[Federal Register Volume 79, Number 196 (Thursday, October 9, 2014)]
[Proposed Rules]
[Pages 61035-61041]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-24130]


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DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Part 5

[Docket No. MSHA-2014-0016]
RIN 1219-AB82


Fees for Testing, Evaluation, and Approval of Mining Products

AGENCY: Mine Safety and Health Administration, Labor.

ACTION: Proposed rule.

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SUMMARY: The Mine Safety and Health Administration (MSHA) proposes to 
amend the Agency's regulations for administering fees for testing, 
evaluation, and approval of products manufactured for use in mines. 
This proposed rule would revise the fees charged for these services. 
The proposed rule also would include a fee for approval services that 
MSHA provides to applicants or approval holders under the existing 
rule, but for which the Agency currently does not charge a fee, and for 
other activities required to support the approval process.

DATES: Comments must be received or postmarked by midnight Eastern 
Daylight Saving Time on November 10, 2014.

ADDRESSES: Submit comments and informational materials, identified by 
RIN 1219-AB82 or Docket No. MSHA-2014-0016, by one of the following 
methods:
     Federal E-Rulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments for Docket No. 
MSHA-2014-0016.
     Electronic mail: [email protected]. Include RIN 
1219-AB82 or Docket No. MSHA-2014-0016 in the subject line of the 
message.
     Mail: MSHA, Office of Standards, Regulations, and 
Variances, 1100 Wilson Boulevard, Room 2350, Arlington, Virginia 22209-
3939.
     Facsimile: 202-693-9441.
     Hand Delivery or Courier: MSHA, Office of Standards, 
Regulations, and Variances, 1100 Wilson Boulevard, Room 2350, 
Arlington, Virginia, between 9:00 a.m. and 5:00 p.m. Monday through 
Friday, except Federal holidays. Sign in at the receptionist's desk on 
the 21st floor.
     Instructions: All submissions must include RIN 1219-AB82 
or Docket No. MSHA-2014-0016. Do not include personal information that 
you do not want publicly disclosed; MSHA will post all comments without 
change to http://www.regulations.gov, and http://www.msha.gov/currentcomments.asp, including any personal information provided.

FOR FURTHER INFORMATION CONTACT: Sheila A. McConnell, Acting Director, 
Office of Standards, Regulations, and Variances, MSHA, at 
[email protected] (email); 202-693-9440 (voice); or 202-693-
9441 (facsimile). (These are not toll-free numbers).

SUPPLEMENTARY INFORMATION: 

Table of Contents

    MSHA is including the following outline to assist the public in 
finding information in this preamble.

I. Availability of Information
II Background
III. Section-by-Section Analysis
IV. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
V. Feasibility
VI. Regulatory Flexibility Act, Small Business Regulatory 
Enforcement Fairness Act, and Executive Order 13272: Proper 
Consideration of Small Entities in Agency Rulemaking
VII. Paperwork Reduction Act of 1995
VIII. Other Regulatory Considerations

I. Availability of Information

    Docket: For access to the docket to read comments received, go to 
http://www.regulations.gov or http://www.msha.gov/currentcomments.asp. 
To read background documents, go to http://www.regulations.gov. Review 
the docket in person at MSHA, Office of Standards, Regulations, and 
Variances, 1100 Wilson Boulevard, Room 2350, Arlington, Virginia, 
between 9:00 a.m. and 5:00 p.m. Monday through Friday, except Federal 
Holidays. Sign in at the receptionist's desk on the 21st floor.
    Email notification: To subscribe to receive an email notification 
when MSHA publishes rules in the Federal Register go to http://www.msha.gov/subscriptions/subscribe.aspx.

II. Background

    As part of the U.S. Department of Labor, under the Federal Mine 
Safety and Health Act of 1977 (Mine Act), as amended, MSHA's mission is 
to prevent death, disease, and injury from mining and promote safe and 
healthy workplaces for the Nation's miners. Since 1911, MSHA and its 
predecessor agencies have evaluated and tested products for use in 
mines to prevent fires, explosions, and accidents.
    Under various authorities,\1\ MSHA historically has collected fees 
for its services in evaluating, testing, and approving products. 
Originally, the U.S. Bureau of Mines, an MSHA predecessor agency, 
billed applicants for approval services using published individual fee 
schedules, e.g., each approval part in Title 30, Chapter I, provided a 
list of flat fees for different tests, evaluations, and other services 
performed for approval activities (30 FR 3752-3757). On May 8, 1987, 
MSHA eliminated the individual fee schedules and established part 5 
which created an hourly rate for administration and calculation of fees 
for services in Title 30, Chapter I, Subchapter B, Testing, Evaluation, 
and Approval of Mining Products (52 FR 17506). On August 9, 2005, MSHA 
revised part 5 and its fee procedures. That rule eliminated the 
application fee, allowed preauthorization of expenditures for 
processing applications, and allowed outside organizations conducting 
part 15 testing

[[Page 61036]]

on MSHA's behalf to set fees (70 FR 46336).
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    \1\ These authorities are: Public Law 61-525, Ch. 285, 36 Stat. 
1419 (1911); Public Law 62-386, Ch. 72, Sec. 5, 37 Stat. 682 (1913); 
Public Law 72-212, Ch. 314, Sec. 311, 47 Stat. 410 (1932); 30 U.S.C. 
961(c)(2); and Title V of the Independent Offices Appropriations Act 
of 1952, Public Law 82-137, 65 Stat. 290 (1951), as amended, 31 
U.S.C. 9701.
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    Section 205 of the Chief Financial Officers Act of 1990 (CFO Act) 
and Office of Management and Budget (OMB) Circular No. A-25 Revised, 
User Charges (7/8/1993), require agencies to review the user charges in 
their programs to ensure that charges reflect the full costs of the 
services provided. Traditionally, MSHA reviews its user charges 
annually. MSHA last revised its hourly rate under part 5 to $97.00 on 
December 29, 2010 (75 FR 82074).
    Section 1503 of the Consolidated and Further Continuing 
Appropriations Act, 2013 (Pub. L. 113-6) provided new authority for 
MSHA to collect fees for the approval and certification of equipment, 
materials, and explosives for use in mines. That law also provided that 
MSHA may retain up to $2,499,000 of fees collected. The Department of 
Labor Appropriations Act, 2014 (Pub. L. 113-76), provides authority for 
MSHA to collect and retain these fees. 30 U.S.C. 966. Prior to this 
change, MSHA could retain up to $1,499,000 of fees collected.
    In this proposal, the term ``approval'' includes approvals, 
certifications, acceptances, and evaluations MSHA issues under Title 
30, Chapter I, Subchapter B, Testing, Evaluation, and Approval of 
Mining Products.
    Under the proposed rule, MSHA would (1) revise the hourly rate to 
include all costs associated with the approval program and (2) include 
internal quality control activities and post-approval product audits in 
the fees charged to applicants and approval holders.
    Under the proposed rule, MSHA would continue to charge an hourly 
rate based on costs of the Agency's overall approval activities. The 
approval program includes: Application processing; testing and 
evaluation; approval decisions; post-approval activities; and 
termination of approvals. These Approval and Certification Center 
(A&CC) activities are necessary to assure that approved mine products 
are designed, manufactured, and maintained so their use will not cause 
a fire, an explosion, or other accident.
    MSHA proposes to calculate the hourly rate by dividing the total 
approval program costs (direct and indirect) by the number of direct 
hours worked on all approval program activities. Under the proposal, 
the hourly rate would increase from $97 under the existing rule to 
$121. Using FY 2012 data, MSHA estimates that the increased hourly rate 
would have resulted in approximately $1.5 million in fees collected, an 
increase of $300,000 from that collected under the existing rule.
    In addition to increasing the hourly rate, MSHA also proposes to 
charge a fee for two services for which the Agency does not charge 
under the existing rule: (1) Internal quality control activities and 
(2) post-approval product audits. Internal quality control activities 
are an important part of the approval process. MSHA uses internal 
quality control activities to monitor and improve its testing and 
evaluation processes. Post-approval product audits are necessary to 
assure that mining products continue to be manufactured as approved. 
For this reason, MSHA is proposing to charge for these activities. 
Using FY 2012 data, internal quality control activities and post-
approval product audits would have resulted in approximately $1.2 
million in additional fees at the proposed rate of $121 per hour.
    Under this proposed rule, MSHA estimates that the Agency would 
collect approximately $2.7 million in total fees (based on FY 2012 
approvals). MSHA recognizes that the FY 2013 and FY 2014 appropriations 
language provides MSHA the authority to retain only up to $2,499,000 of 
fees collected. Any fees collected by MSHA above the $2,499,000 will be 
credited to the Treasury general fund.

III. Section-by-Section Analysis

    MSHA is proposing the following changes to its existing regulation 
addressing fees for testing, evaluation, and approval of mining 
products.

A. Sec.  5.10 Purpose and Scope

    Existing Sec.  5.10 would be revised by redesignating paragraph (a) 
as an undesignated paragraph, and by moving and revising existing Sec.  
5.10(b) and (c) to proposed Sec.  5.30. Paragraph Sec.  5.10(b) would 
be redesignated as Sec.  5.30(c) and paragraph Sec.  5.10(c) would be 
redesignated as paragraph Sec.  5.30(d). Additionally, MSHA would move 
paragraph Sec.  5.10(c)(5) (post-approval product audits) from those 
services for which ``fees are not charged'' to proposed Sec.  
5.30(c)(4) ``fees are charged''.
    Proposed Sec.  5.10 would provide the purpose and scope of this 
part: To establish a system under which MSHA charges a fee for approval 
program services for mining products manufactured for use in mines.
    The approval program represents all the activities necessary for 
MSHA to assure that products approved for use in mines are designed, 
manufactured, and maintained in accordance with approval requirements. 
The approval program includes: (1) Application processing; (2) testing 
and evaluation; (3) approval decisions; (4) post-approval activities; 
and (5) the termination of approvals.
    Application processing begins when an applicant files a new 
application for approval. MSHA administratively reviews each new 
application and, on determining that the application is complete, 
prepares a maximum fee estimate and sends it to the applicant. The 
applicant must agree to pay the estimated fee before MSHA will begin 
testing, as appropriate, and evaluating the product.
    Testing and evaluation includes technical evaluation, analysis, 
test set up, testing, test tear down, any consultation on the 
application, and internal quality control activities. To assure that 
approved products continue to be designed, manufactured, and maintained 
in accordance with approval requirements, the Agency uses internal 
quality control programs to monitor and improve its testing and 
evaluation processes (e.g., internal administrative and technical 
reviews, internal audits, and calibration, repair, and maintenance of 
test equipment).
    Following testing and evaluating a product, MSHA makes an approval 
decision and notifies the applicant by letter of its findings and 
decision. If the product is approved, the letter identifies the 
approved specifications for the design, construction, maintenance, and 
conditions of use for the product. If the product is not approved or if 
the application is cancelled, the letter identifies the reasons for the 
decision. All approval documentation is kept on file at MSHA.
    MSHA also conducts various post-approval activities: changing 
approvals (e.g., extensions \2\ of approvals, field modifications, 
modification through the Revised Acceptance Modification Program), 
conducting post-approval product audits, field audits, responding to 
complaints, investigating product failures, monitoring regional or 
nationwide product recall or retrofit programs, and conducting 
administrative actions such as transfer of approval numbers.
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    \2\ An extension of the approval is a document MSHA issues that 
states that a change to the product previously approved by MSHA is 
approved and authorizes the continued use of the approval marking 
with the appropriate extension number added.
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    Termination of an approval may occur when an approval holder 
voluntarily requests termination of an approval, when MSHA revokes an 
approval because of compliance or safety issues, or when MSHA issues 
regulations that make an approval obsolete.

[[Page 61037]]

B. Sec.  5.30 Fee Calculation

    Proposed Sec.  5.30 would address the hourly rate calculation, the 
activities for which MSHA would charge a fee, activities that are not 
subject to a fee, the fee estimate, and any changes to the fee 
estimate.
    Under proposed Sec.  5.30(a), MSHA would continue to charge a fee 
based on an hourly rate for approval program activities and other 
associated costs such as travel expenses and Part 15 fees. Part 15 fees 
for services provided to MSHA by other organizations would be set by 
those organizations.
    Proposed paragraph Sec.  5.30(b) is derived from existing Sec.  
5.30(a) and identifies the costs MSHA incurs in administering the 
approval program. Under the proposed rule, the hourly rate would be 
calculated to reflect the costs of the overall approval program. Under 
the existing rule, the hourly rate includes only the application 
processing, testing and evaluation, and approval decision costs.
    Also under the existing rule, some post-approval activities, such 
as changes to approvals, are included in the approval program costs 
used in calculating the hourly rate. However, the costs of monitoring 
to assure approved products continue to be safe and manufactured and 
maintained as approved (e.g., post-approval product audits) are 
excluded because MSHA historically considered these activities to be 
enforcement activities rather than approval program activities (52 FR 
17507-17508). OMB Circular No. A-25 requires that agencies recover the 
full costs of services rendered. In light of the increase in authority 
to retain fees and to more accurately account for costs, MSHA proposes 
to include the direct and indirect cost of these activities in the 
hourly rate because these activities are an important part of the 
approval program to assure that products continue to be designed, 
manufactured, and maintained in accordance with the approval 
requirements.
    Under the proposed rule, MSHA would continue to determine an hourly 
rate to cover direct and indirect costs. MSHA would base the hourly 
rate on all approval program costs the Agency incurred during a prior 
fiscal year. The hourly rate would be the total approval program costs 
(direct and indirect) divided by the number of direct hours spent on 
all approval program activities. Proposed paragraph Sec.  5.30(b) lists 
the approval program costs that MSHA would include in the hourly rate 
calculation.
    Proposed paragraph Sec.  5.30(b)(1) defines direct costs as 
consisting of compensation and benefit costs for all hours worked in 
support of the approval program and is derived, in part, from existing 
Sec.  5.10(b)(1) and (b)(2). These costs include approval program 
activities such as testing and evaluation, including internal quality 
control, and post-approval activities, including post-approval product 
audits.
    Proposed paragraph Sec.  5.30(b)(2) defines indirect costs and is 
derived, in part, from existing Sec.  5.10(b)(3) and (b)(4). Indirect 
costs include the approval program's proportionate share of the hours 
worked to manage and operate the A&CC. These costs are associated with 
activities required for information technology (IT) and A&CC management 
and administration. Indirect costs would also include the approval 
program's proportionate share of depreciation for buildings, their 
improvements, and equipment; a proportionate share of utilities, 
equipment rental, facility and equipment maintenance, security, 
supplies and materials, and other costs necessary for the operation and 
maintenance of the A&CC and a proportionate share of Department of 
Labor-provided services that would include financial systems, and audit 
and IT support.
    Proposed Sec.  5.30(c) is derived from existing Sec.  5.10(b) and 
includes activities for which MSHA would charge a fee.
    These activities would continue to include application processing 
(e.g., administrative and technical review of applications, computer 
tracking and status reporting); testing and evaluation (e.g., analysis 
of drawings, technical evaluation, testing, test set up and test tear 
down, and internal quality control activities); approval decisions 
(e.g., consultation on applications, records control and security, 
document preparation); and post-approval activities such as changes to 
approvals.
    Under the proposed rule, MSHA would begin to charge applicants and 
approval holders a fee for internal quality control activities. These 
activities are part of the approval program. MSHA uses internal quality 
control activities to monitor and improve the Agency's testing and 
evaluation processes and quality control. These internal quality 
control activities assure applicants and approval holders that 
consistent, accurate, and up-to-date scientific methods are used when 
MSHA is evaluating and testing products. For example, MSHA has standard 
procedures to repair, maintain, and calibrate laboratory equipment in 
accordance with the manufacturers' specifications. Each applicant and 
approval holder receives a benefit from these internal quality control 
activities: MSHA would distribute the hours worked and costs of 
internal quality control, based on the hours worked on each 
application. However, hours worked on specific internal quality control 
activities are not charged to a particular application. Instead, MSHA 
would charge each applicant a prorated share. MSHA proposes to 
calculate the prior year's quality control hours as a percentage of 
total hours, multiply that percentage by the number of direct hours 
worked on a particular application, and add the result to the number of 
direct hours worked on the application.
    Under the proposed rule, MSHA also would begin charging approval 
holders for the Agency's post-approval product audits, but would not 
include investigations or audits based on complaints about the 
products. Post-approval product audits are part of the approval program 
(post-approval activities) because they are necessary to assure that 
products have been manufactured as approved. Under existing 30 CFR 
parts 7, 14, and 15, approval holders are subject to a post-approval 
product audit upon request by MSHA. The Agency also would continue 
charging approval holders for changes to approvals.
    Internal quality control activities and post-approval audits assure 
that products are and continue to be designed, manufactured, and 
maintained in accordance with the approval requirements to ensure the 
health and safety of miners. For these reasons, MSHA is proposing to 
charge a fee for these activities.
    Existing Sec.  5.10(c)(1), (c)(2), (c)(3), and (c)(4) would be 
revised and redesignated, in part, as proposed Sec.  5.30(d).
    Proposed Sec.  5.30(d) would address the activities for which MSHA 
would not charge a fee. These include technical assistance not related 
to approval applications; technical programs including development of 
new technology programs; participation in research conducted by other 
government agencies or private organizations; and regulatory review 
activities, including participation in the development of health and 
safety standards, regulations, and legislation.
    Existing Sec.  5.30(b), Sec.  5.30(c), and Sec.  5.30(d) would be 
redesignated as proposed Sec.  5.30(e), Sec.  5.30(f), and Sec.  
5.30(g) under the Fee Calculation section.
    Proposed paragraph Sec.  5.30(e) would be revised by renumbering 
paragraphs Sec.  5.30(b)(1) and (b)(2) as Sec.  5.30(e)(1) and

[[Page 61038]]

(e)(2), respectively. Proposed paragraphs Sec.  5.30(f) and (g) would 
remain unchanged.

C. Sec.  5.40 Fee Administration

    Proposed Sec.  5.40 is revised by adding ``approval holders'' to 
entities to be billed and replacing ``processing of the application is 
completed'' with ``approval program activities are completed.'' MSHA 
would continue to charge applicants a fee for approvals and some post-
approval activities (e.g., modification to approvals), and proposes to 
charge approval holders a fee for post-approval product audits when the 
approval program activities are completed.

D. Sec.  5.50 Fee Revisions

    Proposed Sec.  5.50 is amended by replacing ``fee schedule'' with 
``hourly rate'' because MSHA no longer has a fee schedule.

IV. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    Executive Orders (E.O.) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
To comply with these Executive Orders, MSHA has included the following 
impact analysis.
    Section 3(f) of the E.O. 12866 defines a significant regulatory 
action as an action that is likely to result in a rule that: (1) Has an 
annual effect on the economy of $100 million or more, or adversely and 
materially affects a sector of the economy, productivity, competition, 
jobs, the environment, public health or safety, or State, local or 
tribal governments or communities; (2) creates serious inconsistency or 
otherwise interferes with an action taken or planned by another agency; 
(3) materially alters the budgetary impacts of entitlement grants, user 
fees, or loan programs, or the rights and obligations of recipients 
thereof; or (4) raises novel legal or policy issues arising out of 
legal mandates, the President's priorities, or the principles set forth 
in the Executive Order. OMB has determined that this is a significant 
regulatory action.
    The proposed rule would not have an annual effect of $100 million 
or more on the economy and, under E.O. 12866, is not considered 
economically significant. MSHA has not prepared a separate preliminary 
regulatory economic analysis for this rulemaking. Rather, the analysis 
is presented below.

A. Overview

    MSHA proposes to continue to charge a fee for approval services 
based on an hourly rate. As under the existing rule, MSHA's hourly rate 
would include direct costs and indirect costs. However, under the 
proposed rule, MSHA would calculate the hourly rate by dividing all 
approval program costs incurred by the Agency during a prior fiscal 
year by the number of direct hours spent on approval program activities 
for the same period.
    The proposed rule would increase the hourly rate from $97 to $121, 
an increase of $24.
    MSHA would also begin to charge a fee for internal quality control 
activities and post-approval product audits. In FY 2012, MSHA collected 
approximately $1.2 million in fees. Under this proposed rule, MSHA 
estimates that the Agency would have collected a total of $2.7 million 
in fees in FY 2012, an increase of $1.5 million.
    The charges under the proposed rule are fees and are considered 
under OMB Circular No. A-4, Regulatory Analysis (09/17/2003) as 
transfer payments, not costs. Transfer payments are payments from one 
group to another that do not affect total resources available to 
society. Under the proposed rule, the applicant or the approval holder 
pays for services for which they receive a benefit. These services are 
currently paid for by the taxpayer.
    Because the fees MSHA collects are a transfer, there are zero costs 
and zero benefits regardless of the discount rate (OMB Circular No. A-
4, Regulatory Analysis (09/17/2003,) Section (G) Accounting Statement).

B. Benefits

    The rule would not produce any quantifiable benefits because the 
only impact is the transfer payment.

C. Projected Impacts

    MSHA analyzed A&CC invoice data from Fiscal Year (FY) 2012. Using 
the U.S. Economic Census North American Industry Classification System 
(NAICS) data, MSHA estimated the impact of the proposed rule on mining 
and non-mining industries. NAICS is the standard used by Federal 
statistical agencies in classifying business establishments for the 
purpose of collecting, analyzing, and publishing statistical data 
related to the U.S. business economy (http://www.census.gov/eos/www/naics/).
    From the A&CC post-approval product audit data and FY 2012 
invoices, MSHA identified 30 industries that received A&CC approval 
program services. MSHA grouped this data into three general industry 
categories: Coal Mining, Other Mining, and Non-Mining.
    MSHA estimated the fees that would be collected under this proposed 
rule by summing the impact of the hourly rate increase and the increase 
from charging for internal quality control activities and post-approval 
product audits. Under this proposed rule, fees would increase by 
approximately $1.5 million annually ($0.3 million from the hourly rate 
increase + $1.1 million for internal quality control activities + $0.1 
million for post-approval product audit activities). Of the $1.5 
million, the increase in fees for the mining industries would total 
approximately $0.9 million annually. The remaining $0.6 million would 
be distributed among the non-mining industries that seek product 
approval from MSHA.
    MSHA estimated the fee increase from the proposed hourly rate by 
multiplying the number of chargeable hours for FY 2012 (12,189), by the 
proposed hourly rate of $121. In 2012, MSHA estimated that the proposed 
hourly rate would have resulted in approximately $1.5 million in fees 
collected, an increase of $300,000 (($121 new rate - $97 old rate) x 
12,189 hours)).
    MSHA also estimated the fees from charging for internal quality 
control activities. MSHA uses internal quality control activities to 
monitor and improve the Agency's testing and evaluation processes. 
These activities include internal process reviews, maintaining 
laboratory equipment, and repairing, maintaining, and calibrating 
laboratory equipment to assure the equipment produces reliable and 
accurate results. In FY 2012, MSHA spent 9,015 hours on these 
activities. MSHA multiplied the 9,015 hours by the proposed $121 hourly 
rate. This results in an estimated annual impact of $1.1 million.
    In addition, MSHA analyzed post-approval product audit data from 
2008 to 2012 to estimate the increase in fees from charging for these 
services. In any given year, post-approval product audits are completed 
only on a subset of the total products approved by the A&CC. In 2012, 
MSHA spent approximately 1,000 hours on 125 post-approval product 
audits. Multiplying the 1,000 hours by the proposed $121 hourly rate 
results in an estimated annual impact of $121,000. The average 
estimated impact would

[[Page 61039]]

have been $970 for each approval holder audited in 2012.

V. Feasibility

    MSHA concludes that the proposed rule would be economically 
feasible.
    MSHA has traditionally used a revenue screening test--whether the 
annualized compliance costs of a regulation are less than one percent 
of revenues (dollar change/revenue), or are negative (i.e., provide net 
cost savings) to establish presumptively that compliance with the 
regulation is economically feasible. MSHA relies on Agency data to 
identify revenue for covered mining entities and the 2007 Economic 
Census data to identify revenue by NAICS industry categories for non-
mining entities.
    MSHA performed the revenue screening test comparing the annual 
impact to annual revenues for all three categories and found that the 
percentage impact rounds to zero percent of revenue in each case. Given 
the relatively small impact compared to industry total revenues, any 
further analysis would not be productive.
    Because the estimated impacts are below one percent of estimated 
annual revenue of the impacted industries, MSHA concludes that 
compliance with the provisions of the proposed rule is economically 
feasible.

VI. Regulatory Flexibility Act, Small Business Regulatory Enforcement 
Fairness Act, and Executive Order 13272: Proper Consideration of Small 
Entities in Agency Rulemaking

    The Regulatory Flexibility Act of 1980 (RFA) as amended by the 
Small Business Regulatory Enforcement Fairness Act of 1996 and other 
statutes, and E.O. 13272 requires agencies to consider the effects of 
their proposed and existing regulations on small entities and to 
examine alternatives that would minimize the small entity impacts while 
still meeting the regulations' purposes. MSHA has reviewed the proposed 
rule to assess the potential impact on small businesses, small 
governmental jurisdictions, and small organizations.
    The applicants who would be affected by the proposed rule represent 
30 industries. The SBA size standard for a small entity (13 CFR 
121.201) differs by industry code. For mining, SBA defines a small 
entity as one with 500 or fewer employees. For non-mining industries 
that would be impacted by this rule, SBA defines a small entity as one 
that has revenues of $7.5 million or less.
    MSHA used the FY 2012 invoice data and NAICS industry data to 
evaluate the small business impact. For the non-mining industries, the 
affected industries represent small business revenues of approximately 
$474 billion. The proposed rule would increase fees for non-mining 
industries by approximately $0.5 million. The impact from an increase 
in fees is essentially zero percent of revenue ($0.5 million/$474 
billion).
    For the mining industries, MSHA data shows small coal mine revenues 
of $31 billion. The proposed rule would increase fees for coal mines by 
approximately $0.9 million. MSHA data shows other than coal small mine 
revenues of $57 billion. The proposed rule would increase fees for 
mines other than coal by approximately $6,000. The impact from an 
increase in fees is zero percent for both mining categories. 
Approximately $100,000 in increased fees is primarily attributable to 
foreign entities. MSHA concludes that the impact on the U.S. economy 
and its businesses would be de minimis.
    Given that the maximum possible impact for both mining and non-
mining categories rounds to zero percent, the Agency concludes that, 
using either the SBA definition of small mines (500 or fewer employees) 
or using MSHA's traditional definition of small mines (1-19 employees), 
it can certify that the proposed rule would not have a significant 
economic impact on a substantial number of small entities.

VII. Paperwork Reduction Act of 1995

    This proposed rule contains no information collections subject to 
review by OMB under the Paperwork Reduction Act of 1995.

VIII. Other Regulatory Considerations

A. The Unfunded Mandates Reform Act of 1995

    MSHA has reviewed the proposed rule under the Unfunded Mandates 
Reform Act of 1995 (2 U.S.C. 1501 et seq.). MSHA has determined that 
this proposed rule does not include any federal mandate that may result 
in increased expenditures by State, local, or tribal governments; nor 
would it increase private sector expenditures by more than $100 million 
(adjusted for inflation) in any one year or significantly or uniquely 
affect small governments. Accordingly, under the Unfunded Mandates 
Reform Act, no further Agency action or analysis is required.

B. The Treasury and General Government Appropriations Act of 1999: 
Assessment of Federal Regulations and Policies on Families

    Section 654 of the Treasury and General Government Appropriations 
Act of 1999 (5 U.S.C. 601 note), as amended, requires agencies to 
assess the impact of agency action on family well-being. MSHA has 
determined that this proposed rule would have no effect on family 
stability or safety, marital commitment, parental rights and authority, 
or income or poverty of families and children. Accordingly, MSHA 
certifies that this proposed rule would not impact family well-being.

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

    Executive Order 12630 requires Federal agencies to ``identify the 
takings implications of proposed regulatory actions . . .'' MSHA has 
determined that this proposed rule would not include a regulatory or 
policy action with takings implications. Accordingly, under E.O. 12630, 
no further Agency action or analysis is required.

D. Executive Order 12988: Civil Justice Reform

    Executive Order 12988 contains requirements for Federal agencies 
promulgating new regulations or reviewing existing regulations to 
minimize litigation by eliminating drafting errors and ambiguity, 
providing a clear legal standard for affected conduct rather than a 
general standard, promoting simplification, and reducing burden. MSHA 
has reviewed this proposed rule and has determined that it would meet 
the applicable standards provided in E.O. 12988 to minimize litigation 
and undue burden on the Federal court system.

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

    MSHA has determined that this proposed rule would have no adverse 
impact on children. Accordingly, under E.O. 13045, no further Agency 
action or analysis is required.

F. Executive Order 13132: Federalism

    MSHA has determined that this proposed rule does not have 
federalism implications because it would not have substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government. Accordingly, 
under E.O. 13132, no further Agency action or analysis is required.

[[Page 61040]]

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

    MSHA has determined that this proposed rule does not have tribal 
implications because it would not have substantial direct effects on 
one or more Indian tribes, on the relationship between the Federal 
Government and Indian tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian tribes. 
Accordingly, under E.O. 13175, no further Agency action or analysis is 
required.

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

    MSHA has reviewed this proposed rule for its impact on the supply, 
distribution, and use of energy because it applies to the coal mining 
industry. Insofar as the proposed rule would result in an increase to 
the yearly transfer of $0.9 million for the coal mining industry 
relative to annual revenues of $45 billion in 2011 (latest full year of 
data), it is not a ``significant energy action'' because it is not 
``likely to have a significant adverse effect on the supply, 
distribution, or use of energy (including a shortfall in supply, price 
increases, and increased use of foreign supplies).'' Accordingly, under 
E.O. 13211, no further Agency action or analysis is required.

List of Subjects in 30 CFR Part 5

    Mine safety and health.

    Dated: October 6, 2014.
Joseph A. Main,
Assistant Secretary for Mine Safety and Health.

    For the reasons set out in the preamble, and under the authority of 
the Federal Mine Safety and Health Act of 1977, as amended, MSHA is 
proposing to amend Chapter I of Title 30 of the Code of Federal 
Regulations as follows:

Subchapter B--Testing, Evaluation, and Approval of Mining Products

PART 5--FEES FOR TESTING, EVALUATION, AND APPROVAL OF MINING 
PRODUCTS

0
1. The authority citation for part 5 continues to read as follows:

    Authority:  30 U.S.C. 957.

0
2. Revise Sec.  5.10 to read as follows:


Sec.  5.10  Purpose and scope.

    This part establishes a system under which MSHA charges a fee for 
services provided. This part includes the management and calculation of 
fees for the approval program which includes: application processing, 
testing and evaluation, approval decisions, post-approval activities, 
and termination of approvals.
0
3. Revise Sec.  5.30 to read as follows:


Sec.  5.30  Fee calculation.

    (a) Fee calculation. MSHA charges a fee based on an hourly rate for 
approval activities and other associated costs such as travel expenses 
and Part 15 fees. Part 15 fees for services provided to MSHA by other 
organizations may be set by those organizations.
    (b) Hourly rate calculation. The hourly rate consists of direct and 
indirect costs of the approval program, divided by the number of direct 
hours worked on all approval program activities.
    (1) Direct costs are compensation and benefit costs for hours 
worked on approval program activities.
    (2) Indirect costs are a proportionate share of the following 
costs:
    (i) Compensation and benefit hours worked in support of all 
activities of the Approval and Certification Center;
    (ii) Building and equipment depreciation costs of the Approval and 
Certification Center;
    (iii) Utilities, facility and equipment maintenance, and supplies 
and materials of the Approval and Certification Center; and
    (iv) Information Technology and other services centrally provided 
by MSHA to the Approval and Certification Center.
    (c) Fees are charged for:
    (1) Application processing (e.g., administrative and technical 
review of applications, computer tracking and status reporting);
    (2) Testing and evaluation (e.g., analysis of drawings, technical 
evaluation, testing, test set up and test tear down, and internal 
quality control activities);
    (3) Approval decisions (e.g., consultation on applications, records 
control and security, document preparation); and
    (4) Post-approval activities: Changes to approvals and post-
approval product audits.
    (d) Fees are not charged for:
    (1) Technical assistance not related to processing an approval 
application;
    (2) Technical programs including development of new technology 
programs;
    (3) Participation in research conducted by other government 
agencies or private organizations; and
    (4) Regulatory review activities, including participation in the 
development of health and safety standards, regulations, and 
legislation.
    (e) Fee estimate. Except as provided in paragraphs (e)(1) and 
(e)(2) of this section, on completion of an initial administrative 
review of the application, the Approval and Certification Center will 
prepare a maximum fee estimate for each application and will begin the 
technical evaluation once the applicant authorizes the fee estimate.
    (1) The applicant may pre-authorize an expenditure for services, 
and may further choose to pre-authorize either a maximum dollar amount 
or an expenditure without a specified maximum amount. All applications 
containing a pre-authorization statement will be put in the queue for 
the technical evaluation upon completion of an initial administrative 
review. MSHA will concurrently prepare a maximum fee estimate for 
applications containing a statement pre-authorizing a maximum dollar 
amount, and will provide the applicant with this estimate. Where MSHA's 
estimated maximum fee exceeds the pre-authorized maximum dollar amount, 
the applicant has the choice of cancelling the action and paying for 
all work done up to the time of the cancellation, or authorizing MSHA's 
estimate.
    (2) Under the Revised Acceptance Modification Program (RAMP), MSHA 
expedites applications for acceptance of minor changes to previously 
approved, certified, accepted, or evaluated products. The applicant 
must pre-authorize a fixed dollar amount, set by MSHA, for processing 
the application.
    (f) If unforeseen circumstances are discovered during the 
evaluation, and MSHA determines that these circumstances would result 
in the actual costs exceeding either the pre-authorized expenditure or 
the authorized maximum fee estimate, as appropriate, MSHA will prepare 
a revised maximum fee estimate for completing the evaluation. The 
applicant will have the option of either cancelling the action and 
paying for services rendered or authorizing MSHA's revised estimate, in 
which case MSHA will continue to test and evaluate the product.
    (g) If the actual cost of processing the application is less than 
MSHA's maximum fee estimate, MSHA will charge the actual cost.
0
4. Revise Sec.  5.40 to read as follows:


Sec.  5.40  Fee administration.

    Applicants and approval holders will be billed for all fees, 
including actual travel expenses, if any, when approval program 
activities are completed. Invoices will contain specific payment 
instruction, including the address to

[[Page 61041]]

mail payments and authorized methods of payment.
0
5. Revise Sec.  5.50 to read as follows:


Sec.  5.50  Fee revisions.

    The hourly rate will remain in effect for at least one year and be 
subject to revision at least once every three years.

[FR Doc. 2014-24130 Filed 10-8-14; 8:45 am]
BILLING CODE 4510-43-P