[Federal Register Volume 80, Number 145 (Wednesday, July 29, 2015)]
[Rules and Regulations]
[Pages 45051-45057]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-18617]


=======================================================================
-----------------------------------------------------------------------

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: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Mine Safety and Health Administration (MSHA) is revising 
the Agency's regulation for administering fees for testing, evaluation, 
and approval of products manufactured for use in mines. This final rule 
revises the fees charged for these services. The final rule also 
includes 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. This change will allow MSHA to charge 
fees that reflect the full cost of the approval services provided.

DATES: The final rule is effective on October 1, 2015.

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).

[[Page 45052]]


SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Executive Summary
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

Availability of Information

    Docket: Access rulemaking documents electronically at http://www.msha.gov/regsinfo.htm or http://www.regulations.gov. [Docket Number 
MSHA-2014-0016]. Obtain a copy of a rulemaking document from the Office 
of Standards, Regulations, and Variances, MSHA, by request to 202-693-
9440 (voice) or 202-693-9441 (facsimile). (These are not toll-free 
numbers.)
    Email Notification: To subscribe to receive an email notification 
when MSHA publishes rules, program information, instructions, or 
policy, in the Federal Register, go to http://www.msha.gov/subscriptions/subscribe.aspx.

I. Executive Summary

A. Purpose of Regulatory Action

    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.

B. Summary of Major Provisions

    Under the final rule, MSHA revises the hourly rate for the fees 
charged to applicants and approval holders to include all costs 
associated with the approval program. MSHA calculates the hourly rate 
by dividing the total approval program costs (direct and indirect) 
during a prior fiscal year, including internal quality control 
activities and post-approval product audits, by the number of total 
direct hours spent on approval program activities for the same period. 
These changes in how MSHA calculates fees increase the hourly rate to 
$121.

C. Costs and Benefits

    This rule is not economically significant. The final rule will 
produce zero costs and zero benefits because the fees MSHA collects are 
transfer payments. MSHA discusses transfer payments in section IV of 
this preamble.

II. Background

    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, included a 
list of flat fees for different tests, evaluations, and other services 
performed for approval activities (30 FR 3752-3757). On May 8, 1987 (52 
FR 17506), 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. On August 9, 2005 (70 FR 
46336), MSHA revised part 5 and its fee procedures. That rule 
eliminated the application fee, allowed pre-authorization of 
expenditures for processing applications, and allowed outside 
organizations to set fees when conducting part 15 testing on MSHA's 
behalf.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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 the charges reflect the full costs of the 
services provided. Traditionally, MSHA reviews its user charges 
annually; however, MSHA last revised its hourly rate under part 5 to 
$97.00 on December 29, 2010 (75 FR 82074).
    Under 30 U.S.C. 966, MSHA may retain up to $2,499,000 of fees 
collected for the approval and certification of equipment, materials, 
and explosives for use in mines.
    MSHA proposed revisions to its existing regulations on fees for 
testing, evaluation and approval of mining products on October 9, 2014 
(79 FR 61035). This final rule addresses the comments received in 
response to the proposed rule.

III. Section-by-Section Analysis

    In this final rule, 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.

A. Sec.  5.10 Purpose and Scope

    Final Sec.  5.10, like the proposal, provides the purpose and scope 
of the rule. It also establishes a system under which MSHA charges a 
fee for approval program services for products manufactured for use in 
mines. Like the proposal, the final rule identifies the activities in 
the approval program.
    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.
    1. 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 needed, and evaluating the product.
    2. Testing and evaluation includes technical evaluation, analysis, 
test set up, testing, test tear down, any consultation on the 
application, and internal quality control activities. MSHA 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).
    3. Following testing and evaluating a product, MSHA makes an 
approval decision and notifies the applicant by letter of the Agency's 
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.
    4. MSHA also conducts the following post-approval activities:

[[Page 45053]]

     Changing approvals (e.g., extensions \2\ of approvals, 
field modifications, and modification through the Revised Acceptance 
Modification Program (RAMP)).
---------------------------------------------------------------------------

    \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 for the change added.
---------------------------------------------------------------------------

     Conducting post-approval product audits and field audits.
     Responding to complaints.
     Investigating product failures.
     Monitoring regional or nationwide product recall or 
retrofit programs.
     Conducting administrative actions, such as transfer of 
approval numbers.
    5. 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.
    MSHA did not receive any comments on Sec.  5.10 and it is finalized 
as proposed.

B. Sec.  5.30 Fee Calculation

    Final Sec.  5.30, like the proposal, addresses the hourly rate 
calculation, the activities for which MSHA charges a fee, activities 
that are not subject to a fee, the fee estimate, and any changes to the 
fee estimate. Section 5.30 is finalized as proposed.
    Under final Sec.  5.30(a), like the proposal, MSHA will 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 will 
be set by those organizations.
    Final paragraph Sec.  5.30(b), like the proposal, is derived from 
existing Sec.  5.30(a) and identifies the costs MSHA incurs in 
administering the approval program. Under the final rule, like the 
proposal, the hourly rate is 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. Under the existing rule, however, 
MSHA had excluded the costs of monitoring to assure approved products 
continue to be manufactured and maintained as approved because MSHA 
considered these activities to be enforcement activities rather than 
approval program activities (52 FR 17507-17508). As stated previously, 
OMB Circular No. A-25 requires that agencies recover the full costs of 
services rendered. To more accurately account for costs, MSHA proposed 
to include the direct and indirect cost of these post-approval product 
activities in the hourly rate calculation because these activities are 
an important part of the approval program. These activities assure 
MSHA, operators, and miners that products continue to be designed, 
manufactured, and maintained in accordance with the approval 
requirements.
    Under the final rule, like the proposal, MSHA will continue to 
determine an hourly rate to cover direct and indirect costs. MSHA bases 
the hourly rate on all approval program costs the Agency incurred 
during a prior fiscal year. The hourly rate is the total approval 
program costs (direct and indirect) divided by the number of direct 
hours spent on all approval program activities. Final paragraph Sec.  
5.30(b) lists the approval program costs that MSHA will include in the 
hourly rate calculation.
    Final paragraph Sec.  5.30(b)(1), like the proposal, 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.
    Final paragraph Sec.  5.30(b)(2), like the proposal, 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 Approval and 
Certification Center (A&CC). These costs are associated with activities 
required for information technology (IT) and A&CC management and 
administration. Indirect costs 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.
    A commenter asked what MSHA considers to be indirect costs. Section 
5.30(b)(2) in this final rule and in the preamble to the proposed rule 
(79 FR 61037) defines indirect costs. MSHA's definition of indirect 
costs is consistent with OMB Circular No. A-25. MSHA determined that 
the definition in the final rule adequately addresses the commenter's 
question.
    Final Sec.  5.30(c), like the proposal, is derived from existing 
Sec.  5.10(b) and includes activities for which MSHA charges a fee. 
These activities 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. Like the proposal, final Sec.  5.30(c) describes internal 
quality control activities and post-approval product audits as part of 
the approval program, as MSHA is required to recover costs associated 
with the approval program (OMB Circular No. A-25).
    A commenter objected to MSHA charging for internal quality control. 
Under the final rule, like the proposal, MSHA will charge applicants 
and approval holders a fee for internal quality control activities. 
These activities are an integral part of the approval program. MSHA 
uses internal quality control activities to monitor and improve the 
Agency's testing and evaluation processes and for 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 will distribute the hours worked and costs of internal quality 
control activities, based on the hours worked on each application. 
Hours worked on specific internal quality control activities, however, 
are not charged to a particular application. Instead, MSHA will charge 
each applicant a prorated share. MSHA will calculate the prior year's 
internal 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 
that application.

[[Page 45054]]

    A commenter objected to MSHA charging a fee for post-approval 
product audits stating that MSHA could charge for exaggerated paperwork 
evaluations and could audit the same company as often as they want. 
Under existing 30 CFR 7.8(b), 14.10(b), and 15.10(b), MSHA audits a 
specific product no more than once a year, except for cause, and the 
approval-holder may attend any testing MSHA conducts on their product. 
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 the final rule, like the proposal, MSHA will charge approval 
holders for the Agency's post-approval product audits, but will not 
charge for investigations or audits based on complaints about the 
products.
    Internal quality control activities and post-approval product 
audits assure MSHA, operators, and miners 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 will charge a fee for these activities.
    Existing Sec.  5.10(c)(1), (c)(2), (c)(3), and (c)(4) are revised 
and redesignated, in part, as final Sec.  5.30(d). Final Sec.  5.30(d), 
like the proposal, addresses the activities for which MSHA will 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.
    MSHA did not receive any comments on proposed Sec.  5.30(d) and it 
is finalized as proposed.
    Existing paragraphs Sec.  5.30(b), (c), and (d) are redesignated as 
final paragraphs Sec.  5.30(e), (f), and (g) under Sec.  5.30 Fee 
Calculation.
    Final paragraph Sec.  5.30(e), like the proposal, is revised by 
renumbering existing paragraphs Sec.  5.30(b)(1) and (b)(2) as Sec.  
5.30(e)(1) and (e)(2), respectively. Final paragraphs Sec.  5.30(f) and 
(g) remain unchanged.
    MSHA did not receive any comments on Sec.  5.30(e), (f), and (g) 
and these sections are finalized as proposed.

C. Sec.  5.40 Fee Administration

    Final Sec.  5.40, like the proposal, 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 will continue to charge applicants a 
fee for approvals and some post-approval activities (e.g., modification 
to approvals), and will charge approval holders a fee for post-approval 
product audits when the approval program activities are completed.
    MSHA received no comments on proposed Sec.  5.40 and it is 
finalized as proposed.

D. Sec.  5.50 Fee Revisions

    Final Sec.  5.50, like the proposal, replaces ``fee schedule'' with 
``hourly rate'' because MSHA no longer has a fee schedule. A commenter 
questioned why MSHA has a scheduling fee. As discussed in this final 
rule and in the preamble to the proposed rule, MSHA eliminated the 
individual fee schedules in 1987 and created a single hourly rate for 
calculation of fees.
    Like the proposal, MSHA is revising the hourly rate from $97 under 
the existing rule to $121 using fiscal year (FY) 2012 data. A commenter 
objected to MSHA raising the hourly rate, citing challenging times 
being faced by the coal industry. This commenter was particularly 
concerned about the impact of the increase in fees on a small 
manufacturing company in the coal service industry. In response to this 
comment, MSHA states below, in Section V. Feasibility, that the 
increase in the hourly rate is below one percent of the estimated 
annual revenues of the impacted industries. The final rule, like the 
proposal, removes the term ``fee schedule'' from Sec.  5.50 and it is 
finalized as proposed.

E. Other Comments

    MSHA received general comments that objected to the overall 
rulemaking and to MSHA collecting more money than the Agency has the 
authority to retain. Under OMB Circular No. A-25, MSHA is required to 
review the user fees in its programs to ensure that the charges reflect 
the full costs of the services provided. This action transfers the cost 
of MSHA approval program services from the taxpayer to the applicants 
or approval holders who benefit from these services. Fees collected in 
excess of those the Agency is authorized to retain are sent back to the 
U.S. Treasury.

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

    Executive Orders (E.O.) 12866 and 13563 generally 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 a 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 final 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 regulatory 
economic analysis for this rulemaking. Rather, the analysis is 
presented below.

A. Overview

    MSHA will continue to charge a fee for approval services based on 
an hourly rate. As under the existing rule, MSHA's hourly rate will 
include direct costs and indirect costs. However, under the final rule, 
MSHA will 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 final rule will increase the hourly rate from $97 to $121, an 
increase of $24.
    MSHA will 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 final 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.

[[Page 45055]]

    The charges under the final rule are fees and are considered 
transfer payments, not costs, under OMB Circular No. A-4, Regulatory 
Analysis (09/17/2003). Transfer payments are payments from one group to 
another that do not affect total resources available to society. Under 
the final 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 will not produce any quantifiable benefits because the 
only impact is the transfer payment.

C. Projected Impacts

    MSHA analyzed A&CC invoice data from FY 2012. Using the U.S. 
Economic Census North American Industry Classification System (NAICS) 
data, MSHA estimated the impact of the final 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 will be collected under this final 
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 final rule, fees will 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 coal and other mining industries 
will total approximately $0.9 million annually. The remaining $0.6 
million will be distributed among the non-mining industries that seek 
product approval from MSHA.
    MSHA estimated the fee increase from the final hourly rate by 
multiplying the number of chargeable hours for FY 2012 (12,189 hours) 
by the final hourly rate of $121. In 2012, MSHA estimated that the 
final 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 have been $970 for each approval holder audited 
in 2012.

V. Feasibility

    MSHA concludes that the final 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 final 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 final 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 final rule to 
assess the potential impact on small businesses, small governmental 
jurisdictions, and small organizations.
    The applicants who will be affected by the final rule represent 30 
industries. The Small Business Administration's (SBA's) 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 SBA's definitions for a small entity, 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 final rule 
will 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 $30 billion. The final rule will increase fees for small coal mines 
by approximately $0.9 million. MSHA data shows other small mine 
revenues (not coal mines) of $57 billion. The final rule will increase 
fees for small 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.
    Several commenters stated that large companies could absorb the 
increase in fees and that the small companies would be adversely 
affected. MSHA's analysis determined that the impact of the final rule 
for both small mining and small non-mining entities is essentially

[[Page 45056]]

zero percent of annual revenues. Additionally, considering MSHA's 
traditional definition of small mines (1-19 employees), the impact of 
the final rule is essentially zero percent. The Agency concludes that 
one rate is appropriate for all company sizes.
    MSHA certifies that the final rule will not have a significant 
economic impact on a substantial number of small entities.

VII. Paperwork Reduction Act of 1995

    This final rule contains no information collections subject to 
review by OMB under the Paperwork Reduction Act of 1995. The paperwork 
associated with applications for approval are considered under the 
specific part in Title 30, Chapter 1, Subchapter B that contains the 
requirements for the specific product submitted for MSHA approval.

VIII. Other Regulatory Considerations

A. The Unfunded Mandates Reform Act of 1995

    MSHA has reviewed the final rule under the Unfunded Mandates Reform 
Act of 1995 (2 U.S.C. 1501 et seq.). MSHA has determined that this 
final 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 final 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 final rule will 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 final regulatory actions . . . .'' MSHA has 
determined that this final rule will 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 final 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 final rule will 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 final 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.

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

    MSHA has determined that this final 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 final rule for its impact on the supply, 
distribution, and use of energy because it applies to the coal mining 
industry. Insofar as the final rule would result in an increase to the 
yearly transfer of $0.9 million for the coal mining industry relative 
to annual revenues of $41 billion in 2012, 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: July 23, 2015.
Joseph A. Main,
Assistant Secretary of Labor 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 
revising 30 CFR part 5 to read as follows:

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

Sec.
5.10 Purpose and scope.
5.30 Fee calculation.
5.40 Fee administration.
5.50 Fee revisions.

    Authority:  30 U.S.C. 957.


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.


Sec.  5.30  Fee calculation.

    (a) Fee calculation. MSHA charges a fee based on an hourly rate for 
Approval and Certification Center (A&CC) 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 may 
be set by those organizations.
    (b) Hourly rate calculation. The hourly rate consists of direct and 
indirect costs of the A&CC's 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.

[[Page 45057]]

    (2) Indirect costs are a proportionate share of the following A&CC 
costs:
    (i) Compensation and benefit hours worked in support of all A&CC 
activities;
    (ii) A&CC building and equipment depreciation costs;
    (iii) A&CC utilities, facility and equipment maintenance, and 
supplies and materials; and
    (iv) Information Technology and other services the Department of 
Labor provides to the A&CC.
    (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) Two 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 (2) 
of this section, on completion of an initial administrative review of 
the application, the A&CC will prepare a maximum fee estimate for each 
application. A&CC will begin the technical evaluation after 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.
    (i) All applications containing a pre-authorization statement will 
be put in the queue for the technical evaluation on completion of an 
initial administrative review.
    (ii) 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.
    (2) 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.
    (3) 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.


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 mail payments and authorized 
methods of payment.


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. 2015-18617 Filed 7-28-15; 8:45 am]
 BILLING CODE 4510-43-P