IN THE MATTER OF: ) ) TESTING AND EVALUATION BY ) INDEPENDENT LABORATORIES AND NON- ) MSHA PRODUCT SAFETY STANDARDS. ) ) Pages: 1 through 10 Place: Washington, Pennsylvania Date: January 9, 2003 IN THE MATTER OF: ) ) TESTING AND EVALUATION BY ) INDEPENDENT LABORATORIES AND NON- ) MSHA PRODUCT SAFETY STANDARDS. ) ) Room Gallery A Meadowslands Holiday Inn 340 Racetrack Road Washington, Pennsylvania Thursday, January 9, 2003 The parties met, pursuant to notice of the Department of Labor, at 9:00 a.m. Opening Statement Washington, Pennsylvania January 9, 2003 Public Hearing -- Independent Laboratories MR. CHIRDON: Today is January 9, 2003 and it's 9:00 a.m. and we're at the Meadowlands Holiday Inn in Washington, Pennsylvania. Good morning. My name is Dave Chirdon and I'm the Chief of the Electrical Safety Division at MSHA's Approval and Certification Center. I'll be the moderator today for this public hearing on the testing and evaluation by independent laboratories and non-MSHA product safety standards, also referred to as Part 6. On behalf of Dave Lauriski, the Assistant Secretary of Labor for Mine Safety and Health, I'd like to welcome all of you here today. Also sitting with me at the table from MSHA starting on my far right is Bud Page, Chief of the Intrinsic Safety Branch at the Approval and Certification Center; Ros Fontaine, she's our International Rep for the Office of Technical Support; Linda Fort is with the Office of the Solicitor; Ron Ford is from our Office of Standards, Regulations and Variances, he's our Economist; Herman Narcho is also with the Office of the Solicitor, and Debra James is the Reg Specialist from the Office of Standards, Regulations and Variances. This is the second of two hearings on the proposed rule that would offer applicants for MSHA product approval, alternate requirements for testing and evaluation of products that MSHA approves for use in underground mines. The first hearing was held on Tuesday, January 7, 2003 at the DoubleTree Hotel Denver in Denver, Colorado. The initial announcement of these two rulemaking hearings was contained in the Notice of Proposed Rulemaking published on October 17, 2002 in the Federal Register. Copies of this Federal Register document are available in the back of the room. The purpose of these hearings is to receive information from the public that will help us evaluate our proposed rule. The scope of the issues we are addressing with this proposed rule are well defined and this hearing will be limited to soliciting public input on these issues. We welcome comment on two issues in particular, whether or not manufacturers of certain products who seek MSHA approval would use an independent laboratory to perform in whole or part the necessary testing and evaluation for approval; and whehter or not manufacturers would have their products approved based on a non-MSHA product safety standard once MSHA determines such standard to be equivalent to MSHA product approval requirements. These two issues were discussed in the October 17th Federal Register document. I'd like to give you some background that led us to this revised proposed rule. Under the Federal Mine Safety and Health Act of 1977, MSHA is responsible for prescribing the technical design, construction and test requirements for certain products using gassy underground mines and for testing and evaluating them for MSHA approval based on these requirements. These technical requirements are set forth in the Agency's approval regulations in Title 30 of the Code of Federal Regulations, also referred to as 30 C.F.R. pt. 7-36. MSHA currently charges applicants a fee for the testing and evaluation of products submitted for MSHA approval. Following MSHA approval, manufacturers must ensure that the product continues to conform to the MSHA-approved specifications. In the mid-1980s, MSHA reviewed its product approval program to determine whether it could be restructured to provide improved safety to miners without increasing costs to the applicant. That review resulted in the promulgation of 30 C.F.R. pt. 7, Testing by Applicant or Third Party. Part 7 represented MSHA's first departure from its role of front-end testing of products for approval. It substituted manufacturer or third-party testing of a limited number of products for testing that previously had been conducted by MSHA. In 1993, MSHA initiated a further review of its approval and certification activities including it's Part 7 applicant or third-party testing program. Based on that review, the Agency reaffirmed the objectives of the Part 7 concept to increase postapproval product audits and direct more resources to evaluation of safety and technological improvements in products 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 these objectives. After considering how best to accomplish those goals, the Agency decided to initiate rulemaking to modify MSHA's approval program. In 1994, MSHA issued a proposed rule that would have required testing and evaluation to be performed by nationally recognized testing laboratories otherwise known as NRTLs instead of testing an evaluation by MSHA. In addition, a 1994 proposed rule would have allowed applicants to request MSHA product approval based on approval requirements other than MSHA's as long as those requirements provided at least the same degree of protection as MSHA's product approval requirements. MSHA would have continued to verify that approval requirements were met and would have retained full responsibility for issuing product approvals. Based on comments received from the public to the 1994 proposed rule, the revised proposal provides a number of revisions to the original. The major changes are (1) the revised proposal would be voluntary. Manufacturers could choose to use independent laboratories to perform all of part of their testing and evaluation necessary for approval or they could elect to have MSHA perform the necessary testing and evaluation; (2) applicants would not have to use only independent laboratories that are nationally recognized testing labs 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, known as ANSI, or the International Electrotechnical Commission, known as the IEC; (3) only MSHA would conduct required postapproval product audits. Audits conducted by independent laboratories would not be required under the revised proposal; (4) only the MSHA mark would be required on MSHA-approved products and 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 saftey standards. MSHA would notify the public through publication in the Federal Register of MSHA's intent to reveiw 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 this revised proposal, the review of any testing and evaluation performed by independent laboratories and the issuance of the MSHA product approval would still remain the full responsibility of the Approval and Certification Center. The issues surrounding the use of independent laboratories and of non-MSHA product safety standards are important to MSHA. We will use the information provided by you to help us decide how best to proceed in this rulemaking. These two hearings will give manufacturers, mine operators, miners and their representatives and other interested parties an opportunity to present their views in this revised proposed rule. To date we have received two comments on this proposal. Copies of these comments are located on the table at the entrance to this room. If you prefer, you can view these comments on our website at the following address: www.msha.gov\regs\comments/indlab\indlabedocket.hotm. This address is written on the board to the side here and it's also printed in the opening statement which you can get a copy of at the back table. The format of this public hearing will be as follows: Formal Rules of Evidence will not apply and this hearing will be conducted in an informal manner. No one has notified MSHA in advance of their intent to speak. Anyone that is signed up today to speak will make their presentations first. After all speakers are finished, others can request to speak. When the last speaker is finished we will conclude the public hearing. The hearing will end no later than 5:00 p.m. If you wish to present any written statements or information today, please clearly identify your material. When you give it to me, I'll identify the material by the title as submitted. You may also submit comments following this public hearing. Please submit them to MSHA by February 10, 2003 which is the close of the posthearing comment period. Comments may be submitted to MSHA by electronic mail at comments@msha.gov, by fax at (202) 693-9441, or by regular mail or hand-delivery to MSHA, Office of Standards, Regulations and Variance, 1100 Wilson Boulevard, Room 2352, Arlington, Virginia 22209-3939. A verbatim transcript of this public hearing will be available upon request. If you want a personal copy of the hearing transcript please make arrangements with the court reporter. MSHA will post verbatim transcripts of both the Denver and Washington, Pennsylvania public hearings on it's website. They should be posted there approximately one week from today. We will begin with persons who have requested to speak. Please begin by clearly stating your name, spelling your last name and stating your organization for the record to make certain we obtain an accurate record when you speak. At this point we have not received anyone that's requested to speak. Would anyone like to make any comments? (No response.) MR. CHIRDON: Okay. We're going to close the record at this point and we'll reopen at 11:00 a.m. in case anyone else has shown up. (Whereupon, a short recess was taken.) MR. CHIRDON: Okay. The time's 11:00 a.m. for the Part 6 hearing and for the record nobody has shown up from the previous discussion, so we're going to close the record at this time. (Whereupon, at 10:58 a.m. the hearing in the above-entitled matter was adjourned.) // // // // // // // // REPORTER'S CERTIFICATE DOCKET NO.: N/A CASE TITLE: Opening Statement Independent Laboratories HEARING DATE: January 9, 2003 LOCATION: Washington, Pennsylvania I hereby certify that the proceedings and evidence are contained fully and accurately on the tapes and notes reported by me at the hearing in the above case before the Public Hearing - Independent Laboratories. Date: January 9, 2003 Joel Rosenthal Official Reporter Heritage Reporting Corporation Suite 600 1220 L Street, N.W. Washington, D.C. 20005-4018 ?? TRANSCRIPT OF PROCEEDINGS HERITAGE REPORTING CORPORATION Official Reporters 1220 L Street, N.W., Suite 600 Washington, D.C. 20005-4018 (202) 628-4888 hrc@concentric.net 9 Heritage Reporting Corporation (202) 628-4888 Heritage Reporting Corporation (202) 628-4888