[Federal Register Volume 79, Number 196 (Thursday, October 9, 2014)]
[Proposed Rules]
[Pages 61035-61041]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-24130]
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DEPARTMENT OF LABOR
Mine Safety and Health Administration
30 CFR Part 5
[Docket No. MSHA-2014-0016]
RIN 1219-AB82
Fees for Testing, Evaluation, and Approval of Mining Products
AGENCY: Mine Safety and Health Administration, Labor.
ACTION: Proposed rule.
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SUMMARY: The Mine Safety and Health Administration (MSHA) proposes to
amend the Agency's regulations for administering fees for testing,
evaluation, and approval of products manufactured for use in mines.
This proposed rule would revise the fees charged for these services.
The proposed rule also would include a fee for approval services that
MSHA provides to applicants or approval holders under the existing
rule, but for which the Agency currently does not charge a fee, and for
other activities required to support the approval process.
DATES: Comments must be received or postmarked by midnight Eastern
Daylight Saving Time on November 10, 2014.
ADDRESSES: Submit comments and informational materials, identified by
RIN 1219-AB82 or Docket No. MSHA-2014-0016, by one of the following
methods:
Federal E-Rulemaking Portal: http://www.regulations.gov.
Follow the on-line instructions for submitting comments for Docket No.
MSHA-2014-0016.
Electronic mail: [email protected]. Include RIN
1219-AB82 or Docket No. MSHA-2014-0016 in the subject line of the
message.
Mail: MSHA, Office of Standards, Regulations, and
Variances, 1100 Wilson Boulevard, Room 2350, Arlington, Virginia 22209-
3939.
Facsimile: 202-693-9441.
Hand Delivery or Courier: MSHA, Office of Standards,
Regulations, and Variances, 1100 Wilson Boulevard, Room 2350,
Arlington, Virginia, between 9:00 a.m. and 5:00 p.m. Monday through
Friday, except Federal holidays. Sign in at the receptionist's desk on
the 21st floor.
Instructions: All submissions must include RIN 1219-AB82
or Docket No. MSHA-2014-0016. Do not include personal information that
you do not want publicly disclosed; MSHA will post all comments without
change to http://www.regulations.gov, and http://www.msha.gov/currentcomments.asp, including any personal information provided.
FOR FURTHER INFORMATION CONTACT: Sheila A. McConnell, Acting Director,
Office of Standards, Regulations, and Variances, MSHA, at
[email protected] (email); 202-693-9440 (voice); or 202-693-
9441 (facsimile). (These are not toll-free numbers).
SUPPLEMENTARY INFORMATION:
Table of Contents
MSHA is including the following outline to assist the public in
finding information in this preamble.
I. Availability of Information
II Background
III. Section-by-Section Analysis
IV. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
V. Feasibility
VI. Regulatory Flexibility Act, Small Business Regulatory
Enforcement Fairness Act, and Executive Order 13272: Proper
Consideration of Small Entities in Agency Rulemaking
VII. Paperwork Reduction Act of 1995
VIII. Other Regulatory Considerations
I. Availability of Information
Docket: For access to the docket to read comments received, go to
http://www.regulations.gov or http://www.msha.gov/currentcomments.asp.
To read background documents, go to http://www.regulations.gov. Review
the docket in person at MSHA, Office of Standards, Regulations, and
Variances, 1100 Wilson Boulevard, Room 2350, Arlington, Virginia,
between 9:00 a.m. and 5:00 p.m. Monday through Friday, except Federal
Holidays. Sign in at the receptionist's desk on the 21st floor.
Email notification: To subscribe to receive an email notification
when MSHA publishes rules in the Federal Register go to http://www.msha.gov/subscriptions/subscribe.aspx.
II. Background
As part of the U.S. Department of Labor, under the Federal Mine
Safety and Health Act of 1977 (Mine Act), as amended, MSHA's mission is
to prevent death, disease, and injury from mining and promote safe and
healthy workplaces for the Nation's miners. Since 1911, MSHA and its
predecessor agencies have evaluated and tested products for use in
mines to prevent fires, explosions, and accidents.
Under various authorities,\1\ MSHA historically has collected fees
for its services in evaluating, testing, and approving products.
Originally, the U.S. Bureau of Mines, an MSHA predecessor agency,
billed applicants for approval services using published individual fee
schedules, e.g., each approval part in Title 30, Chapter I, provided a
list of flat fees for different tests, evaluations, and other services
performed for approval activities (30 FR 3752-3757). On May 8, 1987,
MSHA eliminated the individual fee schedules and established part 5
which created an hourly rate for administration and calculation of fees
for services in Title 30, Chapter I, Subchapter B, Testing, Evaluation,
and Approval of Mining Products (52 FR 17506). On August 9, 2005, MSHA
revised part 5 and its fee procedures. That rule eliminated the
application fee, allowed preauthorization of expenditures for
processing applications, and allowed outside organizations conducting
part 15 testing
[[Page 61036]]
on MSHA's behalf to set fees (70 FR 46336).
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\1\ These authorities are: Public Law 61-525, Ch. 285, 36 Stat.
1419 (1911); Public Law 62-386, Ch. 72, Sec. 5, 37 Stat. 682 (1913);
Public Law 72-212, Ch. 314, Sec. 311, 47 Stat. 410 (1932); 30 U.S.C.
961(c)(2); and Title V of the Independent Offices Appropriations Act
of 1952, Public Law 82-137, 65 Stat. 290 (1951), as amended, 31
U.S.C. 9701.
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Section 205 of the Chief Financial Officers Act of 1990 (CFO Act)
and Office of Management and Budget (OMB) Circular No. A-25 Revised,
User Charges (7/8/1993), require agencies to review the user charges in
their programs to ensure that charges reflect the full costs of the
services provided. Traditionally, MSHA reviews its user charges
annually. MSHA last revised its hourly rate under part 5 to $97.00 on
December 29, 2010 (75 FR 82074).
Section 1503 of the Consolidated and Further Continuing
Appropriations Act, 2013 (Pub. L. 113-6) provided new authority for
MSHA to collect fees for the approval and certification of equipment,
materials, and explosives for use in mines. That law also provided that
MSHA may retain up to $2,499,000 of fees collected. The Department of
Labor Appropriations Act, 2014 (Pub. L. 113-76), provides authority for
MSHA to collect and retain these fees. 30 U.S.C. 966. Prior to this
change, MSHA could retain up to $1,499,000 of fees collected.
In this proposal, the term ``approval'' includes approvals,
certifications, acceptances, and evaluations MSHA issues under Title
30, Chapter I, Subchapter B, Testing, Evaluation, and Approval of
Mining Products.
Under the proposed rule, MSHA would (1) revise the hourly rate to
include all costs associated with the approval program and (2) include
internal quality control activities and post-approval product audits in
the fees charged to applicants and approval holders.
Under the proposed rule, MSHA would continue to charge an hourly
rate based on costs of the Agency's overall approval activities. The
approval program includes: Application processing; testing and
evaluation; approval decisions; post-approval activities; and
termination of approvals. These Approval and Certification Center
(A&CC) activities are necessary to assure that approved mine products
are designed, manufactured, and maintained so their use will not cause
a fire, an explosion, or other accident.
MSHA proposes to calculate the hourly rate by dividing the total
approval program costs (direct and indirect) by the number of direct
hours worked on all approval program activities. Under the proposal,
the hourly rate would increase from $97 under the existing rule to
$121. Using FY 2012 data, MSHA estimates that the increased hourly rate
would have resulted in approximately $1.5 million in fees collected, an
increase of $300,000 from that collected under the existing rule.
In addition to increasing the hourly rate, MSHA also proposes to
charge a fee for two services for which the Agency does not charge
under the existing rule: (1) Internal quality control activities and
(2) post-approval product audits. Internal quality control activities
are an important part of the approval process. MSHA uses internal
quality control activities to monitor and improve its testing and
evaluation processes. Post-approval product audits are necessary to
assure that mining products continue to be manufactured as approved.
For this reason, MSHA is proposing to charge for these activities.
Using FY 2012 data, internal quality control activities and post-
approval product audits would have resulted in approximately $1.2
million in additional fees at the proposed rate of $121 per hour.
Under this proposed rule, MSHA estimates that the Agency would
collect approximately $2.7 million in total fees (based on FY 2012
approvals). MSHA recognizes that the FY 2013 and FY 2014 appropriations
language provides MSHA the authority to retain only up to $2,499,000 of
fees collected. Any fees collected by MSHA above the $2,499,000 will be
credited to the Treasury general fund.
III. Section-by-Section Analysis
MSHA is proposing the following changes to its existing regulation
addressing fees for testing, evaluation, and approval of mining
products.
A. Sec. 5.10 Purpose and Scope
Existing Sec. 5.10 would be revised by redesignating paragraph (a)
as an undesignated paragraph, and by moving and revising existing Sec.
5.10(b) and (c) to proposed Sec. 5.30. Paragraph Sec. 5.10(b) would
be redesignated as Sec. 5.30(c) and paragraph Sec. 5.10(c) would be
redesignated as paragraph Sec. 5.30(d). Additionally, MSHA would move
paragraph Sec. 5.10(c)(5) (post-approval product audits) from those
services for which ``fees are not charged'' to proposed Sec.
5.30(c)(4) ``fees are charged''.
Proposed Sec. 5.10 would provide the purpose and scope of this
part: To establish a system under which MSHA charges a fee for approval
program services for mining products manufactured for use in mines.
The approval program represents all the activities necessary for
MSHA to assure that products approved for use in mines are designed,
manufactured, and maintained in accordance with approval requirements.
The approval program includes: (1) Application processing; (2) testing
and evaluation; (3) approval decisions; (4) post-approval activities;
and (5) the termination of approvals.
Application processing begins when an applicant files a new
application for approval. MSHA administratively reviews each new
application and, on determining that the application is complete,
prepares a maximum fee estimate and sends it to the applicant. The
applicant must agree to pay the estimated fee before MSHA will begin
testing, as appropriate, and evaluating the product.
Testing and evaluation includes technical evaluation, analysis,
test set up, testing, test tear down, any consultation on the
application, and internal quality control activities. To assure that
approved products continue to be designed, manufactured, and maintained
in accordance with approval requirements, the Agency uses internal
quality control programs to monitor and improve its testing and
evaluation processes (e.g., internal administrative and technical
reviews, internal audits, and calibration, repair, and maintenance of
test equipment).
Following testing and evaluating a product, MSHA makes an approval
decision and notifies the applicant by letter of its findings and
decision. If the product is approved, the letter identifies the
approved specifications for the design, construction, maintenance, and
conditions of use for the product. If the product is not approved or if
the application is cancelled, the letter identifies the reasons for the
decision. All approval documentation is kept on file at MSHA.
MSHA also conducts various post-approval activities: changing
approvals (e.g., extensions \2\ of approvals, field modifications,
modification through the Revised Acceptance Modification Program),
conducting post-approval product audits, field audits, responding to
complaints, investigating product failures, monitoring regional or
nationwide product recall or retrofit programs, and conducting
administrative actions such as transfer of approval numbers.
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\2\ An extension of the approval is a document MSHA issues that
states that a change to the product previously approved by MSHA is
approved and authorizes the continued use of the approval marking
with the appropriate extension number added.
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Termination of an approval may occur when an approval holder
voluntarily requests termination of an approval, when MSHA revokes an
approval because of compliance or safety issues, or when MSHA issues
regulations that make an approval obsolete.
[[Page 61037]]
B. Sec. 5.30 Fee Calculation
Proposed Sec. 5.30 would address the hourly rate calculation, the
activities for which MSHA would charge a fee, activities that are not
subject to a fee, the fee estimate, and any changes to the fee
estimate.
Under proposed Sec. 5.30(a), MSHA would continue to charge a fee
based on an hourly rate for approval program activities and other
associated costs such as travel expenses and Part 15 fees. Part 15 fees
for services provided to MSHA by other organizations would be set by
those organizations.
Proposed paragraph Sec. 5.30(b) is derived from existing Sec.
5.30(a) and identifies the costs MSHA incurs in administering the
approval program. Under the proposed rule, the hourly rate would be
calculated to reflect the costs of the overall approval program. Under
the existing rule, the hourly rate includes only the application
processing, testing and evaluation, and approval decision costs.
Also under the existing rule, some post-approval activities, such
as changes to approvals, are included in the approval program costs
used in calculating the hourly rate. However, the costs of monitoring
to assure approved products continue to be safe and manufactured and
maintained as approved (e.g., post-approval product audits) are
excluded because MSHA historically considered these activities to be
enforcement activities rather than approval program activities (52 FR
17507-17508). OMB Circular No. A-25 requires that agencies recover the
full costs of services rendered. In light of the increase in authority
to retain fees and to more accurately account for costs, MSHA proposes
to include the direct and indirect cost of these activities in the
hourly rate because these activities are an important part of the
approval program to assure that products continue to be designed,
manufactured, and maintained in accordance with the approval
requirements.
Under the proposed rule, MSHA would continue to determine an hourly
rate to cover direct and indirect costs. MSHA would base the hourly
rate on all approval program costs the Agency incurred during a prior
fiscal year. The hourly rate would be the total approval program costs
(direct and indirect) divided by the number of direct hours spent on
all approval program activities. Proposed paragraph Sec. 5.30(b) lists
the approval program costs that MSHA would include in the hourly rate
calculation.
Proposed paragraph Sec. 5.30(b)(1) defines direct costs as
consisting of compensation and benefit costs for all hours worked in
support of the approval program and is derived, in part, from existing
Sec. 5.10(b)(1) and (b)(2). These costs include approval program
activities such as testing and evaluation, including internal quality
control, and post-approval activities, including post-approval product
audits.
Proposed paragraph Sec. 5.30(b)(2) defines indirect costs and is
derived, in part, from existing Sec. 5.10(b)(3) and (b)(4). Indirect
costs include the approval program's proportionate share of the hours
worked to manage and operate the A&CC. These costs are associated with
activities required for information technology (IT) and A&CC management
and administration. Indirect costs would also include the approval
program's proportionate share of depreciation for buildings, their
improvements, and equipment; a proportionate share of utilities,
equipment rental, facility and equipment maintenance, security,
supplies and materials, and other costs necessary for the operation and
maintenance of the A&CC; and a proportionate share of Department of
Labor-provided services that would include financial systems, and audit
and IT support.
Proposed Sec. 5.30(c) is derived from existing Sec. 5.10(b) and
includes activities for which MSHA would charge a fee.
These activities would continue to include application processing
(e.g., administrative and technical review of applications, computer
tracking and status reporting); testing and evaluation (e.g., analysis
of drawings, technical evaluation, testing, test set up and test tear
down, and internal quality control activities); approval decisions
(e.g., consultation on applications, records control and security,
document preparation); and post-approval activities such as changes to
approvals.
Under the proposed rule, MSHA would begin to charge applicants and
approval holders a fee for internal quality control activities. These
activities are part of the approval program. MSHA uses internal quality
control activities to monitor and improve the Agency's testing and
evaluation processes and quality control. These internal quality
control activities assure applicants and approval holders that
consistent, accurate, and up-to-date scientific methods are used when
MSHA is evaluating and testing products. For example, MSHA has standard
procedures to repair, maintain, and calibrate laboratory equipment in
accordance with the manufacturers' specifications. Each applicant and
approval holder receives a benefit from these internal quality control
activities: MSHA would distribute the hours worked and costs of
internal quality control, based on the hours worked on each
application. However, hours worked on specific internal quality control
activities are not charged to a particular application. Instead, MSHA
would charge each applicant a prorated share. MSHA proposes to
calculate the prior year's quality control hours as a percentage of
total hours, multiply that percentage by the number of direct hours
worked on a particular application, and add the result to the number of
direct hours worked on the application.
Under the proposed rule, MSHA also would begin charging approval
holders for the Agency's post-approval product audits, but would not
include investigations or audits based on complaints about the
products. Post-approval product audits are part of the approval program
(post-approval activities) because they are necessary to assure that
products have been manufactured as approved. Under existing 30 CFR
parts 7, 14, and 15, approval holders are subject to a post-approval
product audit upon request by MSHA. The Agency also would continue
charging approval holders for changes to approvals.
Internal quality control activities and post-approval audits assure
that products are and continue to be designed, manufactured, and
maintained in accordance with the approval requirements to ensure the
health and safety of miners. For these reasons, MSHA is proposing to
charge a fee for these activities.
Existing Sec. 5.10(c)(1), (c)(2), (c)(3), and (c)(4) would be
revised and redesignated, in part, as proposed Sec. 5.30(d).
Proposed Sec. 5.30(d) would address the activities for which MSHA
would not charge a fee. These include technical assistance not related
to approval applications; technical programs including development of
new technology programs; participation in research conducted by other
government agencies or private organizations; and regulatory review
activities, including participation in the development of health and
safety standards, regulations, and legislation.
Existing Sec. 5.30(b), Sec. 5.30(c), and Sec. 5.30(d) would be
redesignated as proposed Sec. 5.30(e), Sec. 5.30(f), and Sec.
5.30(g) under the Fee Calculation section.
Proposed paragraph Sec. 5.30(e) would be revised by renumbering
paragraphs Sec. 5.30(b)(1) and (b)(2) as Sec. 5.30(e)(1) and
[[Page 61038]]
(e)(2), respectively. Proposed paragraphs Sec. 5.30(f) and (g) would
remain unchanged.
C. Sec. 5.40 Fee Administration
Proposed Sec. 5.40 is revised by adding ``approval holders'' to
entities to be billed and replacing ``processing of the application is
completed'' with ``approval program activities are completed.'' MSHA
would continue to charge applicants a fee for approvals and some post-
approval activities (e.g., modification to approvals), and proposes to
charge approval holders a fee for post-approval product audits when the
approval program activities are completed.
D. Sec. 5.50 Fee Revisions
Proposed Sec. 5.50 is amended by replacing ``fee schedule'' with
``hourly rate'' because MSHA no longer has a fee schedule.
IV. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
Executive Orders (E.O.) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
To comply with these Executive Orders, MSHA has included the following
impact analysis.
Section 3(f) of the E.O. 12866 defines a significant regulatory
action as an action that is likely to result in a rule that: (1) Has an
annual effect on the economy of $100 million or more, or adversely and
materially affects a sector of the economy, productivity, competition,
jobs, the environment, public health or safety, or State, local or
tribal governments or communities; (2) creates serious inconsistency or
otherwise interferes with an action taken or planned by another agency;
(3) materially alters the budgetary impacts of entitlement grants, user
fees, or loan programs, or the rights and obligations of recipients
thereof; or (4) raises novel legal or policy issues arising out of
legal mandates, the President's priorities, or the principles set forth
in the Executive Order. OMB has determined that this is a significant
regulatory action.
The proposed rule would not have an annual effect of $100 million
or more on the economy and, under E.O. 12866, is not considered
economically significant. MSHA has not prepared a separate preliminary
regulatory economic analysis for this rulemaking. Rather, the analysis
is presented below.
A. Overview
MSHA proposes to continue to charge a fee for approval services
based on an hourly rate. As under the existing rule, MSHA's hourly rate
would include direct costs and indirect costs. However, under the
proposed rule, MSHA would calculate the hourly rate by dividing all
approval program costs incurred by the Agency during a prior fiscal
year by the number of direct hours spent on approval program activities
for the same period.
The proposed rule would increase the hourly rate from $97 to $121,
an increase of $24.
MSHA would also begin to charge a fee for internal quality control
activities and post-approval product audits. In FY 2012, MSHA collected
approximately $1.2 million in fees. Under this proposed rule, MSHA
estimates that the Agency would have collected a total of $2.7 million
in fees in FY 2012, an increase of $1.5 million.
The charges under the proposed rule are fees and are considered
under OMB Circular No. A-4, Regulatory Analysis (09/17/2003) as
transfer payments, not costs. Transfer payments are payments from one
group to another that do not affect total resources available to
society. Under the proposed rule, the applicant or the approval holder
pays for services for which they receive a benefit. These services are
currently paid for by the taxpayer.
Because the fees MSHA collects are a transfer, there are zero costs
and zero benefits regardless of the discount rate (OMB Circular No. A-
4, Regulatory Analysis (09/17/2003,) Section (G) Accounting Statement).
B. Benefits
The rule would not produce any quantifiable benefits because the
only impact is the transfer payment.
C. Projected Impacts
MSHA analyzed A&CC invoice data from Fiscal Year (FY) 2012. Using
the U.S. Economic Census North American Industry Classification System
(NAICS) data, MSHA estimated the impact of the proposed rule on mining
and non-mining industries. NAICS is the standard used by Federal
statistical agencies in classifying business establishments for the
purpose of collecting, analyzing, and publishing statistical data
related to the U.S. business economy (http://www.census.gov/eos/www/naics/).
From the A&CC post-approval product audit data and FY 2012
invoices, MSHA identified 30 industries that received A&CC approval
program services. MSHA grouped this data into three general industry
categories: Coal Mining, Other Mining, and Non-Mining.
MSHA estimated the fees that would be collected under this proposed
rule by summing the impact of the hourly rate increase and the increase
from charging for internal quality control activities and post-approval
product audits. Under this proposed rule, fees would increase by
approximately $1.5 million annually ($0.3 million from the hourly rate
increase + $1.1 million for internal quality control activities + $0.1
million for post-approval product audit activities). Of the $1.5
million, the increase in fees for the mining industries would total
approximately $0.9 million annually. The remaining $0.6 million would
be distributed among the non-mining industries that seek product
approval from MSHA.
MSHA estimated the fee increase from the proposed hourly rate by
multiplying the number of chargeable hours for FY 2012 (12,189), by the
proposed hourly rate of $121. In 2012, MSHA estimated that the proposed
hourly rate would have resulted in approximately $1.5 million in fees
collected, an increase of $300,000 (($121 new rate - $97 old rate) x
12,189 hours)).
MSHA also estimated the fees from charging for internal quality
control activities. MSHA uses internal quality control activities to
monitor and improve the Agency's testing and evaluation processes.
These activities include internal process reviews, maintaining
laboratory equipment, and repairing, maintaining, and calibrating
laboratory equipment to assure the equipment produces reliable and
accurate results. In FY 2012, MSHA spent 9,015 hours on these
activities. MSHA multiplied the 9,015 hours by the proposed $121 hourly
rate. This results in an estimated annual impact of $1.1 million.
In addition, MSHA analyzed post-approval product audit data from
2008 to 2012 to estimate the increase in fees from charging for these
services. In any given year, post-approval product audits are completed
only on a subset of the total products approved by the A&CC. In 2012,
MSHA spent approximately 1,000 hours on 125 post-approval product
audits. Multiplying the 1,000 hours by the proposed $121 hourly rate
results in an estimated annual impact of $121,000. The average
estimated impact would
[[Page 61039]]
have been $970 for each approval holder audited in 2012.
V. Feasibility
MSHA concludes that the proposed rule would be economically
feasible.
MSHA has traditionally used a revenue screening test--whether the
annualized compliance costs of a regulation are less than one percent
of revenues (dollar change/revenue), or are negative (i.e., provide net
cost savings) to establish presumptively that compliance with the
regulation is economically feasible. MSHA relies on Agency data to
identify revenue for covered mining entities and the 2007 Economic
Census data to identify revenue by NAICS industry categories for non-
mining entities.
MSHA performed the revenue screening test comparing the annual
impact to annual revenues for all three categories and found that the
percentage impact rounds to zero percent of revenue in each case. Given
the relatively small impact compared to industry total revenues, any
further analysis would not be productive.
Because the estimated impacts are below one percent of estimated
annual revenue of the impacted industries, MSHA concludes that
compliance with the provisions of the proposed rule is economically
feasible.
VI. Regulatory Flexibility Act, Small Business Regulatory Enforcement
Fairness Act, and Executive Order 13272: Proper Consideration of Small
Entities in Agency Rulemaking
The Regulatory Flexibility Act of 1980 (RFA) as amended by the
Small Business Regulatory Enforcement Fairness Act of 1996 and other
statutes, and E.O. 13272 requires agencies to consider the effects of
their proposed and existing regulations on small entities and to
examine alternatives that would minimize the small entity impacts while
still meeting the regulations' purposes. MSHA has reviewed the proposed
rule to assess the potential impact on small businesses, small
governmental jurisdictions, and small organizations.
The applicants who would be affected by the proposed rule represent
30 industries. The SBA size standard for a small entity (13 CFR
121.201) differs by industry code. For mining, SBA defines a small
entity as one with 500 or fewer employees. For non-mining industries
that would be impacted by this rule, SBA defines a small entity as one
that has revenues of $7.5 million or less.
MSHA used the FY 2012 invoice data and NAICS industry data to
evaluate the small business impact. For the non-mining industries, the
affected industries represent small business revenues of approximately
$474 billion. The proposed rule would increase fees for non-mining
industries by approximately $0.5 million. The impact from an increase
in fees is essentially zero percent of revenue ($0.5 million/$474
billion).
For the mining industries, MSHA data shows small coal mine revenues
of $31 billion. The proposed rule would increase fees for coal mines by
approximately $0.9 million. MSHA data shows other than coal small mine
revenues of $57 billion. The proposed rule would increase fees for
mines other than coal by approximately $6,000. The impact from an
increase in fees is zero percent for both mining categories.
Approximately $100,000 in increased fees is primarily attributable to
foreign entities. MSHA concludes that the impact on the U.S. economy
and its businesses would be de minimis.
Given that the maximum possible impact for both mining and non-
mining categories rounds to zero percent, the Agency concludes that,
using either the SBA definition of small mines (500 or fewer employees)
or using MSHA's traditional definition of small mines (1-19 employees),
it can certify that the proposed rule would not have a significant
economic impact on a substantial number of small entities.
VII. Paperwork Reduction Act of 1995
This proposed rule contains no information collections subject to
review by OMB under the Paperwork Reduction Act of 1995.
VIII. Other Regulatory Considerations
A. The Unfunded Mandates Reform Act of 1995
MSHA has reviewed the proposed rule under the Unfunded Mandates
Reform Act of 1995 (2 U.S.C. 1501 et seq.). MSHA has determined that
this proposed rule does not include any federal mandate that may result
in increased expenditures by State, local, or tribal governments; nor
would it increase private sector expenditures by more than $100 million
(adjusted for inflation) in any one year or significantly or uniquely
affect small governments. Accordingly, under the Unfunded Mandates
Reform Act, no further Agency action or analysis is required.
B. The Treasury and General Government Appropriations Act of 1999:
Assessment of Federal Regulations and Policies on Families
Section 654 of the Treasury and General Government Appropriations
Act of 1999 (5 U.S.C. 601 note), as amended, requires agencies to
assess the impact of agency action on family well-being. MSHA has
determined that this proposed rule would have no effect on family
stability or safety, marital commitment, parental rights and authority,
or income or poverty of families and children. Accordingly, MSHA
certifies that this proposed rule would not impact family well-being.
C. Executive Order 12630: Government Actions and Interference With
Constitutionally Protected Property Rights
Executive Order 12630 requires Federal agencies to ``identify the
takings implications of proposed regulatory actions . . .'' MSHA has
determined that this proposed rule would not include a regulatory or
policy action with takings implications. Accordingly, under E.O. 12630,
no further Agency action or analysis is required.
D. Executive Order 12988: Civil Justice Reform
Executive Order 12988 contains requirements for Federal agencies
promulgating new regulations or reviewing existing regulations to
minimize litigation by eliminating drafting errors and ambiguity,
providing a clear legal standard for affected conduct rather than a
general standard, promoting simplification, and reducing burden. MSHA
has reviewed this proposed rule and has determined that it would meet
the applicable standards provided in E.O. 12988 to minimize litigation
and undue burden on the Federal court system.
E. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
MSHA has determined that this proposed rule would have no adverse
impact on children. Accordingly, under E.O. 13045, no further Agency
action or analysis is required.
F. Executive Order 13132: Federalism
MSHA has determined that this proposed rule does not have
federalism implications because it would 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. Accordingly,
under E.O. 13132, no further Agency action or analysis is required.
[[Page 61040]]
G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
MSHA has determined that this proposed rule does not have tribal
implications because it would not have substantial direct effects on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes.
Accordingly, under E.O. 13175, no further Agency action or analysis is
required.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
MSHA has reviewed this proposed rule for its impact on the supply,
distribution, and use of energy because it applies to the coal mining
industry. Insofar as the proposed rule would result in an increase to
the yearly transfer of $0.9 million for the coal mining industry
relative to annual revenues of $45 billion in 2011 (latest full year of
data), it is not a ``significant energy action'' because it is not
``likely to have a significant adverse effect on the supply,
distribution, or use of energy (including a shortfall in supply, price
increases, and increased use of foreign supplies).'' Accordingly, under
E.O. 13211, no further Agency action or analysis is required.
List of Subjects in 30 CFR Part 5
Mine safety and health.
Dated: October 6, 2014.
Joseph A. Main,
Assistant Secretary for Mine Safety and Health.
For the reasons set out in the preamble, and under the authority of
the Federal Mine Safety and Health Act of 1977, as amended, MSHA is
proposing to amend Chapter I of Title 30 of the Code of Federal
Regulations as follows:
Subchapter B--Testing, Evaluation, and Approval of Mining Products
PART 5--FEES FOR TESTING, EVALUATION, AND APPROVAL OF MINING
PRODUCTS
0
1. The authority citation for part 5 continues to read as follows:
Authority: 30 U.S.C. 957.
0
2. Revise Sec. 5.10 to read as follows:
Sec. 5.10 Purpose and scope.
This part establishes a system under which MSHA charges a fee for
services provided. This part includes the management and calculation of
fees for the approval program which includes: application processing,
testing and evaluation, approval decisions, post-approval activities,
and termination of approvals.
0
3. Revise Sec. 5.30 to read as follows:
Sec. 5.30 Fee calculation.
(a) Fee calculation. MSHA charges a fee based on an hourly rate for
approval activities and other associated costs such as travel expenses
and Part 15 fees. Part 15 fees for services provided to MSHA by other
organizations may be set by those organizations.
(b) Hourly rate calculation. The hourly rate consists of direct and
indirect costs of the approval program, divided by the number of direct
hours worked on all approval program activities.
(1) Direct costs are compensation and benefit costs for hours
worked on approval program activities.
(2) Indirect costs are a proportionate share of the following
costs:
(i) Compensation and benefit hours worked in support of all
activities of the Approval and Certification Center;
(ii) Building and equipment depreciation costs of the Approval and
Certification Center;
(iii) Utilities, facility and equipment maintenance, and supplies
and materials of the Approval and Certification Center; and
(iv) Information Technology and other services centrally provided
by MSHA to the Approval and Certification Center.
(c) Fees are charged for:
(1) Application processing (e.g., administrative and technical
review of applications, computer tracking and status reporting);
(2) Testing and evaluation (e.g., analysis of drawings, technical
evaluation, testing, test set up and test tear down, and internal
quality control activities);
(3) Approval decisions (e.g., consultation on applications, records
control and security, document preparation); and
(4) Post-approval activities: Changes to approvals and post-
approval product audits.
(d) Fees are not charged for:
(1) Technical assistance not related to processing an approval
application;
(2) Technical programs including development of new technology
programs;
(3) Participation in research conducted by other government
agencies or private organizations; and
(4) Regulatory review activities, including participation in the
development of health and safety standards, regulations, and
legislation.
(e) Fee estimate. Except as provided in paragraphs (e)(1) and
(e)(2) of this section, on completion of an initial administrative
review of the application, the Approval and Certification Center will
prepare a maximum fee estimate for each application and will begin the
technical evaluation once the applicant authorizes the fee estimate.
(1) The applicant may pre-authorize an expenditure for services,
and may further choose to pre-authorize either a maximum dollar amount
or an expenditure without a specified maximum amount. All applications
containing a pre-authorization statement will be put in the queue for
the technical evaluation upon completion of an initial administrative
review. MSHA will concurrently prepare a maximum fee estimate for
applications containing a statement pre-authorizing a maximum dollar
amount, and will provide the applicant with this estimate. Where MSHA's
estimated maximum fee exceeds the pre-authorized maximum dollar amount,
the applicant has the choice of cancelling the action and paying for
all work done up to the time of the cancellation, or authorizing MSHA's
estimate.
(2) Under the Revised Acceptance Modification Program (RAMP), MSHA
expedites applications for acceptance of minor changes to previously
approved, certified, accepted, or evaluated products. The applicant
must pre-authorize a fixed dollar amount, set by MSHA, for processing
the application.
(f) If unforeseen circumstances are discovered during the
evaluation, and MSHA determines that these circumstances would result
in the actual costs exceeding either the pre-authorized expenditure or
the authorized maximum fee estimate, as appropriate, MSHA will prepare
a revised maximum fee estimate for completing the evaluation. The
applicant will have the option of either cancelling the action and
paying for services rendered or authorizing MSHA's revised estimate, in
which case MSHA will continue to test and evaluate the product.
(g) If the actual cost of processing the application is less than
MSHA's maximum fee estimate, MSHA will charge the actual cost.
0
4. Revise Sec. 5.40 to read as follows:
Sec. 5.40 Fee administration.
Applicants and approval holders will be billed for all fees,
including actual travel expenses, if any, when approval program
activities are completed. Invoices will contain specific payment
instruction, including the address to
[[Page 61041]]
mail payments and authorized methods of payment.
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5. Revise Sec. 5.50 to read as follows:
Sec. 5.50 Fee revisions.
The hourly rate will remain in effect for at least one year and be
subject to revision at least once every three years.
[FR Doc. 2014-24130 Filed 10-8-14; 8:45 am]
BILLING CODE 4510-43-P