part, the applicant must provide to MSHA as part of the approval 
application:
    (1) Written evidence of the laboratory's independence and current 
recognition by a laboratory accrediting organization;
    (2) Complete technical explanation of how the product complies with 
each requirement in the applicable MSHA product approval requirements;
    (3) Identification of components or features of the product that 
are critical to the safety of the product; and
    (4) All documentation, including drawings and specifications, as 
submitted to the independent laboratory by the applicant and as 
required by this part.
    (c) An applicant may request testing and evaluation to non-MSHA 
product safety standards which have been determined by MSHA to be 
equivalent, under Sec.  6.20 of this chapter, to MSHA's product 
approval requirements under this part.

0
17. Section 22.11 is amended by revising paragraph (a) to read as 
follows:


Sec.  22.11  Instructions on handling future changes in design.

* * * * *
    (a)(1) The manufacturer must write to the Approval and 
Certification Center, Rural Route 1, Box 251, Industrial Park 
Road, Triadelphia, WV 26059, requesting an extension of the original 
approval and stating the change or changes desired. With this request, 
the manufacturer should submit a revised drawing or drawings showing 
changes in detail, together with one of each of the parts affected.
    (2) Where the applicant for approval has used an independent 
laboratory under part 6 of this chapter to perform, in whole or in 
part, the necessary testing and evaluation for approval of changes to 
an approved product under this part, the applicant must provide to MSHA 
as part of the approval application:
    (i) Written evidence of the laboratory's independence and current 
recognition by a laboratory accrediting organization;
    (ii) Complete technical explanation of how the product complies 
with each

[[Page 36421]]

requirement in the applicable MSHA product approval requirements;
    (iii) Identification of components or features of the product that 
are critical to the safety of the product; and
    (iv) All documentation, including drawings and specifications, as 
submitted to the independent laboratory by the applicant and as 
required by this part.
* * * * *

PART 23--TELEPHONES AND SIGNALING DEVICES

0
18. The authority for part 23 continues to read as follows:

    Authority: 30 U.S.C. 957, 961.


0
19. Revise Sec.  23.3 to read as follows:


Sec.  23.3  Applications.

    (a) Before MSHA will undertake the active investigation leading to 
approval of any telephone or signaling device, the manufacturer shall 
make application by letter for an investigation leading to approval of 
the device. This application, 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 the Approval and 
Certification Center, Rural Route 1, Box 251, Industrial Park 
Road, Triadelphia, WV 26059, together with the required drawings, one 
complete telephone or signaling device, and instructions for its 
operation.
    (b) Where the applicant for approval has used an independent 
laboratory under part 6 of this chapter to perform, in whole or in 
part, the necessary testing and evaluation for approval under this 
part, the applicant must provide to MSHA as part of the approval 
application:
    (1) Written evidence of the laboratory's independence and current 
recognition by a laboratory accrediting organization;
    (2) Complete technical explanation of how the product complies with 
each requirement in the applicable MSHA product approval requirements;
    (3) Identification of components or features of the product that 
are critical to the safety of the product; and
    (4) All documentation, including drawings and specifications, as 
submitted to the independent laboratory by the applicant and as 
required by this part.
    (c) An applicant may request testing and evaluation to non-MSHA 
product safety standards which have been determined by MSHA to be 
equivalent, under Sec.  6.20 of this chapter, to MSHA's product 
approval requirements under this part.

0
20. Amend Sec.  23.14 by revising paragraph (a) to read as follows:


Sec.  23.14  Instructions for handling future changes in design.

* * * * *
    (a)(1) The manufacturer shall write to the Approval and 
Certification Center, Rural Route 1, Box 251, Industrial Park 
Road, Triadelphia, WV 26059, requesting an extension of the original 
approval and stating the change or changes desired. With this request, 
the manufacturer should submit a revised drawing or drawings showing 
the changes in detail, together with one of each of the parts affected.
    (2) Where the applicant for approval has used an independent 
laboratory under part 6 of this chapter to perform, in whole or in 
part, the necessary testing and evaluation for approval of changes to 
an approved product under this part, the applicant must provide to MSHA 
as part of the approval application:
    (i) Written evidence of the laboratory's independence and current 
recognition by a laboratory accrediting organization;
    (ii) Complete technical explanation of how the product complies 
with each requirement in the applicable MSHA product approval 
requirements;
    (iii) Identification of components or features of the product that 
are critical to the safety of the product; and
    (iv) All documentation, including drawings and specifications, as 
submitted to the independent laboratory by the applicant and as 
required by this part.
* * * * *

PART 27--METHANE-MONITORING SYSTEMS

0
21. The authority for part 27 continues to read as follows:

    Authority: 30 U.S.C. 957, 961.


0
22. Amend Sec.  27.4 by revising paragraph (a) to read as follows:


Sec.  27.4  Applications.

    (a)(1) No investigation or testing for certification will be 
undertaken by MSHA except pursuant to a written application, 
accompanied by all drawings, specifications, descriptions, and related 
materials and also a check, bank draft, or money order payable to the 
U.S. Mine Safety and Health Administration, to cover the fees. The 
application and all related matters and correspondence concerning it 
shall be addressed to the Approval and Certification Center, Rural 
Route 1, Box 251, Industrial Park Road, Triadelphia, WV 26059.
    (2) Where the applicant for approval has used an independent 
laboratory under part 6 of this chapter to perform, in whole or in 
part, the necessary testing and evaluation for approval under this 
part, the applicant must provide to MSHA as part of the approval 
application:
    (i) Written evidence of the laboratory's independence and current 
recognition by a laboratory accrediting organization;
    (ii) Complete technical explanation of how the product complies 
with each requirement in the applicable MSHA product approval 
requirements;
    (iii) Identification of components or features of the product that 
are critical to the safety of the product; and
    (iv) All documentation, including drawings and specifications, as 
submitted to the independent laboratory by the applicant and as 
required by this part.
    (3) An applicant may request testing and evaluation to non-MSHA 
product safety standards which have been determined by MSHA to be 
equivalent, under Sec.  6.20 of this chapter, to the product approval 
requirements under this part.
* * * * *

0
23. Amend 27.11 by revising paragraph (a) to read as follows:


Sec.  27.11  Extension of certification.

* * * * *
    (a)(1) Application shall be made as for an original certification, 
requesting that the existing certification be extended to cover the 
proposed changes. The application shall include complete drawings, 
specifications, and related data, showing the changes in detail.
    (2) Where the applicant for approval has used an independent 
laboratory under part 6 of this chapter to perform, in whole or in 
part, the necessary testing and evaluation for approval of changes to 
an approved product under this part, the applicant must provide to MSHA 
as part of the approval application:
    (i) Written evidence of the laboratory's independence and current 
recognition by a laboratory accrediting organization;
    (ii) Complete technical explanation of how the product complies 
with each requirement in the applicable MSHA product approval 
requirements;
    (iii) Identification of components or features of the product that 
are critical to the safety of the product; and
    (iv) All documentation, including drawings and specifications, as 
submitted to the independent laboratory by the applicant and as 
required by this part.
* * * * *

[[Page 36422]]

PART 33--DUST COLLECTORS FOR USE IN CONNECTION WITH ROCK DRILLING 
IN COAL MINES

0
24. The authority for part 33 continues to read as follows:

    Authority: 30 U.S.C. 957, 961.


0
25. Amend Sec.  33.6 by revising paragraph (a) to read as follows:


Sec.  33.6  Applications.

    (a)(1) No investigation or testing will be undertaken by MSHA 
except pursuant to a written application (except as otherwise provided 
in paragraph (e) of this section), accompanied by a check, bank draft, 
or money order, payable to the U.S. Mine Safety and Health 
Administration, to cover the fees; and all prescribed drawings, 
specifications, and all related materials. The application and all 
related matters and all correspondence concerning it shall be sent to 
the Approval and Certification Center, Rural Route 1, Box 251, 
Industrial Park Road, Triadelphia, WV 26059.
    (2) Where the applicant for approval has used an independent 
laboratory under part 6 of this chapter to perform, in whole or in 
part, the necessary testing and evaluation for approval under this 
part, the applicant must provide to MSHA as part of the approval 
application:
    (i) Written evidence of the laboratory's independence and current 
recognition by a laboratory accrediting organization;
    (ii) Complete technical explanation of how the product complies 
with each requirement in the applicable MSHA product approval 
requirements;
    (iii) Identification of components or features of the product that 
are critical to the safety of the product; and
    (iv) All documentation, including drawings and specifications, as 
submitted to the independent laboratory by the applicant and as 
required by this part.
    (3) An applicant may request testing and evaluation to non-MSHA 
product safety standards which have been determined by MSHA to be 
equivalent, under Sec.  6.20 of this chapter, to MSHA's product 
approval requirements under this part.
* * * * *

0
26. Amend Sec.  33.12 by revising paragraph (a) to read as follows:


Sec.  33.12  Changes after certification.

* * * * *
    (a)(1) Application shall be made as for an original certificate, 
requesting that the existing certification be extended to cover the 
proposed changes, and shall be accompanied by drawings, specifications, 
and related data showing the changes in detail.
    (2) Where the applicant for approval has used an independent 
laboratory under part 6 of this chapter to perform, in whole or in 
part, the necessary testing and evaluation for approval of changes to 
an approved product under this part, the applicant must provide to MSHA 
as part of the approval application:
    (i) Written evidence of the laboratory's independence and current 
recognition by a laboratory accrediting organization;
    (ii) Complete technical explanation of how the product complies 
with each requirement in the applicable MSHA product approval 
requirements;
    (iii) Identification of components or features of the product that 
are critical to the safety of the product; and
    (iv) All documentation, including drawings and specifications, as 
submitted to the independent laboratory by the applicant and as 
required by this part.
* * * * *

PART 35--FIRE-RESISTANT HYDRAULIC FLUIDS

0
27. The authority for part 35 continues to read as follows:

    Authority: 30 U.S.C. 957, 961.


0
28. Amend Sec.  35.6 by revising paragraph (a) to read as follows:


Sec.  35.6  Applications.

    (a)(1) No investigation or testing will be undertaken by MSHA 
except pursuant to a written application, accompanied by a check, bank 
draft, or money order, payable to the U.S. Mine Safety and Health 
Administration, to cover the fees; and all descriptions, 
specifications, test samples, and related materials. The application 
and all related matters and correspondence concerning it shall be sent 
to the Approval and Certification Center, Rural Route 1, Box 
251, Industrial Park Road, Triadelphia, WV 26059.
    (2) Where the applicant for approval has used an independent 
laboratory under part 6 of this chapter to perform, in whole or in 
part, the necessary testing and evaluation for approval under this 
part, the applicant must provide to MSHA as part of the approval 
application:
    (i) Written evidence of the laboratory's independence and current 
recognition by a laboratory accrediting organization;
    (ii) Complete technical explanation of how the product complies 
with each requirement in the applicable MSHA product approval 
requirements;
    (iii) Identification of components or features of the product that 
are critical to the safety of the product; and
    (iv) All documentation, including drawings and specifications, as 
submitted to the independent laboratory by the applicant and as 
required by this part.
    (3) An applicant may request testing and evaluation to non-MSHA 
product safety standards which have been determined by MSHA to be 
equivalent, under Sec.  6.20 of this chapter, to MSHA's product 
approval requirements under this part.
* * * * *

0
29. Amend Sec.  35.12 by revising paragraph (a) to read as follows:


Sec.  35.12  Changes after certification.

* * * * *
    (a)(1) Application shall be made, as for an original certificate of 
approval, requesting that the existing certification be extended to 
cover the proposed change. The application shall be accompanied by 
specifications and related material as in the case of an original 
application.
    (2) Where the applicant for approval has used an independent 
laboratory under part 6 of this chapter to perform, in whole or in 
part, the necessary testing and evaluation for approval of changes to 
an approved product under this part, the applicant must provide to MSHA 
as part of the approval application:
    (i) Written evidence of the laboratory's independence and current 
recognition by a laboratory accrediting organization;
    (ii) Complete technical explanation of how the product complies 
with each requirement in the applicable MSHA product approval 
requirements;
    (iii) Identification of components or features of the product that 
are critical to the safety of the product; and
    (iv) All documentation, including drawings and specifications, as 
submitted to the independent laboratory by the applicant and as 
required by this part.
* * * * *

PART 36--APPROVAL REQUIREMENTS FOR PERMISSIBLE MOBILE DIESEL-
POWERED TRANSPORTATION EQUIPMENT

0
30. The authority for part 36 continues to read as follows:

    Authority: 30 U.S.C. 957, 961.


0
31. Amend Sec.  36.6 by revising paragraph (a) to read as follows:


Sec.  36.6  Applications.

    (a)(1) No investigation or testing will be undertaken by MSHA 
except

[[Page 36423]]

pursuant to a written application, accompanied by a check, bank draft, 
or money order, payable to the U.S. Mine Safety and Health 
Administration, to cover the fees; and all descriptions, 
specifications, test samples, and related materials. The application 
and all related matters and correspondence concerning it shall be sent 
to the Approval and Certification Center, Rural Route 1, Box 
251, Industrial Park Road, Triadelphia, WV 26059.
    (2) Where the applicant for approval has used an independent 
laboratory under part 6 of this chapter to perform, in whole or in 
part, the necessary testing and evaluation for approval under this 
part, the applicant must provide to MSHA as part of the approval 
application:
    (i) Written evidence of the laboratory's independence and current 
recognition by a laboratory accrediting organization;
    (ii) Complete technical explanation of how the product complies 
with each requirement in the applicable MSHA product approval 
requirements;
    (iii) Identification of components or features of the product that 
are critical to the safety of the product; and
    (iv) All documentation, including drawings and specifications, as 
submitted to the independent laboratory by the applicant and as 
required by this part.
    (3) An applicant may request testing and evaluation to non-MSHA 
product safety standards which have been determined by MSHA to be 
equivalent, under Sec.  6.20 of this chapter, to MSHA's product 
approval requirements under this part.
* * * * *

0
32. Amend Sec.  36.12 by revising paragraph (a) to read as follows:


Sec.  36.12  Changes after certification.

* * * * *
    (a)(1) Application shall be made, as for an original certificate of 
approval, requesting that the existing certification be extended to 
cover the proposed change. The application shall be accompanied by 
specifications and related material as in the case of an original 
application.
    (2) Where the applicant for approval has used an independent 
laboratory under part 6 of this chapter to perform, in whole or in 
part, the necessary testing and evaluation for approval of changes to 
an approved product under this part, the applicant must provide to MSHA 
as part of the approval application:
    (i) Written evidence of the laboratory's independence and current 
recognition by a laboratory accrediting organization;
    (ii) Complete technical explanation of how the product complies 
with each requirement in the applicable MSHA product approval 
requirements;
    (iii) Identification of components or features of the product that 
are critical to the safety of the product; and
    (iv) All documentation, including drawings and specifications, as 
submitted to the independent laboratory by the applicant and as 
required by this part.
* * * * *
[FR Doc. 03-15006 Filed 6-16-03; 8:45 am]
BILLING CODE 4510-43-P