[Federal Register Volume 70, Number 152 (Tuesday, August 9, 2005)]
[Rules and Regulations]
[Pages 46336-46344]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-15495]



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Part IV





Department of Labor





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Mine Safety and Health Administration



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30 CFR Parts 5, 15, et al.



Fees for Testing, Evaluation, and Approval of Mining Products; Final 
Rule and Proposed Rule

  Federal Register / Vol. 70, No. 152 / Tuesday, August 9, 2005 / Rules 
and Regulations  

[[Page 46336]]


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DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Parts 5, 15, 18, 19, 20, 22, 23, 27, 28, 33, 35, and 36

RIN 1219-AB38


Fees for Testing, Evaluation, and Approval of Mining Products

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

ACTION: Direct final rule.

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SUMMARY: We are amending our regulations to reflect established policy 
and procedures for administering fees for testing, evaluation, and 
approval of equipment and materials manufactured for use in the mining 
industry. This direct final rule eliminates the application fee, allows 
applicants to pre-authorize expenditures for processing applications, 
allows outside organizations conducting part 15 testing (explosives and 
sheathed explosive units) on our behalf to set fees for this testing, 
incorporates changes concerning our programs and organization, and 
makes non-substantive conforming changes to related regulations.

DATES: This direct final rule is effective November 7, 2005, without 
further notice, unless we receive significant adverse comment by 
October 11, 2005. If we receive such comment, we will publish a timely 
withdrawal of this direct final rule in the Federal Register.

ADDRESSES: Comments must include Regulation Identifier Number (RIN) 
1219-AB38 and may be submitted by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     E-mail to [email protected]. Please include RIN 1219-AB38 
in the subject line of the message.
    If you are unable to submit comments by e-mail or through the 
Federal eRulemaking portal, please identify your comments by RIN 1219-
AB38 and submit them by any of the following methods:
     Facsimile: (202) 693-9441.
     Regular Mail or Hand Delivery: MSHA, Office of Standards, 
Regulations, and Variances, 1100 Wilson Blvd., Room 2313, Arlington, 
Virginia 22201-3939.
    Access to Docket: We post all comments received without change, 
including any personal information provided, at http://www.msha.gov at 
the ``Rules & Regs'' link. Additionally, we post this document, our 
Program Policy Manual, and all Program Information Bulletins, Standard 
Administrative Procedures, and Program Policy Letters discussed in the 
SUPPLEMENTARY INFORMATION section of this preamble on our Web site at 
http://www.msha.gov. The public docket may be viewed at our Office of 
Standards, Regulations, and Variances, 1100 Wilson Blvd., Room 2350, 
Arlington, Virginia.

FOR FURTHER INFORMATION CONTACT: Rebecca J. Smith, Acting Director, 
Office of Standards, Regulations, and Variances at 202-693-9440 
(voice), 202-693-9441 (fax), or [email protected] (e-mail).

SUPPLEMENTARY INFORMATION: 

I. Direct Final Rule and Concurrent, Identical Proposed Rule

    Since the rule requirements are not controversial and primarily 
concern agency procedures, we have determined that the subject of this 
rulemaking is suitable for a direct final rule. No significant adverse 
comments are anticipated. However, concurrent with this direct final 
rule, a separate, identical proposed rule is published in today's issue 
of the Federal Register. The duplicate proposed rule will speed notice 
and comment rulemaking in the event we receive significant adverse 
comments and withdraw this direct final rule. All interested parties 
should comment at this time because we will not initiate an additional 
comment period. If no significant adverse comments to the accompanying 
proposed rule are received on or before October 11, 2005, this direct 
final rule will become effective November 7, 2005, without further 
notice.
    If significant adverse comments are received, we will publish a 
timely notice in the Federal Register withdrawing this direct final 
rule, and will then proceed with the rulemaking by addressing the 
comments and developing a final rule from the proposed rule published 
elsewhere in today's issue of the Federal Register. For purposes of 
withdrawing this direct final rule, a significant adverse comment is 
one that explains (1) why the direct final rule is inappropriate, 
including challenges to the rule's underlying premise or approach; or 
(2) why the direct final rule will be ineffective or unacceptable 
without a change. In determining whether a significant adverse comment 
necessitates withdrawal of this direct final rule, we will consider 
whether the comment raises an issue serious enough to warrant a 
substantive response through the notice and comment process. A comment 
recommending an addition to the rule will not be considered significant 
and adverse unless the comment explains how this rule would be 
ineffective without the addition.

II. Background

A. Rulemaking History

    The Federal Mine Safety and Health Act of 1977 (the Mine Act) (Pub. 
L. 91-173, as amended by Pub. L. 95-164) gives the Mine Safety and 
Health Administration responsibility for prescribing the technical 
design, construction, and evaluation criteria for certain products used 
in underground mines and for testing and approving these products so 
that the products will not cause a mine fire explosion or a mine fire. 
Most of the Mine Act's regulations for testing and approving these 
products relate to ``permissible'' equipment. The Mine Act's 
implementing regulations at Title 30 of the Code of Federal Regulations 
(30 CFR), parts 6 through 36 contain procedures by which applicants may 
apply for and have equipment approved as ``permissible,'' as defined in 
section 318 of the Mine Act, 30 U.S.C. 878, for use in mines.
    On May 8, 1987, we published a final rule (52 FR 17506) adding 30 
CFR part 5 (Fees for testing, evaluation, and approval of mining 
products). This rule created a uniform method for calculating fees and 
established specific procedures for administering the fee program. 
Since our initial implementation of part 5, changes to agency policies 
and procedures have significantly increased the efficiency of the 
approval process and the administration of the fee program. In 
particular, we have eliminated the application fee, allowed applicants 
to pre-authorize expenditures, and restructured existing programs for 
expediting requests for changes to previously approved mining products. 
This direct final rule will update part 5 to reflect these initiatives.
    Additionally, this rule removes a number of references to the 
Department of the Interior's former Bureau of Mines, which was 
dissolved in 1996 (Pub. L. 104-99). Prior to that time, the Bureau of 
Mines conducted part 15 testing on our behalf. NIOSH has assisted us 
with part 15 testing; however, NIOSH no longer has the resources to 
conduct these tests. This rule allows us to use other organizations to 
conduct part 15 testing.

B. Scope of Approval Activities

    The mining products that we approve range from small electronic 
devices to large complex mining systems. Our

[[Page 46337]]

Approval and Certification Center (Center) evaluates and tests these 
mining products and issues, among other things, ``approvals,'' 
``certifications,'' ``acceptances,'' ``extensions,'' and ``field 
modifications.''
    Under the narrow definition of ``approval,'' approvals are issued 
to a completely assembled machine or system or to an explosive. Under 
this definition, approval of a mining product constitutes a license 
authorizing the approval-holder to build and distribute the product for 
use in underground mines, and to advertise the product as ``MSHA-
approved.'' The approval-holder accepts the responsibility for 
constructing or formulating the product in exact accordance with all 
drawings and specifications that accompany the approval.
    A ``certification'' is issued to a component or sub-system of a 
completely assembled machine or system. An ``acceptance'' is issued for 
materials and certain other products. An ``extension'' of an approval 
or certification allows the applicant to make design modifications to 
the product. A ``field modification'' allows the owner of an MSHA 
approved piece of equipment to make specific changes to approved 
electrical equipment.
    Additionally, we administer a number of voluntary programs which 
are covered by this regulation to evaluate products to determine 
conformance to safety requirements of 30 CFR parts 56, 57, 75, and 77, 
or to determine the product's suitability for specific mining 
applications. For example, we use these voluntary programs to evaluate 
ground wire monitors, lighting systems, sealants and stopping systems, 
conveyor belt lagging material, belt wipers, and hydraulic hose and 
fire suppression agents and systems.
    Except where stated otherwise, we use the term ``approval'' in this 
preamble and regulation in a broad sense to represent our formal 
recognition of products that are approved, certified, or otherwise 
formally accepted for use in mining operations.
    Our regulations also allow other parties to perform product testing 
under certain circumstances. Part 6 of 30 CFR allows independent 
laboratories to test and evaluate certain mining products. It also 
permits MSHA to approve equipment designed to non-MSHA product safety 
standards once we have determined that the standard(s) can provide at 
least the same degree of protection or can be modified to provide at 
least the same degree of protection as 30 CFR requirements. Part 7 
allows the applicant or a third party to test certain products for 
which the testing requirements are objective in nature and can be 
routinely conducted by personnel knowledgeable in the particular 
product line or category. We retain the responsibility for evaluating 
the test results and issuing the approval for all products tested and 
evaluated under parts 6 and 7.

C. The Approval Process

    The approval process begins with the filing of an application. 
Parts 6 through 36 provide instructions for preparing and filing 
applications, which can vary with the type of mining product and type 
of approval requested. We administratively review each new application, 
and upon determination that the application is in order, prepare a fee 
estimate, if one is required. Our technical experts then thoroughly 
investigate, test, and evaluate the product.
    Following successful completion of the evaluation and testing, we 
provide the applicant with a written notice that the product meets all 
the applicable requirements.

III. Section-by-Section Analysis

A. Section 5.10 Purpose and Scope

    Existing section 5.10 sets out the purpose and scope of part 5. 
Revised section 5.10 remains substantially unchanged from the existing 
regulation. The term ``testing, evaluation and approval'' in existing 
paragraph (a) is changed to ``services provided under this 
subchapter.'' This change more clearly conveys that part 5 applies to 
all services which the Center provides and for which a fee is charged. 
These services include ``approvals'' as defined in both the narrow and 
broad sense as explained earlier in Part II B, ``Scope of Approval 
Activities.'' The term ``Except as provided in section 5.30(a)'' is 
added to the beginning of 5.10(b) to clarify that outside organizations 
conducting part 15 testing on our behalf may set the fees for this 
testing. These outside organizations will likely be government agencies 
or non-government organizations with laboratory facilities capable of 
performing part 15 tests.

B. Section 5.20 Effective Date

    Existing section 5.20 established the effective date of the 1987 
rule. Such a notice is not needed at this time because this Federal 
Register document provides the effective date for the direct final 
rule. For this reason, this revised rule deletes existing Sec.  5.20.

C. Section 5.30 Fee Calculation

    Existing paragraph 5.30(a) imposes a non-refundable application 
fee. This fee was intended to recover costs for initial review and 
administrative processing of the application in the event the applicant 
cancelled the action prior to commencement of the technical evaluation. 
Upon completion of the evaluation and testing, this payment was 
credited against the total charges billed to the applicant.
    Paying and processing this fee placed an additional administrative 
burden on the applicants and on us, and delayed the approval process. 
The applicant incurred the burden of remitting two payments during the 
application process, and we expended resources to process both 
payments. The technical evaluation could not begin until our finance 
office confirmed that the payment for the application fee had been 
posted. After reviewing this activity, we issued Program Policy Letter 
(PPL) No. 96-II-1, ``Waiver of the $100 Application Fee for Testing, 
Evaluation, and Approval of Mining Products,'' effective January 1, 
1996. This policy is now incorporated into our Program Policy Manual. 
In revised paragraph 5.30(a), the requirement for an application fee is 
removed to reflect our elimination of this fee.
    Revised paragraph 5.30(a) also incorporates and revises provisions 
from existing paragraphs 5.30(b) and (e). The provision from revised 
paragraph 5.30(b), which lists criteria for determining hourly fees, 
contains three revisions. First, the term ``testing, evaluation and 
approval'' in existing paragraph 5.30(b) is changed to ``services 
provided under this subchapter'' and moved to revised paragraph 
5.30(b). Second, the existing language concerning direct and indirect 
costs that is repeated from Section 5.10(b)(1) is omitted to eliminate 
redundancy. Third, since these criteria for determining hourly fees 
also apply to any flat rate fees that we would establish, the term 
``hourly fees'' is changed to ``fees.'' As noted earlier, when the 
existing rule was promulgated, we charged flat rate fees for certain 
services for which turnaround time was predictable and stable. The 
shift to the current system of hourly fees was driven partially by 
concerns about the equitable distribution of costs among applicants.
    As mentioned above, the provision in existing paragraph 5.30(e), 
concerning fees for tests conducted for MSHA by the former Bureau of 
Mines under part 15 (Requirements for approval of explosives and 
sheathed explosive units) is incorporated into revised paragraph 
5.30(a) and is substantially revised. The existing paragraph provides 
that ``Tests conducted by the

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Bureau of Mines for MSHA under part 15 are flat rate items.'' When the 
existing rule was promulgated, the former Bureau of Mines conducted 
these tests on our behalf. After the Bureau was dissolved, its facility 
for conducting explosives testing was transferred first to the 
Department of Energy and subsequently to NIOSH as a purely research 
function (30 U.S.C. 1 note).
    In January 1996 we received one application for the full range of 
part 15 tests. Since then we have received six part 15 applications, 
all for minor tests. During this time we relied on NIOSH to conduct 
part 15 tests; however, NIOSH did not have the facilities for 
conducting part 15 chemical analysis tests, and contracted another 
organization to conduct these tests. That organization subsequently 
ceased doing chemical analysis tests. NIOSH recently informed us that 
they no longer have the resources to perform all the part 15 tests. 
Since we do not have the facilities to conduct these tests, we must 
contract with other organizations to do any future part 5 testing. 
Revised paragraph 5.30(a) allows organizations conducting part 15 
testing on our behalf to set the fees for these tests. Since we cannot 
predict what fees the outside organizations will charge for any of 
these tests, the regularly published fee schedule, required under 
paragraph 5.50, will no longer specify the fees for part 15 testing.
    Revised paragraph 5.30(a) removes the term ``Bureau of Mines'' as 
well as the requirement to charge flat rate fees for part 15 testing. 
The revised paragraph provides that ``part 15 fees for services 
provided to MSHA by other organizations may be set by those 
organizations.'' That is, the new rule allows us to pass on the cost of 
services provided to MSHA by other organizations so that these costs 
can be billed to the applicant.
    Existing paragraph 5.30(b), as explained above, is also moved to 
revised paragraph 5.30(a). Revised paragraph 5.30(b) contains the 
provision from existing paragraph 5.30(c) concerning our maximum fee 
estimate.
    Under existing paragraph 5.30(c), we prepare an estimate of the 
maximum fees that would be incurred during evaluation of the product. 
The preamble to the existing rule, at 52 FR 17509, indicates our intent 
to provide this estimate to the applicant before beginning the 
technical evaluation ``to provide the applicant the opportunity to 
discuss the estimate or withdraw the application.'' Existing paragraph 
5.30(c) further provides that if unforeseen circumstances are 
discovered during the evaluation that would result in the actual fees 
exceeding this estimate, the applicant has the choice of canceling the 
action and paying for all work done up to the time of the cancellation, 
or approving our estimated maximum amount. If the estimate exceeds the 
actual fees, the applicant is charged the lesser amount. An exception 
to this provision exists for applications that were submitted under our 
two former flat rate fee programs. These services were charged a 
predetermined amount and therefore no estimate was provided. These two 
programs are outlined in detail below in the discussion of existing 
paragraph 5.30(d).
    In 1991, we revised our Program Policy Manual to allow applicants 
seeking approval of longwall equipment the option of pre-authorizing 
fees for testing and evaluation. The pre-authorization statement, 
submitted as part of the application, allowed the technical evaluation 
to begin immediately. At the request of applicants seeking testing and 
evaluation of other products, we expanded the policy to allow a pre-
authorization option for all products submitted for approval. We 
published this policy in Program Policy Letter No. 92-II-3, ``30 CFR 
Part 5 Fee Pre-Authorization,'' effective June 1, 1992. Under this 
policy, which is currently incorporated into our Program Policy Manual, 
applicants, other than those seeking modifications under our program 
for expedited modifications, may elect to pre-authorize an expenditure 
for fees by submitting a pre-authorization statement with the 
application. The applicant must either specify a maximum authorized 
expenditure for fees, or authorize an expenditure with no maximum 
amount. The latter option authorizes us to perform all testing and 
evaluation services that we deem necessary.
    Under existing policy, we determine whether or not to prepare a 
maximum fee estimate and when to begin the technical evaluation using 
the following guidelines:
    No pre-authorization statement: We prepare a maximum fee estimate 
which the applicant must authorize before the technical evaluation 
begins.
    Pre-authorized maximum expenditure: The applicant provides us with 
a maximum pre-authorized amount. We prepare a maximum fee estimate and 
at the same time forward the application for the technical evaluation. 
If no other applications are waiting in the queue, the technical 
evaluation may begin immediately. Where our estimate exceeds the pre-
authorized amount, the applicant has the choice of canceling the action 
and paying for all work done up to the time of the cancellation, or 
approving our estimated maximum amount.
    Pre-authorized expenditure with no stated maximum: The applicant 
pre-authorizes an expenditure with no stated maximum amount. We forward 
the application immediately for the technical evaluation, and the 
applicant receives no estimated maximum fee estimate.
    The revised paragraph modifies provisions in existing paragraph 
5.30(c) to provide exceptions for pre-authorized fees and flat rate 
programs. Paragraph 5.30(b)(1) is added to reflect our policy of 
allowing applicants the option of pre-authorizing fees.
    Paragraph 5.30(b)(2) is added to reflect our policy of requiring a 
specific pre-authorized expenditure for applications submitted under 
the Revised Application Modification Program (RAMP). This program is 
discussed in the narrative for Sec.  5.30(d).
    Finally, the existing rule uses the term ``estimated maximum fee 
(cap).'' For a number of reasons, including continuity, we no longer 
use the term ``cap'' to refer to this amount. The revised rule replaces 
this term wherever it appears in the rule with the term ``maximum fee 
estimate.''
    The provisions of existing paragraph 5.30(c) address:
    (1) Our determination of a maximum fee estimate prior to the start 
of technical evaluation;
    (2) Unforeseen circumstances during the technical evaluation which 
could result in the actual cost exceeding the maximum fee estimate; and
    (3) The situation where the maximum fee estimate exceeds the actual 
cost.
    The first provision is moved to paragraph 5.30(b), and is discussed 
above. The second provision remains in paragraph 5.30(c), and third 
provision is moved to paragraph 5.30(d).
    The second provision, involving unforeseen circumstances during the 
technical evaluation that could result in the actual cost exceeding the 
maximum fee estimate, requires us to provide the applicant with a 
revised maximum fee estimate for completing the evaluation. The 
applicant may then either cancel the evaluation or authorize the 
revised fee estimate. Under our policy, if the applicant chooses to 
cancel the evaluation, fees will be charged for work performed up to 
the cancellation. If the applicant authorizes the new maximum fee 
estimate, we will continue testing and evaluating the product.
    Revised paragraph 5.30(c) leaves this provision substantially 
unchanged, but the concept is applied to any expenditure approved by 
the applicant,

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whether that expenditure is the estimated maximum fee or the 
applicant's pre-authorized expenditure. This provision is not 
applicable where the pre-authorized expenditure has no stated maximum. 
Additionally, the term ``cap'' is changed to ``maximum fee estimate.''
    Existing paragraph 5.30(d) addresses the former Stamped 
Notification Acceptance Program (SNAP) and Stamped Revision Acceptance 
(SRA) program. These programs were developed to expedite the acceptance 
of certain minor changes to previously approved products, and required 
only a few documents to be submitted with the application. SNAP 
addressed acceptance of single changes to an approved product, 
including changes that pertained to the technical requirements of an 
approved product without adversely affecting permissibility. SRA 
addressed acceptance of single or multiple changes to an approved 
product, provided the change(s) did not affect the technical 
requirements. The Center charged a flat rate fee for services provided 
under these programs.
    Over time, using and administering both of these programs created 
inefficiency and unnecessary duplication. Applicants were often 
uncertain which program (e.g., SNAP, SRA, or an extension of approval) 
to use for requesting changes in the design of approved products. This 
confusion often led to administrative errors and the need to re-submit 
the application. Further, since SNAP applied to single changes to 
approved products, a separate application was required for each 
specific proposed change. In 1998, both programs were replaced with the 
Revised Approval Modification Program (RAMP). Under RAMP, requests for 
acceptance of minor changes to approved products are made by submitting 
a letter of application describing the changes, along with drawings and 
specifications that fully describe each change. Services provided under 
RAMP are charged an hourly fee, and the letter of application must 
contain a statement authorizing a minimum dollar amount set by the 
Agency. A discussion of RAMP was included in the notice of fee 
adjustments, published on December 18, 1998 (63 FR 70163), and in 
Standard Application Procedure ASAP1005, ``Revised Approval 
Modification Program (RAMP) Application Procedure'' published on March 
28, 2000.
    Revised paragraph 5.30(d) removes the SNAP and SRA requirements, 
and retains the provision in existing paragraph 5.30(c) concerning 
applications for which the estimated maximum fee exceeds the actual 
hourly fee. The existing provision requires us to charge the actual 
fee. Revised paragraph 5.30(d) leaves this provision substantially 
unchanged; however, the scope is expanded to include instances where 
the actual hourly fee exceeds any expenditure approved by the 
applicant, whether that expenditure is the estimated maximum fee or the 
applicant's pre-authorized expenditure.
    Existing paragraph 5.30(e) addresses fees for testing under part 
15. The revised rule moves this provision to paragraph 5.30(a) and 
deletes paragraph 5.30(e) entirely. The revisions to part 15 fees are 
discussed in the narrative for revised paragraph 5.30(a).

D. 5.40 Fee Administration

    Existing paragraph 5.40(a) provides applicants with detailed 
instructions for submitting the application fee. Existing paragraph 
5.40(b) concerns the method of paying for services provided under SNAP 
and SRA. Since the application fee, SNAP, and SRA have been eliminated, 
as discussed above, these paragraphs are removed. Existing paragraph 
5.40(c) addresses billing procedures for services which are billed at 
an hourly rate. The existing paragraph provides that applicants are 
billed when processing of the application is complete; any actual 
travel expenses are included in the bill; and the invoice will contain 
specific payment instructions. Our current regulations in 30 CFR Parts 
18 through 36 allow payment for part 5 fees only by check, bank draft, 
or money order.
    Revised section 5.40 applies the billing procedures in existing 
paragraph 5.40(c) to all fees administered under part 5, and informs 
applicants that invoices will contain specific payment instructions, 
including the address to mail payments and authorized methods of 
payment.
    Applicants had informally requested that MSHA allow payment by 
credit card as a means of expediting the payment process and decreasing 
administrative costs to applicants. MSHA determined that this option 
can benefit both the applicant and the government, and recently began 
accepting payments by credit card. Revised paragraph 5.40 allows MSHA 
the flexibility to accept credit card payment as an authorized method 
of payment. The remaining provisions of existing paragraph 5.40(c) are 
substantially unchanged.

E. Overview of Conforming Changes

    Parts 18, 19, 20, 22, 23, 27, 28, 33, 35, and 36 contain detailed 
instructions for submitting applications for approvals and 
certifications. Each part instructs the applicant to send a check, bank 
draft, or money order with the application. The rule removes this 
instruction, and any other reference to payments submitted with 
applications, to allow these sections to conform to the revised part 5 
provisions concerning application fees and payment of fees, and to 
reflect our current policy, as stated in the Program Policy Manual. 
Additionally, the rule updates the Center's address and removes 
outdated references to the former Bureau of Mines.

F. Section 15.3 Observers at Tests and Evaluations

    The term ``Bureau of Mines, U.S. Department of the Interior'' is 
replaced with the term ``designees of MSHA.'' As explained in the 
discussion of revised paragraph 5.30(a), the Bureau of Mines no longer 
exists.

G. Section 18.6 Applications

    In paragraph 18.6(a)(1), the term ``accompanied by a check, bank 
draft, or money order, payable to the U.S. Mine Safety and Health 
Administration to cover the fees,'' is removed from the application 
instructions to reflect our policy of waiving the application fee. 
Additionally, language is added to specify that the procedures for 
payment of fees are found in Sec.  5.40 of the revised rule.

H. Section 19.3 Applications

    In paragraph 19.3(a), the term ``accompanied by a check, bank 
draft, or money order, payable to U.S. Mine Safety and Health 
Administration, to cover all the necessary fees,'' is removed from the 
application instructions to reflect our policy of waiving the 
application fee. Additionally, language is added to specify that the 
procedures for payment of fees are found in Sec.  5.40 of the revised 
rule.

I. Section 20.3 Applications

    In paragraph 20.3(a), the term ``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,'' is removed from the 
application instructions to reflect our policy of waiving the 
application fee. Additionally, language is added to specify that the 
procedures for payment of fees are found in Sec.  5.40 of the revised 
rule.

[[Page 46340]]

J. Section 22.4 Applications

    In paragraph 22.4(a), the term ``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,'' is removed from the 
application instructions to reflect our policy of waiving the 
application fee. Additionally, language is added to specify that the 
procedures for payment of fees are found in Sec.  5.40 of the revised 
rule.

K. Section 23.3 Applications

    In paragraph 23.3(a), the term ``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,'' is removed from the 
application instructions to reflect our policy of waiving the 
application fee. Additionally, language is added to specify that the 
procedures for payment of fees are found in Sec.  5.40 of the revised 
rule.

L. Section 27.4 Applications

    In paragraph 27.4(a)(1), the term ``and also a check, bank draft, 
or money order payable to the U.S. Mine Safety and Health 
Administration, to cover the fees'' is removed from the application 
instructions to reflect our policy of waiving the application fee. 
Additionally, language is added to specify that the procedures for 
payment of fees are found in Sec.  5.40 of the revised rule.

M. Section 27.9 Date for Conducting Tests

    The existing section lists the ``application, payment of necessary 
fees, and submission of required material'' as criteria for determining 
the order of testing when more than one application is pending. The 
revised section removes the reference to payment of fees and revises 
the sentence to conform to similar provisions in existing Sec.  18.8 
(Date for conducting investigation and tests). The revised sentence 
reads: ``The date of receipt of an application will determine the order 
of precedence for investigation and testing.'' The revised section 
reflects our policy of waiving the application fee.

N. Section 28.10 Application Procedures

    Existing Sec.  28.10 requires applicants seeking approval of 
certain fuses to submit the fuses to a nationally recognized 
independent testing laboratory for examination, inspection, and testing 
prior to submitting an approval application to the Center. Paragraph 
28.10(c) contains instructions for submitting these laboratory data and 
results to the Center, and includes a requirement that payment for the 
application fee accompany these documents. Revised paragraph 28.10(c) 
removes the requirement to send a payment with the laboratory 
documents. This change corresponds to the elimination of the 
application fee. Additionally, language is added to specify that the 
procedures for payment of fees are found in Sec.  5.40 of the revised 
rule.

O. Section 33.3 Consultation

    This section contains an outdated address for the Center and a 
reference to the former Bureau of Mines. The revised section updates 
the Center's address and replaces the term ``Bureau'' with ``MSHA.''

P. Section 33.6 Applications

    In paragraph 33.6(a)(1), the term ``accompanied by a check, bank 
draft, or money order, payable to the U.S. Mine Safety and Health 
Administration, to cover the fees;'' is removed from the application 
instructions to reflect our policy of waiving the application fee. 
Additionally, language is added to specify that the procedures for 
payment of fees are found in Sec.  5.40 of the revised rule.

Q. Section 35.6 Applications

    In paragraph 35.6(a)(1), the term ``accompanied by a check, bank 
draft, or money order, payable to the U.S. Mine Safety and Health 
Administration, to cover the fees;'' is removed from the application 
instructions to reflect our policy of waiving the application fee. 
Additionally, language is added to specify that the procedures for 
payment of fees are found in Sec.  5.40.

R. Section 36.6 Applications

    In paragraph 36.6(a)(1), the term ``accompanied by a check, bank 
draft, or money order, payable to the U.S. Mine Safety and Health 
Administration, to cover the fees;'' is removed from the application 
instructions to reflect our policy of waiving the application fee. 
Additionally, language is added to specify that the procedures for 
payment of fees are found in Sec.  5.40.

S. Derivation and Distribution Tables

    The following derivation table lists each section number of the 
final rule and the section number of the existing standard from which 
the section is derived.

                            Derivation Table
------------------------------------------------------------------------
                Final rule                        Existing section
------------------------------------------------------------------------
Removed..................................  5.20.
Removed..................................  5.30(a).
5.30(a)..................................  5.30(b).
5.30(b)..................................  5.30(c).
5.30(c)..................................  5.30(c).
5.30(d)..................................  5.30(c).
Removed..................................  5.30(e).
5.40.....................................  5.40(c).
------------------------------------------------------------------------

    The following distribution table lists each section number of the 
existing standards, and the section number of the final rule which 
contains provisions derived from the corresponding existing section.

                           Distribution Table
------------------------------------------------------------------------
             Existing section                        Final rule
------------------------------------------------------------------------
5.20(a)..................................  Removed.
5.30(a)..................................  Removed.
5.30(b)..................................  5.30(a).
5.30(c)..................................  5.30(b), (c), and (d).
5.30(d)..................................  Removed.
5.30(e)..................................  Removed.
5.40(a)..................................  Removed.
5.40(b)..................................  Removed.
5.40(c)..................................  5.40.
------------------------------------------------------------------------

IV. Regulatory Impact Analysis

A. Executive Order 12866 Regulatory Planning and Review

Compliance Costs
    Executive Order 12866, as amended by Executive Order 13258, 
requires that regulatory agencies assess both the costs and benefits of 
intended regulations. We have satisfied the requirement of Executive 
Order 12866 for this rule and determined that the rule does not have an 
annual effect of $100 million or more on the economy. Therefore, the 
rule is not an economically significant regulatory action pursuant to 
section 3(f)(1) of Executive Order 12866.
    The rule affects applicants who request approval for products used 
in the mining industry. The rule does not result in any cost increases 
or savings to these applicants.
    As noted earlier, existing Sec.  5.30(a) imposes a non-refundable 
standard application fee on each initial application. Since we 
eliminated the application fee in 1996, deleting the application fee 
requirement from existing Sec.  5.30(a) would not cause applicants to 
incur any costs or cost savings.
Benefits
    The rule will change our existing regulatory language to be 
consistent

[[Page 46341]]

with current practices and will continue to allow us to process 
applications in a timely and efficient manner. Thus, new and improved 
products that enhance the safety of the miner will be allowed to enter 
the mine as soon as possible.
    The application fee discussed above was intended to offset 
administrative review costs in the event that the applicant cancelled 
an application prior to commencement of the technical evaluation. We 
eliminated this fee because it tended to lengthen the approval and 
certification process and placed unnecessary burdens on us and the 
applicant. This rulemaking eliminates the outdated application fee 
language in the existing regulation.
    Also as noted earlier, since 1992, we have allowed the applicant to 
pre-authorize an expenditure for the testing and evaluation that is 
associated with an application. This permits us to begin immediate 
evaluation work if no other applications are awaiting initial actions. 
This rulemaking adds regulatory language that continues to allow 
applicants the option to pre-authorize an expenditure for testing and 
evaluation that is associated with an application.
    Furthermore, no provision in this rulemaking diminishes the health 
or safety of U.S. miners.

B. Regulatory Flexibility Act and Small Business Regulatory Enforcement 
Fairness Act

    The Regulatory Flexibility Act (RFA) requires regulatory agencies 
to consider a rule's economic impact on small entities. Under the RFA, 
we 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, we established an 
alternative definition for a small entity and publish that definition 
in the Federal Register for notice and comment. This rule applies to 
persons or entities applying for approval of products used in the 
mining industry. These applicants operate in industries involved in 
measurement, analysis, or controlling instruments; photographic 
instruments; commercial and industrial lighting fixtures; conveyors; or 
mining equipment. SBA's definition of a small business for these 
industries is 500 or fewer employees. Therefore, we have examined the 
impact on applicants which have 500 or fewer employees and seek MSHA 
approval for mining products.

C. Factual Basis for Certification

    Using SBA's definition of a small entity, there are no annual cost 
increases or savings to applicants affected by this rulemaking. 
Therefore, we have concluded that this rule will not have a significant 
economic impact on a substantial number of small entities.

V. Other Regulatory Matters

A. Paperwork Reduction Act of 1995

    There are no paperwork burden hours or costs associated with this 
rulemaking. Therefore, this direct final rule contains no information 
collections subject to review by the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act.

B. Unfunded Mandates Reform Act

    This rule does not include any Federal mandate that may result in 
increased expenditures by State, local, or tribal governments; nor will 
it increase private sector expenditures by more than $100 million 
annually; nor will it significantly or uniquely affect small 
governments. Accordingly, the Unfunded Mandates Reform Act of 1995 
requires no further agency action or analysis.

C. Assessment of Federal Regulations and Policies on Families

    This rule has no effect on family well-being or stability, marital 
commitment, parental rights or authority, or income or poverty of 
families and children. Accordingly, Section 654 of the Treasury and 
General Government Appropriations Act of 1999 requires no further 
agency action, analysis, or assessment.

D. Executive Order 12630: Government Actions and Interference With 
Constitutionally Protected Property Rights

    This rule does not implement a policy with takings implications. 
Accordingly, Executive Order 12630, Governmental Actions and 
Interference with Constitutionally Protected Property Rights, requires 
no further agency action or analysis.

E. Executive Order 12988: Civil Justice Reform

    This rule was drafted and reviewed in accordance with Executive 
Order 12988, Civil Justice Reform. The rule was written to provide a 
clear legal standard for affected conduct and was carefully reviewed to 
eliminate drafting errors and ambiguities, so as to minimize litigation 
and undue burden on the Federal court system. We have determined that 
this rule would meet the applicable standards provided in Section 3 of 
Executive Order 12988.

F. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    This rule has no adverse impact on children. Accordingly, Executive 
Order 13045, Protection of Children from Environmental Health Risks and 
Safety Risks, as amended by Executive Orders 13229 and 13286, requires 
no further agency action or analysis.

G. Executive Order 13132: Federalism

    This rule does not have ``federalism implications,'' because it 
does 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, Executive Order 13132, Federalism, requires 
no further agency action or analysis.

H. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This rule has no ``tribal implications'' because it does 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, Executive Order 13175, 
Consultation and Coordination with Indian Tribal Governments, requires 
no further agency action or analysis.

I. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    In accordance with Executive Order 13211, MSHA personnel reviewed 
this rule for its impact on the supply, distribution, and use of 
energy. This rule does not result in any cost increases or savings to 
applicants seeking approval for mining products and would not reduce 
the supply of coal nor increase its price.
    This rule 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, 
Executive Order 13211, Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use, requires no 
further agency action or analysis.

[[Page 46342]]

J. Executive Order 13272: Proper Consideration of Small Entities in 
Agency Rulemaking

    In accordance with Executive Order 13272, we thoroughly reviewed 
this rule to assess and take appropriate account of its potential 
impact on small businesses, small governmental jurisdictions, and small 
organizations. We determined and certified that this rule does not have 
a significant economic impact on a substantial number of small 
entities.

    Dated: July 29, 2005.
David G. Dye,
Deputy Assistant Secretary of Labor for Mine Safety and Health.

List of Subjects

30 CFR Part 5

    Fees, Mine safety and health.

30 CFR Parts 15 and 18

    Fees, Mine safety and health, Reporting and recordkeeping 
requirements.

30 CFR Parts 19, 20, 22, 27, and 28

    Fees, Mine safety and health.

30 CFR Parts 23, 33, 35, and 36

    Fees, Mine safety and health, Reporting and recordkeeping 
requirements, Research.


0
Accordingly, Chapter I of Title 30 of the Code of Federal Regulations 
is amended as follows:

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. Section 5.10 is amended by revising paragraph (a) to read as 
follows:


Sec.  5.10  Purpose and scope.

    (a) This part establishes a system under which MSHA charges a fee 
for services provided under this subchapter. This part includes the 
management and calculation of these fees.
* * * * *

0
3. Section 5.20 is removed.

0
4. Section 5.30 is revised to read as follows:


Sec.  5.30  Fee calculation.

    (a) MSHA bases fees under this subchapter on the direct and 
indirect costs of the services provided, except that part 15 fees for 
services provided to MSHA by other organizations may be set by those 
organizations.
    (b) Except as provided in paragraphs (b)(1) and (2) of this 
section, upon 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 
under this subchapter, 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 
immediately 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.
    (c) 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.
    (d) If the actual cost of processing the application is less than 
MSHA's maximum fee estimate, MSHA will charge the actual cost.
* * * * *

0
5. Section 5.40 is revised to read as follows:


Sec.  5.40  Fee administration.

    Applicants will be billed for all fees, including actual travel 
expenses, if any, when processing of the application is completed. 
Invoices will contain specific payment instructions, including the 
address to mail payments and authorized methods of payment.
* * * * *

PART 15--REQUIREMENTS FOR APPROVAL OF EXPLOSIVES AND SHEATHED 
EXPLOSIVE UNITS

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

    Authority: 30 U.S.C. 957.


0
7. Section 15.3 is revised to read as follows:


Sec.  15.3  Observers at tests and evaluation.

    Only personnel of MSHA, designees of MSHA, representatives of the 
applicant, and such other persons as agreed upon by MSHA and the 
applicant shall be present during tests and evaluations conducted under 
this part.
* * * * *

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

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


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


0
9. Section 18.6(a)(1) is revised to read as follows:


Sec.  18.6  Application procedures and requirements.

    (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. The application shall be 
accompanied by all necessary drawings, specifications, descriptions, 
and related materials, as set out in this part. Fees calculated in 
accordance with part 5 of this title shall be submitted in accordance 
with Sec.  5.40.
* * * * *

PART 19--ELECTRIC CAP LAMPS

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

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


0
11. In Sec.  19.3 the heading and paragraph (a) are revised to read as 
follows:


Sec.  19.3  Application procedures and requirements.

    (a) Before MSHA will undertake the active investigation leading to 
approval of any lamp, the applicant shall make application by letter 
for an investigation leading to approval of the lamp. This

[[Page 46343]]

application shall be sent to: U.S. Department of Labor, Mine Safety and 
Health Administration, Approval and Certification Center, RR 
1, Box 251, Industrial Park Road, Triadelphia, West Virginia 
26059, together with the required drawings, one complete lamp, and 
instructions for its operation. Fees calculated in accordance with part 
5 of this title shall be submitted in accordance with Sec.  5.40.
* * * * *

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

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

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


0
13. In Sec.  20.3 the heading and paragraph (a) are revised to read as 
follows:


Sec.  20.3  Application procedures and requirements.

    (a) Before MSHA will undertake the active investigation of any 
lamp, the applicant shall make application by letter for an 
investigation of the lamp. This application shall be sent to: U.S. 
Department of Labor, Mine Safety and Health Administration, Approval 
and Certification Center, RR 1, Box 251, Industrial Park Road, 
Triadelphia, West Virginia 26059, together with the required drawings, 
one complete lamp, and instructions for its operation. Fees calculated 
in accordance with part 5 of this title shall be submitted in 
accordance with Sec.  5.40.
* * * * *

PART 22--PORTABLE METHANE DETECTORS

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

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


0
15. In Sec.  22.4 the heading and paragraph (a) are revised to read as 
follows:


Sec.  22.4  Application procedures and requirements.

    (a) Before MSHA will undertake the active investigation of leading 
to approval of any methane detector, the applicant shall make 
application by letter for an investigation leading to approval of the 
detector. This application shall be sent to: U.S. Department of Labor, 
Mine Safety and Health Administration, Approval and Certification 
Center, RR 1, Box 251, Industrial Park Road, Triadelphia, West 
Virginia 26059, together with the required drawings, one complete 
detector, and instructions for its operation. Fees calculated in 
accordance with part 5 of this title shall be submitted in accordance 
with Sec.  5.40.
* * * * *

PART 23--TELEPHONES AND SIGNALING DEVICES

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

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


0
17. In Sec.  23.3 the heading and paragraph (a) are revised to read as 
follows:


Sec.  23.3  Application procedures and requirements.

    (a) Before MSHA will undertake the active investigation of leading 
to approval of any telephone or signaling device, the applicant shall 
make application by letter for an investigation leading to approval of 
the device. This application shall be sent to: U.S. Department of 
Labor, Mine Safety and Health Administration, Approval and 
Certification Center, RR 1, Box 251, Industrial Park Road, 
Triadelphia, West Virginia 26059, together with the required drawings, 
one complete telephone or signaling device, and instructions for its 
operation. Fees calculated in accordance with part 5 of this title 
shall be submitted in accordance with Sec.  5.40.
* * * * *

PART 27--METHANE-MONITORING SYSTEMS

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

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


0
19. In Sec.  27.4 the heading and paragraph (a)(1) are revised to read 
as follows:


Sec.  27.4  Application procedures and requirements.

    (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. The application and all related matters and correspondence 
shall be addressed to: U.S. Department of Labor, Mine Safety and Health 
Administration, Approval and Certification Center, RR 1, Box 
251, Industrial Park Road, Triadelphia, West Virginia 26059. Fees 
calculated in accordance with part 5 of this title shall be submitted 
in accordance with Sec.  5.40.
* * * * *


Sec.  27.9  [Amended]

0
20. Section 27.9 is amended by revising the first sentence to read 
``The date of receipt of an application will determine the order of 
precedence for investigation and testing.''

PART 28--FUSES FOR USE WITH DIRECT CURRENT IN PROVIDING SHORT-
CIRCUIT PROTECTION FOR TRAILING CABLES IN COAL MINES

0
21. The authority citation for part 28 continues to read as follows:

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

Sec.  28.10  [Amended]

0
22. Section 28.10, paragraph (c), is amended by removing the final 
sentence and adding ``Fees calculated in accordance with part 5 of this 
title shall be submitted in accordance with Sec.  5.40.'' in its place.

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

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

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


0
24. Section 33.3 is revised to read as follows:


Sec.  33.3  Consultation.

    By appointment, applicants or their representatives may visit the 
Approval and Certification Center, Industrial Park Road, Dallas Pike, 
Triadelphia, WV 26059, to discuss with MSHA personnel proposed designs 
of equipment to be submitted in accordance with the regulations of this 
part. No charge is made for such consultation and no written report 
thereof will be made to the applicant.
* * * * *

0
25. In Sec.  33.6 the heading and paragraph (a)(1) are revised to read 
as follows:


Sec.  33.6  Application procedures and requirements.

    (a)(1) No investigation or testing for certification will be 
undertaken by MSHA except pursuant to a written application (except as 
provided in paragraph (e) of this section), accompanied by all 
prescribed drawings, specifications, and related materials. The 
application and all related matters and correspondence shall be 
addressed to: U.S. Department of Labor, Mine Safety and Health 
Administration, Approval and Certification Center, RR 1, Box 
251, Industrial Park Road, Triadelphia, West Virginia 26059. Fees 
calculated in accordance with part 5 of this title shall be submitted 
in accordance with Sec.  5.40.
* * * * *

[[Page 46344]]

PART 35--FIRE-RESISTANT HYDRAULIC FLUIDS

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

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


0
27. In Sec.  35.6 the heading and paragraph (a)(1) are revised to read 
as follows:


Sec.  35.6  Application procedures and requirements.

    (a)(1) No investigation or testing will be undertaken by MSHA 
except pursuant to a written application accompanied by all 
descriptions, specifications, test samples, and related materials. The 
application and all related matters and correspondence shall be 
addressed to: U.S. Department of Labor, Mine Safety and Health 
Administration, Approval and Certification Center, RR 1, Box 
251, Industrial Park Road, Triadelphia, West Virginia 26059. Fees 
calculated in accordance with part 5 of this title shall be submitted 
in accordance with Sec.  5.40.
* * * * *

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

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

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


0
29. In Sec.  36.6 the heading and paragraph (a)(1) are revised to read 
as follows:


Sec.  36.6  Application procedures and requirements.

    (a)(1) No investigation or testing will be undertaken by MSHA 
except pursuant to a written application accompanied by all 
descriptions, specifications, test samples, and related materials. The 
application and all related matters and correspondence shall be 
addressed to: U.S. Department of Labor, Mine Safety and Health 
Administration, Approval and Certification Center, RR 1, Box 
251, Industrial Park Road, Triadelphia, West Virginia 26059. Fees 
calculated in accordance with part 5 of this title shall be submitted 
in accordance with Sec.  5.40.
* * * * *

[FR Doc. 05-15495 Filed 8-8-05; 8:45 am]
BILLING CODE 4510-43-P