[Federal Register Volume 84, Number 182 (Thursday, September 19, 2019)]
[Notices]
[Pages 49336-49344]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-20212]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
[Docket No. OSHA-2007-0031]
Nationally Recognized Testing Laboratories; Revised Fee Schedule
and Adoption of New Application Acceptance and Review Procedures
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Notice.
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SUMMARY: In this notice, OSHA revises the schedule of fees that the
agency charges to Nationally Recognized Testing Laboratories (NRTLs)
and NRTL applicants. In addition, OSHA adopts new streamlined
procedures for accepting and reviewing applications of organizations
seeking to obtain, renew, or expand NRTL recognition.
DATES: The revised NRTL Fee Schedule and New Application Acceptance and
Review Procedures become effective on October 21, 2019.
FOR FURTHER INFORMATION CONTACT:
Press inquiries: Contact Mr. Frank Meilinger, Director, OSHA Office
of Communications, U.S. Department of Labor; telephone: (202) 693-1999;
email: [email protected].
General and technical information: Contact Mr. Kevin Robinson,
Director, Office of Technical Programs and Coordination Activities,
Directorate of Technical Support and Emergency Management, Occupational
Safety and Health Administration, U.S. Department of Labor; telephone:
(202) 693-2110 or email: [email protected].
SUPPLEMENTARY INFORMATION:
I. Notice
On September 22, 2015, OSHA published a notice proposing the
adoption of new streamlined procedures for accepting and reviewing
applications of organizations seeking to obtain, renew, or expand NRTL
[[Page 49337]]
recognition, and the revision of the existing NRTL Program fee schedule
pursuant to the NRTL Program regulation, 29 CFR 1910.7(f) (80 FR
57222). The agency received one comment in response to this notice,
available on www.regulations.gov under docket number OSHA-2007-0031.
OSHA addresses this comment, infra, in section III of this notice.
OSHA now is proceeding with this notice and hereby adopts the
proposed streamlined procedures for accepting and reviewing
applications, with one minor, non-substantive change, as discussed
infra, in section III of this notice. OSHA also adopts the proposed
NRTL Program fee schedule, without change, as discussed infra, in
section IV of this notice.
II. Background on the NRTL Program
Many of OSHA's safety standards (e.g., 29 CFR part 1910, subpart S)
require that equipment and products be tested and certified to help
ensure their safe use in the workplace. To implement these
requirements, OSHA established the NRTL Program and the agency
generally requires NRTLs to perform this testing and certification.
The NRTL Program regulation, 29 CFR 1910.7, requires that, to
obtain and retain OSHA recognition as a NRTL, an organization must: (1)
Have the appropriate capability to test, evaluate, and approve products
to assure their safe use in the workplace; (2) be completely
independent of employers subject to the tested equipment requirements
and manufacturers and vendors of 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
organizations applying for NRTL recognition to provide, in their
applications, detailed and comprehensive information about their
programs, processes, and procedures, in writing. When an organization
makes an initial application to be recognized as a NRTL, OSHA reviews
the written information contained in the organization's application 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 a NRTL applies for expansion or renewal of its recognition,
although the type and amount of information in some areas can differ
significantly from those of initial applications. In addition, the
agency conducts annual assessments \1\ of NRTLs to ensure that the
recognized laboratories adequately maintain their programs and continue
to meet the recognition requirements.
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\1\ OSHA uses the term ``assessments'' to mean those activities
described by the term ``audits'' under 29 CFR 1910.7(f). OSHA uses
the term ``assessments,'' rather than ``audits'' because it better
reflects the overall purpose of the program's activities, i.e.,
conformity assessments.
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To support these core functions, OSHA also performs a number of
ancillary activities. For example, OSHA investigates complaints filed
against NRTLs to ensure that the laboratories are performing their
testing and certification functions adequately; represents the NRTL
Program in a variety of forums related to conformity assessment
products used in the workplace; and maintains a detailed website that
both explains the program and lists all the laboratories currently
recognized under the NRTL Program, the products each laboratory can
test, and registered certification marks used by each laboratory.
III. Revision of Existing Application Acceptance and Review Procedures
OSHA currently has a number of initiatives underway to improve the
operations of the NRTL Program. This section of the notice discusses
one such initiative, under which OSHA adopts new streamlined procedures
for accepting and reviewing applications of organizations seeking to
obtain, renew, or expand NRTL recognition. OSHA will follow these new
procedures in lieu of those contained in the agency's existing NRTL
Program Directive (CPL 01-00-004, NRTL Program Policies, Procedures,
and Guidelines, September 5, 2019) (``Directive'' or ``NRTL Program
Directive'') and the additional practices OSHA has routinely followed
in accepting applications.
OSHA adopts the new streamlined procedures to eliminate delays
caused by multiple revisions by an applicant during the application-
acceptance and -review process. In addition, OSHA simplifies the
application process to make it clearer when the application acceptance
process ends and the substantive application review process begins.
This streamlined application process will also reduce NRTL Program
fees, as OSHA will discuss later in this notice.
The existing procedures for application acceptance and review are
contained in both Appendix A to the NRTL Program regulations,
(``Appendix A'') and the NRTL Program Directive, CPL-01-00-004. OSHA
does not, in this notice, revise Appendix A; instead, OSHA has updated
the NRTL Program Directive to include the revised application
acceptance and review procedures made final by this notice.
A. Existing Procedures in Appendix A That Were Not Subject to Revision
Per Appendix A, the burden is generally ``on the applicant to
establish by a preponderance of the evidence that it is entitled to
recognition as an NRTL'' (App. A. Introduction). Thus, in its
application, an applicant must ``provide sufficient information and
detail demonstrating that it meets the requirements set forth in Sec.
1910.7, in order for an informed decision concerning recognition to be
made'' by the Assistant Secretary for Occupational Safety and Health
(``Assistant Secretary''), and must also ``identify the scope of the
NRTL-related activity for which the applicant wishes to be recognized''
(i.e., the test standards the applicant will use for testing products)
(App. A.I.A.2.b). To meet its burden, the applicant may include any
documentation (i.e., enclosures, attachments, or exhibits) it deems
appropriate (App. A.I.A.2.c).
Also under Appendix A, ``[a]pplications submitted by eligible
testing agencies will be accepted by OSHA, and their receipt
acknowledged in writing'' (App. A.I.B.1.a). Moreover, ``[a]fter receipt
of an application, OSHA may request additional information if it
believes information relevant to the requirements for recognition has
been omitted'' (Id.). In addition, ``OSHA shall, as necessary, conduct
an on-site review of the testing facilities of the applicant, as well
as the applicant's administrative and technical practices, and, if
necessary, review any additional documentation underlying the
application'' (App. A.I.B.1.b).
Appendix A provides the responsible OSHA staff with two options
following review of the application, and any additional information and
on-site review report. On the one hand, if ``the applicant appears to
have met the requirements for recognition,'' responsible OSHA staff
must make a ``positive finding'' to the Assistant Secretary, which
consists of ``a written recommendation . . . that the application be
approved, accompanied by a supporting explanation'' (App. A.I.B.2).
Once this recommendation is made, OSHA follows the procedures in the
Appendix for making preliminary and final findings on the application
(App. A.I.B.4, A.I.B.5, A.I.B.6).
On the other hand, if ``the applicant does not appear to have met
the requirements for recognition,'' responsible OSHA staff must make a
[[Page 49338]]
``negative finding'' to the ``applicant in writing, listing the
specific requirements of Sec. 1910.7 and [Appendix A] which the
applicant has not met, and allow[ing] a reasonable period for
response'' (App. A.I.B.3.a). After the applicant receives ``a
notification of negative finding (i.e., for intended disapproval of the
application), and within the response period provided,'' the applicant
may either (1) ``[s]ubmit a revised application for further review,
which could result in a positive finding'' (the procedures for which
are explained in the previous paragraph), or (2) ``[r]equest that the
original application be submitted to the Assistant Secretary with an
attached statement of reasons, supplied by the applicant of why the
application should be approved'' (App. A.I.B.3.b.i). In either case
(i.e., if a positive finding is made on a revised application or if the
applicant requests that the original application be submitted to the
Assistant Secretary), OSHA would follow the procedures in the Appendix
for making preliminary and final findings on the application (App.
A.I.B.4, A.I.B.5, A.I.B.6). The ``procedure for applicant notification
and potential revision shall be used only once during each recognition
process'' (App. A.I.B.3.b.ii).
B. OSHA Will No Longer Follow Existing NRTL Program Directive
Procedures for Accepting and Reviewing Applications
Existing policies contained in the NRTL Program Directive expand on
the application procedures contained in Appendix A, as follows. Per the
Directive, OSHA staff ``formally accept or reject the application''
based on a review of the application for ``completeness and for
adequacy'' (Directive Ch. 2.V.B, Ch. 3.II.B.1). The procedures for this
review are contained in Appendix D to the Directive (Directive Ch.
3.II.B.1). An application is considered complete ``if it contains all
necessary documents, and sufficient information for all relevant
items,'' and is considered adequate ``if the information submitted
sufficiently demonstrates that the requirements for recognition can be
met, and where relevant, if at least one test standard requested can be
approved'' (Directive App. D) (emphasis in original).
In reviewing the application, OSHA staff will return and ``take[ ]
no further action'' on an application ``[i]f [the] application is
frivolous or grossly incomplete or inadequate.'' In such circumstances,
``any future application from the applicant'' will be processed ``as a
new application'' (Directive Ch. 3.II.A).
If the application is not ``frivolous or grossly incomplete or
inadequate,'' OSHA staff discusses its review with the applicant,
``noting any deficiencies found or clarifications needed'' (Directive
Ch. 3.II.B.2). If the ``application is determined to be complete and
adequate,'' OSHA ``sends a letter to the applicant to accept the
application'' (Directive Ch. 3.II.C).
If the application is determined to be incomplete or inadequate,
the Directive provides two opportunities for applicants to correct
deficiencies before rejection of an application (Directive Ch. 3.II.C).
In practice, however, OSHA has given applicants three such
opportunities. Per the Directive, OSHA ``sends a letter to the
applicant, detailing the deficiencies and the additional information
needed and requesting a response by an appropriate deadline,'' and if
``the response does not adequately resolve the deficiencies,'' OSHA
``provides the applicant a [second] opportunity to respond within a
given period.'' (Directive Ch. 3.II.C.) If deficiencies remain after
the second opportunity, OSHA, in practice, gives applicants a third,
but relatively limited, opportunity to make corrections before the
effective date of the rejection. This limited duration is sufficient
for applicants to correct deficiencies if only a few critical
deficiencies remain.
If an applicant's timely response cures the deficiencies in its
application, OSHA ``sends an acceptance letter to the applicant''
(Directive Ch. 3.II.C). However, ``[i]f the applicant does not respond
adequately or fails to reply by any deadline(s) provided or an approved
extension of these deadline(s),'' OSHA ``sends a letter notifying the
applicant that the application is not accepted and the Case File is
closed'' (Directive Ch. 3.II.C.2).
Finally, the Directive provides that, after an application is
accepted, ``the assigned staff determines whether an on-site review is
necessary'' (Directive Ch. 3.II.D). However, the Directive also
provides for non-acceptance during the on-site review process, if an
applicant fails to respond adequately to the findings of an on-site
review (Directive Ch.4.IV.C).
OSHA proposed that it will no longer follow the existing
procedures, described above, to afford applicants three opportunities
to modify their applications before acceptance or non-acceptance. These
existing procedures are inefficient and cause delays because, in some
cases, these multiple opportunities cause the process to take years.
OSHA also proposed that it will also not follow its existing procedure
for accepting an application only when it is found to be complete and
adequate. This existing procedure has caused confusion as to when the
application acceptance process ends and the substantive application
review process begins. OSHA received no comments objecting to its
proposed decision to no longer follow the above-described existing
procedures. OSHA therefore adopts its proposed decision, without
change.
C. OSHA Adopts New Streamlined Procedures for Accepting and Reviewing
Applications, as Proposed, With One Minor, Non-Substantive Change
In lieu of the existing NRTL Program Directive procedures,
described above, OSHA proposed to follow streamlined procedures for
accepting and reviewing applications. OSHA received one comment in
response to the proposal, from Curtis-Strauss, LLC, a NRTL (available
on www.regulations.gov under Docket Number OSHA-2007-0031). Curtis-
Strauss was generally supportive of the proposed streamlined procedures
for accepting and reviewing applications, and of the proposed revised
NRTL Program fee schedule, discussed below, but suggested two additions
to the proposed procedures:
Curtis-Strauss suggested that ``OSHA provide updates to
applicants every 60 days because ``[t]his would keep applicants
informed and could also enhance OSHA's management of the agency's
application queue as grouped by applicant,'' and because ``[t]his may
help OSHA to realize other process efficiencies when scheduling on-site
audits or performing technical reviews.''
Curtis-Strauss suggested that ``OSHA offer an opportunity
to the applicant to have a conference call or an in-person meeting with
the relevant OSHA staff promptly after the notice of intent to
recommend a negative finding'' because ``[t]his would give applicants
the ability to ask questions and better understand the application's
deficiencies while still leaving enough time to correct them prior to
the deadline.''
OSHA supports keeping lines of communication open during the
application process. However, OSHA does not believe that formalizing
rules for open dialogue, as suggested by Curtis-Strauss, will make the
application process more effective. Each application is different and
requires different levels and types of communication. The degree and
types of communication suggested by Curtis-Strauss may be too little in
some cases and too much in others. Therefore,
[[Page 49339]]
OSHA is not adopting the suggestions made by Curtis-Strauss.
OSHA hereby adopts the streamlined procedures, as proposed, with
one minor, non-substantive change, discussed, infra. These streamlined
procedures will reduce delays, fees, and confusion associated with
application processing. Under these streamlined procedures, OSHA will
review an application for completeness, but not adequacy, in deciding
whether to accept the application. OSHA's review for adequacy, and any
on-site review, will occur only after OSHA accepted the application.
Furthermore, OSHA will permit the applicant one opportunity only,
rather than three, to resolve deficiencies in the completeness of its
application before deciding whether to accept it. OSHA describes the
new streamlined procedures it adopts in this notice in more detail,
immediately below.
1. Initial Review and Acceptance
OSHA proposed that, when OSHA receives an application, it will
acknowledge its receipt, establish (for initial applications) or update
(for expansion and renewal applications) the docket for the
organization, and upload the application materials to the docket.\2\
For this notice, OSHA decided that it will not establish or update a
docket for an organization in connection with an application upon
receipt. Instead, OSHA will establish a docket for an application only
in connection with the preparation of a Federal Register notice
announcing a preliminary finding on the application. Establishing
dockets for applications at this later point in the application process
will further streamline the application acceptance and review process,
as many applications are withdrawn or amended before the applications
reach the preliminary determination stage.
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\2\ As currently used by OSHA, the term ``docket'' means an
electronic file folder containing documents that pertain to an
official action taken by the agency. OSHA generally makes these
documents available to the public.
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After it receives an application, OSHA will perform an
administrative review of the application to determine whether it is
complete (i.e., has sufficient information to determine whether the
applicant meets the requirements for recognition). If not complete,
OSHA will notify the applicant, in writing, that it has 30 days from
the date of the notice to provide the missing or additional
information. OSHA will also inform the applicant, in the notice, that
it is unable to review the merits of the application because the
application itself does not contain sufficient information to show that
the requirements for recognition can be met. Finally, OSHA will inform
the applicant, in the notice, that this review involved no technical
determination, only an administrative one of whether the application
has all of the necessary documentation. If the applicant does not
respond by the 30-day deadline, or does not adequately respond, and the
application remains incomplete, OSHA will inform the applicant that
OSHA cannot accept the application, and the applicant must reapply. If
the applicant provides a complete application within the 30 days, or
provided a complete application when it was first received, OSHA will
accept the application.
2. Determination of Adequacy
After accepting the application, OSHA will review the merits of the
application to determine whether the application is adequate. OSHA will
first conduct a technical review of the application (i.e., a detailed
review of all of the application's administrative and technical
procedures and content). Following this technical review, OSHA will
determine whether to conduct an on-site assessment as part of
evaluating the management system and technical capabilities of the
organization. OSHA will generally conduct an on-site review for initial
applications and for expansion applications that involve new areas of
testing for the NRTL or areas of concern to OSHA. If OSHA finds
deficiencies during the technical review or during the on-site
assessment, OSHA will provide the applicant with an explanation of
deficiencies and needed corrections, and a 90-day opportunity to
respond. Failure to respond by the 90-day deadline will constitute a
withdrawal of the application, and OSHA will take no further action on
it. If the applicant or NRTL responds, it will need to demonstrate it
corrected all deficiencies found in its application and/or during the
assessment, and provide evidence to OSHA that the corrections have been
implemented into the applicant's or NRTL's management systems. In that
case, OSHA will conclude the application is adequate. On the other
hand, if OSHA finds that deficiencies remain, OSHA will conclude the
application is not adequate.
If OSHA staff determines an application is adequate, OSHA will
follow existing procedures, and recommend a positive finding, per
Appendix A.I.B.2. Otherwise, OSHA staff will notify the applicant in
writing that they intend to recommend a negative finding. In that case,
the applicant has two options under Appendix A.I.B.3. First, the
applicant has one additional chance to revise its application within 30
days of receipt of OSHA's written notice. Second, the applicant may
request that its original application (as supplemented in response
during the review for adequacy) be submitted to the Assistant Secretary
(also within 30 days of receipt of OSHA's written notice). In this
case, the applicant must attach a statement of reasons to the
application explaining why the application should be approved. OSHA
would consider the failure to submit a revised application or a request
that the original application be submitted to the Assistant Secretary
within the 30-day deadline to be a withdrawal of the application.
If the applicant opts to revise its application, OSHA will invoice
the applicant for the fee to review its revised submission. This fee
would equal the estimated hours for the review multiplied by the hourly
rate for the applicable Miscellaneous Fee in the NRTL Program's fee
schedule. Like other application fees, this review fee will not be
refundable. The applicant will need to pay this fee before OSHA
performs the review of the revised application. OSHA will consider a
failure to pay the fee within 30 days of receipt of the invoice as a
withdrawal of the application. When OSHA receives the fee, OSHA will
review the revised application to determine whether to sustain the
negative finding or change it to a positive one. If OSHA staff decides
to sustain the recommendation for a negative finding, they will first
afford the applicant the opportunity to withdraw the application. If
the applicant does not withdraw it, OSHA will proceed with the
preliminary finding.
Once OSHA staff recommends a positive finding on either an original
or revised application, sustains its recommendation for a negative
finding after a review of a revised application, or the applicant
requests that the original application be submitted to the Assistant
Secretary, OSHA will follow the procedures in Appendix A for making
preliminary and final findings on the application (App. A.I.B.4,
A.I.B.5, A.I.B.6).
OSHA will no longer follow the existing NRTL Program Directive
procedures for accepting and reviewing applications, as described in
section III.B. of this notice. Instead, OSHA adopts the proposed
streamlined procedures for accepting and reviewing applications, with
one minor non-substantive change, as described above.
[[Page 49340]]
IV. Revision of the NRTL Program Fee Schedule
A. Background
OSHA revises the existing NRTL Program fee schedule pursuant to the
NRTL Program regulation, 29 CFR 1910.7(f). That regulation requires
NRTLs and applicants to ``pay fees for services provided by OSHA in
advance of the provision of those services'' (29 CFR 1910.7(f)(1)).
OSHA assesses fees for core service activities, that is, for
``[p]rocessing of 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 ``[a]udits of sites''
(Id.). OSHA's fee schedule ``reflects the full cost of performing the
activities'' for these services (29 CFR 1910.7(f)(2)).
OSHA calculates fees ``based on either the average or actual time
required to perform the work necessary; the staff costs per hour (which
include wages, fringe benefits, and expenses other than travel for
personnel that perform or administer the activities covered by the
fees); and the average or actual costs for travel when on-site reviews
are involved'' (Id.). Thus, the formula for calculating a fee for an
activity is the ``[Average (or Actual) Hours to Complete the Activity x
Staff Costs per Hour] + Average (or Actual) Travel Costs'' (Id.).
OSHA periodically reviews the full costs of performing core
services and, if warranted, will propose a revised fee schedule in the
Federal Register (29 CFR 1910.7(f)(3), (f)(4)). If OSHA approves the
proposed fee schedule (after giving the public an opportunity to
comment), it ``publish[es] the final fee schedule in the Federal
Register, making the fee schedule effective on a specific date'' (29
CFR 1910.7(f)(3), (f)(4)).
To ensure that its fees for core services reflect the full cost of
those services, OSHA's existing fee schedule (which OSHA adopted in
2011) takes into account both the direct and indirect costs it incurs
in performing those services (76 FR 10501-10504). Direct costs include
staff costs (i.e. the applicable portion of the salaries and fringe
benefits of the applicable staff) incurred for application processing
and assessment (Id.). Ancillary (or indirect) costs include staff costs
incurred for the administration and support of the program, including
legal support, budgeting, policy matters, intragency and international
coordination, responses to requests for information related to the
program, handling complaints, website development and maintenance, and
participation in meetings with stakeholders and outside interest groups
(Id.). OSHA refers to the sum of its direct costs and ancillary costs
as the total program costs (TPC) for the purpose of this notice. TPC
does not include travel expenses, which are assessed separately (29 CFR
1910.7(f)(2), 76 FR 10504 n.5).
In the existing fee schedule, OSHA calculates the fee for each core
service activity 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 (76 FR 10504). In 2000, when OSHA
began assessing fees for services, OSHA explained that it derived that
fee schedule's ECR by dividing TPC by the total available annual work
hours of the NRTL Program and legal staff that perform the services
(TAW) (Id.). Accordingly, ECR2000 = TPC2000/TAW2000. 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 (Id.).
To account for the costs associated with these shared benefits,
OSHA adopted a new approach in 2011 for calculating ECR (ECR2011) in
the existing fee schedule (Id.). Under the new approach, OSHA divides
the estimated total cost of the NRTL Program (TPC2011) by the total
annual service hours (TAS2011) (Id.). This latter term equals the total
estimated work hours that the NRTL Program staff spend on the core
service activities for which OSHA would bill NRTLs; accordingly,
ECR2011 = TPC2011/TAS2011 (Id.). By way of comparison with the 2000 fee
schedule, TAS equals TAW minus estimated hours spent on ancillary
activities (AH) and leave (LH) (i.e., TAS = TAW-AH-LH) (Id.). By
continuing to include the full program costs in the numerator
(TPC2011), but including in the denominator (TAS2011) only the amount
of time spent on providing ``billable'' core services, OSHA believed
the revised ECR would more accurately represent the total work hours
spent on those core activities than the 2000 equation \3\ (Id.).
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\3\ The existing fee schedule was supposed to have been phased
in over a three-year phase-in period. (76 FR 10508). OSHA
implemented the first phase on March 28, 2011. However, due to other
priorities and factors, OSHA was unable to implement the second and
third phases of the increase, as planned. This revised fee schedule
renders moot the implementation of the second and third phases.
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B. Explanation of Revised Fee Schedule
OSHA reviewed its existing fee schedule and, based on that review,
proposed to revise its fee schedule. OSHA received one comment in
response to the proposal, from Curtis-Strauss, LLC, a NRTL (available
on www.regulations.gov under Docket Number OSHA-2007-0031). Curtis-
Strauss was generally supportive of the proposed NRTL Program fee
schedule. OSHA hereby adopts the proposed NRTL Program fee schedule,
without change. The revised fee schedule more accurately reflects the
full cost of performing the activities for which OSHA charges fees.
OSHA explains the details of the revised fee schedule, as follows:
1. OSHA adopts a new grouping of fees for each of the core
activities for which OSHA charges fees to NRTLs (i.e., ``[p]rocessing
of 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 ``[a]udits of sites'' (29 CFR
1910.7(f)(1)). Under the existing fee schedule, OSHA groups these
activities under the terms Application Processing, Audits, and
Miscellaneous (76 FR 10508). Under OSHA's revised fee schedule, shown
below in Table 6, OSHA groups these activities under the terms:
Administrative Evaluation, Technical Evaluation, Assessments, Federal
Register Notices, and Miscellaneous (which includes late fees and other
activities not specifically described). OSHA adopts these new groupings
to align its fee schedule with the newly-adopted streamlined procedures
for accepting and reviewing applications, described above. OSHA also
believes that the times it now estimates for completion of these
activities (see Tables 2 thru 5, below) more accurately represent the
actual time it takes to complete the core activities for which OSHA
charges fees. Therefore, adoption of the groupings more accurately
reflects the full cost of the services for which fees are assessed.
2. OSHA revises the approach it uses to calculate ECR. Again, under
the existing approach, OSHA calculates ECR by dividing TPC by the total
estimated work hours that the NRTL Program staff and legal staff spend
on the core service activities for which OSHA bills NRTLs (or TAS) (76
FR 10504).
[[Page 49341]]
The existing approach depends, in large measure, on OSHA estimating
an accurate TAS (i.e., number of ``billable'' core hours). If this
estimate is accurate, the ECR (i.e., the hourly rate OSHA charges for
services) will accurately reflect the full cost of services (because
ECR = TPC/TAS). But OSHA's estimate has not been accurate in practice.
Due in part to insufficient program staffing and other uncontrollable
factors, the staff has been unable to work the number of estimated
billable hours. This has resulted in an hourly rate charged by OSHA
that results in fees that are far lower than the fees OSHA would be
charging if its estimate had been accurate.
OSHA could reassess TAS on a regular basis to achieve a more
accurate estimate. However, due to the changing nature of the staff's
workload, OSHA likely would need to make such calculation adjustments,
and thus publish fee schedules, more than once within a given year to
ensure an accurate estimate. OSHA likely could not make such
adjustments in a timely manner, largely due to the length of the
process for issuing fee schedules.
Under the revised fee schedule, OSHA simplifies the existing
calculation. For the purpose of the revised fee schedule, OSHA assumes
that certain NRTL Program staff (which OSHA calls ``direct staff'' in
this notice) work exclusively on core billable activities, and that
other NRTL Program staff (which OSHA calls ``indirect staff'' in this
notice) work exclusively on ancillary activities. OSHA calculates the
ECR (ECR2015) by dividing TPC by total direct staff annual paid (i.e.,
compensable) hours, or simply, direct staff annual hours (DSH).
Because of the difficulties of implementing the existing approach,
OSHA believes the change in approach in the revised fee schedule
(replacing TAS with DSH) will, on average and in practice, more
accurately reflect the full cost of services for which OSHA charges
fees than the existing approach. The accuracy of the DSH approach also
does not depend on the variable workload of staff, and will therefore
be simpler to implement than the existing approach.
OSHA estimates for the revised fee schedule that four full-time
NRTL Program staff members are direct staff and the other full-time
NRTL Program staff member is indirect staff. OSHA believes the estimate
of four full-time direct staff is reasonable because OSHA projects a
significant increase in the number of applications the NRTL Program
will process and audits the NRTL Program will perform (i.e., a
significant increase in the time NRTL Program staff will spend on core
activities).
For the purposes of the revised fee calculation, DSH equals 8,352
hours. This was derived by multiplying 2,088, the regular annual paid
hours for one full-time staff, by the number of full-time direct staff
\4\ (again, currently four).
---------------------------------------------------------------------------
\4\ This figure is the number of compensable hours in a fiscal
year, which is used to determine full-time equivalents (FTE) (i.e.,
full-time staffing levels) for purposes of the Federal Budget. See
Office and Management and Budget (OMB) Circular A-11, Preparation,
Submission, and Execution of the Budget, Section 85--Estimating
Employment Levels and the Employment Summary (Schedule Q), 2015
(available at the time of publication of the proposal at http://www.whitehouse.gov/sites/default/files/omb/assets/a11_current_year/s85.pdf).
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As explained more fully in the notice of proposed decision, the
proposed (now revised) fees for individual core service activities are
often significantly less than the analogous existing fees for such
services. These changes arise from the change in the way that OSHA will
calculate the ECR (which excludes some previously included indirect
costs but increases the number of direct staff hours) and streamlined
review procedures (which decrease the amount of staff hours needed for
some tasks in the process). OSHA nonetheless estimates that fees
collected under the revised fee schedule will, in toto, approximate the
full costs of administering the NRTL Program because, as stated above,
OSHA estimated a significant increase in the number of applications the
NRTL Program will process and audits the NRTL Program will perform
(i.e., a significant increase in the time NRTL Program staff will spend
on core service activities).
3. Under the revised fee schedule, OSHA breaks out the fees for the
legal review of Federal Register notices associated with initial,
renewal, and expansion applications from the general fees it charges
for preparation of these Federal Register notices by NRTL Program
staff. Under the existing fee structure, OSHA charges one general fee
that covers both preparation and legal review of a Final Report and
Federal Register notice (76 FR 10505-10511).\5\
---------------------------------------------------------------------------
\5\ Although OSHA did not state explicitly in the 2011 notice
that the Final Report and Federal Register notice fee included legal
review, the hours used for calculating this fee did in fact include
the legal staff's time for this review.
---------------------------------------------------------------------------
The revision more accurately reflects the portion of the fees
attributed to legal review. Under the existing fee structure, OSHA
charges a single hourly rate for core activities, regardless of whether
the time charged is attorney time or NRTL Program staff time (76 FR
10505). Under the revised fee structure, OSHA calculates a separate
hourly rate for core activities performed by legal staff to reflect
that certain ancillary costs, such as website development and
maintenance, which are properly incorporated into the hourly rate for
NRTL Program staff, should not be incorporated into the hourly rate for
legal services. OSHA continues to incorporate in the hourly rate for
legal costs those indirect costs that tie directly into the salary of
legal staff, such as fringe benefits. As a result of the revision, the
hourly rate for legal fees, shown in Table 5, is less than the rate for
NRTL Program staff fees, shown in Table 1.
OSHA notes that the Department of Labor incurs legal costs in
connection with the NRTL Program other than costs associated with the
legal review of Federal Register notices associated with initial,
renewal, and expansion applications. These other legal costs are
included in the existing fee schedule (See 76 FR 10504 n.5), and
continue to be included in the revised fee schedule, as elements in
TPC, and therefore, as elements of the calculation of the hourly rate
for NRTL Program staff.
4. OSHA revises the manner it calculates the salaries of NRTL
Program staff and Solicitor of Labor staff for the purpose of
calculating TPC. For the existing fee schedule, OSHA calculates staff
costs using actual staff salaries, which can vary, sometimes
significantly, over time due to changes in personnel and positions.
Under the revised fee schedule, OSHA calculates salaries using midpoint
salaries. These midpoint salaries are the Step 5 amounts shown for a
particular grade (e.g., grade 13) in the Office of Personnel Management
(OPM) General Schedule (GS) salary table for 2015, called the ``Salary
Table 2015-DCB,'' which pertains to federal workers who have duty
stations located mostly in Washington, DC, Maryland, and Virginia. (See
Office of Personnel Management 2015 General Schedule (GS) Locality Pay
Tables at www.opm.gov.) These midpoint salaries may differ from actual
staff salaries, which depend on the actual grade and step for each
staff. However, using these midpoint figures simplifies the calculation
of the staff costs and provides a consistent fee that OSHA expects will
reflect, on average, actual staff salaries over time. Because OPM
adjusts its salary tables annually, OSHA will monitor the adjustments
to determine if their magnitude requires modification of the fee
schedule.
Also, to include an amount for regular fringe benefits, OSHA
multiplies the midpoint salaries by a fringe benefit rate. Under the
revised fee schedule,
[[Page 49342]]
OSHA uses a 29% rate, and based this rate on the one the agency uses to
estimate fringe costs of other OSHA activities.
5. OSHA revises the manner in which it calculates ancillary (or
indirect) costs. Under the existing fee schedule, OSHA includes, in its
calculation of ancillary (or indirect) costs, equipment, training, and
space of the staff. Under the revised fee schedule, OSHA does not
include these items in its calculation of ancillary costs because NRTLs
do not derive a special benefit from these cost items. For example,
training costs for the program staff currently consist of general
training available to all employees. OSHA will include such costs in
future fee schedules if it determines that NRTLs do derive special
benefits from the items. OSHA believes the revision to the fee schedule
more accurately reflects the full costs of performing the activities
for which OSHA charges fees.
6. Under the revised fee schedule, OSHA does not charge fees for
determining whether proposed test standards are appropriate test
standards under the NRTL Program. OSHA charges such fees under the
existing fee schedule. However, OSHA recently updated its process
whereby it incorporates new test standards into the NRTL Program's list
of appropriate test standards (the scope of an appropriate test
standard must cover products for which OSHA requires NRTL approval and
must meet the requirements of 29 CFR 1910.7(c)(1)). Under the updated
policy, OSHA adds new test standards when it is made aware of new test
standards and determines them appropriate (79 FR 17188). It is
therefore no longer necessary to charge NRTLs specific fees in
connection with the incorporation of standards into the list of
appropriate test standards. OSHA notes, however, that the costs
associated with the incorporation of test standards will be ancillary
costs under the revised fee schedule, and will therefore be an element
in the calculation of the fees OSHA assesses.
C. Basis and Derivation of Revised Fee Amounts
Table 1, below, shows the direct and indirect program costs (TPC),
direct staff annual hours (DSH), and hourly rate OSHA uses to calculate
the revised fees.
Table 1--NRTL Program Staff--Hourly Rate Calculation
------------------------------------------------------------------------
Description
------------------------------------------------------------------------
OSHA Direct Costs............................................ $579,383
OSHA Ancillary Costs......................................... 287,541
OSHA Total Costs of NRTL Program, excluding travel (TPC)..... 866,924
OSHA Direct Staff Annual Hours (DSH)......................... 8,352
OSHA Hourly rate (TPC divided by DSH)........................ 104
------------------------------------------------------------------------
Tables 2 to 5, below, describe the fees OSHA adopts in conjunction
with the core services for which OSHA charges fees. OSHA calculates
each fee (with the exception of fees for legal review of Federal
Register notices) by multiplying the NRTL Program staff hourly rate of
$104 (see Table 1, above) by the time OSHA estimates it takes NRTL
Program staff to perform the activity at issue, on average (i.e., fee
for activity = NRTL Program staff hourly rate ($104) x estimated time
for activity). OSHA calculates the fees for legal review of Federal
Register notices by multiplying the hourly rate for legal services of
$89 (see Table 5, below) by the time OSHA estimates its takes legal
staff to perform the activity at issue, on average (i.e., fee for
activity = legal staff hourly rate ($89) x estimated time for
activity). OSHA notes that it rounds the revised fees down to the lower
multiple of ten.
OSHA's revised (and existing) fee for travel related to assessments
is based on actual travel expenses, and thus OSHA does not derive a fee
to charge for travel.
Table 2--Fees for Administrative Evaluation
------------------------------------------------------------------------
Program component Average hours Fee
------------------------------------------------------------------------
Initial Application--Limited review (per 40 $4,160
application)...........................
Expansion Application--Limited review 24 2,490
(per application)......................
Renewal request review.................. 16 1,660
------------------------------------------------------------------------
Table 3--Fees for Technical Evaluation
------------------------------------------------------------------------
Program component Average hours Fee
------------------------------------------------------------------------
Initial Application--Management 80 $8,320
Procedures review (per application)....
Initial or Expansion Application-- 24 2,490
Testing capability review (per
standard)..............................
Initial or Expansion Application--Site 24 2,490
capability review (per site)...........
------------------------------------------------------------------------
Table 4--Fees for Assessments
------------------------------------------------------------------------
Program component Average hours Fee
------------------------------------------------------------------------
Assessment preparation and close out 54 $5,610
(per lead auditor).....................
Assessment preparation and close out 32 3,320
(per assistant auditor)................
Each day on-site or at office (per 8 830
auditor)...............................
------------------------------------------------------------------------
Table 5--Fees for Federal Register Notices
------------------------------------------------------------------------
Program component Average hours Fee
------------------------------------------------------------------------
Initial Application Federal Register 20 $4,080
notice preparation (per application) **
[[Page 49343]]
Initial Application Federal Register 16 1,420
notice legal review (per application)..
-------------------------------
Total for Initial Application 36 5,500
Federal Register notices...........
------------------------------------------------------------------------
Renewal or Expansion Application Federal 16 2,470
Register notice preparation (per
application) **........................
Renewal or Expansion Application Federal 8 710
Register notice legal review (per
application)...........................
-------------------------------
Total for Renewal or Expansion 24 3,180
Application Federal Register
notices............................
------------------------------------------------------------------------
** Includes estimated Office of Federal Register (OFR) processing fees:
$2,000 per initial application notice, or $810 per expansion and
renewal notice, as applicable.\6\
---------------------------------------------------------------------------
\6\ The OFR charges Federal agencies a per column rate for
publishing Federal Register notices. See http://www.archives.gov/federal-register/write/conference/publishing-billing.pdf. OSHA
derived an estimated average processing fee based on the number of
columns in typical Federal Register notices published for the NRTL
Program.
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D. Revised Fee Schedule and Description of Fees
OSHA adopts the revised fee schedule shown below in Table 6.
Table 6--Revised NRTL Program Fee Schedule
----------------------------------------------------------------------------------------------------------------
Fee category Fee activity Fee *
----------------------------------------------------------------------------------------------------------------
Administrative Evaluation................... Initial application-- $4,160.
Limited review.
Expansion application-- $2,490.
Limited review.
Renewal request review..... $1,660.
Technical Evaluation........................ Initial application-- $8,320.
Detailed management
procedures review.
Initial or Expansion $2,490.
application--Testing
capability review (per
standard).
Initial or Expansion $2,490.
application--Site
capability review (per
site).
Assessment.................................. Assessment preparation and $5,610.
close out (per lead
auditor, per site).
Assessment preparation and $3,320.
close out (per assistant
auditor, per site).
Assessment--per day at $830 plus travel expenses.
office, on-site, or on
travel (per auditor, per
site).
Federal Register Notices.................... Federal Register notices-- $5,500.
initial application.
Federal Register notices-- $3,180.
renewal or expansion
application.
Miscellaneous............................... Late Fees.................. $210.
Other activities or $104.
services not specifically
described (per hour).
----------------------------------------------------------------------------------------------------------------
* All fees must be paid in advance of activity or service.
General Information Regarding the Fees
1. Explanation of Fees
The Administrative Evaluation fee covers an administrative
review of the application packet to ensure completeness. It also covers
creating the docket and addition of the application to the docket. An
applicant must submit this fee with the application.
The Technical Evaluation fee covers a detailed examination
of the application packet to determine the applicant's ability to meet
the requirements of the requested recognition/expansion. An applicant
must submit this fee with the application.
On-site or office assessment fees are calculated based on
estimated staff time and, if applicable, actual travel expenses. Travel
expenses include expenses for hotel, air transportation, ground
transportation, and per diem. The assessment preparation and close-out
fees (per lead and assistant auditor, as applicable) include staff time
to make travel arrangements and file travel reimbursement claims. At
the conclusion of the assessment, actual travel expenses are calculated
based on the government per diem and other travel rules. OSHA will bill
or refund the difference between the prepaid and the actual travel
amounts.
The fees for ``Other activities or services not
specifically described'' cover application- or assessment-related
activities that are not specifically covered by the other fee
categories. One example would be the technical review of a revised
application that an applicant submits to OSHA in response to OSHA's
negative finding on an applicant's original application.
2. Refunds
If an application is withdrawn before OSHA commences the
Technical Evaluation, or the application is rejected after OSHA
completes the Administrative Evaluation, OSHA will refund the Technical
Evaluation fee.
If an application is withdrawn before OSHA commences
travel to a site to perform an on-site assessment, the agency will
refund any prepaid assessment fees.
3. Late Fees/Failure to Pay. If an invoice is not paid in full by
the due date, the Late Payment fee will be assessed. If payment for an
application is not received within 30 days of the invoice's original
due date, the application will be rejected. If payment for an
assessment is not received within 30 days of the invoice's original due
date, OSHA will commence the process to revoke the NRTL's recognition
(see 29 CFR 1910.7, App. A.II.E). OSHA notes that NRTLs or applicants
may be subject to collection procedures under U.S. Federal law for
unpaid fees.
[[Page 49344]]
4. Changes to Fee Schedule. The effective date of this fee schedule
is thirty days after the publication of the Assistant Secretary's
notice in the Federal Register. A NRTL or applicant pays fees according
to the fee schedule in effect on the date the agency receives an
application or commences an on-site assessment.
V. Paperwork Reduction Act Requirements
The revisions adopted in this notice contains collections of
information (also referred to as ``paperwork'' requirements) that are
subject to review by the Office of Management and Budget (OMB) under
the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq., and
OMB's regulations at 5 CFR part 1320. The purposes of the PRA include
enhancing the quality and utility of information the Federal government
requires and minimizing the information collection burden on affected
entities. The PRA requires certain actions before an agency can adopt
or revise a collection of information, including publishing a summary
of the collection of information and a brief description of the need
for and proposed use of the information. The PRA defines ``collection
of information'' to mean, ``the obtaining, causing to be obtained,
soliciting, or requiring the disclosure to third parties or the public,
of facts or opinions by or for an agency, regardless of form or
format'' (44 U.S.C. 3502(3)(A)).
Under the PRA, a Federal agency may not conduct or sponsor a
collection of information unless it is approved by OMB under the PRA
and displays a currently valid OMB control number (44 U.S.C. 3507).
Also, notwithstanding any other provisions of law, no person shall be
subject to penalty for failing to comply with a collection of
information if the collection of information does not display a
currently valid OMB control number (44 U.S.C. 3512).
As required by 5 CFR 1320.8(d), OSHA published a Federal Register
notice on December 28, 2016 (81 FR 95650, Docket No. OSHA-2010-0007)
requesting comments from the public and other interested parties on
proposed revisions to the Information Collection Requirements approved
by OMB as part of the NRTL Program's Paperwork Package. The notice was
part of a preclearance consultation program that provided interested
parties with an opportunity to comment on the current request for OMB
approval of modification of the existing Paperwork Reduction Act
package by the Office of Management and Budget (OMB). The previous
approval of the existing information collection requirements by OMB and
the request for modification of that approval both addressed the
information collection requirements found in the NRTL Program
requirements (29 CFR 1910.7) (OMB Control Number 1218-0147).
The Federal Register notice generated two comments from the public.
Both comments are available on regulations.gov under docket number
OSHA-2010-0007. OSHA responded to these comments in a Supporting
Statement for the Revised Information Collection Requirements. A copy
of the revised Information Collection Requirements, with applicable
supporting documentation, including a description of the likely
respondents, frequency of response, and estimated total burden, may be
obtained free of charge from the RegInfo.gov website at http://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=1218-0147.
On June 29, 2018, the Department of Labor submitted to OMB for
approval the proposed revisions to the Information Collection
Requirements (83 FR 30779). OMB provided approval of this submission on
November 29, 2018.
Agency: DOL--OSHA.
Title of Collection: Definition and Requirements of a Nationally
Recognized Testing Laboratory (29 CFR 1910.7).
OMB Control Number: 1218-0147.
Affected Public: Business or other for-profit.
Total Estimated Number of Respondents: 20.
Total Estimated Number of Responses: 140.
Total Estimated Annual Time Burden: 1,523 hours.
Total Estimated Annual Other Costs Burden: $718,836.
VI. Final Decision
OSHA will no longer follow the existing NRTL Program Directive
procedures for accepting and reviewing applications, as described in
section III.B. of this notice. Instead, OSHA adopts the proposed
streamlined procedures for accepting and reviewing applications, with
one minor, non-substantive change, as described in section III.C. of
this notice.
OSHA also adopts the proposed revised fee schedule, as described in
sections IV.B, IV.C, and IV.D of this notice, without change. Moreover,
as described in sections IV.B, IV.C, and IV.D of this notice, the
revised fee schedule adopted herein replaces OSHA's existing fee
schedule.
Authority and Signature
Loren Sweatt, Principal Deputy 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 29 U.S.C. 657(g)(2),
Secretary of Labor's Order No. 1-2012 (77 FR 3912, Jan. 25, 2012), and
29 CFR 1910.7.
Signed at Washington, DC, on September 12, 2019.
Loren Sweatt,
Principal Deputy Assistant Secretary of Labor for Occupational Safety
and Health.
[FR Doc. 2019-20212 Filed 9-18-19; 8:45 am]
BILLING CODE 4510-26-P