# Presentation: 027748

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

**Part 6: Final Rule**

**Notes:**
I’m going to spend about 20-30 minutes explaining the revised proposed Part 6. 

Please feel free to stop me anywhere along the way if you have questions.

This is a revised proposed rule.  The original proposal was introduced in 1994 and will be referred to as the the 1994 proposal.  We have addressed comments received on that 1994 proposal and believe that our proposal addresses most of those concerns. 

I’ll be discussing the comments that were received and how thy are addressed in this revision.

## Outline of Presentation

- Advantages to Part 6
- Current Approval Process
- Discussion of 1994 Proposed Rule
- Discussion of Final Rule

**Notes:**
Advantages to, and reasons for Part 6

Current Approval Process

Discussion of 1994 Proposed Rule

Discussion of Revised Proposed Rule (Proposed Rule)

## Outline of Presentation

- Effect on Approval Process
- Benefits of Part 6
- Effect on manufacturers and mine operators

**Notes:**
Effect on Approval Process

Cost/Benefits of Proposed Rule

Anticipated Industry Reaction

## Advantages to Part 6

- Contributes to improved safety and health for the miners.
- Eliminates duplicative testing and evaluation by MSHA

**Notes:**
We’re aware that products exist in other non-mining industries that could, if introduced into mining, provide an improved level of safety and health for the miners.

Products such as technologically advanced personal safety devices (e.g. personal alarms, communication devices, dust monitors, respirators, gas detection devices) could become more readily available to the mining industry.

The revised proposal would eliminate duplicate MSHA testing where the same testing is performed by another laboratory.

## Advantages to Part 6

- Increases non-mining manufacturers incentives to enter the mining market
- Offers domestic manufacturers increased competitiveness opportunities in global markets

**Notes:**
In some cases, the mining market may be too small for certain applicants to justify the additional time and cost of MSHA approval.

Those manufacturers could be more willing to pursue MSHA approval if the testing and evaluation that has already been completed can be used as the basis of our approval.

This program should also assist US manufacturers in pursuing international markets by permitting us to accept products designed to international standards.

This proposal could ‘level the playing field’ by allowing more manufacturers to more easily enter the mining market and increase competitiveness abroad for the US manufacturers.

## Current Approval Process

- 30 CFR parts 7 through 36
- technical design, construction, and test requirements for permissible products used in underground mines
- testing and evaluation for approval based on those requirements.

**Notes:**
MSHA’s current regulations in 30 CFR parts 7 through 36  provide 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.

MSHA’s approval program is an under-recognized contributor to improved miner’s safety.  It is a proactive method of reducing accidents in mining.  The A&CC processes approximately 800 approval actions annually.  The miner’s rely on us to ensure that only safe products are approved for use underground.  This is a tremendous responsibility and one that we take very seriously.  To my knowledge, only one approved product failed resulting in a non-fatal accident.  I believe our approval program is under-recognized because we’re very good at it.  Under the revised proposal we will continue to ensure only safe and reliable products are provided to the mines.  

## 1994 Proposed Rule

- The following two elements were included in the original 1994 proposal:
- mandated that testing and evaluation had to be performed by independent laboratories and that the labs had to be recognized through the OSHA NRTL  program.
- MSHA acceptance of equivalent non-MSHA product safety standards.

**Notes:**
In 1994, we proposed to modify our approval process :

by mandating the use of the OSHA Nationally Recognized Testing Laboratories (NRTLs) to conduct testing and evaluations as the basis of MSHA product approvals.

Allow for MSHA acceptance of equivalent non-MSHA product safety standards once we determined them to be equivalent.

The goals of this proposal were:

 to address elements in the National Performance Review that required government agencies to consider acceptance of international standards, where appropriate.

Get MSHA out of the testing business.

## 1994 Proposed Rule

- Commenters were concerned with:
- mandatory nature of proposal
- loss of MSHA expertise in testing and evaluation of mining equipment
- increased fees and turn-around times, and monopolies imposed by NRTLs

**Notes:**
The applicants were concerned with being required to use only independent laboratories for testing.  The revised proposal allows it as an option but does not require it.

Manufacturers and mine operators expressed concern over MSHA’s loss of testing expertise which is a benefit to both.  Under the revised proposal we would retain our testing capabilities and expertise.

Applicants were also concerned about a potential resultant increase in costs and turnaround times for approval actions.

The possibility of creating monopolies was also a concern if only one laboratory was recognized to test any particular product line.  Under the revised proposal, MSHA will continue to be a testing option.

## 1994 Proposed Rule

- Commenters were concerned with:
- increased field audit requirements imposed by NRTLs
- foreign mining equipment being used in domestic mines without adequate testing/evaluation
- unfair advantage for foreign manufacturers

**Notes:**
Under the original proposal, the NRTL audits were required in addition to MSHA audits.  Under the revised proposal, only MSHA auditing is required.

The UMWA was concerned about the introduction of foreign products tested by foreign laboratories into the US mines.  Under the revised proposal both foreign and domestic products and testing will undergo equal scrutiny by A&CC investigators.  The products approved will continue to provide at least the same degree of safety as products currently tested and approved by MSHA.

Some applicants were concerned with a perceived unfair advantage to foreign manufacturers whose products would already meet foreign standards.  These products would continue to be required to be evaluated and approved by MSHA.  No less level of scrutiny would be provided to foreign products tested by foreign labs as compared to what MSHA currently does.

## New Part 6

- § 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 (equivalency)

**Notes:**
(Skip this slide unless the need arises.)

Testing and Evaluation by Independent Laboratories and the Use of Equivalent Non-MSHA Safety Standards includes the following sections:

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

## Revised Part 7

- Testing by Applicant or Third Party
- § 7.2     Definitions
- § 7.10   Part 7 Equivalency
- Does not include independent laboratory provision

**Notes:**
(Skip this slide unless the need arises.)

Under the proposal, we would also be revising part 7 which is testing by applicant or third party.  

Part 7 is actually not within the scope of part 6 because, under part 7, laboratories may be affiliated with the applicant.  Therefore, only the equivalency portion of the revised proposal would be applicable to part 7.

Modifications will also be made to each of the approval parts to accommodate the changes being implemented with part 6.  This amendatory language includes the revised application requirements. 

## Part 6 vs. Part 7

- Part 6 requires use of independent laboratories
- Part 7 permits testing by applicant
- Part 7 product lines are those whose tests require little or no subjective analysis

## Part 6 vs. Part 7

- Part 7 demonstrated that MSHA could remove themselves from testing with no negative impact on product safety
- Part 6 includes more MSHA control due to subjective nature of evaluations involved.

## Definitions

- Definitions included in the rule include:
- Equivalent non-MSHA product safety standards
- Independent laboratory
- Product Safety Standard

**Notes:**
These key definitions are provided in the revised proposal.  If you’d like me to discuss these now I will.

1.  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.
2. Independent laboratory.  A laboratory that:
	(1)  has been recognized by a laboratory accrediting organization to test and/or evaluate products to a product safety standard, and 
	(2)  is free from any commercial, financial, and other pressures that may influence the results of the testing and/or evaluation process.
3.  Product safety standard.  A document, or group of documents that specify the requirements for the testing and/or evaluation of a product for use in explosive gas and dust atmospheres, and, when appropriate, include documents addressing the flammability properties of products.

## Independent Labs

- If the applicant chooses to use an independent laboratory, they must submit:
- evidence of the laboratory’s independence and recognition as an accredited laboratory
- technical explanation of how the product complies with approval requirements
- identification of critical characteristics of the product
- all documentation submitted to the independent laboratory

**Notes:**
If the applicant chooses to use an independent laboratory, they must submit :

written evidence of the laboratory’s independence, and recognition as an accredited laboratory.

complete technical explanation of how the product complies with each requirement in the applicable MSHA product approval requirements, that includes each requirement in the equivalent non-MSHA product safety standards.

identification of components or features of the product that are critical to the safety of the product, and

all documentation that was submitted to the independent laboratory by the applicant.

## Independent Labs

- Testing and evaluation performed by independent laboratories must comply with MSHA product approval requirements.
- Testing and evaluation must be conducted or witnessed by the laboratory’s personnel.

**Notes:**
 Use of Independent Laboratories

Product testing and/or evaluation performed by independent laboratories must comply with the applicable MSHA product approval requirements.

Product testing must be conducted or witnessed by the laboratory’s personnel. 

We would not accept the laboratory contracting out the test and/or evaluation without the lab witnessing the test.

## Independent Labs

- MSHA would notify the applicant if additional information and/or testing is required.
- After approval, the approval holder must notify us of all product defects of which they are aware.

**Notes:**
After review of information, we will notify the applicant if additional information and/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).

Once the product is approved, the approval holder must notify MSHA of any product defects of which they become aware.

## Equivalency

- MSHA would accept non-MSHA product safety standards, or groups of standards, as equivalent after determining that they:
- Provide at least the same degree of protection as our approval requirements, or
- can be modified to provide at least the same degree of protection as our requirements.

**Notes:**
MSHA would accept non-MSHA product safety standards, or groups of standards, as equivalent after determining that they:

Provide at least the same degree of protection as our approval requirements, or

can be modified to provide at least the same degree of protection as our requirements.

This equivalency provision will also address the US commitment to the new trade agreements that require reduction in trade barriers.  This includes NAFTA and the Technical Barriers to Trade Agreement (TBT).  

## Equivalency

- MSHA will publish in the FR its intent to review any non-MSHA product safety standard for equivalency to solicit public input.
- FR notice will be published of all equivalency determinations.
- After publication in the FR, applicants may seek MSHA product approval based on the equivalent requirements.

**Notes:**
We would publish, in the Federal Register, MSHA’s intent to review a non-MSHA product safety standard.  The purpose of this would be to solicit public input on the equivalency determination.  This provision would address many of the comments received on the 1994 proposal, including one voiced by the UMWA requesting that they be involved in the determination process.

MSHA will make the final determination.  It is our intent not to allow for an appeal process.  This is because it’s MSHA’s statutory obligation to not permit any changes in our requirements that would reduce the level of safety provided by the current requirements.

MSHA will publish final equivalency determinations in the Federal Register.  We’ll also publish a  final summary of the basis for our determination.

After this publication, applicants would be permitted to seek MSHA approval based on the equivalent requirements.

We would also amend Part 7 to include the equivalency provision.

## Effect on Approval Process

- MSHA retains full authority to issue, deny and revoke approval for any product covered.
- MSHA requires recognition by a laboratory accrediting organization to ensure that independent laboratories are capable of performing the specific technical evaluation and tests necessary.

## Effect on Approval Process 

- MSHA will review, accept and document all changes to an approved product before the changes could be made to the product.

**Notes:**
MSHA would still review, accept and document all changes to an approved product before the changes could be made to the product.

## Benefits of Part 6

- Encourages non-MSHA applicants with products that could be applicable to mining to apply for MSHA approval.
- Expedites the introduction of technologically-advanced products into the mines, thus improving miner safety.

**Notes:**
Encourages non-MSHA applicants with products that could be applicable to mining to apply for MSHA approvals  

Expedites the introduction of technologically-advanced products into the mines, thus improving miner safety.  

## Benefits of Part 6

- Increase A&CC’s expertise in laboratory testing, international and domestic standards and increasing involvement with other mining product testing experts.
- Assists US manufacturers in entering the global market

**Notes:**
Increase A&CC’s expertise in laboratory testing, international and domestic standards and increasing involvement with other mining product testing experts.

It should also assist U.S. manufacturers in entering the global market by permitting acceptance of equipment designed to foreign standards and by increasing our ability to assist manufacturers in entering the mining market.

## Effect on Manufacturers

- the rule would give them the _option_ of using independent labs rather than requiring it as the original proposal did
- they could go to a single product line (meeting both MSHA and foreign market requirements)
- they could save time and costs from the elimination of repeat testing

**Notes:**
Manufacturers should support the rule because:

the rule would give them the option of using independent labs rather then requiring it as the 1994 proposal did

they could go to a single product line (meeting both MSHA and foreign market requirements)

they could save time and costs from the elimination of repeat testing

## Effect on Mine Operators

- Potential for a wider variety of mining products, and, potentially lower costs

**Notes:**
Mine operators should support the rule due to potential for a wider variety of mining products, and potentially lower costs.  MSHA would also retain its testing expertise which was requested through comments to the 1994 proposal.

Labor could oppose both portions of the rule, due to concerns about foreign laboratory test and evaluation capability, as well as our equivalency determination process.

The revised proposal addresses these concerns because we would be recognizing the laboratories ourselves, reviewing the test reports, auditing the products and, if necessary, witnessing tests.

## Questions