[Federal Register Volume 76, Number 38 (Friday, February 25, 2011)]
[Rules and Regulations]
[Pages 10500-10516]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-3937]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1910

[Docket No. OSHA-2007-0031]


Nationally Recognized Testing Laboratories Fees

AGENCY: Occupational Safety and Health Administration (OSHA), Labor.

ACTION: Final rule.

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SUMMARY: The Occupational Safety and Health Administration (OSHA) is 
adjusting the approach it uses for calculating the fees the Agency 
charges Nationally Recognized Testing Laboratories (NRTLs), and also is 
requiring prepayment of these fees. This adjustment increases the fees; 
OSHA is phasing in the fee increase over three years for existing NRTLs 
and pending NRTL applicants. OSHA began charging NRTLs fees in 2000, 
and revised the fee schedule only twice since then (in 2002 and 2007).

DATES: This final rule becomes effective on March 28, 2011.

FOR FURTHER INFORMATION CONTACT: MaryAnn Garrahan, Director, Office of 
Technical Programs and Coordination Activities, NRTL Program, 
Occupational Safety and Health Administration, U.S. Department of 
Labor, 200 Constitution Avenue, NW., Room N-3655, Washington, DC 20210, 
or phone (202) 693-2110. OSHA's Web page includes information about the 
NRTL Program (see http://www.osha.gov/dts/otpca/nrtl/index.html or see 
http://www.osha.gov and select ``N'' in the site index).

SUPPLEMENTARY INFORMATION:

I. Introduction
II. Background
III. Legal Considerations
IV. Explanation of the Revised Approach for Calculating Fees
V. Basis and Derivation of Fee Amounts
VI. Revised Fee Schedules
VII. Description of Fees
VIII. Major Changes to the Fee Schedule
IX. Changes to 29 CFR 1910.7(f)
X. Final Economic Analysis and Regulatory Flexibility Analysis
XI. Unfunded Mandates Reform Act
XII. Paperwork Reduction Act
XIII. Federalism
XIV. State Plan States
XV. Authority and Signature

I. Introduction

    The Occupational Safety and Health Administration (OSHA) is 
adjusting the approach it uses to calculate the fees charged to 
Nationally Recognized Testing Laboratories (NRTLs). This adjustment 
will recoup a larger percentage of the cost of administering the NRTL 
Program than the current approach. This adjustment allows OSHA to 
continue to charge NRTLs for the core application processing and audit 
functions performed under the NRTL Program, while also recouping the 
other costs, such as the cost for ancillary activities that provide 
special benefits to NRTLs, that currently represent a significant 
portion of OSHA's costs of running the NRTL Program.
    Because the revised approach results in a large increase in the 
fees for existing NRTLs and pending NRTL applicants, OSHA is 
instituting a three-year phase-in period for any fee increase that is 
greater than $200. OSHA also is revising language in 29 CFR 1910.7(f) 
(the OSHA rule implementing the NRTL fee structure) to clarify the cost 
basis for the fees. In addition, OSHA will now require advance payment 
of all NRTL fees, which complies with instructions to Federal agencies 
issued by the Office of Management and Budget (OMB).
    In this notice, section II describes the NRTL Program and the prior 
fee structure for charging NRTLs for application processing and audits. 
In section III, OSHA explains the legal authority for recovering costs 
for ancillary activities and leave. The Agency also explains the basis 
for advance collection of the fees. Section IV describes how OSHA will 
recoup the ancillary and leave costs, and section V shows the 
derivation of the fee amounts. Sections VI and VII present the revised 
fee schedule and fee descriptions, respectively, and address the sole 
comment OSHA received in response to the proposal. Finally, in sections 
VIII and IX, respectively, OSHA explains the

[[Page 10501]]

major revisions to the fees and to the regulatory text of 29 CFR 
1910.7(f).

II. Background

    Many of OSHA's safety standards require approval (i.e., tested and 
certified) of equipment or products used in the workplace to help 
ensure that workers can use them safely. See, e.g., 29 CFR part 1910, 
subpart S. In general, an NRTL must approve such equipment and 
products. The NRTL Program administered by OSHA ensures that 
laboratories perform testing and certification appropriately,
    The NRTL Program requirements are set forth in 29 CFR 1910.7, 
``Definition and requirements for a nationally recognized testing 
laboratory,'' which specifies that, to receive and maintain recognition 
as an NRTL, an organization must: (1) Have the appropriate capability 
to test, evaluate, and approve products to assure safe use of the 
products in the workplace; (2) be completely independent of the 
manufacturers, vendors, and major users of the products for which OSHA 
requires certification; (3) have internal programs that ensure proper 
control of the testing and certification process; and (4) have 
effective reporting and complaint handling procedures. 29 CFR 
1910.7(b).
    OSHA requires that organizations applying for initial recognition 
as an NRTL provide, in writing, detailed and comprehensive information 
about their programs, processes, and procedures. To process an 
application, OSHA reviews the written information for completeness and 
adequacy, and conducts an on-site assessment to determine whether the 
organization meets the requirements of 29 CFR 1910.7. OSHA uses a 
similar process when an NRTL (i.e., an organization already recognized) 
applies for expansion or renewal of its recognition. In addition, the 
Agency conducts annual audits primarily to ensure that each NRTL 
maintains its programs and continues to meet the recognition 
requirements. Currently, there are 15 NRTLs operating 49 recognized 
sites in the U.S., Canada, Europe, and the Far East. Application 
processing and audits are the core functions that OSHA performs for the 
NRTL Program.
    To perform these core functions, OSHA also must perform a number of 
ancillary activities that support these functions. OSHA investigates 
complaints filed against NRTLs to ensure that the laboratories are 
performing their testing and certification functions adequately. In 
addition, OSHA represents the NRTL Program in a variety of forums 
related to conformity assessment \1\ of products used in the workplace. 
OSHA also maintains a detailed Web site that both explains the program 
and, more importantly for the NRTLs, lists all the laboratories 
currently recognized under the NRTL Program, the products each 
laboratory can test, and registered certification marks used by each 
laboratory.
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    \1\ OSHA generally uses the term ``approval'' to describe the 
type of testing or certification activities performed by NRTLs. 
Conformity assessment is a term used internationally to describe 
such activities, and is defined as ``any activity concerned with 
determining directly or indirectly that requirements are 
fulfilled.'' (see item 12.2, ISO Guide 2--Standardization and 
related activities--General vocabulary.)
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    On August 30, 2000, OSHA established a schedule of fees for several 
of the services rendered to NRTLs; specifically, the application 
processing and audit functions. In the Federal Register notice 
announcing the fee schedule (65 FR 46797, July 31, 2000), OSHA found 
that laboratories receive ``special benefits'' from the NRTL Program, 
and that charging these laboratories was appropriate under the 
Independent Offices Appropriations Act of 1952 (IOAA) (31 U.S.C. 9701), 
OMB Circular A-25 ``User Charges,'' and other legal authorities. 65 FR 
46803. At 65 FR 46807, OSHA stated:

    NRTLs accrue ``special benefits'' from the services that OSHA 
renders to them. These ``special benefits'' are the product of 
OSHA's initial and continuing evaluation of their qualifications to 
test and certify products used in the workplace, e.g., the 
acknowledgement of their capability as an NRTL. The primary special 
benefits of NRTL recognition are the resulting business 
opportunities to test and certify products for manufacturers, the 
NRTL's clients. These opportunities may be in the form of new, 
additional, or continuing revenue and clients. Once the NRTL has 
properly certified a product, a manufacturer may then sell this 
product to employers, enabling them to comply with product approval 
requirements in OSHA standards.

    Through that rulemaking, OSHA promulgated 29 CFR 1910.7(f). 
Paragraph (f) states that each applicant for NRTL recognition and each 
NRTL must pay fees for services provided by OSHA. 29 CFR 1910.7(f)(1). 
Specifically, the Agency assesses fees for the following activities: 
(1) Processing applications for initial recognition, expansion of 
recognition, or renewal of recognition, including on-site reviews; 
review and evaluation of the applications; and preparation of reports, 
evaluations and Federal Register notices; and (2) audits. The rule also 
sets forth that OSHA bases the fees, in part, on the staff costs per 
hour of performing application processing and audit activities.
    This final rule adjusts the approach that OSHA uses to calculate 
the fees charged for the services it provides to NRTLs. OSHA makes this 
adjustment because the prior fee schedule only allowed recovery of 
about half of the allowable reimbursable costs of the NRTL Program.\2\ 
For example, the prior approach did not recover the costs of the 
ancillary activities that are necessary to the program's functioning.
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    \2\ In February 2007, OSHA issued a revision of its fee schedule 
to account for increases in program costs (see 72 FR 7468). This 
revision, however, did not alter OSHA's method for calculating fees. 
OSHA based the increase in the February 2007 fees on cost of living 
and time adjustments, but used the same calculation set forth in the 
initial Federal Register notice published in July 2000. OSHA 
previously updated the initial fees in January 2002 (see 67 FR 
5299).
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III. Legal Considerations

    This final rule adjusts the approach that the Agency uses to 
calculate the fees it charges NRTLs for services performed to the 
benefit of the NRTLs by including the costs for benefits shared by all 
NRTLs. As described above, these costs include costs associated with 
ancillary activities and leave. Although OSHA still does not charge 
separate fees for the time spent on ancillary activities and leave, it 
adjusted the rate charged for the fee-generating activities to account 
for the portion of the program costs attributable to ancillary 
activities and leave. This section describes the legal basis for OSHA 
recouping these costs from the NRTLs.

A. Legal Authority for Charging Fees

1. Statutory Authority
    In Title V of the IOAA, Congress set forth the objective of 
collecting fees and charges for services and things of value provided 
by an agency. As noted in this statute, ``It is the sense of Congress 
that each service or thing of value provided by an agency * * * to a 
person * * * is to be self-sustaining to the extent possible.'' 31 
U.S.C. 9701(a). Additionally, the Congressional Committee that drafted 
the measure indicated, ``The Committee is concerned that the Government 
is not receiving full return from many of the services which it renders 
to special beneficiaries.'' Nat'l Cable Television Ass'n v. U.S., 415 
U.S. 336 (1974), quoting H.R. Rep. No. 82-384, at 2-3 (1951). 
Accordingly, Congress enacted the statute to ensure that the specific 
individuals and companies that receive benefits from agency programs, 
not taxpayers at large, fund the programs.

[[Page 10502]]

    In addition to establishing a source of funding, Congress also 
provided general guidance to agency heads on the establishment of fees. 
The fees are to be ``fair'' and based on the costs to the Government, 
the value of the service or thing to the recipient, public policy or 
interest served, and other relevant facts. See 31 U.S.C. 9701(b). The 
1993 OMB Circular A-25 (discussed in greater detail below) embodies the 
authority of the IOAA, and reflects interpretations from the related 
case law decisions.
    Since 1997, in OSHA's yearly appropriations, Congress specifically 
authorized the Secretary of Labor to collect and retain fees charged to 
sustain the NRTL Program, stating, ``[T]he Secretary of Labor is 
authorized * * * to collect and retain fees for services provided to 
Nationally Recognized Testing Laboratories, and may utilize such sums * 
* * to administer national and international laboratory recognition 
programs that ensure the safety of equipment and products used by 
workers in the workplace.'' See, e.g., Consolidated Appropriations Act 
for FY 2000, Pub. L. 106-113 (113 Stat. 1501A-222) and Consolidated 
Appropriations Act, 2009, Pub. L. 111-117 (123 Stat. 3034).
2. Case Law
    The Supreme Court and the Courts of Appeals issued decisions 
addressing the application of the IOAA and its interpretation by 
Federal agencies. These cases provide guidance that provides specific 
information regarding the fee schedules, and the methods of assessing 
fees, that agencies may use. These decisions make clear that agencies 
may recoup all of the Governmental costs associated with providing 
private entities with specific benefits.
    In 1974, the Supreme Court decided the companion cases of Nat'l 
Cable Television Ass'n, 415 U.S. 336, and Fed. Power Comm'n v. New 
England Power Co., 415 U.S. 345 (1974). In Nat'l Cable, the Court found 
that an agency may charge a fee for services, but the agency should 
base the fee on ``value to the recipient.'' Nat'l Cable, 415 U.S. at 
342-43. In New England Power Co., the Court held that, pursuant to the 
IOAA and OMB Circular A-25, agencies can only recoup specific charges 
for specific services to specific individuals or companies. Fed. Power 
Comm'n, 415 U.S. at 349.
    In Nat'l Cable Television Ass'n, Inc. v. FCC, 554 F.2d 1094 (DC 
Cir. 1976), the Court of Appeals also made clear that the fees must be 
for specific services. The court upheld charging both an application 
fee and an annual fee provided that the agency, to prevent charging 
twice for the same service, makes clear the activities covered by each 
fee. Nat'l Cable Television Ass'n, 554 F.2d at 1105. Furthermore, the 
court agreed that fees based on reasonable approximations of costs for 
the services are acceptable: ``It is sufficient for the Commission to 
identify the specific items of direct or indirect cost incurred in 
providing each service or benefit for which it seeks to assess a fee, 
and then to divide that cost among the members of the recipient class * 
* * in such a way as to assess each a fee which is roughly proportional 
to the `value' which that member has thereby received.'' Nat'l Cable 
Television Ass'n, 554 F.2d at 1105-1106.
    In Elec. Indus. Ass'n v. FCC, 554 F.2d 1109 (DC Cir. 1976), the 
Court of Appeals indicated that ``expenses incurred to serve some 
independent public interest cannot * * * be included in the cost basis 
for a fee, although the Commission is not prohibited from charging an 
applicant or grantee the full cost of services rendered * * * which 
also result in some incidental public benefits.'' Elec. Indus. Ass'n, 
554 F.2d at 1115. Moreover, the court held that the agency can only 
include, in the cost basis of the fees, expenses incurred to confer 
value upon the recipient. Id. Along similar lines, the same Court of 
Appeals clarified in a companion case that ``the proper standard is not 
value derived by the recipient but rather value conferred on the 
recipient. In our view, this standard requires the fee assessed to bear 
a reasonable relationship to the cost of the services rendered to 
identifiable recipients.'' Capital Cities Communications, Inc. v. FCC, 
554 F.2d 1135, 1138 (DC Cir. 1976).
    Lastly, in Miss. Power and Light v. U.S. Nuclear Regulatory Comm'n, 
601 F.2d 223 (5th Cir. 1979), the 5th Circuit Court of Appeals upheld 
the Nuclear Regulatory Commission's (NRC) fee schedule methodology 
because the NRC did not seek to recover the entire cost of regulating. 
The NRC charged a fee based only on the costs of providing a specific 
benefit to identifiable private parties. Miss. Power and Light, 601 
F.2d at 230.
3. OMB Circular No. A-25
    OMB issued Circular No. A-25, pursuant to the IOAA, to establish 
``Federal policy regarding fees assessed for Government services and 
for sale or use of Government goods or resources. * * * [I]t provides 
guidance for agency implementation of charges and the disposition of 
collections.'' User Charges, Circular No. A-25, OMB (July 8, 1993). In 
section 6 of the Circular, OMB directs agencies to assess user charges 
``against each identifiable recipient for special benefits derived from 
Federal activities beyond those received by the general public.'' 
Furthermore, user charges ``will be sufficient to recover the full cost 
to the Federal Government * * * of providing the service, resource, or 
good when the Government is acting in its capacity as sovereign.'' 
Finally, the Circular defines full cost to include ``all direct and 
indirect costs to any part of the Federal Government of providing a 
good, resource, or service.'' Examples of such costs include personnel 
costs (including salaries and fringe benefits), physical overhead, 
management and supervisory costs, and costs of enforcement and 
research. Circular No. A-25, OMB 6(d)(1)(a)-(e).
    The legal authorities described above establish several 
considerations for determining how an agency can assess fees for 
services rendered: (1) The agency must base the fees on special 
benefits derived from Federal activities beyond those benefits received 
by the general public; (2) the agency must confer the benefits on 
identifiable recipients; and (3) the fees must bear a reasonable 
relationship to the cost of the services rendered. In addition, the OMB 
circular makes clear that agencies can recoup indirect costs of 
services rendered to special beneficiaries, and that agencies should 
endeavor to make agency programs self-sustaining to the extent that the 
programs provide special benefits to identifiable recipients. Assessing 
NRTL fees that recover the cost of ancillary activities and leave 
satisfies these considerations, which we further discuss below.

B. Explanation for Charging Fees for Ancillary Activities

1. The Agency Must Base Fees on the Costs To Confer Special Benefits 
Derived From Federal Activities Beyond Those Benefits Received by the 
General Public
    OSHA based the implemented fee structure on the costs of providing 
services that confer special benefits. As noted earlier, NRTLs and NRTL 
applicants accrue special benefits from the services that OSHA renders 
for the fees. These special benefits are the product of OSHA's initial 
and continuing evaluation of an organization's qualifications to test 
and certify products used in the workplace. Primarily, these special 
benefits are the business opportunities that result from OSHA 
recognition of these organizations as NRTLs, which allows

[[Page 10503]]

them to offer their testing and certification services to manufacturers 
of products that require NRTL testing and certification when used in 
the workplace. These opportunities are ``special benefits derived from 
Federal activities beyond those received by the general public,'' as 
described in OMB Circular A-25.
    Ancillary activities performed by OSHA under the NRTL Program 
result in identifiable costs from the provision of those specific 
services and benefits to NRTLs. Examples of ancillary activities 
include administration of the program, budgetary, and policy matters; 
training OSHA personnel to perform program activities; interagency and 
international coordination; responses to requests for information 
related to the program; handling complaints; Web site development and 
maintenance; and participation in meetings with stakeholders and 
outside interest groups.
    OSHA must recover the costs of these activities because it incurs 
such costs solely for the administration of the NRTL Program, from 
which NRTLs derive special benefits. The absence of these necessary 
activities would severely reduce, if not eliminate, many of the 
benefits that NRTLs derive from OSHA recognition. Two examples 
illustrate this point. First, through application processing and 
audits, OSHA determines which organizations qualify as NRTLs and which 
products each NRTL can approve under the NRTL Program. By maintaining a 
Web site, OSHA shares this information with the public. This activity 
benefits NRTLs by making current and potential clients, as well as 
employers, aware that OSHA qualified the NRTLs to approve those 
products.
    Second, complaint handling is a valuable activity that OSHA relies 
upon, especially between audits, to learn of inappropriate or 
questionable activities by an NRTL. If, for example, OSHA receives a 
complaint that an NRTL is testing equipment made for use in extremely 
hazardous environments, but OSHA does not recognize the NRTL to perform 
this testing, OSHA would investigate the complaint to determine whether 
the testing jeopardizes the safety of the equipment. If so, OSHA could 
take steps to prevent accidents from occurring as a result of using 
this equipment. Through complaint handling, OSHA reinforces the NRTL 
Program's effectiveness, which maintains confidence in the program, 
and, thus, assures the benefits derived by NRTLs from participation in 
the program.
2. Benefits Are Conferred on Identifiable Recipients
    As with the prior schedules, OSHA is assessing fees to identifiable 
recipients of the NRTL Program benefits. The ancillary activities 
result in benefits shared among all NRTLs, in contrast to the benefits 
of the core application and auditing services, which are more easily 
attributed to individual NRTLs than ancillary activities. To share the 
costs of these benefits equitably, while still ensuring that the fees 
charged are specific with regard to the services provided to individual 
NRTLs, OSHA is apportioning the costs of the shared benefits in 
accordance with the time OSHA spends on core services rendered to each 
NRTL. This approach recognizes that an individual NRTL's portion of the 
shared benefits relates directly to the core benefits it receives. OSHA 
is, therefore, retaining its fee structure of charging the NRTLs fees 
involving core actions directed at, or initiated by, an NRTL, while 
adjusting the rate used to compute the fee to recoup a greater portion 
of the actual program costs than is the case currently.
    OSHA will charge an NRTL a fee when the NRTL applies, for example, 
for an expansion of its recognition by OSHA. In this situation, the 
NRTL is asking OSHA to review its application for expansion so that the 
NRTL can increase its scope of recognition. The fee that OSHA would 
charge in this instance is related directly to the NRTL seeking the 
expansion. The converse is also true: If in any year an NRTL does not 
apply to expand its recognition, OSHA will not charge the NRTL an 
expansion-application fee. Thus, the new fee schedule would reimburse 
OSHA for ancillary activities, but would do so by charging specific 
NRTLs only when these NRTLs receive the core services of the program.
3. The Fees Charged Bear a Reasonable Relationship to the Costs of the 
Program
    OSHA is basing much of the fee schedule on the average documented 
cost of specific activities performed to benefit the NRTLs. Through the 
revised fee schedule issued by this rule, OSHA will recover a large 
percentage of the costs of the NRTL Program. To ensure that it does not 
overcharge, OSHA structured this revised fee schedule to capture 
approximately 95% of the costs of the NRTL Program.
4. OSHA Is Fully Complying With the IOAA and OMB Circular A-25
    Finally, by including the costs of ancillary activities in the 
fees, OSHA now is fully compliant with the IOAA and OMB Circular A-25, 
both of which require agency programs to be self-sustaining to the 
extent that the programs confer special benefits on identifiable 
recipients. In fact, until implementation of a revised fee schedule in 
February 2007, that allowed recovery of approximately 50% of program 
costs, OSHA was recovering only about 30% of the costs of the NRTL 
Program; taxpayers were funding the remaining 70% through OSHA's annual 
appropriations. This arrangement does not comport with the IOAA and OMB 
Circular A-25, and OSHA is correcting this deficiency through this 
final rule.
    In summary, including the cost of ancillary activities in the fees 
comports with the legal framework described in the preceding section. 
That is, OSHA based the fees on special benefits to NRTLs, assessed to 
identifiable beneficiaries of the NRTL Program, and reasonably related 
to OSHA's costs of providing the services to the NRTLs.
    OSHA recognizes that its new approach differs from the position it 
took in the 2000 rulemaking implementing the initial fee structure. In 
that rulemaking, OSHA stated that it would not seek to recover costs 
for some ancillary activities such as Web site development and training 
compliance officers on the NRTL Program. See, e.g., 65 FR 46802. At the 
time of that rulemaking, however, OSHA believed those activities would 
use only a small portion of the NRTL Program's resources. Recent 
workload reviews show that these activities have become a large part of 
the program, and now are critical in supporting the NRTL Program's core 
functions. It is, therefore, appropriate for OSHA to include these 
costs in the revised fees.
    Because work on ancillary activities grew so much faster than 
program resources over the last several years, OSHA has less time 
available for application processing and audits than was the case in 
2000. Moreover, because existing fees only recoup the cost of time 
spent on core services, OSHA is recovering a dwindling percentage of 
the NRTL Program costs. For OSHA to meet, on a timely basis, the needs 
of the NRTLs in application processing and auditing, while recovering 
its costs for providing those services, is a significant challenge. 
Through this final rule, OSHA will fund the resources to improve its 
effectiveness in rendering these core services.

C. Explanation for Assessing Costs for Leave

    Although the prior fee structure accounted for some personnel costs 
for core NRTL activities, it did not account

[[Page 10504]]

for all personnel costs; therefore, it did not account for the total 
time spent on core activities. As Federal employees, Department of 
Labor employees, including OSHA employees, earn leave as part of their 
regular compensation. However, the prior fee structure failed to 
account for leave earned by OSHA employees, even though that leave is 
part of the personnel costs of rendering NRTL services.\3\ In this 
respect, the prior fee structure was not compliant with OMB Circular A-
25 and the other legal authorities described above. Thus, in this 
revised fee structure, OSHA is adjusting the personnel costs to include 
leave earned by all Federal employees performing services in support of 
the NRTL Program.
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    \3\ A small portion of NRTL fees covers the costs of legal 
services performed by attorneys in the Office of the Solicitor of 
Labor. OSHA included leave costs in that portion of the fees.
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D. Explanation for Advance Collection of the Fees

    Previously, OSHA required that NRTLs and applicants pay an 
application review fee when submitting an application, and, for initial 
applications, prepay the fee for an on-site assessment. OSHA generally 
billed the remainder of the fees to the NRTLs or applicants after it 
rendered the services. When OSHA adopted this billing system in the 
2000 final rule, it expected the system to ``reduce collection activity 
of the Agency, since only one bill would need to be sent to the NRTL 
for an audit, rather than the two contemplated under the NPRM.'' 65 FR 
46802 (July 31, 2000). It, therefore, predicted a ``minimal financial 
burden'' to the Agency by delaying collection. Id.
    However, in recent years this post-collection system resulted in 
problems, including the loss of some funds. For example, to ensure that 
the Agency retained all fees that were due for audits conducted during 
a fiscal year, OSHA requested that NRTLs pay fees in advance for any 
audits that it conducted in the last two months of the Federal 
Government fiscal year. OSHA requested advance payment because, to 
comply with Federal mandates, it could not retain any fees received 
after the end of a fiscal year, but would have to forfeit them to a 
general Federal Government fund. The current fee-collection system also 
made it difficult to ensure that the Agency complied with OMB Circular 
A-25. In addition to providing guidance regarding the collection and 
retention of user fees, OMB Circular A-25 generally requires agencies 
to collect user fees in advance. See OMB Circular A-25, Section 
6.a.2.(c) (``User charges will be collected in advance of, or 
simultaneously with, the rendering of services unless appropriations 
and authority are provided in advance to allow reimbursable 
services.''); see also OMB Circular A-11, ``Preparation, Submission, 
And Execution Of The Budget'' (June 2008), section 20.13.\4\
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    \4\ Section 20.13(a) is a description of revolving funds that 
requires that, in the absence of a revolving fund, ``advance 
payments must accompany orders.'' Section 20.13(b) specifies that 
agencies may use one of two methods to cover obligations by 
expenditure accounts, either using ``advances collected up to the 
amount of accompanying orders'' or ``[w]orking capital that is 
available for this purpose.''
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    Therefore, while the current program directly benefits NRTLs, OSHA 
must advance funds to cover the program costs until the NRTLs or 
applicants reimburse OSHA for its program activities. Given the 
competing demands on the appropriations from which OSHA draws these 
funds, continued use of these general operating funds to pre-fund the 
NRTL Program could adversely impact OSHA's ability to perform other 
operational functions.
    In summary, OSHA will now bill in advance for audits and other fees 
to ensure compliance with OMB guidance, and to reduce any financial 
impact on OSHA's other functions caused by advancing funds to the NRTL 
Program. OSHA will estimate and collect travel costs and other expenses 
in advance, and will adjust any difference between actual costs and 
estimated costs after completion of the audit or other activity.

IV. Explanation of the Revised Approach for Calculating Fees

    Through this final rule, OSHA will continue to calculate the fee 
for each of the service activities listed in the fee schedule by 
multiplying an equivalent average cost per hour rate (ECR) by the time 
it takes to perform that activity: Fee for Activity = ECR x Time for 
Activity.
    In the July 31, 2000, Federal Register notice, OSHA explained that 
it derived the initial fee schedule's ECR by dividing the total 
estimated direct and indirect costs of the program, excluding travel, 
(TPC),\5\ by the total available annual work hours of the NRTL Program 
and legal staff that perform the services (TAW).\6\ Although OSHA did 
not illustrate the derivation of the ECR as an equation in the 2000 
notice, it does so here for clarification, and refers to it as ECR2000 
(to contrast it with the equation for ECR2009, which we explain later 
in this notice); accordingly, ECR2000 = TPC2000/TAW2000.\7\ As 
discussed above, the approach used in 2000 resulted in fees that 
recouped the costs only of the time spent actually performing 
individualized audits and application processing, which is only a 
portion of TAW, and did not recoup the costs of the time associated 
with running the program and providing other benefits shared among all 
NRTLs.
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    \5\ The TPC includes personnel costs for the NRTL Program and 
legal staff (including support and management staff), equipment, 
contract, and other costs necessary for the operation of the 
program. The ECR does not include travel expenses because OSHA 
charges for the actual staff travel expenses for an on-site visit 
after the auditor completes the visit.
    \6\ In discussing total hours in this notice, we often refer to 
``FTEs,'' which stands for ``full-time equivalents.'' For purposes 
of this notice, FTEs equals total work hours divided by 2,080, the 
total available annual work hours (TAW) for one full-time Federal 
employee (i.e., 1 FTE = 2,080 work hours).
    \7\ We use the TPC abbreviation in discussing our calculations 
in this final rule, but the total amount shown in the July 2000 
notice (i.e., TPC2000) will differ from the total shown in this 
final rule (i.e., TPC2009) because of changes in the total costs of 
the program.
---------------------------------------------------------------------------

    To account properly for the costs associated with these shared 
benefits, OSHA proposed and requested comment on the following 
calculation for the new ECR (ECR2009): Dividing the new estimated total 
cost of the NRTL Program (TPC2009) by the total annual service hours 
(TAS2009). This latter term is a new figure that equals the total 
estimated work hours that the NRTL Program staff spend on the core 
service activities for which OSHA will bill NRTLs; accordingly, ECR2009 
= TPC2009/TAS2009. By way of comparison with the prior fee schedules, 
TAS equals TAW minus estimated hours spent on ancillary activities (AH) 
and leave (LH) (i.e., TAS = TAW-AH-LH). By continuing to include the 
full program costs in the numerator (TPC2009), but including in the 
denominator (TAS2009) only the amount of time spent on providing 
``billable'' core services, the revised ECR more accurately represents 
the total work hours spent on those core activities than the current 
2000 equation; OSHA bills these hours to the NRTLs. The Agency did not 
receive any comments on this new calculation methodology, and is 
including it in the final rule as proposed.
    OSHA could achieve the same result by charging each NRTL separately 
for its share of the program resources used to produce the shared 
benefits. OSHA did not use this method primarily because it would be 
impractical to calculate and track these shared costs separately for 
each NRTL, and to attribute the costs appropriately to individual NRTLs 
through separate fees. As explained above, the new fee approach adopted 
in this final rule, in which OSHA charges NRTLs only for core services, 
provides

[[Page 10505]]

a more straightforward and manageable method, in comparison to the 
previous approach, of ensuring that OSHA recoups only ``specific 
charges for specific services to specific individuals or companies.'' 
Fed. Power Comm'n, 415 U.S. at 349. In addition to this methodological 
change, the revised fee schedule presented in this notice also includes 
updated calculations of the total resources committed to the NRTL 
Program (TPC2009), and of the average time spent on some of the service 
activities for which OSHA charges fees.
    OSHA estimated that TAS2009 = 3.5075 FTEs (7295.6 work hours), 
which is 50.11% of total available annual work hours (TAW2009), 7.0 
FTE.\8\ Using the TPC2009 of $1,079,090, shown in Table 1 below, the 
new rate is: ECR2009 = $1,079,090/7295.6 hours = $147.90.
---------------------------------------------------------------------------

    \8\ TAW2009 equals 7.0 FTE (i.e., 7.0 FTE currently working on 
OSHA's NRTL Program); AH2009 equals 2.6675 FTE; and LH2009 equals 
0.825 FTE. As a result, TAS2009 equals 7.0 minus 2.6675 minus 0.825, 
which is equal to 3.5075 FTE. Note: We also can derive the ECR2009 
from the ECR2007 ($63.80) using a factor that takes into account the 
effects due to leave and ancillary activities, and the use of TAS 
instead of TAW. We do not illustrate this derivation here since the 
calculation is more involved than, and gives the same result as, the 
simple equation above.
---------------------------------------------------------------------------

    Table 1 below shows a summary of program costs and value of revised 
ECR2009, which OSHA uses later to generate the revised fee schedule in 
section VI below.

  Table 1--NRTL Program Annual Cost Estimates--New ECR2009 Calculation
------------------------------------------------------------------------
                       Description                             Costs
------------------------------------------------------------------------
Direct expenses.........................................        $512,342
Indirect expenses *.....................................         566,748
Total program costs (excluding travel) (aka ``TPC2009          1,079,090
 '')....................................................
Travel expenses.........................................          72,600
Overall program costs (includes travel) **..............       1,151,690
TAS2009 (3.5075 FTE x 2,080 work hours per FTE).........         7,295.6
ECR2009 = TPC2009/TAS2009...............................          147.90
------------------------------------------------------------------------
* This amount consists of $441,408 for management, ancillary, and
  support costs; and $125,340 for equipment and other costs. Note: OSHA
  incurs most of these costs, but the costs also include applicable
  costs of a division of the Department of Labor's Office of the
  Solicitor.
** OSHA estimates the amount of fee collections to be approximately
  95.2% of this total, or $1,096,000.

Finally, as mentioned above, the total cost of administering the NRTL 
Program increased since the last revision to the fee schedule published 
on February 15, 2007. This cost increase is due to two main reasons: an 
increase to account for additional program-staff resources, and the 
annual salary adjustments for Federal employees. Because of the 
increase to the TPC, and the revised approach for calculating ECR2009 
described in this notice, OSHA's base rate (ECR) is increasing almost 
132%, from $63.80 (in effect since February 15, 2007) to $147.90 shown 
above. OSHA estimates that this rate would result in total annual 
collections of $1,096,000 beginning three years after this rule's 
effective date, provided OSHA's NRTL Program costs remain unchanged. In 
fact, due to the three-year phase-in period, the rate and estimated 
total annual collections will increase the first year to about $91.80 
and $690,000, respectively. Without a change in the fee schedule, but 
with the increase in staffing requirements for the NRTL Program, the 
first year's rate and estimated total annual collections would increase 
to $73.72 and $583,000, respectively. If the program's costs remain 
unchanged in the second year of the phase-in period, the rate and total 
annual collections resulting from to the new approach would be about 
$119.90 and $880,000, respectively.
    For existing NRTLs and applicants that submit applications prior to 
the effective date of this final rule, OSHA will phase in, over three 
years, any fee increase that is greater than $200: a 33% increase for 
the first year's fees; a similar increase for the second year's fees; 
and the remaining increase in the third year. OSHA uses this $200 
threshold because it limits the number of fees that would otherwise 
increase 100% for the first year; OSHA will phase in the increase for 
the remaining fees, thus reducing the financial impact the increase may 
have on any existing NRTL or applicant. As evident from the comparison 
of fees shown in VIII of this notice, this approach affects only three 
fees, which will increase by a combined total of $510. The $200 
threshold and the three-year phase-in period will balance the need for 
a period of adjustment for some existing NRTLs against OSHA's 
responsibility to recoup the full costs of the NRTL Program as soon as 
possible. Although OSHA requested comments on these approaches and 
suggested alternatives, it received no comments.
    The entire increase is effective immediately for any organization 
that submits an application to become a new NRTL if OSHA receives the 
application on or after the effective date of this final rule. OSHA is 
taking this approach because, unlike currently recognized NRTLs and 
pending applicants, new applicants are free to choose whether or not to 
participate in the NRTL Program.

V. Basis and Derivation of Fee Amounts

    Tables 2, 3, 4, and 5, below, present the costs of the major 
activities for the various fee categories. In general, OSHA calculated 
the cost of these activities by multiplying the staff \9\ activity time 
by ECR, and adding any applicable average travel costs. However, 
because OSHA charges for actual travel, only non-travel costs serve as 
the basis for the fees shown later in Tables A and B. In deriving the 
fee amounts shown in the fee schedule (Table A or B), OSHA generally 
rounded the costs shown in Tables 2, 3, 4, and 5, up or down, to the 
nearest $5 or $10 amount.
---------------------------------------------------------------------------

    \9\ The term ``staff'' encompasses Federal employees, as well as 
any contract employees retained by OSHA for work on the NRTL 
Program.

               Table 2--Initial Application Cost Estimates
------------------------------------------------------------------------
                                                     Average    Average
        Major activity             Type of cost       hours      cost *
------------------------------------------------------------------------
Initial application review....  Office and field          120    $17,749
                                 staff time.
Additional review time........  Office staff......         16      2,367
Limited review time...........  Office staff......         24      3,550
On-site assessment--first day   Field staff time           30      4,437
 (per site, per assessor).       (16 hours
                                 preparation, 6
                                 hours to process
                                 travel documents,
                                 and 8 hours at
                                 site).
                                Field staff travel         NA        800
                                 expense ($700
                                 airfare/other +
                                 $100 per diem).
                               -----------------------------------------

[[Page 10506]]

 
                                Total for on-site assessment--     5,237
                                           first day
------------------------------------------------------------------------
On-site assessment--each        Field staff time            8      1,183
 additional day ** (per site,    (at site).
 per assessor).
                                Field staff travel         NA        100
                                 expense (per diem
                                 only).
                               -----------------------------------------
                                Total for on-site assessment--     1,283
                                      each additional day
------------------------------------------------------------------------
On-site assessment travel       Field staff.......          8      1,183
 time--per day (per site, per
 assessor).
Review and evaluation (10 test  Office staff time.          2        296
 standards).
Final report and Federal        Field and office          132     19,524
 Register notice.                staff time.
Fees invoice processing.......  Office staff time.          2        296
------------------------------------------------------------------------

    *Average cost for staff time = average hours x equivalent average 
direct staff cost/hr. ($147.90).
    **Note: 2 additional days estimated for 2 assessors, and 4 
additional days estimated for 1 assessor.
    See notes to Table A below for more information concerning the 
activities listed in this table.

     Table 3--Expansion Application (Additional Site) Cost Estimates
------------------------------------------------------------------------
                                                     Average    Average
        Major activity             Type of cost       hours      cost *
------------------------------------------------------------------------
Application review (expansion   Office and field           56     $8,283
 for site).                      staff time.
Additional review time........  Office staff......          8      1,183
On-site assessment--first day   Field staff time           40      5,916
 (per site, per assessor).       (12 hours
                                 preparation, 4
                                 hours to process
                                 travel documents,
                                 and 8 hours at
                                 site).
                                Field staff travel         NA        800
                                 time expense
                                 ($700 airfare/
                                 other + $100 per
                                 diem).
                               -----------------------------------------
                                Total for on-site assessment--     6,716
                                           first day
------------------------------------------------------------------------
On-site assessment--additional  Field staff time            8      1,183
 day ** (per site, per           (at site).
 assessor).
                                Field staff travel         NA        100
                                 expense (per diem
                                 only).
                               -----------------------------------------
                                Total for on-site assessment--     1,283
                                      each additional day
------------------------------------------------------------------------
On-site assessment travel       Field staff.......          8      1,183
 time--per day (per site, per
 assessor).
Review and evaluation fee (10   Office staff time.          2        296
 test standards).
Final report and Federal        Field and office           50      7,396
 Register notice.                staff time.
Fees invoice processing.......  Office staff time.          2        296
------------------------------------------------------------------------

    *Average cost for staff time = average hours x equivalent average 
direct staff cost/hr. ($147.90).
    **Note: 2 additional days estimated for 1 assessor.
    See notes to Table A below for more information concerning the 
activities listed in this table.

 Table 4--Renewal or Expansion (Other Than Additional Site) Application
                             Cost Estimates
------------------------------------------------------------------------
                                                     Average    Average
        Major activity             Type of cost       hours      cost *
------------------------------------------------------------------------
Application review (renewal or  Office and field            2        296
 expansion other than            staff time.
 additional site).
Additional review time........  Office staff......          8      1,183
Renewal application--           Office staff......         40      5,916
 information review.
On-site assessment--first day   Field staff time           20      2,958
 (expansion) (per site, per      (8 hours
 assessor).                      preparation, 4
                                 hours to process
                                 travel documents,
                                 and 8 hours at
                                 site).
                                Field staff travel         NA        800
                                 expense ($700
                                 airfare/other +
                                 $100 per diem).
                               -----------------------------------------
                                Total for on-site assessment--     3,758
                                     first day (expansion)
------------------------------------------------------------------------
On-site assessment--first day   Field staff time           28      4,141
 (renewal) (per site, per        (16 hours
 assessor).                      preparation, 4
                                 hours to process
                                 travel documents,
                                 and 8 hours at
                                 site).
                                Field staff travel         NA        800
                                 expense ($700
                                 airfare/other +
                                 $100 per diem).
                               -----------------------------------------
                                Total for on-site assessment--     4,941
                                      first day (renewal)
------------------------------------------------------------------------
On-site assessment--additional  Field staff time            8      1,183
 day ** (per site, per           (at site).
 assessor).

[[Page 10507]]

 
                                Field staff travel         NA        100
                                 expense (covers
                                 per diem only).
                               -----------------------------------------
                                Total for on-site assessment--     1,283
                                      each additional day
------------------------------------------------------------------------
On-site assessment travel       Field staff.......          8      1,183
 time--per day (per site, per
 assessor).
Review and evaluation fee (10   Office staff time.          2        296
 test standards) (expansion).
Final report and Federal        Office and field           50      7,396
 Register notice (with on-site   staff time.
 assessment).
Final report and Federal        Office and field           30      4,437
 Register notice (no on-site     staff time.
 assessment).
Supplemental program review...  Office and field            4        592
                                 staff time (per
                                 program
                                 requested,
                                 including
                                 consultation and
                                 assessor's memo).
Fees invoice processing.......  Office staff time.          2        296
------------------------------------------------------------------------

    *Average cost for staff time = average hours x equivalent average 
direct staff cost/hr. ($147.90).
    **Note: 2 additional days estimated for renewal assessment; no 
additional days for expansion assessment.
    See notes to Table A below for more information concerning the 
activities listed in this table.

             Table 5--On-Site or Office Audit Cost Estimates
------------------------------------------------------------------------
                                                  Average      Average
       Major activity           Type of cost       hours       cost\*\
------------------------------------------------------------------------
On-site audit--first day      Field staff time           24       $3,550
 (per site, per auditor) **.   (12 hours pre-
                               site review
                               preparation, 4
                               hours to
                               process travel
                               documents, and
                               8 hours at
                               site).
                              Prepare report/            26        3,846
                               contact NRTL
                               plus office
                               review staff
                               time (3 days
                               for field staff
                               and 2 hours for
                               office staff).
                             -------------------------------------------
                               Subtotal (first day--regular        7,396
                                          audit)
------------------------------------------------------------------------
                              Field staff                NA          800
                               travel expense
                               (700 airfare/
                               other + 100 per
                               diem).
                             -------------------------------------------
                                Total for on-site audit--          8,196
                                 first day (regular audit)
------------------------------------------------------------------------
On-site audit--first day      Prepare report              6          887
 (per site, per auditor)\**\   plus office
 (no non con form ances or     review staff
 observations requiring a      time (4 hours
 response).                    for field staff
                               and 2 hours for
                               office staff).
                             -------------------------------------------
                                 Total for on-site audit           5,237
                                 (first day--audit with no
                                  nonconformances)\****\
------------------------------------------------------------------------
On-site audit--additional     Field staff time            8        1,183
 day\***\ (per site, per       (at site).
 auditor).
                              Travel expense             NA          100
                               (covers per
                               diem only).
                             -------------------------------------------
                              Total for on-site audit--each        1,283
                                      additional day
------------------------------------------------------------------------
On-site audit travel time--   Field staff.....            8        1,183
 per day (per site, per
 auditor); also review of
 revised audit response--per
 on-site or office audit.
Office audit--per day (per    Field staff.....            8        1,183
 site, per auditor); no
 nonconformances or
 observations requiring a
 response.
Office audit--per day (per    Field staff.....           16        2,367
 site, per auditor); with
 nonconformances.
Fees invoice processing.....  Office staff                2          296
                               time.
------------------------------------------------------------------------
* Average cost for staff time = average hours x equivalent average
  direct staff cost/hr. ($147.90).
** OSHA charges this first-day fee only once if it audits multiple sites
  of the NRTL during one trip.
*** Note: One additional day is estimated for one auditor.
**** The 3,550 Field staff time and $800 Field staff travel expense are
  identical to those for the regular audit.
See notes to Table A below for more information concerning the
  activities listed in this table.

VI. Revised Fee Schedules

A. First Phase Fee Schedule for Existing NRTLs and Pending Applicants

    OSHA is implementing the revised fee schedules shown below in 
Tables A and B. All existing NRTLs and any initial applicant (i.e., an 
entity not presently approved by OSHA as an NRTL) having a pending 
application (i.e., received by OSHA before the effective date of this 
rule), must pay the fees set forth in Table A during the first year of 
the three-year phase-in period. OSHA will publish the revised fee 
schedule for the second year at a later date, as explained below. In 
this final rule, OSHA revised the audit fees as explained above, and 
modified the fee schedule in Table A of the proposal slightly to 
clarify that initial NRTL applicants having

[[Page 10508]]

applications received by OSHA on or after the effective date of this 
rule must pay the fees in Table B, not Table A. The Agency eliminated 
the initial-application review fee in Table A, and added a reference to 
footnote 7 of the table to explain the fee amount that OSHA charges to 
pending applicants (i.e., those applicants having applications received 
before the effective date of this rule) that substantially modify their 
applications after the effective date of the rule.
    The fees in Table A are the fees for the first phase of OSHA's fee 
increase, which are applicable to existing NRTLs and pending 
applicants. As explained above, for existing NRTLs and pending 
applicants, OSHA is phasing in over a period of three years any fee 
increase that is greater than 200: 33% of the increased fees specified 
in this final rule on the effective date of the rule; another 33% 
increase in the second year; and the final 34% increase in the third 
year. OSHA will adjust the percentage increase when it performs its 
periodic review of the fees during the next two years; it will base the 
adjustment on any increase or decrease in fees calculated for each of 
those years. During this review, OSHA will determine the amount of time 
it actually charged for application processing and audits, and the 
actual indirect travel OSHA performed, and adjust the amount in the fee 
schedule by the amount over- or underestimated. OSHA then will publish 
the second-year fee schedule in the Federal Register.

  Table A--Nationally Recognized Testing Laboratory Program Fee Schedule for Existing NRTLS and Applicants When
                               OSHA Receives the Application Before March 28, 2011
----------------------------------------------------------------------------------------------------------------
                                         Activity or category  (fee
           Type of service                charged per application                     Fee amount
                                          unless noted otherwise)
----------------------------------------------------------------------------------------------------------------
APPLICATION PROCESSING...............  Initial application review 1   See note 7.
                                        8 (this fee is applicable
                                        only as described in note 7
                                        to this table).
                                       Expansion-application review   $3,420.
                                        (per additional site) 1 8.
                                       Renewal or expansion (other)   $300.
                                        application review \1\.
                                       Renewal information review     $1,470.
                                        fee \7\.
                                       Additional review--initial     $2,370.
                                        application (if the
                                        application requires
                                        substantial revision, submit
                                        one-half of initial-
                                        application review fee) \7\.
                                       Additional review--renewal or  $730.
                                        expansion application \7\.
                                       Limited review--initial        $1,170.
                                        application \7\.
                                       Assessment--initial            $2,740 + travel expenses.
                                        application (per person, per
                                        site--first day) 2 10.
                                       Assessment--renewal            $2,570 + travel expenses.
                                        application (per person, per
                                        site--first day) 3 10.
                                       Assessment--expansion          $2,200 + travel expenses.
                                        application (additional
                                        site) (per person, per site--
                                        first day) \3\.
                                       Assessment--expansion          $1,830 + travel expenses.
                                        application (other) (per
                                        person, per site--first day)
                                        \3\.
                                       Assessment--each additional    $730 + travel expenses.
                                        day or each day on travel
                                        (per person, per site) 2 3.
                                       Review and evaluation \5\      $30 per standard OR $296 per standard.
                                        ($30 per standard if already
                                        recognized for NRTLs and
                                        requires minimal review;
                                        otherwise, $296 per
                                        standard).
                                       Final report and Federal       $12,080.
                                        Register notice--initial
                                        application 5 9.
                                       Final report and Federal       $4,580.
                                        Register notice--renewal or
                                        expansion application (if
                                        OSHA performs on-site
                                        assessment) 5 9.
                                       Final report and Federal       $2,740.
                                        Register notice--renewal or
                                        expansion application (if
                                        OSHA performs no on-site
                                        assessment) 5 9.
AUDITS...............................  On-site audit (per person,     $4,240 + travel expenses.
                                        per site, first day) \6\
                                        ($3,260--no nonconformances).
                                       On-site audit--each            $730 + travel expenses.
                                        additional day (on-site or
                                        on travel).
                                       (per person, per site); or
                                        review of revised audit
                                        response--per on-site or
                                        office audit \6\.
                                       Office audit (per person, per  $730 or $1,120.
                                        site, per day) \6\--$730 if
                                        no nonconformances, $1,120
                                        if nonconformances found.
MISCELLANEOUS........................  Supplemental travel (per       $1,000.
                                        site--for sites located
                                        outside the 48 contiguous
                                        U.S. states or the District
                                        of Columbia) \4\.
                                       Supplemental program review    $270.
                                        (per program requested) \4\.
                                       Fees invoice processing (per   $300.
                                        application or audit) \4\.
                                       Travel document processing (4  $270.
                                        hours, per application or
                                        audit) \4\.
                                       Late payment \11\............  $150.
                                       Compensatory time for travel   $56.40.
                                        (per hour) \10\.
----------------------------------------------------------------------------------------------------------------
Notes to Table A (``Nationally Recognized Testing Laboratory Program Fee Schedule''):
1. Must I pay the application-review fees, and when must I pay these fees?
If you are applying for initial recognition as an NRTL, and OSHA receives your application on or after the
  effective date of this fee schedule, you must pay the initial-application review fee in Table B when you
  submit your initial application. Pay this fee as two payments: one equaling the limited-review fee amount, and
  the remainder of the fee as a second payment. (See note 7 to this fee schedule if you submit your initial
  application before this schedule's effective date.) If you are an NRTL and applying for an expansion or
  renewal of recognition, you must pay the expansion-application review fee or renewal-application review fee,
  as appropriate, and submit this fee concurrently with your expansion or renewal application. See note 7 if you
  amend or revise your initial or expansion application.
2. What assessment fees do I pay for an initial application, and when must I pay these fees?
If you are applying for initial recognition as an NRTL, and we accept your application, we bill you for the
  assessment fee and you must pay it before we perform the assessment. We base the prepaid assessment fee on
  estimated staff time and travel costs. After completing the actual assessment, we calculate the assessment fee
  based on the actual staff time and travel costs incurred in performing the assessment. The fee for staff time
  equals the first-day assessment fee for an initial application, plus the assessment fee for each additional at
  the site or on travel. (Note: Days charged for being in travel status are those allowed under government
  travel rules. This note applies to any assessment or audit.) We determine actual travel expenses based on
  government per diem and other travel rules. We bill or refund the difference between the amount you prepaid
  and the actual assessment fee. We reflect this difference in the final bill that we send to you for the
  application.
3. What assessment fees do I submit for an expansion or renewal application, and when must I pay these fees?

[[Page 10509]]

 
If you are an NRTL and applying solely for an expansion or renewal of recognition, you do not submit any
  assessment fee with your application. If we need to perform an assessment for the expansion or renewal
  request, we bill you for this fee and you must pay it before we perform the assessment. We will base the
  prepaid fee on estimated staff time and travel costs. Following the assessment, we will calculate the fee
  based on the actual staff time and travel costs we incurred in performing the assessment. The fee for staff
  time equals the first-day assessment fee for the particular type of application, plus the assessment fee for
  each additional at the site or on travel. We determine actual travel expenses based on government per diem and
  other travel rules. OSHA charges the NRTL the first-day fee only once if OSHA audits multiple sites of the
  NRTL during one trip. We bill or refund the difference between the prepaid amount and the amount of the final
  invoice that we send to you for the application.
4. When do I pay the supplemental travel, the supplemental program review, the fees invoice processing fees, or
  the travel document processing fee?
You must pay the supplemental travel fee when you submit an initial application for recognition and the site you
  identified for recognition is outside the 48 contiguous U.S. states or the District of Columbia. The current
  supplemental travel fee is $1,000. We factor in this prepayment when we bill for the actual costs of the
  assessment, as described in note 2 to Table A above. See note 8 for possible refund of application or
  assessment fees. You must pay the supplemental program-review fee when you apply for approval to use other
  qualified parties or facilities to perform specific activities. See Chapter 2 of the NRTL Program Directive
  for more information regarding supplemental programs. We will include the invoice-processing fee in the total
  for each of our invoices to you. You must pay the travel document processing fee in advance to cover the costs
  of arranging and obtaining reimbursement for travel, which we generally include in the first-day fee for
  assessments and audits. We charge this fee for additional sites of the NRTL visited during one trip. We also
  charge this fee separately for trips to a location when the preparation time for the trip is minimal; for
  example, trips to a site that the NRTL qualified to perform specific or limited testing or certification
  activities for the NRTL.
5. When do I pay the review and evaluation, and the final report and Federal Register notice, fees?
An applicant or an NRTL also must pay these fees in advance of OSHA performing the assessment for the
  application. We calculate the review and evaluation fee at the rate of $30 per test standard requested for
  those standards that OSHA previously recognized for any NRTL and that require minimal review or do not
  represent a new area of testing for the NRTL. Otherwise, this fee is $296 per standard requested.
6. When do I pay the audit fee?
Each NRTL must pay this fee (on-site or office, as deemed necessary) in advance of OSHA commencing the audit,
  and we calculate this prepaid fee based on estimated staff time and travel costs. Following the audit, we will
  calculate the fee based on actual staff time and travel costs incurred in performing the audit. We charge the
  first-day audit fee at the rate of $4,240 for the first day at the site if the audit finds nonconformances or
  observations requiring a response. If the audit finds none, OSHA will credit the NRTL's account to reduce the
  fee to $3,260. In addition, we charge $730 for each additional day at the site, and $730 for each day in
  travel, plus actual travel expenses for each auditor. We also charge at the rate of $730 per day to review the
  NRTL's revised or supplemental response when its original response did not adequately resolve all the
  nonconformances documented in OSHA's audit report. OSHA charges the NRTL the first-day fee only once if OSHA
  audits multiple sites of the NRTL during one trip. However, see note 4 above. We determine actual travel
  expenses based on government per diem and other travel rules. We may add any underpayment(s) or credit any
  overpayments to the invoice for a future audit of the NRTL's site. For an office audit, we charge $730, per
  site, per person, per day, if the audit finds no nonconformances, and $1,120, if we find nonconformances or
  observations requiring a response. When the NRTL's response does not adequately resolve the nonconformances,
  the $730 per-day fee also applies to review the NRTL's revised or supplemental response.
7. When do I pay the additional review fee, renewal information review fee, or limited review fee?
The additional review fee covers the staff time required to review new or modified information submitted after
  we completed our preliminary review of an application. There is no charge for review of a ``minor'' revision,
  which entails modifying or supplementing less than approximately 10% of the documentation in the application.
  You must pay the additional review fee when submitting revisions modifying or supplementing from 10% to 50% of
  the documentation. For a new application, the fee represents 16 hours of additional review time, and for a
  renewal or expansion application, the fee represents 8 hours of additional review time. If you exceed that 50%
  threshold when submitting revised documentation for your application (i.e., you substantially revise your
  application), you must pay half of the initial-application review fee ($4,635, if a pending applicant; $8,875
  if a new applicant), the expansion-application review fee for adding a site, or the renewal- or expansion
  (other)-application fee, as applicable. If this latter fee applies, you also must pay review and evaluation
  fee ($296) for each test standard affected by the revision. The renewal information review fee applies when an
  NRTL submits updated information to OSHA in connection with a request for renewal of recognition. You must pay
  the additional review or renewal information review fee when submitting the additional or updated information.
  The limited review fee covers the time to review and return a new application that we find to be substantially
  deficient. OSHA deducts this fee from any refund due to the applicant.
8. When and how can I obtain a refund for the fees that I paid?
If you withdraw an initial application, or an expansion application for an additional site, after we commenced
  but before completing the full review, we will refund half of the application review fee. If you withdraw your
  application before we commence travel to your site to perform the on-site assessment, we will refund any
  prepaid assessment fees, or credit your account. We also will credit your account for any amount of the
  prepaid assessment or audit fees collected that is greater than the actual cost of the assessment. If the
  limited review fee applies (i.e., we return the application), we will refund the balance of the initial-
  application review fee (i.e., the amount in excess of the limited review fee). If an organization is no longer
  part of the NRTL Program, we will refund any funds collected in excess of all actual costs incurred through
  the date of termination. Other than these cases, we do not generally refund or grant credit for any other fees
  due or collected.
9. Am I still liable for any fees even if OSHA rejects my application or terminates my recognition?
If we reject your application, we will retain the fees pertaining to tasks we performed. For example, if we
  perform an assessment for an expansion application but deny the expansion, we will retain your prepaid
  assessment fee. Similarly, we will retain the final report and Federal Register fee if we wrote the report and
  published the notice. See note 11 to this Table A for the consequences of nonpayment.
10. What rate does OSHA use to charge for staff time (including Comp Time)?
OSHA estimated an equivalent staff cost per hour that it uses for determining the fees shown in the fee
  schedule. This hourly rate takes into account the costs for salary, fringe benefits, equipment, contract
  services, supervision and support for each ``direct staff'' member, that is, the staff that perform the main
  activities identified in the fee schedule. The rate is an average of these amounts for each of these direct
  staff members. The current estimated equivalent staff costs per hour = $147.90. The hourly rate for Comp Time
  is based on the direct staff average salary and fringe costs only ($56.40). OSHA also will charge this rate
  for any other OSHA staff travel time in excess of the staff's normal 40-hour work week.
(For more information about Compensatory Time, see additional explanation in section VIII of this notice
  (``Major Changes to the Fee Schedule'').)
11. What happens if I do not pay the fees you bill to me?
As explained above, if you are an applicant, we will send you a final bill (for any assessment and for the fees
  related to the review and evaluation, and the final report and Federal Register notice) in advance of the
  assessment. If you do not pay the bill by the due date, we will assess the Late Payment fee shown in Table A
  of this notice. This late-payment fee represents one hour of staff time at the equivalent staff cost per hour
  (see note 10). We also will halt any work on your application. If we do not receive payment within 30 days of
  the original due date, we will cancel your application. If you do not pay the prepaid fee for an audit by the
  due date, we will assess the late-payment fee shown in Table A of this notice. However, OSHA may decide to
  proceed with the audit. If we do not receive payment within 30 days of the original due date for an audit fee,
  we will publish a Federal Register notice stating our plan to revoke your NRTL recognition. However, note
  that, in either case, you may be subject to collection procedures under U.S. (Federal) law.
12. How do I know whether this is the most current fee schedule?
You may contact OSHA's NRTL Program (202-693-2110 or 2300) or visit the program's Web site to determine the
  effective date of the most current fee schedule. Access the site by selecting ``N'' in the alphabetical Index
  at http://www.osha.gov. Any application-review fees are those fees in effect on the date you submit your
  application. Other application-processing fees are those fees in effect when we perform the activity covered
  by the fee. Audit fees are those fees in effect on the date we begin the audit.


[[Page 10510]]

B. Fee Schedule for Applicants When OSHA Receives the Initial 
Application on or After March 28, 2011

    Table B below is the fee schedule applicable to any applicant 
having an initial application received by OSHA on or after the 
effective date of this rule. This fee schedule also represents the 
projected fee that would apply to all other NRTLs and applicants when 
OSHA fully implements the final phase of the fee phase-in beginning in 
the third year after this rule's effective date. Table B is based on 
current projections, and it is likely that OSHA will adjust these fees 
during its periodic fee-review process.

  Table B--Nationally Recognized Testing Laboratory Program Fee Schedule for Applicants When OSHA Receives the
                                 Initial Application on or After March 28, 2011
----------------------------------------------------------------------------------------------------------------
                                         Activity or category (fee
           Type of service                charged per application                     Fee amount
                                          unless noted otherwise)
----------------------------------------------------------------------------------------------------------------
APPLICATION PROCESSING...............  Initial application review     $17,750.
                                        (submit fee as two payments)
                                        1 8.
                                       Expansion-application review   $8,280.
                                        (per additional site) 1 8.
                                       Renewal or expansion (other)   $300.
                                        application review \1\.
                                       Renewal Information Review     $2,370.
                                        Fee \7\.
                                       Additional review--initial     $2,370.
                                        application (if the
                                        application requires
                                        substantial revision, submit
                                        one-half of initial-
                                        application review fee) \7\.
                                       Additional review--renewal or  $730.
                                        expansion application \7\.
                                       Limited review--initial        $3,550.
                                        application \7\.
                                       Assessment--initial            $4,440 + travel expenses.
                                        application (per person, per
                                        site--first day) 2 10.
                                       Assessment--renewal            $4,140 + travel expenses.
                                        application (per person, per
                                        site--first day) 3 10.
                                       Assessment--expansion          $3,550 + travel expenses.
                                        application (additional
                                        site) (per person, per site--
                                        first day) \3\.
                                       Assessment--expansion          $2,960 + travel expenses.
                                        application (other) (per
                                        person, per site--first day)
                                        \3\.
                                       Assessment--each additional    $1,180 + travel expenses.
                                        day or each day on travel
                                        (per person, per site) 2 3.
                                       Review and evaluation \5\      $30 per standard OR $296 per standard.
                                        ($30 per standard if OSHA
                                        already recognizes the NRTLs
                                        and requires minimal review;
                                        otherwise, $296 per
                                        standard).
                                       Final report and Federal       $19,520.
                                        Register notice--initial
                                        application 5 9.
                                       Final report and Federal       $7,390.
                                        Register notice--renewal or
                                        expansion application (if
                                        OSHA performs on-site
                                        assessment) 5 9.
                                       Final report and Federal       $4,440.
                                        Register notice--renewal or
                                        expansion application (if
                                        OSHA performs no on-site
                                        assessment) 5 9.
AUDITS...............................  On-site audit (per person,     $7,400 + travel expenses.
                                        per site, first day) \6\.
                                       ($4,440--no nonconformances).
                                       On-site audit--each            $1,180 + travel expenses.
                                        additional day (on-site or
                                        on travel).
                                       (per person, per site), or
                                        review of revised audit
                                        response--per on-site or
                                        office audit \6\.
                                       Office audit (per person, per  $1,180 or $2,370.
                                        site, per day) \6\--$1,180
                                        if no nonconformances,
                                        $2,370 if nonconformances
                                        found.
MISCELLANEOUS........................  Supplemental travel (per       $1,000.
                                        site--for sites located
                                        outside the 48 contiguous
                                        U.S. states or the District
                                        of Columbia) \4\.
                                       Supplemental program review    $590.
                                        (per program requested) \4\.
                                       Fees invoice processing (per   $300.
                                        application or audit) \4\.
                                       Travel document processing (4  $590.
                                        hours, per application or
                                        audit) \4\.
                                       Late payment \11\............  $150.
                                       Compensatory time for travel   $56.40.
                                        (per hour) \10\.
----------------------------------------------------------------------------------------------------------------
The notes to Table B are the same as the notes to Table A, except that the corresponding Table B fees apply
  instead of the Table A fees shown in these notes.

VII. Description of Fees and Review of Comment

    This section describes the major tasks and functions covered 
currently by each type of fee category, e.g., application fees, and the 
basis used to charge each fee.
    Application Fees. This fee is for the technical work performed by 
OSHA's office and field staff in reviewing application documents to 
determine whether an applicant submitted complete and adequate 
information. The application review does not include a determination on 
the test standards requested, which OSHA covers in the review and 
evaluation fee. OSHA based the application fees on the average cost per 
type of application. OSHA uses an average cost because the amount of 
time spent on application review does not vary greatly by type of 
application, i.e., the number and type of documents submitted generally 
will be the same for a specific type of application. Experience shows 
that most applicants follow the application guide that OSHA provides to 
them.
    Assessment Fees. This fee is different for the initial, renewal, 
expansion (site), and expansion (other) applications. OSHA based this 
fee on the number of days for staff preparatory and on-site work, and 
related travel. OSHA uses six types of assessment fees, five of which 
involve charges per site and per person. The four assessment fees for 
the first day represent charges for office preparation and 8 hours 
visiting an applicant's facility. There is one fee covering either 
additional days at the facility or additional days in travel. OSHA 
assesses additional days in travel for either a half or a full day of 
travel. OSHA also assesses a supplemental travel amount for travel 
outside the contiguous 48 U.S. states or the District of Columbia. For 
initial applications, applicants must submit the amount to cover the 
assessment in advance with the application. In addition to the first

[[Page 10511]]

day and additional day amounts, the applicant or NRTL must pay actual 
travel expenses, based on government per diem and travel rules. For 
initial applications, OSHA will adjust the final bill or refund to the 
applicant for any difference between actual travel expenses and the 
advance travel amount.
    Similar to the application fee, the office-preparation time 
generally involves the same types of activities. Actual time at the 
facility may vary, but the staff spend at least a full day performing 
the on-site work. The fee for the additional day reflects time spent at 
the facility and the actual travel expenses for that day.
    Review and Evaluation Fee. OSHA charges this fee for evaluating 
each test standard that an applicant is proposing be part of its scope 
of recognition. The fee represents the staff time spent during the 
office review of such an application, and varies with the number of 
test standards requested by the applicant. In general, OSHA bases the 
fee on the estimated time necessary to review test standards to 
determine whether each one is ``appropriate,'' as defined in 29 CFR 
1910.7, and whether each test standard covers equipment for which OSHA 
mandates certification by an NRTL. The fee also covers time required to 
determine the current designation and status (i.e., active or 
withdrawn) of a test standard, which involves reviewing current 
directories of the applicable standards-development organization. 
Furthermore, it includes time spent discussing the results of the 
application review with the applicant. The actual time spent will vary 
depending on whether an applicant requests test standards previously 
approved by OSHA for other NRTLs. When the review is minimal, these 
activities take approximately 2 hours for 10 standards. When the review 
is more substantial, the estimated average review time per standard is 
one hour for each standard. Substantial review will occur when OSHA did 
not previously recognize the standard for any NRTL, or when the NRTL is 
proposing to test in a new area, i.e., for a type of product not 
similar to any product currently included under its scope of 
recognition.
    Final Report/Federal Register Notice Fees. OSHA charges these two 
fees for each application. The fee involves the staff time required to 
prepare a report of the on-site review of an applicant's or an NRTL's 
facility, which includes contacting the applicant or NRTL to discuss 
issues or items raised by findings made by OSHA during the on-site 
review. The fee also represents the time spent making the final 
evaluation of an application, preparing the required Federal Register 
notices, and responding to comments received in response to the Federal 
Register notice. OSHA bases these fees on average costs per type of 
application, since the type and content of documents prepared are 
generally the same for each type of applicant. There is a separate fee 
when OSHA does not perform an on-site assessment. In these cases, the 
NRTL Program staff perform an office assessment and prepare a 
recommendation regarding expansion or renewal.
    On-site Audit Fees. These fees include the time for office 
preparation, time at the NRTL facility and travel, and time to prepare 
the report of the on-site audit. OSHA assesses the fee on a per-site 
basis, because the amount of preparation time generally does not vary 
significantly between sites. The actual time on site will vary 
depending on the scope of the audit but, currently, the limit generally 
is two days. As previously described, the audit fee includes amounts 
for travel based on actual travel expenses.
    OSHA received only one comment in response to the proposed rule 
(see Ex. OSHA-2007-0031-0002), and the commenter expressed three 
concerns regarding the proposed audit fees. First, the commenter had a 
concern about the applicability of the first-day fee for an audit 
listed in Table 5 of the proposed rule. This table detailed the average 
actual costs that the Agency incurred in conducting an audit. The 
commenter noted that, under the rule as proposed, each audit would 
include a first-day fee, thereby changing OSHA's past practice of 
charging this fee only once if it visited multiple sites of an NRTL 
during one trip. OSHA will continue this practice, but did not 
explicitly note the practice in the proposal. Accordingly, OSHA revised 
Table 5 and the applicable note in the fee schedule to state the 
practice OSHA will follow. The revision, however, also clarifies that 
the fee for making travel arrangements still applies to each site, even 
though they may be sites of the same NRTL.\10\
---------------------------------------------------------------------------

    \10\ The amount of time spent arranging travel plans for each 
site visited during one trip is typically the same regardless of 
whether the site is for the same, or a different, NRTL. Therefore, 
OSHA will continue to account for this part of the preparation time 
through the travel document processing fee. OSHA charges this fee 
when the auditor visits more than one NRTL site during one trip. See 
note 4 to Table A, below.
---------------------------------------------------------------------------

    Second, the commenter asserted that OSHA was charging too much time 
for the ``prepare report/contact NRTL'' portion of the audit fee. The 
commenter questioned the number of days of field staff time shown in 
Figure 5 of the proposed rule.\11\ These days cover preparation of the 
report, any discussion with the NRTL when its response is unclear or 
unacceptable, and review and analysis of the NRTL's response to any 
nonconformances and observations identified during the audit.\12\ The 
proposed rule was unclear regarding this latter task as evidenced by 
the commenter's statement that the proposal excluded a charge for this 
activity. While OSHA will continuously search for efficiencies in 
administering the NRTL Program, it cannot deviate from the actual costs 
of the program as would be necessary if it followed the commenter's 
recommendation.
---------------------------------------------------------------------------

    \11\ This portion of the audit fee was shown as 26 work hours in 
the proposed rule, of which 24 hours, i.e., 3 work days, was field 
time, and not the 2 days that was shown in the proposed rule. Table 
5 of this final rule reflects the correct days. Eight of these 24 
hours apply to reviewing the NRTL's response and contacting the 
NRTL, if needed.
    \12\ In this rule, when the term ``nonconformance'' is used 
alone, it also includes observations for which OSHA requires a 
response from the NRTL.
---------------------------------------------------------------------------

    The commenter also did not recognize the work done by OSHA auditors 
after the site visit, which is part of this item. An OSHA auditor 
develops an internal report detailing the auditor's review of each 
element of the NRTL's operations, and preparing the final version of 
the report detailing the nonconformances found. In addition, the 
auditor will be uploading this information into an audit report 
database. Three days to accomplish all of these tasks is reasonable, 
and represents OSHA's actual experience.
    The third concern involved the commenter's belief that OSHA's audit 
fee excluded review and analysis of an NRTL's response to determine 
whether the corrective or other actions are acceptable. As explained 
earlier, the ``prepare report/contact NRTL'' portion of the audit fee 
includes this task. The commenter, believing OSHA omitted this portion 
of the audit fee, recommended that OSHA charge a fee based on the 
``levels of noncompliance,'' which OSHA takes to mean the number of 
nonconformances found during an audit. In response to this 
recommendation, OSHA notes that it calculates each fee based on the 
average time taken to complete an activity, and, in the case of the 
``prepare report/contact NRTL'' part of the audit fee, the time taken 
to prepare and record the reports, review the NRTL's response, and 
contact the NRTL to address any remaining issues. Therefore, it would 
be inappropriate to charge a fee based on the number of nonconformances 
because that number does not

[[Page 10512]]

necessarily correspond to the time spent by the auditor. In addition, 
it would be impractical to track, and base a fee on, the time taken to 
review the corrective action for each nonconformance or any response 
required for an observation. In practice, the time taken for the 
auditor's review is simply the time to review the NRTL's entire 
response to OSHA's audit report, which OSHA already included in the 26 
work hours shown in Table 5 for the ``prepare report/contact NRTL'' 
part of the audit fee.
    The commenter's concern pointed out that the proposed on-site audit 
fee calculation inaccurately captures the staff's review time in the 
extreme cases, i.e., it is too high when there are no nonconformances, 
and too low when the resolution of nonconformances consumes a great 
deal of OSHA staff's time. To correct this inaccuracy, OSHA adjusted 
the audit fees by: (1) Reducing the fee by 20 work hours when there are 
no nonconformances, and (2) charging for extra time when the NRTL must 
submit a revised or supplemental response because the original one did 
not adequately address all of the nonconformances. In these latter 
cases, OSHA will charge the NRTL a daily rate, or a fraction of this 
rate, for the actual time OSHA staff spends reviewing the revised 
response. OSHA expects that it will rarely need to charge for extra 
time. However, in these cases, the program office will alert the NRTL 
about the extra charge, and then document the extra time and bill the 
NRTL accordingly. Based on its past experience, OSHA expects that the 
number of audits without nonconformances will exceed those audits that 
will require revised responses. Accordingly, it does not expect the 
additional fees to result in a significant increase in the overall cost 
impact to NRTLs.
    Office Audit Fees. OSHA charges a separate fee for an office audit 
conducted instead of an on-site visit. OSHA provides a per-day rate, 
and the description in the schedule now makes this clear. Originally, 
this type of audit was to apply to an NRTL that regularly has little or 
no nonconformances during OSHA's on-site audit of the NRTL's site(s). 
Accordingly, the fee for the office audit, $730 per day under Table A, 
reflects the time to perform the audit and prepare a relatively short 
report. However, while addressing the sole comment to the Docket, OSHA 
also determined that a clarification was necessary regarding the fee 
for an office audit. OSHA adjusted the fee schedule to include a fee 
for office audits that find nonconformances, $1,120 under Table A. This 
fee reflects 16 hours for preparation of the audit report and review of 
the NRTL's response. This fee is lower than the similar fee for an on-
site audit because office audits generally require less auditor review 
time than for on-site audits. As in the case of the on-site, an 
additional per-day fee also applies to an office audit when the NRTL 
must submit a revised or supplemental response.
    Miscellaneous Fees. The fee schedule shows the average cost for one 
full day of staff time. OSHA uses this fee primarily when refunding the 
assessment fee. OSHA will also charge a fee for late payment of the 
audit fee. OSHA bases the amount for the late fee on 1 hour of staff 
time charged at the fully implemented rate shown in Table B above. OSHA 
also charges a supplemental program-review fee, which represents the 
time OSHA needs to review the documents that an NRTL submits to justify 
its proposed use of a supplemental program. Supplemental programs allow 
NRTLs to use other qualified parties or facilities to perform the 
specific tasks covered by the program, and that are necessary for 
product testing and certification.

VIII. Major Changes to the Fee Schedule

    The following table shows the major adjustments (i.e., increases or 
decreases of $100 or more) that OSHA made to the fee schedule in Table 
A compared to the prior 2007 fee schedule.\13\
---------------------------------------------------------------------------

    \13\ See 73 FR 7468 (February 15, 2007) for the 2007 fee 
schedule.

----------------------------------------------------------------------------------------------------------------
                                                                  New fee amount--
   Description of activity or           Prior fee amount             first year          New fee amount--full
            category                                                  increase                 increase
----------------------------------------------------------------------------------------------------------------
Initial application review......  $5,100......................  $17,750............  $17,750.
Expansion-application review....  $1,020......................  $3,420.............  $8,280.
Additional review--initial        $1,020......................  $2,370.............  $2,370.
 application.
Renewal application--information  $1,020......................  $1,470.............  $2,370.
 review.
Additional review--renewal or     $510........................  $730...............  $1,180.
 expansion application.
Limited review--initial           $0..........................  $3,550.............  $3,550.
 application.
Assessment--initial application   $1,910......................  $4,440.............  $4,440.
 (per person, per site--first
 day).
Assessment--renewal application   $1,790......................  $2,570.............  $4,140.
 (per person, per site--first
 day).
Assessment--expansion             $1,530......................  $2,200.............  $3,550.
 (additional site) (per person,
 per site--first day).
Assessment--expansion (other)     $1,280......................  $1,830.............  $2,960.
 (per person, per site--first
 day).
Assessment--each additional day,  $510........................  $1,180 (new          $1,180.
 or travel time--each day (per                                   applications); 730
 person, per site).                                              other applications.
Review and evaluation...........  $13 per standard............  $30 per standard...  $30 per standard.
Final report and Federal          $8,420......................  $19,520............  $19,520.
 Register notice--initial
 application.
Final report and Federal          $3,190......................  $4,580.............  $7,390.
 Register notice--renewal or
 expansion application (if OSHA
 performs on-site assessment).
Final report and Federal          $1,910......................  $2,740.............  $4,440.
 Register notice--renewal or
 expansion application (if OSHA
 performs no on-site assessment).
On-site audit (first day).......  $2,680......................  $4,240.............  $7,400.
On-site audit (first day) (no     $0..........................  $3,260.............  $4,400.
 nonconformances).
On-site audit--each additional    $510........................  $730...............  $1,180.
 day.
Office audit--nonconformances     $0..........................  $1,120.............  $2,370.
 found.
Supplemental program review.....  $260........................  $270...............  $590.
Invoice processing..............  $130........................  $300...............  $300.
----------------------------------------------------------------------------------------------------------------


[[Page 10513]]

    Clarification of Travel Expenses Fee. The fee schedule states that 
OSHA will charge for time on travel following government travel rules. 
Those rules permit a traveler to earn a special type of leave called 
``compensatory time for travel,'' or simply ``travel comp time.'' The 
traveler generally earns this time when in transit for a duration of 
time that exceeds the traveler's regular work schedule. Travel comp 
time is earned time off, as opposed to receiving overtime pay. The 
amount of travel comp time varies depending on the specific 
circumstances of the travel. In general, it is greater for trips 
outside the contiguous 48 U.S. states and the District of Columbia than 
for trips within the U.S. Travel comp time is for travel time that 
exceeds an employee's regular work hours, i.e., the total available 
work hours (TAW) discussed under section III above. Because this time 
is specific to a particular trip, OSHA will include it in the travel 
fee that OSHA charges for a trip. OSHA does not include travel comp 
time in the total time used to develop the ECR, i.e., the TAS. Instead, 
OSHA will charge travel comp time at the average rate for direct OSHA 
staff time, which will be $56.40 under the revised fee schedule. 
Although this discussion focuses on travel comp time, OSHA also will 
charge this rate for any other OSHA staff travel time in excess of the 
staff's regular work hours.

IX. Changes to 29 CFR 1910.7(f)

    As noted earlier, 29 CFR 1910.7(f) specifies the conditions for 
assessing and determining fees. This rule states that OSHA will assess 
fees for processing applications for initial recognition, expansion of 
recognition, or renewal of recognition, review and evaluation of the 
applications, and preparation of reports, evaluations, publishing 
Federal Register notices, and audits of sites. It further states that 
OSHA will calculate the fees based on either the average or actual time 
required to perform the work necessary, the staff costs per hour, and 
the average or actual costs for travel for on-site reviews. 29 CFR 
1910.7(f)(1) and (2). In addition, this rule states that OSHA will 
review costs annually, and will propose a revised fee schedule if 
warranted. In this final rule, OSHA is replacing the reference to an 
``annual review'' with a ``periodic review'' to allow it more 
flexibility in adjusting fees as appropriate. OSHA does not expect to 
review the fee schedule more than once annually, but anticipates 
situations in which it may not complete the cost review within a 
single-year period.
    OSHA also is revising the language in paragraph (f) to clarify the 
basis used for calculating fees, consistent with OMB Circular A-25. 
Specifically, this revision makes clear that the term ``costs'' means 
the full costs of performing the activities that benefit the NRTLs. 
Thus, as revised, paragraph (f)(2) reads: ``The fee schedule 
established by OSHA reflects the full cost of performing the activities 
for each service listed in paragraph (f)(1) of this section.'' 
(Emphasis added.) Similarly, OSHA is revising paragraph (f)(3)(i) to 
clarify that the two references to the cost of the program mean the 
full cost of the program.
    OSHA also is revising the language in paragraphs 29 CFR 
1910.7(f)(1) and (f)(4) to require advance payment of the fees. In this 
regard, OSHA is revising the first sentence of 29 CFR 1910.7(f)(1) to 
specify that NRTLs and applicants must pay all applicable fees in 
advance. In addition, OSHA is revising the table in 29 CFR 
1910.7(f)(4), which establishes important billing periods and related 
actions, to provide information on the new advanced-billing process. 
One of the revisions to this table reduces the amount of time OSHA must 
wait before publishing its plan to revoke recognition of NRTLs that do 
pay audit fees. Accordingly, OSHA revised the current provision of ``60 
days after the bill date'' to ``30 days after due date.'' OSHA 
requested comment on this revision in the proposal, but received none.

X. Final Economic Analysis and Final Regulatory Flexibility Analysis

    Executive Order 12866 and the Regulatory Flexibility Act (RFA), as 
amended in 1996, require each Federal agency to analyze the costs, and 
other consequences and impacts, including small business impacts, of 
its rules. Consistent with these requirements, OSHA analyzed the costs 
of this final rule and the impacts of this rule on affected 
laboratories and small businesses.
    The Agency received one comment on the proposal (Ex. OSHA 2007-
0031-0002). The commenter suggested revisions to the unit costs used to 
determine NRTLs' fees. As noted above in this preamble, OSHA revised 
the unit costs in response to this comment; however, the average cost 
of NRTLs' fees remains unchanged from the proposal. The Agency updated 
information on revenue for the affected industry and laboratories; 
otherwise, this final economic analysis changed little from the 
preliminary economic analysis (PEA) accompanying the proposed 
regulation.

Affected Industries

    When the Agency established its NRTL fee schedule in 2000, there 
were 17 NRTLs with 42 operational sites. Today, there are 15 NRTLs 
(including two foreign-owned and -operated NRTLs) with 49 sites (see 
the following table for a list of current NRTLs).

------------------------------------------------------------------------
                                                               Number of
                          NRTL name                              sites
------------------------------------------------------------------------
Canadian Standards Association (CSA).........................          6
Communication Certification Laboratory, Inc. (CCL)...........          1
Curtis-Straus LLC (CSL)......................................          1
FM Global Technologies LLC (FM)..............................          2
Intertek Testing Services NA, Inc. (ITSNA)...................         13
MET Laboratories, Inc. (MET).................................          1
National Technical Systems, Inc. (NTS).......................          1
NSF International (NSF)......................................          1
SGS U.S. Testing Co., Inc. (SGSUS)...........................          1
Southwest Research Institute (SwRI)..........................          1
TUV America, Inc. (TUVAM)....................................          3
TUV Product Services GmbH (TUVPSG)...........................          1
TUV Rheinland of North America, Inc. (TUV)...................          1
Underwriters Laboratories Inc. (UL)..........................         15
Wyle Laboratories, Inc. (WL).................................          1
                                                              ----------
    Total (15 NRTLs).........................................         49
------------------------------------------------------------------------
Source: OSHA Directorate of Technical Support and Emergency Management.
 

Costs

    The Agency estimated in 2000 that it would collect approximately 
$239,000 in fees annually (65 FR 46815). OSHA updated its fee schedule 
in February, 2007, and showed total estimated program costs of 
approximately $755,000 (72 FR 7469), estimating that these updated fees 
would enable it to collect only about half of these costs (i.e., 
$380,000). As Table 1 above shows, the revisions made in this final 
rule, including revisions to calculating OSHA costs and updating 
Federal employee salary levels, could increase the fees collected to 
about $1,096,000. In comparison, if OSHA updated costs using the 
original calculation method (without adjustment for ancillary 
activities and leave), and included the increase in staff resources, 
the total fees collected would only increase to about $583,000. The 
impact of the increase, when fully implemented, will be $513,000 
($1,096,000 minus $583,000). Because OSHA's analysis evaluates the 
impact of the final rule as if the full increase during the third year 
was in

[[Page 10514]]

effect, the impact will actually be less during the first two years 
after the rule's effective date because OSHA is phasing in the fee 
increase. In addition, OSHA's analysis evaluates the total impact on 
existing NRTLs and on new applicants. Accordingly, the actual impact on 
existing NRTLs will be less because new applicants will pay some of the 
increased fees.

Economic Impacts

    The fee increase will have only a minor impact on industry revenues 
and profits. NAICS 54138 (``Testing Laboratories'') had $12.3 billion 
in revenues in 2007 (updated from the PEA) (U.S. Census Bureau, 2007 
Economic Census). In the 2000 rulemaking, as here, the Agency estimated 
that net before-tax profits were 5.7 percent of revenues (Robert Morris 
Associates, Annual Statement Studies, Reference 2). The Agency, 
therefore, estimates 2007 industry before-tax profits as $701 million 
(5.7% of $12.3 billion). The entire $1,096,000 million in user fees 
represents 0.00009, or 0.009 percent, of industry revenues ($1.09 
million/$12.3 billion) and 0.00155, or 0.155 percent, of industry 
profits (1.09/701). Thus, the impact of the additional new user fees of 
$513,000 will be even less. The Agency concludes that the changes to 
the fee calculation, and the resulting increase in fees, are 
economically feasible for the industry.
    Average cost per affected firm of the increase in NRTL fees is 
about $73,067 ($1,096,000/15); while average cost per affected NRTL 
establishment (site) is about $22,367 ($1,096,000/49). As a result, 
OSHA expects larger firms with multiple recognized sites to have higher 
total user fees. The Agency believes that the increase in NRTL user 
fees will have little, if any, impact on the affected firms because 
demand for NRTL services continues to grow, and there was no apparent 
adverse affect from increasing NRTL fees in 2000 and 2007.
    Any impact on the NRTLs depends on whether the NRTLs can raise 
prices to their customers. The Agency concludes that there are no good 
substitutes for the certification supplied by NRTLs, and it is likely 
that the NRTLs will pass the higher user fees on to the large number of 
NRTL customers via small price increases. The Agency concludes that the 
new, higher NRTL fees will have little economic impact on the affected 
firms and establishments.

Regulatory Flexibility Act Certification

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), each 
Federal agency must assess the impact of its rules on small entities, 
and prepare a final regulatory flexibility analysis unless the head of 
the agency certifies that the rule will not, if promulgated, have a 
significant economic impact on a substantial number of small entities. 
Thus, the Agency also estimated in this final rule the relative effect 
of the new user fees on small businesses. In the original fees 
rulemaking in 2000, OSHA defined small businesses as those businesses 
with less than $5 million in sales (the Small Business Administration 
(SBA) criterion for the industry, see SBA Web site Reference 3 below). 
These businesses have fewer than 100 employees and average revenue of 
about $2.4 million. In the 2000 rulemaking, OSHA estimated user fees to 
be about $6,000 per ``small'' testing laboratory, which was less than 
0.3 percent of average small-business revenues, and less than 5 percent 
of before-tax profits (Table 6, 65 FR 46817). The February 15, 2007, 
revision (73 FR 7468) raised the average establishment's fee to about 
$7,700 ($380,000/49). The higher user fees adopted by the Agency herein 
increased the expected average user fee for a small testing laboratory 
to about $22,367.
    Revenues for the industry also increased, from $5 billion in 1992, 
to an estimated $12.3 billion in 2007 (1992 and 2007 Economic Census). 
Similarly, the SBA size criterion of a small business in the testing-
laboratory industry increased to $11 million in annual revenues (SBA 
Web site; see link under ``References'' below). The Agency estimates 
that the new user fees still represent less than 1 percent of revenues 
and 5 percent of profits for small businesses in this industry. The 
marginal increase in user fees, which is about $14,667 per testing 
laboratory (to $22,367 from $7,700), is a small fraction of current 
revenues and profits. The economic costs are less than 1 percent of 
revenues and 5 percent of before-tax profits, and the Agency concludes 
that these NRTLs will pass the costs on to the firms' customers. The 
Agency, therefore, certifies that the higher NRTLs fees will not have a 
significant impact on a substantial number of small entities. The 
Agency concludes that 13 of the 15 affected NRTLs are small entities, 
as defined by current SBA criterion. Finally, as noted in the 2000 
rulemaking (65 FR 46797), the collection of user fees from NRTLs is not 
a new cost to society, but represents a transfer of the governmental 
cost of the NRTL Program from taxpayers to an industry directly 
consuming government services.
    OSHA did not receive any comments on the initial regulatory 
flexibility analysis or the economic analysis published in the 
proposal.

References

1. U.S. Department of Commerce, Bureau of the Census, 1992 Census of 
Service Industries: Industry Series: SC92-S-1, -4, -5. Washington, 
DC, February 1995.
2. Risk Management Associates (formerly Robert Morris Associates), 
Annual Statement Studies, September 1995.
3. U.S. Small Business Administration Web site http://www.sba.gov. 
Table of Small Business Size Standards Matched to North American 
Industry Classification System Codes http://www.sba.gov/idc/groups/public/documents/sba_homepage/serv_sstd_tablepdf.pdf.

XI. Unfunded Mandates Reform Act

    For the purposes of the Unfunded Mandates Reform Act of 1995 (2 
U.S.C. 1501, et seq.), this rule does not include any Federal mandate 
that may result in increased expenditures by State, local, or tribal 
governments, or an increased expenditure by the private sector of more 
than $100 million.

XII. Paperwork Reduction Act

    This rule does not impose or remove any information collection 
requirements for the purposes of the Paperwork Reduction Act of 1995, 
44 U.S.C. 3501-30. Under the Office of Management and Budget (OMB) 
control number 1218-0147, OSHA has authority to collect information for 
purposes of NRTL Program activities.

XIII. Federalism

    OSHA reviewed this final rule in accordance with Executive Order 
13132. This final rule only sets fees for services provided by the 
Federal government to private entities and has no impact on Federalism. 
The rule does not limit or restrict State policy options.

XIV. State Plan States

    This final rule will not affect the 27 States and Territories that 
have OSHA-approved occupational safety and health plans. Twenty-two of 
these States and Territories operate OSHA-approved State Plans covering 
both private- and public-sector employees: Alaska; Arizona; California; 
Hawaii; Indiana; Iowa; Kentucky; Maryland; Michigan; Minnesota; Nevada; 
New Mexico; North Carolina; Oregon; Puerto Rico; South Carolina; 
Tennessee; Utah; Vermont; Virginia; Washington; and Wyoming. Four 
States (Connecticut, Illinois, New Jersey, and New York) plus the 
Virgin Islands have OSHA-approved State Plans that apply to State and 
local government employees only.

[[Page 10515]]

XV. Authority and Signature

    David Michaels, PhD, MPH, Assistant Secretary of Labor for 
Occupational Safety and Health, 200 Constitution Avenue, NW., 
Washington, DC 20210, authorized the preparation of this notice. 
Accordingly, the Agency is issuing this notice pursuant to Sections 
6(b) and 8(g) of the Occupational Safety and Health Act of 1970 (29 
U.S.C. 655 and 657), Secretary of Labor's Order No. 4-2010 (75 FR 
55355), and 29 CFR part 1911.

    Signed at Washington, DC, on February 16, 2011.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.

List of Subjects in 29 CFR Part 1910

    Fees, Occupational safety and health, Product testing and 
certification, Safety, Testing laboratories.

    For the reasons stated in the preamble of this final rule, OSHA 
amends subpart A of 29 CFR part 1910 as follows:

PART 1910--OCCUPATIONAL SAFETY AND HEALTH STANDARDS

Subpart A--General [Amended]

0
1. Revise the authority citation for subpart A to read as follows:

    Authority: Sections 4, 6, and 8 of the Occupational Safety and 
Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's 
Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 
35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR 50017), 
5-2002 (67 FR 65008), 5-2007 (72 FR 31159), and 4-2010 (75 FR 
55355), as applicable.

    Sections 1910.6, 1910.7, 1910.8 and 1910.9 also issued under 29 
CFR part 1911. Section 1910.7(f) also issued under 31 U.S.C. 9701, 
29 U.S.C. 9a, 5 U.S.C. 553; Pub. L. 106-113 (113 Stat. 1501A-222); 
Pub. L. 111-8 and 111-317; and OMB Circular A-25 (dated July 8, 
1993) (58 FR 38142, July 15, 1993).


0
2. In Sec.  1910.7:
0
a. Revise paragraph (f)(1) introductory text;
0
b. Revise the first sentence of paragraph (f)(2) introductory text;
0
c. Revise paragraph (f)(3)(i); and
0
d. Revise paragraph (f)(4).
    The revisions read as follows:


Sec.  1910.7  Definition and requirements for a nationally recognized 
testing laboratory.

* * * * *
    (f) * * *
    (1) Each applicant for NRTL recognition and each NRTL must pay fees 
for services provided by OSHA in advance of the provision of those 
services. OSHA will assess fees for the following services:
* * * * *
    (2) The fee schedule established by OSHA reflects the full cost of 
performing the activities for each service listed in paragraph (f)(1) 
of this section. * * *
* * * * *
    (3)(i) OSHA will review the full costs periodically and will 
propose a revised fee schedule, if warranted. In its review, OSHA will 
apply the formula established in paragraph (f)(2) of this section to 
the current estimated full costs for the NRTL Program. If a change is 
warranted, OSHA will follow the implementation shown in paragraph 
(f)(4) of this section.
* * * * *
    (4) OSHA will implement periodic review, and fee assessment, 
collection, and payment, as follows:

------------------------------------------------------------------------
       Milestones/Dates                     Action required
------------------------------------------------------------------------
                   I. Periodic Review of Fee Schedule
------------------------------------------------------------------------
When review completed........  OSHA will publish any proposed new fee
                                schedule in the Federal Register if OSHA
                                determines that costs warrant changes in
                                the fee schedule.
Fifteen days after             Comments due on the proposed new fee
 publication.                   schedule.
When OSHA approves the fee     OSHA will publish the final fee schedule
 schedule.                      in the Federal Register, making the fee
                                schedule effective on a specific date.
------------------------------------------------------------------------
                     II. Application Processing Fees
------------------------------------------------------------------------
Time of application..........  Applicant must pay the applicable fees in
                                the fee schedule that are due when
                                submitting an application; OSHA will not
                                begin processing the application until
                                it receives the fees.
Before assessment performed..  Applicant must pay the estimated staff
                                time and travel costs for its assessment
                                based on the fees in effect at the time
                                of the assessment. Applicant also must
                                pay the fees for the final report and
                                Federal Register notice, and other
                                applicable fees, as specified in the fee
                                schedule. OSHA may cancel an application
                                if the applicant does not pay these
                                fees, or any balance of these fees, when
                                due.
------------------------------------------------------------------------
                             III. Audit Fees
------------------------------------------------------------------------
Before audit performed.......  NRTL must pay the estimated staff time
                                and travel costs for its audit based on
                                the fees in effect at the time of the
                                audit. NRTL also must pay other
                                applicable fees, as specified in the fee
                                schedule. After the audit, OSHA adjusts
                                the audit fees to account for the actual
                                costs for travel and staff time.
On due date..................  NRTL must pay the estimated audit fees,
                                or any balance due, by the due date
                                established by OSHA; OSHA will assess a
                                late fee if NRTL does not pay audit fees
                                (or any balance of fees due) by the due
                                date. OSHA may still perform the audit
                                when an NRTL does not pay the fees or
                                does not pay them on time.
Thirty days after due date     OSHA will begin processing a notice for
 or, if earlier, date NRTL      publication in the Federal Register
 refuses to pay.                announcing its plan to revoke
                                recognition for NRTLs that do not pay
                                the estimated audit fees and any balance
                                of audit fees due.
------------------------------------------------------------------------
Note: For the purposes of 29 CFR 1910.7(f)(4), ``days'' means ``calendar
  days,'' and ``applicant'' means ``the NRTL'' or ``an applicant for
  NRTL recognition.''


[[Page 10516]]

* * * * *
[FR Doc. 2011-3937 Filed 2-24-11; 8:45 am]
BILLING CODE 4510-26-P