[Federal Register: December 7, 2009 (Volume 74, Number 233)]
[Proposed Rules]
[Page 64027-64042]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07de09-866]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1910
[Docket No. OSHA-2007-0031]
Nationally Recognized Testing Laboratories; Proposed Rule
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Proposed Rule.
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SUMMARY: The Occupational Safety and Health Administration (OSHA) is
proposing to adjust the approach it uses for calculating the fees the
Agency charges Nationally Recognized Testing Laboratories (NRTLs) and
to require prepayment of all of the fees. OSHA charges fees for
specific types of services it provides to NRTLs. OSHA began charging
these fees in 2000, and has revised its fee schedule only twice (in
2002 and 2007), mainly to account for cost of living adjustments. The
proposed change in calculation approach would result in an increase of
the current fees and the issuance of a revised fee schedule. However,
for existing NRTLs and pending applicants, the Agency intends to phase
in, over three years, any proposed fee increase that is greater than
$200.
DATES: You must submit information or comments by the following dates:
Hard copy: Postmarked or sent by January 21, 2010.
Electronic transmission or facsimile: Sent by January 21, 2010.
ADDRESSES: You may submit comments by any of the following methods:
Electronically: You may submit comments and attachments
electronically at http://www.regulations.gov, which is the Federal
eRulemaking Portal. Follow the instructions online for making
electronic submissions.
Fax: If your submissions, including attachments, are not longer
than 10 pages, you may fax them to the OSHA Docket Office at (202) 693-
1648.
Mail, hand delivery, express mail, messenger or courier service:
You must submit three copies of your comments and attachments to the
OSHA Docket Office, Docket No. OSHA-2007-0031, U.S. Department of
Labor, Room N-2625, 200 Constitution Avenue, NW., Washington, DC 20210.
Deliveries (hand, express mail, messenger and courier service) are
accepted during the Department of Labor's and Docket Office's normal
business hours, 8:15 a.m.-4:45 p.m., e.t.
Instructions: All submissions must include the Agency name and the
OSHA docket number for this notice (OSHA Docket No. OSHA-2007-0031).
Submissions, including any personal information you provide, are placed
in the public docket without change and may be made available online at
http://www.regulations.gov.
Docket: To read or download submissions or other material in the
docket, go to http://www.regulations.gov or the OSHA Docket Office at
the address above. All documents in the docket are listed in the http:/
/www.regulations.gov index; however, some information (e.g.,
copyrighted material) is not publicly available to read or download
through the Web site. All submissions, including copyrighted material,
are available for inspection and copying at the OSHA Docket Office.
Extension of Comment Period: Submit requests for extensions
concerning this notice to the Office of Technical Programs and
Coordination Activities, NRTL Program, Room N-3655, OSHA, U.S.
Department of Labor, 200 Constitution Avenue, NW., Washington, DC
20210; fax (202) 693-1644.
FOR FURTHER INFORMATION CONTACT: For press inquiries, contact Ms.
Jennifer Ashley, Director, Office of Communications, Room N-3647, OSHA,
U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC
20210; telephone (202) 693-1999. For technical inquiries, contact Ms.
MaryAnn Garrahan, Director, Office of Technical Programs and
Coordination Activities, NRTL Program, OSHA, U.S. Department of Labor,
200 Constitution Avenue, NW., Room N3655, Washington, DC 20210;
telephone (202) 693-2110. Our Web page includes information about the
NRTL Program (see http://www.osha.gov/dts/otpca/nrtl/index.html or see
http://www.osha.gov and select "N" in the site index).
SUPPLEMENTARY INFORMATION:
I. Introduction
II. Background
III. Legal Considerations
IV. Explanation of Proposed Change in Approach for Calculating Fees
V. Basis and Derivation of Fee Amounts
VI. Proposed Fee Schedules
VII. Description of Fees
VIII. Major Changes to the Fee Schedule
IX. Proposed Changes to 29 CFR 1910.7(f)
X. Preliminary Economic Analysis and Initial Regulatory Flexibility
Analysis
XI. Unfunded Mandates Reform Act
XII. Paperwork Reduction Act
XIII. Federalism
XIV. State Plan States
XV. Public Participation
XVI. List of Subjects
XVII. Authority and Signature
XVIII. Proposed Changes to 29 CFR 1910.7
I. Introduction
The Occupational Safety and Health Administration (OSHA) is
proposing to adjust the approach it uses to calculate the fees charged
to Nationally Recognized Testing Laboratories (NRTLs). The proposed
change will recoup a larger percentage of the cost of administering the
NRTL Program. The adjusted approach would allow OSHA to continue to
charge each NRTL for the core application processing and audit services
provided to that NRTL while also recouping the shared costs of certain
activities (referred to as "ancillary activities" in this notice)
that benefit all NRTLs. These ancillary activities, which result in
special benefits to NRTLs, currently represent a significant portion of
OSHA's costs of running the NRTL Program. We explain these special
benefits later in this notice. The revised fee approach would also
recognize that the cost of leave earned by all staff directly involved
in the NRTL Program should be factored into the personnel cost
component of the fees. The current fee structure only incorporates
leave costs for some of the staff working on the program.
Because the proposed changes would result in a large increase to
the fees for existing NRTLs and pending applicants, OSHA is proposing a
three-year phase in of any fee increase that is greater than $200. OSHA
also is proposing to revise language in 29 CFR 1910.7(f) (the OSHA rule
implementing the NRTL fee structure) to clarify the nature of the costs
upon which the fees are based. In addition, OSHA proposes to require
advance payment of all NRTL fees, which complies with instructions to
Federal agencies issued by the Office of Management and Budget (OMB).
In section II, OSHA explains the NRTL Program and the existing fee
structure for charging NRTLs for application processing and audits. In
section III, OSHA explains the legal authority for recovering costs for
ancillary activities and leave. The Agency also explains the basis for
advance collection of the fees. Section IV describes how OSHA is
proposing to recoup the ancillary and leave costs and, in section V,
shows the derivation of the fee amounts. Sections VI and VII present
the proposed revised fee schedule and fee descriptions, respectively.
Finally, in section IX, OSHA explains the change it is making to the
regulatory text of 29 CFR 1910.7(f). The remaining sections address
other matters necessary for this rulemaking.
II. Background
Many of OSHA's safety standards require that equipment or products
used in the workplace be approved (i.e., tested and certified) to help
ensure that they can be used safely. See, e.g., 29 CFR Part 1910,
Subpart S. In general, this approval must be performed by an NRTL. In
order to ensure that the testing and certification are done
appropriately, OSHA administers the NRTL Program.
The NRTL Program requirements are set forth in 29 CFR 1910.7,
"Definition and requirements for a nationally recognized testing
laboratory," which specifies that to be recognized and to maintain
recognition as an 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 the
manufacturers, vendors, and major users of the products for which OSHA
requires certification; (3) have internal programs that ensure proper
control of the testing and certification process; and (4) have
effective reporting and complaint handling procedures. 29 CFR
1910.7(b).
OSHA requires that organizations seeking initial recognition as an
NRTL provide detailed and comprehensive information about their
programs, processes, and procedures in writing when they apply. To
process these applications, OSHA reviews the written information for
completeness and adequacy, and conducts an on-site assessment to
determine whether the organization meets the requirements of 29 CFR
1910.7. OSHA uses a similar process when an NRTL (i.e., an organization
already recognized) applies for expansion or renewal of its
recognition. In addition, the Agency conducts annual audits primarily
to ensure that each NRTL maintains its programs and continues to meet
the recognition requirements. Currently, there are 15 NRTLs operating
49 recognized sites in the U.S., Canada, Europe, and the Far East.
Application processing and audits are the core functions that OSHA
performs for the NRTL Program.
In order to perform these core functions, OSHA must also perform a
number of ancillary activities that support these functions. OSHA
investigates complaints filed against NRTLs to ensure that the
laboratories are adequately performing their testing and certification
functions. OSHA represents the NRTL Program in a variety of forums
related to conformity assessment \1\ of products used in the workplace.
OSHA also maintains a detailed Web site that both explains the program,
and, more importantly for the NRTLs, lists all the laboratories that
are currently recognized, the products each can test, and their
registered certification marks.
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\1\ OSHA generally uses the term "approval" to describe the
type of testing or certification activities performed by NRTLs.
Conformity assessment is a term used internationally to describe
such activities and is defined as "any activity concerned with
determining directly or indirectly that requirements are
fulfilled."
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On August 30, 2000, OSHA established a schedule of fees for certain
services rendered to NRTLs; specifically, the application processing
and audit functions. In the Federal Register notice announcing the fee
schedule (65 FR 46797, July 31, 2000), OSHA found that laboratories
receive "special benefits" from the NRTL Program and that charging
these laboratories was appropriate under the Independent Offices
Appropriations Act of 1952 (IOAA) (31 U.S.C. 9701), OMB Circular A-25
"User Charges," and other legal authorities. 65 FR 46803. OSHA
stated:
NRTLs accrue "special benefits" from the services that OSHA
renders to them. These "special benefits" are the product of
OSHA's initial and continuing evaluation of their qualifications to
test and certify products used in the workplace, e.g., the
acknowledgement of their capability as an NRTL. The primary special
benefits of NRTL recognition are the resulting business
opportunities to test and certify products for manufacturers, the
NRTL's clients. These opportunities may be in the form of new,
additional, or continuing revenue and clients. Once the NRTL has
properly certified a product, a manufacturer may then sell this
product to employers, enabling them to comply with product approval
requirements in OSHA standards. 65 FR 46807.
Through this rulemaking, OSHA promulgated 29 CFR 1910.7(f).
Paragraph (f) states that each applicant for NRTL recognition and each
NRTL must pay fees for services provided by OSHA. 29 CFR 1910.7(f)(1).
Specifically, the Agency assesses fees for the following: (1)
Processing 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 (2) audits. The rule also
sets forth that fees are based, in part, on the staff costs per hour of
performing application processing and/or audit activities.
This proposed rule would adjust the approach that OSHA uses to
calculate the fees it currently charges for the services it provides to
NRTLs. OSHA is proposing this adjustment because the current fee
schedule only recovers about half of the allowable reimbursable costs
of the NRTL Program.\2\ In particular, the current approach does not
recover the costs of the ancillary activities that are necessary to the
program's functioning. The proposed adjusted approach would also take
into account the value of the leave earned by all of the personnel
involved in the program, whereas, the current approach accounts for
leave earned by only a few of these personnel.
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\2\ In February 2007, OSHA issued a revision of its Fee Schedule
to account for increases in program costs (see 72 FR 7468). This
revision, however, did not alter OSHA's method for calculating fees.
The increase in the February 2007 fees was based on cost of living
and time adjustments, but employed the same calculation set forth in
the initial Federal Register notice published in July 2000. OSHA had
previously updated the initial fees in January 2002 (see 67 FR
5299).
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III. Legal Considerations
This proposed rule adjusts the approach that the Agency uses to
calculate the fees it charges NRTLs for services performed to the
benefit of the NRTLs by including the costs for benefits that are
shared by all NRTLs. As described above, these include certain costs
associated with ancillary activities and leave. Although OSHA would
still not charge separate fees for the time spent on ancillary
activities and leave, the rate charged for the fee-generating
activities would be adjusted to account for the portion of the program
costs attributable to ancillary activities and leave. This section
describes the legal basis for OSHA recouping these costs from the
NRTLs.
A. Legal Authority for Charging Fees
1. Statutory Authority
In Title V of the IOAA, Congress set forth its mandate for
executive agencies to collect fees for services and things of value
that the agencies provide. Congress intended that the agency programs
that provide benefits to specific individuals or companies be funded by
these beneficiaries and not by taxpayers at large. "It is the sense of
Congress that each service or thing of value provided by an agency * *
* to a person * * * is to be self-sustaining to the extent possible."
31 U.S.C. 9701(a). The Congressional Committee urging the measure
indicated, "The Committee is concerned that the Government is not
receiving full return from many of the services which it renders to
special beneficiaries." Nat'l Cable Television Ass'n v. U.S., 415 U.S.
336 (1974) quoting H.R. Rep. No. 82-384, at 2-3 (1951).
In addition to establishing a source of funding, Congress also
provided general guidance to agency heads on the establishment of fees.
The fees are to be "fair" and based on:
(A) The costs to the Government;
(B) The value of the service or thing to the recipient;
(C) Public policy or interest served; and
(D) Other relevant facts.
31 U.S.C. 9701(b).
The 1993 OMB Circular A-25 (discussed in greater detail below)
embodies the authority of the IOAA and reflects interpretations from
the related case law decisions.
Since 1997, in OSHA's yearly appropriations, Congress has
specifically authorized the Secretary of Labor to collect and retain
fees charged to sustain the NRTL Program. "[T]he Secretary of Labor is
authorized * * * to collect and retain fees for services provided to
Nationally Recognized Testing Laboratories, and may utilize such sums *
* * to administer national and international laboratory recognition
programs that ensure the safety of equipment and products used by
workers in the workplace." See e.g., Consolidated Appropriations Act
for FY 2000, Public Law No. 106-113 (113 Stat. 1501A-222) and
Consolidated Appropriations Act, 2009, Public Law No. 111-8 (123 Stat.
524).
2. Case Law
The Supreme Court and the Courts of Appeals have issued decisions
addressing the application of the IOAA and its interpretation by
Federal agencies. These cases provide guidance that is more specific as
to the fee schedules and the methods of assessing fees that agencies
may use. They make clear that agencies may recoup all of the
Governmental costs associated with providing private entities with
specific benefits.
In 1974, the Supreme Court decided the companion cases of Nat'l
Cable Television Ass'n, 415 U.S. 336 and Fed. Power Comm'n v. New
England Power Co., 415 U.S. 345 (1974). In Nat'l Cable, the Court found
that an agency may charge a fee for services but that the fee should be
based on "value to the recipient." Nat'l Cable, 415 U.S. at 342-43.
In New England Power Co., the Court held that pursuant to the IOAA and
OMB Circular A-25, agencies can only recoup specific charges for
specific services to specific individuals or companies. Fed. Power
Comm'n, 415 U.S. at 349.
In Nat'l Cable Television Ass'n, Inc. v. FCC, 554 F.2d 1094 (DC
Cir. 1976), the Court of Appeals also made clear that the fees must be
for specific services. The court upheld charging both an application
fee and an annual fee provided that the agency makes clear which
activities are covered by each of the fees to prevent charging twice
for the same service. Nat'l Cable Television Ass'n, 554 F.2d at 1105.
Furthermore, the court agreed that fees based on reasonable
approximations of costs for the services would be acceptable. "It is
sufficient for the Commission to identify the specific items of direct
or indirect cost incurred in providing each service or benefit for
which it seeks to assess a fee, and then to divide that cost among the
members of the recipient class * * * in such a way as to assess each a
fee which is roughly proportional to the `value' which that member has
thereby received." Nat'l Cable Television Ass'n, 554 F.2d at 1105-
1106.
In Elec. Indus. Ass'n v. FCC, 554 F.2d 1109 (DC Cir. 1976), the
Court of Appeals indicated that "expenses incurred to serve some
independent public interest cannot * * * be included in the cost basis
for a fee, although the Commission is not prohibited from charging an
applicant or grantee the full cost of services rendered * * * which
also result in some incidental public benefits." Elec. Indus. Ass'n,
554 F.2d at 1115. Moreover, the court held that the agency can only
include, in the cost basis of the fees, expenses incurred to confer
value upon the recipient. Id. Along similar lines, the Court of Appeals
held in Capital Cities Communications, Inc. v. FCC, 554 F.2d 1135 (DC
Cir. 1976), that "the proper standard is not value derived by the
recipient but rather value conferred on the recipient. In our view,
this standard requires the fee assessed to bear a reasonable
relationship to the cost of the services rendered to identifiable
recipients." Capital Cities Communications, Inc., 554 F.2d at 1138.
Lastly, in Miss. Power and Light v. U.S. Nuclear Regulatory Comm'n,
601 F.2d 223 (5th Cir. 1979), the 5th Circuit Court of Appeals upheld
the NRC's fee schedule methodology because the NRC did not seek to
recover the entire cost of regulating. The NRC charged a fee
based only on the costs of providing a specific benefit to identifiable
private parties. Miss. Power and Light, 601 F.2d at 230.
3. OMB Circular No. A-25
Circular No. A-25 was issued by OMB pursuant to the IOAA, to
establish "Federal policy regarding fees assessed for Government
services and for sale or use of Government goods or resources * * *
[I]t provides guidance for agency implementation of charges and the
disposition of collections." User Charges, Circular No. A-25, OMB
(July 8, 1993).
In section 6 of the Circular, OMB directs agencies to assess user
charges "against each identifiable recipient for special benefits
derived from Federal activities beyond those received by the general
public." Furthermore, user charges "will be sufficient to recover the
full cost to the Federal Government * * * of providing the service,
resource, or good when the Government is acting in its capacity as
sovereign." Finally, the Circular defines full cost to include "all
direct and indirect costs to any part of the Federal Government of
providing a good, resource, or service."
In order to fulfill the mandate of the IOAA that agency programs
should be self-sustaining to the extent that they provide special
benefits to identifiable recipients, the OMB Circular directs agencies
to recoup the "full cost to the Federal Government" of providing a
service. It further specifies that full costs "includes all direct and
indirect costs" of providing this service. Examples of such costs
provided by the Circular include personnel costs (including salaries
and fringe benefits), physical overhead, management and supervisory
costs, and costs of enforcement and research. Circular No. A-25, OMB
6(d)(1)(a)-(e).
The legal authorities described above establish several
considerations for determining how agencies can assess certain fees for
services rendered: (1) The fees must be based upon special benefits
derived from Federal activities beyond those received by the general
public; (2) the benefits must be conferred on identifiable recipients;
and (3) the fees must bear a reasonable relationship to the cost of the
services rendered. In addition, the OMB circular makes clear that
agencies can recoup indirect costs of services rendered to special
beneficiaries and that agencies should strive to make agency programs
self-sustaining to the extent that they provide special benefits to
identifiable recipients. Assessing NRTL fees that recover the cost of
ancillary activities and leave satisfies these considerations, which we
further discuss below.
B. Explanation for Charging Fees for Ancillary Activities
First, the proposed fee structure is based on special benefits. As
noted earlier, NRTLs and applicants accrue special benefits from the
services that OSHA renders for the fees. These special benefits are the
product of OSHA's initial and continuing evaluation of an
organization's qualifications to test and certify products used in the
workplace. Primarily, these special benefits are the business
opportunities that result from OSHA recognition of these organizations
as NRTLs, which allows them to offer their testing and certification
services to manufacturers whose products, when used in the workplace,
must be tested and certified by an NRTL to comply with OSHA's
requirement. These opportunities are "special benefits derived from
Federal activities beyond those received by the general public," as
described in OMB Circular A-25.
Ancillary activities performed OSHA under the NRTL Program result
in identifiable costs from the provision of those specific services and
benefits to NRTLs. Examples of ancillary activities include
administration of the program, budgetary, and policy matters; training
OSHA personnel to perform program activities; interagency and
international coordination; responses to requests for information
related to the program; handling complaints; Web site development and
maintenance; and participation in meetings with stakeholders and
outside interest groups.
OSHA is required to recover the costs of these activities because
such costs are incurred solely for the administration of the NRTL
Program, from which NRTLs derive special benefits. The absence of these
necessary activities would severely reduce, if not eliminate, many of
the benefits that NRTLs derive from recognition by OSHA. Two examples
illustrate this point. Through application processing and audits, OSHA
determines which organizations qualify as NRTLs and which products each
individual NRTL is qualified to approve. By maintaining a Web site,
OSHA shares this information with the public. This benefits NRTLs by
making their current and potential clients, as well as employers, aware
that the NRTLs are qualified to approve products. Complaint handling is
a valuable tool that OSHA relies upon, especially between audits, to
learn of inappropriate or questionable activities by a particular NRTL.
If, for example, OSHA receives a complaint that a lab is testing
equipment that is to be used in very hazardous environments, but it is
not recognized by OSHA to perform this testing, OSHA would investigate
to determine whether the testing jeopardizes the safety of the
equipment. If it does, OSHA could take steps to prevent an accident
stemming from the use of this equipment. Thus, through complaint
handling, OSHA reinforces the program's effectiveness, which maintains
confidence in the program, and thus, the benefits derived by NRTLs from
the program.
Second, the benefits are conferred on identifiable recipients. As
with the prior schedules, OSHA is assessing fees to identifiable
recipients of the NRTL Program benefits. The ancillary activities
result in benefits shared among all NRTLs, in contrast to the benefits
of the core application and auditing services, which are more easily
identified with individual NRTLs. In order to share the costs of these
benefits equitably, while still ensuring that the fees charged are
specific charges for specific services to specific companies, OSHA is
apportioning the costs of the shared benefits in accordance with the
time OSHA spends on core services provided to each NRTL. This approach
recognizes that an individual NRTL's portion of the shared benefits is
directly related to the core benefits it receives. OSHA is, therefore,
retaining its fee structure of charging the NRTLs fees when a core
action is directed at or initiated by an NRTL, while adjusting the rate
used to compute the fee in order to recoup a greater portion of the
actual program costs.
OSHA will charge an NRTL a fee when the NRTL applies, for example,
for an expansion of its recognition by OSHA. In this situation, the
NRTL is asking OSHA to review its application for expansion so that the
NRTL can expand its scope of recognition. The fee that OSHA would
charge in this instance is directly related to the NRTL seeking the
expansion. The converse is also true: If in any particular year an NRTL
does not apply to expand its recognition, it will not be charged an
expansion application fee. The proposed Fee Schedule would thus
reimburse OSHA for ancillary activities but would do so by charging
specifically identified laboratories only when they receive the core
services of the program.
Third, the fees charged bear a reasonable relationship to the costs
of the program. OSHA is basing the fee schedule on the average cost of
certain activities performed to the benefit of the NRTLs. These costs
are documented by the Agency. Through this proposed revised fee schedule,
OSHA would recover a large percentage of the costs of the program. To ensure
that it does not overcharge, OSHA has targeted this proposal to capture
approximately 95% of the costs of the program.
Finally, by including the costs of ancillary activities in the
fees, OSHA would, for the first time, be fully compliant with the IOAA
and OMB Circular A-25, both of which require Agency programs to be
self-sustaining to the extent that they confer special benefits on
identifiable recipients. In fact, until implementation of a revised fee
schedule in February 2007 that allowed recovery of approximately 50% of
program costs, OSHA had been recovering only about 30% of the costs of
the NRTL Program. Taxpayers had been funding the remaining 70% through
OSHA's annual appropriations. This does not comport with the IOAA and
OMB Circular A-25, and OSHA is proposing to correct that with this
proposed rule.
Therefore, as explained above, OSHA concludes that including the
cost of ancillary activities in the fees fits squarely within the legal
framework described in the preceding section. That is, the fees are
based on special benefits to NRTLs; assessed to identifiable
beneficiaries of the NRTL Program; and reasonably related to OSHA's
costs of providing the services to NRTLs.
OSHA recognizes that this proposal differs from the position the
Agency took in the 2000 rulemaking implementing the initial fee
structure. In that rulemaking, OSHA stated that it would not seek to
recover costs for certain types of ancillary activities such as
training of compliance officers on the NRTL Program and Web site
development. See, e.g., 65 FR 46802. At the time of that rulemaking,
however, OSHA believed those activities would utilize only a small
portion of NRTL Program's resources. Recent workload reviews show that
these activities have become a large part of the program and are now
more critical in supporting the NRTL Program's core functions. It is,
therefore, appropriate for OSHA to include these costs in the fees.
Because this work on ancillary activities has grown so much faster
than program resources over the last several years, OSHA has less time
available for application processing and audits. Moreover, because the
existing fees only recoup the cost of time spent on core services, this
means that OSHA is recovering a dwindling percentage of the NRTL
Program costs. Thus, OSHA's ability to meet, on a timely basis, the
needs of the NRTLs in application processing and auditing, while
recovering its costs for providing those services, has been severely
challenged. OSHA intends to provide, through this rule, resources to
improve the program's effectiveness in rendering these core services.
C. Explanation for Assessing Costs for Leave
Although the initial and current fee structures account for
"personnel costs" for core NRTL activities, they do not actually
represent all personnel costs. In fact, they do not even represent the
total time spent on core activities. As Federal employees, Department
of Labor/OSHA employees earn leave as part of their regular
compensation. However, the initial fee structure failed to account for
leave earned by OSHA employees, even though that leave is part of the
personnel costs of rendering the services.\3\ In this respect, the
initial fee structure was not compliant with OMB Circular A-25 and the
other legal authorities described above. Thus, in this proposed revised
fee structure, OSHA is adjusting the personnel costs to include leave
earned by all employees performing services in support of the NRTL
Program.
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\3\ A small portion of NRTL fees covers the costs of legal
services performed by attorneys in the Office of the Solicitor of
Labor. Leave costs are included in that portion of the fees.
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D. Explanation for Advance Collection of the Fees
Currently, OSHA requires that NRTLs and applicants pay an
application review fee when submitting their application, and, for
initial applications, prepay the fee for the on-site assessment. The
remainder of the fees is generally billed to the NRTLs or applicants
after the services are rendered. When OSHA adopted this billing system
in its final rule issued in 2000, it expected the system to "reduce
collection activity of the Agency, since only one bill would need to be
sent to the NRTL for an audit, rather than the two contemplated under
the NPRM." 65 FR 46802 (July 31, 2000). It therefore predicted a
"minimal financial burden" to the Agency by delaying collection. Id.
In practice, however, those predictions have not proven true. In
recent years, the post-collection system has created problems and
resulted in the loss of some funds. For example, to ensure that the
Agency retained all fees that were due for audits conducted during a
fiscal year, OSHA had to request that NRTLs pay fees in advance for any
audits that were conducted during the last two months of the Federal
Government fiscal year. OSHA requested advance payment because, to
comply with federal mandates, it could not retain any of these fees if
received after the end of a fiscal year, but would forfeit them to a
general Federal Government fund. The current fee collection system has
also made it difficult in practice to ensure that the Agency complies
with OMB Circular A-25, described above. In addition to providing
guidance regarding the collection and retention of user fees, OMB
Circular A-25 generally requires agencies to collect user fees in
advance. See OMB Circular A-25, Section 6.a.2.(c) ("User charges will
be collected in advance of, or simultaneously with, the rendering of
services unless appropriations and authority are provided in advance to
allow reimbursable services."); see also OMB Circular A-11,
"Preparation, Submission, And Execution Of The Budget" (June 2008),
section 20.13.\4\
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\4\ Section 20.13(a) is a description of revolving funds that
also provides that in the absence of a revolving fund "advance
payments must accompany orders." Section 20.13(b) specifies that
obligations by expenditure accounts may be covered in one of two
ways: Through "advances collected up to the amount of accompanying
orders" or by "[w]orking capital that is available for this
purpose."
---------------------------------------------------------------------------
The program exists for the benefit of NRTLs, but OSHA is currently
required to advance funds to cover the program costs until they are
reimbursed by NRTLs or applicants. Given competing demands on the
appropriations from which these funds must be drawn, the continued use
of general operating funds to front fund the NRTL Program could
adversely impact OSHA's ability to perform other aspects of its
mission.
In summary, OSHA proposes to bill in advance for audits and fees to
ensure compliance with the OMB guidance and to reduce any financial
impact on OSHA's other activities caused by advancing funds to the NRTL
Program. Where the fees are based on actual cost, the travel costs and
other expenses would be estimated and billed in advance, with any
difference between the actual cost and the estimate adjusted after the
completion of the audit or other service. OSHA believes the advance
collection may help NRTLs to schedule payments in that they will be
made in advance of the mutually-agreed-upon date for OSHA's audits of
the NRTLs.
IV. Explanation of Proposed Change in Approach for Calculating Fees
Under the proposed rule, OSHA will continue to calculate the fee
for each of the service activities listed in the fee schedule by
multiplying an equivalent average cost per hour rate (ECR) by the time it
takes to perform that activity: Fee for activity = ECR x Time for activity.
In the July 31, 2000, Federal Register notice, OSHA explained that
the initial fee schedule's ECR was derived by dividing the total
estimated direct and indirect costs of the program, excluding travel,
(TPC) \5\ by the total available annual work hours of the NRTL Program
and legal staff that perform the services (TAW).\6\ Although the
derivation of the ECR was not illustrated as an equation in the 2000
notice, we do so here for clarification and refer to it as ECR2000 (to
contrast it with the equation for ECR2009, which is explained later in
this notice): ECR2000 = TPC2000/TAW2000.\7\ As discussed above, this
resulted in fees that recouped the costs only of the time spent
actually performing individualized audits and application processing,
and did not recoup the other costs associated with running the program
and providing other benefits that are shared among all NRTLs.
---------------------------------------------------------------------------
\5\ The TPC include personnel costs for the NRTL Program and
legal staff (including support and management staff), equipment,
contract, and other costs necessary for the operation of the
program. Travel expenses are not included in the ECR because OSHA
charges for the actual staff travel expenses of the on-site visits
after they are completed.
\6\ In discussing total hours in this notice, we often refer to
FTEs, which stands for full-time equivalents and, for purposes of
this notice, equals total work hours divided by 2,080, the total
available annual work hours (TAW) for one full-time employee; that
is, 1 FTE equals 2,080 hours.
\7\ We will use the TPC abbreviation in discussing our
calculations in this proposed rule, but the total amount shown in
the July 2000 notice (i.e., TPC2000) will, of course, differ from
the total shown now in this proposed rule (i.e., TPC2009) because
total costs of the program have changed.
---------------------------------------------------------------------------
To properly account for the costs associated with these shared
benefits, we have calculated the new ECR (ECR2009): dividing the new
estimate of the total cost of the NRTL Program (TPC2009) by the total
annual service hours (TAS2009). This latter term is a new figure that
equals the total estimated hours that the staff spend on the core
service activities for which NRTLs will be billed. In terms of an
equation: ECR2009 = TPC2009/TAS2009. By way of comparison with the
initial and current fee schedules, TAS equals TAW minus estimated hours
spent on ancillary activities (AH) and leave (LH): TAS = TAW - AH - LH.
By continuing to include the full program costs in the numerator, but
including, in the denominator, only the amount of time spent on
providing "billable" core services, the revised ECR is more
accurately tied to the hours spent on those core activities, which are
the hours for which OSHA bills the NRTLs.
OSHA could have achieved the same result by charging each NRTL
separately for its share of the program resources used to produce the
shared benefits. OSHA is not proposing this method primarily because
the shared nature of these costs makes it impractical to calculate and
track them separately for each NRTL and attribute them appropriately to
individual NRTLs through separate fees. As explained above, the
existing fee approach in which NRTLs are only charged for core services
provides a more straightforward and manageable method of ensuring that
OSHA recoups only "specific charges for specific services to specific
individuals or companies." Fed. Power Comm'n, 415 U.S. at 349.
In addition to this methodological change, the proposed fee
schedule presented in this notice also includes updated calculations of
the total resources committed to the NRTL Program (TPC2009) and of the
average time spent on some of the service activities for which fees are
charged.
OSHA has estimated that TAS2009 = 3.5075 FTEs (7295.6 hours), which
is 50.11% of total available annual work hours (TAW2009), 7.0 FTE.\8\
Using the TPC2009 of $1,079,090, shown in Figure 1, below, the new rate
is: ECR2009 = $1,079,090/7295.6 hours = $147.90.
---------------------------------------------------------------------------
\8\ TAW2009 equals 7.0 FTE; AH2009 equals 2.6675 FTE; and LH2009
equals 0.825 FTE. As a result, TAS2009 equals 7.0 minus 2.6675 minus
0.825, which is equal to 3.5075 FTE. Note: We can also derive the
ECR2009 from the ECR2007 ($63.80) using a factor that takes into
account the effects due to leave and ancillary activities and the
use of TAS instead of TAW. We do not illustrate this here since the
calculation is more involved and gives the same result as the
simpler equation above.
---------------------------------------------------------------------------
The table below shows a summary of program costs and value of the
revised ECR2009, which is later used to generate the
proposed fee schedule in section VI, below.
Figure 1--NRTL Program Annual Cost Estimates--Proposed New ECR2009
Calculation
[Including ancillary costs and leave]
------------------------------------------------------------------------
Description Costs
------------------------------------------------------------------------
Direct Expenses............................................ $512,342
Indirect Expenses *........................................ 566,748
Total Program Costs (excluding travel) (aka "TPC2009")... 1,079,090
Travel Expenses............................................ 72,600
Overall Program Costs (includes travel) **................. 1,151,690
TAS2009 (3.5075 FTE x 2,080 hours per FTE)................. 7,295.6
ECR2009 = TPC2009/TAS2009.................................. 147.90
------------------------------------------------------------------------
* This amount consists of $441,408 for management, ancillary, and
support costs; and $125,340 for equipment and other costs. Note: These
are costs incurred mostly by OSHA but also include applicable costs of
a division of the Department of Labor's Office of the Solicitor.
** The amount of fee collections is estimated to be approximately 95.2%
of this total or $1,096,000.
Finally, as mentioned above, the total cost of administering the
program has increased since the last revision to the fee schedule
published on February 15, 2007. This cost increase is due to two main
reasons: The proposed increase in the program's staff resources and the
annual salary adjustments for Federal employees. As a result of the
increase to the TPC and the revised approach of calculating the ECR2009
proposed in this notice, OSHA's base rate (ECR) would increase almost
132%, from $63.80 (in effect since February 15, 2007) to the $147.90
shown above. Without the change in approach but with the increase in
staffing, the rate and estimated total collections would have increased
to $73.72 and $583,000, respectively.
For existing NRTLs and pending applicants, OSHA proposes to phase
in, over three years, any proposed fee increase that is greater than
$200: a 33% increase for the first year's fees; a similar amount for
the second year's fees; and the remainder in the third year. OSHA is
proposing this $200 threshold because it limits the number of fees that
would increase 100% for the first year; the increase for the remaining
fees would be phased in, thus reducing the financial impact the
increase has on any NRTL. As evident from the comparison of fees shown
in section VIII, only three fees are affected, which would increase by
a combined total of $510. OSHA seeks comment on the $200 threshold and
on the three-year phase-in period, which is intended to balance the
need for a period of adjustment for some existing NRTLs against OSHA's
responsibility to recoup the full costs of the NRTL Program as soon as
possible. Commenters who support these approaches or who suggest
alternatives are encouraged to include a rationale for their
recommendations.
The entire increase would be effective immediately for any
organization whose application to become a new NRTL is received by OSHA
after the effective date of the revised fee schedule in the final rule. Unlike
currently recognized NRTLs and pending applicants, new applicants do
not have a current stake in the program at the current fee schedule;
new applicants are free to choose whether or not to participate in the
program.
V. Basis and Derivation of Fee Amounts
Figures 2, 3, 4, and 5, below, present the proposed costs of the
major activities for the various fees categories. In general, OSHA
calculated the cost of these activities by multiplying the staff
activity time \9\ by ECR and adding any applicable average travel
costs. However, because OSHA charges for actual travel, only the non-
travel costs serve as the basis for the fees later shown in Tables A
and B. In deriving the fee amounts shown in the fee schedule (Table A
or B), OSHA has generally rounded the costs shown in Figures 2, 3, 4,
and 5, up or down, to the nearest $5 or $10 amount.
---------------------------------------------------------------------------
\9\ The term "staff" encompasses federal employees as well as
any contract employees retained by OSHA for work on the NRTL
Program.
Figure 2--Initial Application Cost Estimates
----------------------------------------------------------------------------------------------------------------
Major activity Type of cost Average hours Average cost *
----------------------------------------------------------------------------------------------------------------
Initial Application Review........... office and field staff 120......................... $17,749
time.
Additional Review Time............... office staff............ 16.......................... 2,367
Limited Review Time.................. office staff............ 24.......................... 3,550
----------------------------------------------------------------------------------------------------------------
On-site Assessment--first day (per field staff time (16 30.......................... 4,437
site, per assessor). hours preparation, 6
hours travel documents
processing, and 8 hours
at site).
field staff travel not applicable.............. 800
expense ($700 airfare/
other + $100 per diem).
--------------------------------------------------------------------------
Total................ ............................ 5,237
----------------------------------------------------------------------------------------------------------------
On-site Assessment--each addnl. day field staff time (at 8........................... 1,183
** (per site, per assessor). site).
field staff travel not applicable.............. 100
expense (per diem only).
--------------------------------------------------------------------------
Total................ ............................ 1,283
----------------------------------------------------------------------------------------------------------------
On-site Assessment travel time--per field staff............. 8........................... 1,183
day (per site, per assessor).
Review and Evaluation (10 test office staff time....... 2........................... 296
standards).
Final Report & Federal Register field and office staff 132......................... 19,524
notice. time.
Fees Invoice Processing.............. office staff time....... 2........................... 296
----------------------------------------------------------------------------------------------------------------
* Average cost for staff time = average hours x equivalent average direct staff cost/hr. ($147.90).
** Note: 2 additional days are estimated if there are 2 assessors and 4 additional days are estimated if there
is 1 assessor.
See notes to Table A Fee Schedule for more information concerning the activities listed in this figure.
Figure 3--Expansion Application (Additional Site) Cost Estimates
----------------------------------------------------------------------------------------------------------------
Major activity Type of cost Average hours Average cost *
----------------------------------------------------------------------------------------------------------------
Application Review (expansion for office and field staff 56.......................... $8,283
site). time.
Additional Review Time............... office staff............ 8........................... 1,183
----------------------------------------------------------------------------------------------------------------
On-site Assessment--first day (per field staff time (12 40.......................... 5,916
site, per assessor). hours preparation, 4
hours travel documents
processing, and 8 hours
at site).
field staff travel time not applicable.............. 800
expense (700 airfare/
other + 100 per diem).
--------------------------------------------------------------------------
Total................ ............................ 6,716
----------------------------------------------------------------------------------------------------------------
On-site Assessment--additional day ** field staff time (at 8........................... 1,183
(per site, per assessor). site).
field staff travel not applicable.............. 100
expense (per diem only).
--------------------------------------------------------------------------
Total................ ............................ 1,283
----------------------------------------------------------------------------------------------------------------
On-site Assessment travel time--per field staff............. 8........................... 1,183
day (per site, per assessor).
Review and Evaluation Fee (10 test office staff time....... 2........................... 296
standards).
Final Report & Federal Register field and office staff 50.......................... 7,396
notice. time.
Fees Invoice Processing.............. office staff time....... 2........................... 296
----------------------------------------------------------------------------------------------------------------
* Average cost for staff time = average hours x equivalent average direct staff cost/hr. (147.90).
** Note: 2 additional days are estimated if there is 1 assessor.
See notes to Table A Fee Schedule for more information concerning the activities listed in this figure.
Figure 4--Renewal or Expansion (Other Than Additional Site) Application Cost Estimates
----------------------------------------------------------------------------------------------------------------
Major activity Type of cost Average hours Average cost *
----------------------------------------------------------------------------------------------------------------
Application Review (renewal or office and field staff 2........................... $296
expansion other than additional time.
site).
Additional Review Time............... office staff............ 8........................... 1,183
Renewal Application--Information office staff............ 40.......................... 5,916
Review.
----------------------------------------------------------------------------------------------------------------
On-site Assessment--first day field staff time (8 20.......................... 2,958
(expansion) (per site, per assessor). hours preparation, 4
hours travel documents
processing, and 8 hours
at site).
field staff travel not applicable.............. 800
expense (700 airfare/
other + 100 per diem).
--------------------------------------------------------------------------
Total................ ............................ 3,758
----------------------------------------------------------------------------------------------------------------
On-site Assessment--first day field staff time (16 28.......................... 4,141
(renewal) (per site, per assessor). hours preparation, 4
hours travel documents
processing, and 8 hours
at site).
field staff travel not applicable.............. 800
expense (700 airfare/
other + 100 per diem).
--------------------------------------------------------------------------
Total................ ............................ 4,941
----------------------------------------------------------------------------------------------------------------
On-site Assessment--addnl. day ** field staff time (at 8........................... 1,183
(per site, per assessor). site).
field staff travel not applicable.............. 100
expense (covers per
diem only).
--------------------------------------------------------------------------
Total................ ............................ 1,283
----------------------------------------------------------------------------------------------------------------
On-site Assessment travel time--per field staff............. 8........................... 1,183
day (per site, per assessor).
Review and Evaluation Fee (10 test office staff time....... 2........................... 296
standards) (expansion).
Final Report & Federal Register office and field staff 50.......................... 7,396
notice. time (if there is an on-
site assessment).
Final Report & Federal Register office and field staff 30.......................... 4,437
notice. time (if there is NO on-
site assessment).
Supplemental Program Review.......... office and field staff 4........................... 592
time (per program
requested incl.
consultation and
assessor's memo).
Fees Invoice Processing.............. office staff time....... 2........................... 296
----------------------------------------------------------------------------------------------------------------
* Average cost for staff time = average hours x equivalent average direct staff cost/hr. (147.90).
** Note: 2 additional days are estimated for renewal assessment; no additional days for expansion assessment.
See notes to Table A Fee Schedule for more information concerning the activities listed in this figure.
Figure 5--On-Site Audit Cost Estimates
----------------------------------------------------------------------------------------------------------------
Major activity Type of cost Average hours Average cost *
----------------------------------------------------------------------------------------------------------------
On-site Audit--first day (per site, field staff time (12 24.......................... $3,550
per auditor). hours pre-site review
preparation, 4 hours
travel documents
processing, and 8 hours
at site).
prepare report/contact 26.......................... 3,846
NRTL plus office review
staff time (2 days for
field staff and 2 hours
for office staff).
--------------------------------------------------------------------------
Subtotal (first day). ............................ 7,396
--------------------------------------------------------------------------
field staff travel not applicable.............. 800
expense (700 airfare/
other + 100 per diem).
--------------------------------------------------------------------------
Total................ ............................ 8,196
----------------------------------------------------------------------------------------------------------------
On-site Audit--addnl. day ** (per field staff time (at 8........................... 1,183
site, per auditor). site).
travel expense (covers not applicable.............. 100
per diem only).
--------------------------------------------------------------------------
Total................ ............................ 1,283
----------------------------------------------------------------------------------------------------------------
On-site Audit travel time--per day field staff............. 8........................... 1,183
(per site, per auditor).
Fees Invoice Processing.............. office staff time....... 2........................... 296
----------------------------------------------------------------------------------------------------------------
* Average cost for staff time = average hours x equivalent average direct staff cost/hr. (147.90)
** Note: 1.0 additional day is estimated if there is 1 auditor.
See notes to Table A Fee Schedule for more information concerning the activities listed in this figure.
VI. Proposed Fee Schedules
A. Proposed First Phase Fee Schedule
OSHA proposes the adjusted fee schedules shown below as Tables A
and B. If the revised fees were to go into effect as proposed, all
existing NRTLs would be charged the fees set forth in Table A in the
first year. New applicants would be charged the fees set forth in Table
B.
The fees in Table A represent only the first phase of OSHA's fee
increase. As explained above, for existing NRTLs and pending
applicants, OSHA would phase in any increase in fees that is greater
than $200 over a period of three years: 33% of the increase in this
current revision; another 33% in the second year; and the final 34% in
the third year. The percentage increase in the next two years, however,
would be adjusted by any increase or decrease in fees calculated for
each of those years when OSHA performs its annual review of the fees.
During this review, OSHA would determine the amount of time we have
actually charged for application processing and audits, and the actual
indirect travel we performed, and adjust the amount in any proposed fee
schedule by the amount over- or underestimated.
Table A--Fee Schedule Nationally Recognized Testing Laboratory Program
(NRTL Program): Fee Schedule
[Effective (to be provided in final notice published in the Federal
Register)] \12\
------------------------------------------------------------------------
Activity or category
(fee charged per
Type of service application unless Fee amount
noted otherwise)
------------------------------------------------------------------------
APPLICATION PROCESSING..... Initial Application $17,750.
Review \1,\ \8\.
Expansion Application $3,420.
Review (per additional
site) \1,\ \8\.
Renewal or Expansion $300.
(other) Application
Review \1\.
Renewal Information $1,470.
Review Fee \7\.
Additional Review-- $2,370.
Initial Application
(if the application is
substantially revised,
submit one-half
Initial Application
Review fee) \7\.
Additional Review-- $730.
Renewal or Expansion
Application \7\.
Limited Review--Initial $3,550.
Application \7\.
Assessment--Initial $4,440 + travel
Application (per expenses.
person, per site--
first day) \2,\ \10\
[$2,740, if
application is pending
on effective date
above].
Assessment--Renewal $2,570 + travel
Application (per expenses.
person, per site--
first day) \3,\ \10\.
Assessment--Expansion $2,200 + travel
Application expenses.
(additional site) (per
person, per site--
first day) \3\.
Assessment--Expansion $1,830 + travel
Application (other) expenses.
(per person, per site--
first day) \3\.
Assessment--each addnl. $730 or $1,180 +
day or each day on travel expenses.
travel (per person,
per site) \2,\ \3\
[$1,180 for new
applications; $730 for
pending or other
applications].
Review & Evaluation \5\ $30 per standard
($30 per standard if OR $296 per
it is already standard.
recognized for NRTLs
and requires minimal
review; OR else $296
per standard).
Final Report/Register $19,520.
Notice--Initial
Application \5,\ \9\
[$12,080, if
application is pending
on effective date
above].
Final Report/Register $4,580.
Notice--Renewal or
Expansion Application
(if OSHA performs on-
site assessment) \5,\
\9\.
Final Report/Register $2,740.
Notice--Renewal or
Expansion Application
(if OSHA performs NO
on-site assessment)
\5,\ \9\.
AUDITS..................... On-site Audit (per $4,240 + travel
person, per site, expenses.
first day) \6\.
On-site Audit--each $730 + travel
addnl. day or each day expenses.
on travel (per person,
per site) \6\.
Office Audit (per $730.
person, per site) \6\.
MISCELLANEOUS.............. Supplemental Travel $1,000.
(per site--for sites
located outside the 48
contiguous States or
the District of
Columbia) \4\.
Supplemental Program $270.
Review (per program
requested) \4\.
Fees Invoice Processing $300.
(per application or
audit) \4\.
Travel Document $890.
Processing (6 hours,
per application or
audit) \4\.
Late Payment \11\...... $150.
Comp Time (per hour) $56.40.
\10\.
------------------------------------------------------------------------
Notes to Table A, OSHA Fee Schedule for NRTLs:
\1\ Must I pay the Application Review fees, and when must they be paid?
If you are applying for initial recognition as an NRTL, you must pay the
Initial Application Review fee and include this fee with your initial
application. If you are an NRTL and applying for an expansion or
renewal of recognition, you must pay the Expansion Application Review
fee or Renewal Application Review fee, as appropriate, and submit this
fee concurrently with your expansion or renewal application. See note
7 if you amend or revise your initial or expansion application.
\2\ What assessment fees do I pay for an initial application, and when
must they be paid?
If you are applying for initial recognition as an NRTL, and we accept
your application, we bill you for the assessment fee and you must pay
it before we perform the assessment. The prepaid assessment fee will
be based on estimated staff time and travel costs. After completing
the actual assessment, we calculate the actual assessment fee based on
the actual staff time and travel costs incurred in performing the
assessment. We calculate this fee at the rate of $4,440 for the first
day at the site, $1,180 for each additional day at the site, and
$1,180 for each day in travel, plus actual travel expenses, for each
assessor [if pending, the rates are $2,740, $730, and $730,
respectively.]. (Note: Days charged for being in travel status are
those allowed under government travel rules. This note applies to any
assessment or audit.) Actual travel expenses are determined by
government per diem and other travel rules. We bill or refund the
difference between the amount you prepaid and the actual assessment
fee. We reflect this difference in the final bill that we send to you
for the application.
\3\ What assessment fees do I submit for an expansion or renewal
application, and when must they be paid?
If you are an NRTL and applying solely for an expansion or renewal of
recognition, you do not submit any assessment fee with your
application. If we need to perform an assessment for the expansion or
renewal request, we bill you for this fee and you must pay it before
we perform the assessment. The prepaid fee will be based on estimated
staff time and travel costs. Following the assessment, we will
calculate the actual fee based on the actual staff time and travel
costs we incurred in performing the assessment. We calculate this fee
at the rate of $2,570, $2,220, or $1,830 for the first day at the site
of a renewal, expansion (site), and expansion (other) assessment,
respectively. We also include $730 for each additional day at the site
and $730 for each day in travel, plus actual travel expenses, for each
assessor. Actual travel expenses are determined by government per diem
and other travel rules. When more than one site of the NRTL is visited
during one trip, we charge the $730 additional day fee, plus actual
travel expenses, for each day at a site. We bill or refund the
difference between the amount you prepaid and the actual assessment
fee. We reflect this difference in the final bill that we send to you
for the application.
\4\ When do I pay the Supplemental Travel, the Supplemental Program
Review, the Fees Invoice Processing fees, or the Travel Document
Processing fee?
You must pay the Supplemental Travel fee when you submit an initial
application for recognition and the site you wish to be recognized is
located outside the 48 contiguous U.S. states or the District of
Columbia. The current supplemental travel fee is $1,000. We factor in
this prepayment when we bill for the actual costs of the assessment,
as described in our note 2, above. See note 8 for possible refund of
application or assessment fees. You must pay the Supplemental Program
Review fee when you apply for approval to use other qualified parties
or facilities to perform specific activities. See Chapter 2 of the
NRTL Program Directive for more information. We will include the Fees
Invoice Processing fee in the total for each of our invoices to you.
You must pay the Travel Document Processing fee in advance to cover
the costs of arranging and obtaining reimbursement for travel. It is
generally included in the first day fee for assessments and audits. We
charge this fee separately for trips to a location when the
preparation time for the trip is minimal. An example is trips to a
site that the NRTL has qualified to perform specific or limited
testing or certification activities for the NRTL.
\5\ When do I pay the Review and Evaluation and the Final Report/
Register Notice fees?
An applicant or an NRTL must pay the appropriate fees in advance of OSHA
performing the assessment for the application. We calculate the Review
and Evaluation Fee at the rate of $30 per test standard requested for
those standards that OSHA previously recognized for any NRTL and that
require minimal review or do not represent a new area of testing for
the NRTL. Otherwise, this fee is $296 per standard requested.
\6\ When do I pay the Audit fee?
Each NRTL must pay this fee (on-site or office, as deemed necessary) in
advance of OSHA commencing the audit, and we calculate this prepaid
fee based on estimated staff time and travel costs. Following the
audit, we will calculate the actual fee based on actual staff time and
travel costs incurred in performing the audit. We calculate our fee at
the rate of $4,240 for the first day at the site, $730 for each
additional day at the site, and $730 for each day in travel, plus
actual travel expenses for each auditor. Actual travel expenses are
determined by government per diem and other travel rules. We may add
any underpayment(s) or credit any overpayments to the invoice for a
future audit of the NRTL's site.
\7\ When do I pay the Additional Review fee, Renewal Information Review
fee, or Limited Review fee?
The Additional Review fees cover the staff time in reviewing new or
modified information submitted after we have completed our preliminary
review of an application. There is no charge for review of a "minor"
revision, which entails modifying or supplementing less than
approximately 10% of the documentation in the application. You must
pay the Additional Review fee when submitting revisions modifying or
supplementing from 10% to 50% of that documentation. For a new
application, the fee represents 16 hours of additional review time and
for a renewal or expansion application, the fee represents 8 hours of
additional review time. If an applicant exceeds that 50% threshold in
revising its application, when submitting your revised documentation,
you must pay half the Initial Application Review fee or the full
Expansion Application Review fee ($3,420), as applicable. The Renewal
Information Review fee applies when an NRTL submits updated
information to OSHA in connection with a request for renewal of
recognition. You must pay the Additional Review or Renewal Information
Review fee when submitting the additional or updated information. The
Limited Review Fee covers the time to review and return a new
application that we find to be substantially deficient. This fee is
deducted from any refund issued to the applicant.
\8\ When and how can I obtain a refund for the fees that I paid?
If you withdraw your initial application or your expansion application
to include an additional site, we will refund half of the application
review fee. If you withdraw your application before we commence travel
to your site to perform the on-site assessment, we will refund any
prepaid assessment fees or credit your account. We will also credit
your account for any amount of the prepaid assessment or audit fees
collected that is greater than the actual cost of the assessment. If
the Limited Review fee applies, we will refund the amount of the
initial application review fee in excess of the limited fee. If an
organization is no longer part of the program, we will refund any
funds collected in excess of all valid actual costs incurred through
the date of the termination. Other than these cases, we do not
generally refund or grant credit for any other fees that are due or
collected.
\9\ Am I still liable for any fees even if my application is rejected or
my recognition is terminated?
If we reject your application, we will retain the fees pertaining to
tasks that we have performed. For example, if we perform an assessment
for an expansion application but deny the expansion, we will retain
your prepaid assessment fee. Similarly, we will retain the Final
Report and Federal Register fee if we also wrote the report and
published the notice. See note 11 for the consequences of nonpayment.
\10\ What rate does OSHA use to charge for staff time (including Comp
Time)?
OSHA has estimated an equivalent staff cost per hour that it uses for
determining the fees that are shown in the Fee Schedule. This hourly
rate takes into account the costs for salary, fringe benefits,
equipment, contract services, supervision and support for each
"direct staff" member, that is, the staff that perform the main
activities identified in the Fee Schedule. The rate is an average of
these amounts for each of these direct staff members. The current
estimated equivalent staff costs per hour = $147.90. The hourly rate
for Comp Time is based on the direct staff average salary and fringe
costs only ($56.40).
[For more information about Comp Time, see additional explanation in
section VIII of this notice (Major Changes to the Fee Schedule).]
\11\ What happens if I do not pay the fees that I am billed?
As explained above, if you are an applicant, we will send you a final
bill (for any assessment and for the Review and Evaluation and Final
Report/Register Notice fees) in advance of the assessment. If you do
not pay the bill by the due date, we will assess the Late Payment fee
shown in the Fee Schedule. This late payment fee represents one hour
of staff time at the equivalent staff cost per hour (see note 10). We
will halt any work on the application. If we do not receive payment
within 30 days of the original due date, we will cancel your
application. If you do not pay the prepaid fee for an audit by the due
date, we will assess the Late Payment Fee shown in the Fee Schedule.
However, OSHA may decide to proceed with the audit. If we do not
receive payment within 30 days of the original due date, for an audit,
we will publish a Federal Register notice stating our intent to revoke
recognition. However, please note that in either case, you may be
subject to collection procedures under U.S. (Federal) law.
\12\ How do I know whether this is the most Current Fee Schedule?
You should contact OSHA's NRTL Program (202-693-2110) or visit the
program's Web site to determine the effective date of the most current
Fee Schedule. Access the site by selecting "N" in the Subject Index
at www.osha.gov. Any application review fees are those in effect on
the date you submit your application. Other application processing
fees are those in effect when the activity covered by the fee will be
performed. Audit fees are those in effect on the date we will begin
our audit.
B. Proposed Final Fee Schedule as Projected
As explained above, OSHA has decided not to phase in the increase
in fees for new applicants that apply after the effective date of the
new fee schedule. These applicants, unlike currently recognized NRTLs
or pending applicants, do not have a stake in the current fee schedule;
new applicants are free to choose whether or not to participate in the
program and would be charged the full amount of the fee increase. Table
B represents the final fee schedule as currently projected. It shows
the amounts that would be charged to new applicants immediately, and to
existing NRTLs or pending applicants in the third and later years after
this rule becomes effective. Table B assumes that OSHA makes no additional
adjustments during its annual review of the NRTL fees; in fact, however, it
is likely that these fees will be adjusted during the annual fee review process.
Table B--Fee Schedule Nationally Recognized Testing Laboratory Program
(NRTL Program): Fee Schedule
[Effective--if fully implemented] \12\
------------------------------------------------------------------------
Activity or category
(fee charged per
Type of service application unless Fee amount
noted otherwise)
------------------------------------------------------------------------
APPLICATION PROCESSING...... Initial Application $17,750.
Review \1,\ \8\.
Expansion $8,280.
Application Review
(per additional
site) \1,\ \8\.
Renewal or Expansion $300.
(other) Application
Review \1\.
Renewal Information $2,370.
Review Fee \7\.
Additional Review-- $2,370.
Initial Application
(if the application
is substantially
revised, submit one-
half Initial
Application Review
fee) \7\.
Additional Review-- $730.
Renewal or
Expansion
Application \7\.
Limited Review-- $3,550.
Initial Application
\7\.
Assessment--Initial $4,440 + travel
Application (per expenses.
person, per site--
first day) \2,\
\10\.
Assessment--Renewal $4,140 + travel
Application (per expenses.
person, per site--
first day) \3,\
\10\.
Assessment--Expansio $3,550 + travel
n Application expenses.
(additional site)
(per person, per
site--first day)
\3\.
Assessment--Expansio $2,960 + travel
n Application expenses.
(other) (per
person, per site--
first day) \3\.
Assessment--each $1,180 + travel
addnl. day or each expenses.
day on travel (per
person, per site)
\2,\ \3\.
Review & Evaluation $30 per standard OR
\5\ ($30 per $296 per standard.
standard if it is
already recognized
for NRTLs and
requires minimal
review; OR else
$296 per standard).
Final Report/ $19,520.
Register Notice--
Initial Application
\5,\ \9\.
Final Report/ $7,390.
Register Notice--
Renewal or
Expansion
Application (if
OSHA performs on-
site assessment)
\5,\ \9\.
Final Report/ $4,440.
Register Notice--
Renewal or
Expansion
Application (if
OSHA performs NO on-
site assessment)
\5,\ \9\.
AUDITS...................... On-site Audit (per $7,400 + travel
person, per site, expenses.
first day) \6\.
On-site Audit--each $1,180 + travel
addnl. day or each expenses.
day on travel (per
person, per site)
\6\.
Office Audit (per $1,180.
person, per site)
\6\.
MISCELLANEOUS............... Supplemental Travel $1,000.
(per site--for
sites located
outside the 48
contiguous States
or the District of
Columbia) \4\.
Supplemental Program $590.
Review (per program
requested) \4\.
Fees Invoice $300.
Processing (per
application or
audit) \4\.
Travel Document $890.
Processing (6
hours, per
application or
audit) \4\.
Late Payment \11\... $150.
Comp Time (per hour) $56.40.
\10\.
------------------------------------------------------------------------
The Notes to Table B would be the same as shown for Table A above,
except for the fee amounts included in notes 2, 3, 6, and 7.
VII. Description of Fees
The following is a description of the major tasks and functions
currently covered by each type of fee category, e.g., application fees,
and the basis used to charge each fee. A description already included
in the notes to the fee schedule is not repeated below.
Application Fees: This fee reflects the technical work performed by
office and field staff in reviewing application documents to determine
whether an applicant submitted complete and adequate information. The
application review does not include a determination on the test
standards requested, which is reflected in the Review and Evaluation
fee. Application fees are based upon the average cost per type of
application. OSHA uses an average cost since the amount of time spent
on the application review does not vary greatly by type of application.
This is based on the premise that the number and type of documents
submitted will generally be the same for a given type of application.
Experience has shown that most applicants follow the application guide
that OSHA provides to them.
Assessment Fees: This fee is different for the initial, renewal,
expansion (site) and expansion (other) applications. It is based on the
number of days for staff preparatory and on-site work and related
travel. Six types of fees are shown, and five are charged per site and
per person. The four fees for the first day reflect time for office
preparation and 8 hours at the applicant's facility. There is one fee
covering either additional days at the facility and/or days in travel.
Additional days or days in travel are assessed for either a half or a
full day. A supplemental travel amount is assessed for travel outside
the contiguous 48 states or the District of Columbia. For initial
applications, an amount to cover the assessment must be submitted "up-
front" with the application. In addition to the first day and
additional day amounts, the applicant or NRTL must pay actual travel
expenses, based on government per diem and travel rules. For initial
applications, any difference between actual travel expenses and the up-
front travel amount is reflected in the final bill or refund sent to
the applicant.
Similar to the application fee, the office preparation time
generally involves the same types of activities. Actual time at the
facility may vary, but the staff devote at least a full day for
performing the on-site work. The fee for the additional day reflects
time spent at the facility and the actual travel expenses for that day.
Review and Evaluation Fee: This fee is charged per test standard
(which is part of an applicant's proposed scope of recognition). The
fee reflects the fact that staff time spent during the office review of
an application varies mainly in accordance with the number of test
standards requested by the applicant. In general, the fee is based on
the estimated time necessary to review test standards to determine
whether each one is "appropriate," as defined in 29 CFR 1910.7, and
whether each test standard covers equipment for which OSHA mandates
certification by an NRTL. The fee also covers time to determine the
current designation and status (i.e., active or withdrawn) of a test
standard by reviewing current directories of the applicable test standard
organization. Furthermore, it includes time spent discussing the results
of the application review with the applicant. The actual time spent will
vary depending on whether an applicant requests test standards that have
previously been approved for other NRTLs. When the review is minimal,
these activities take approximately 2 hours for 10 standards, or $30 per
standard. When the review is more substantial, the estimated average review
time per standard is one hour for each standard, which translates to $296
per standard. Substantial review will occur when the standard has not been
previously recognized for any NRTL or when the NRTL is proposing to do
testing in a "new" area, i.e., for a type of product not similar to
any currently included under its scope of recognition.
Final Report/Register Notice Fees: Each of these fees are charged
per application. The fee reflects the staff time to prepare the report
of the on-site review of an applicant's or an NRTL's facility, which
includes contacting the applicant or NRTL to discuss issues or items in
its response to our findings during our assessment. The fee also
reflects the time spent making the final evaluation of an application,
preparing the required Federal Register notices, and responding to
comments received in response to the preliminary finding notice. These
fees are based on average costs per type of application, since the type
and content of documents prepared are generally the same for each type
of applicant. There is a separate fee when OSHA does not perform an on-
site assessment. In these cases, the NRTL Program staff perform an
office assessment and prepare a memo to recommend the expansion or
renewal.
Audit (Post-Recognition Review) Fees: These fees reflect the time
for office preparation, time at the facility and travel, and time to
prepare the report of the on-site audit. A separate fee is shown for an
office audit conducted in lieu of an actual visit. Each fee is per site
and does not generally vary for the same reasons described for the
assessment fee and because the audit is generally limited to between
one and two days. As previously described, the audit fee includes
amounts for travel, and, as with assessments, OSHA will bill the NRTL
for actual travel expenses.
Miscellaneous Fees: The sample fee schedule only shows the average
cost for one full day of staff time. OSHA uses this fee primarily in
cases of refunding the assessment fee. OSHA will also charge a fee for
late payment of the annual audit fee. The amount for the late fee is
based on 1 hour of staff time charged at the fully implemented rate.
Also shown is a fee for Supplemental Program Review, which
represents the time OSHA needs to review the documents that the NRTL
submits to show how it meets our criteria for use of a supplemental
program. Under each program, NRTLs can use other qualified parties or
facilities to perform the specific tasks that are covered by the
program and that are necessary for product testing and certification.
VIII. Major Changes to the Fee Schedule
The following table shows the major adjustments (i.e., increases or
decreases of $100 or more) that we propose to make to the fee schedule
in Table A as compared to the current fee schedule.\10\
---------------------------------------------------------------------------
\10\ Our current fee schedule is available on the OSHA Web site.
Table of Major Adjustments to Fee Schedule
----------------------------------------------------------------------------------------------------------------
Proposed fee amount--
Description of activity or Current fee amount first year increase Proposed fee amount--full
category increase
----------------------------------------------------------------------------------------------------------------
Initial Application Review..... $5,100................... $17,750.................. $17,750.
Expansion Application Review... $1,020................... $3,420................... $8,280.
Additional Review--Initial $1,020................... $2,370................... $2,370.
Application.
Renewal Application Information $1,020................... $1,470................... $2,370.
Review.
Additional Review--Renewal or $510..................... $730..................... $1,180.
Expansion Application.
Limited Review--Initial $0....................... $3,550................... $3,550.
Application.
Assessment--Initial Application $1,910................... $4,440................... $4,440.
(per person, per site--first
day.
Assessment--Renewal Application $1,790................... $2,570................... $4,140.
(per person, per site--first
day).
Assessment--Expansion $1,530................... $2,200................... $3,550.
(additional site) (per person,
per site--first day).
Assessment--Expansion (other) $1,280................... $1,830................... $2,960.
(per person, per site--first
day).
Assessment--each addnl. day OR $510..................... $1,180 (new $1,180.
travel time--each day (per applications); $730
person, per site). other applications.
Review & Evaluation............ $13 per standard......... $30 per standard......... $30 per standard.
Final Report/Register Notice-- $8,420................... $19,520.................. $19,520.
Initial Application.
Final Report/Register Notice-- $3,190................... $4,580................... $7,390.
Renewal or Expansion
Application (if OSHA performs
on-site assessment).
Final Report/Register Notice-- $1,910................... $2,740................... $4,440.
Renewal or Expansion
Application (if OSHA performs
NO on-site assessment).
On-site Audit (first day)...... $2,680................... $4,240................... $7,400.
Supplemental Program Review.... $260..................... $270..................... $590.
Invoice Processing............. $130..................... $300..................... $300.
----------------------------------------------------------------------------------------------------------------
Clarification About Travel Expenses Fee. The fee schedule states
that OSHA will charge for time on travel following government travel
rules. Those rules currently permit a traveler to earn a special type
of overtime called Compensatory Time For Travel, or simply travel comp
time. This time is generally earned when the traveler is engaged in
government business beyond his or her regular work schedule. The travel
comp time amounts to earning time off as opposed to receiving an
overtime payment. The amount of travel comp time will vary depending on
the specific circumstances of the travel. In general, it is greater for
trips outside the contiguous 48 states than for trips within those
states. This travel comp time exceeds an employee's regular work hours,
i.e., the total available work hours (TAW) discussed under section IV,
above. Because this time is specific to a particular trip, it will be
included in the travel fee that OSHA charges for that trip. The travel
comp time is not included in the total time used to develop the ECR,
i.e., the TAS. Instead, it will be charged at the average rate for
direct OSHA staff time, which would be $56.40 under the revised fee
schedule.
IX. Proposed Changes to 29 CFR 1910.7(f)
As noted earlier, 29 CFR 1910.7(f) provides the overall parameters
for determining the fees. The rule states that OSHA will assess fees
for the processing of applications for initial recognition, expansion
of recognition, or renewal of recognition, review and evaluation of the
applications, and preparation of reports, evaluations and Federal
Register notices, and audits of sites. It further states that OSHA
calculates the fees based on either the average or actual time required
to perform the work necessary, the staff costs per hour, and the
average or actual costs for travel when on-site reviews are involved.
29 CFR 1910.7(f)(1) and (2). In addition, the rule states that OSHA
will review costs annually and will propose a revised fee schedule, if
warranted. OSHA proposes to replace the reference to an "annual"
review with a "periodic" review to allow for more flexibility in
adjusting fees where appropriate. OSHA does not expect that it would
review the fee schedule more than once annually, but anticipates
situations where the review of costs may not be fully completed within
a single-year period.
OSHA is proposing to make a small change to the language in
paragraph (f) to clarify the basis used for calculating fees,
consistent with OMB Circular A-25. Specifically, when discussing the
"costs" that the agency charges, OSHA will make clear that it means
the "full" costs of performing the activities that benefit the NRTLs.
Thus, as revised, the proposed paragraph (f)(2) would read: "The fee
schedule established by OSHA reflects the full cost of performing the
activities for each service listed in paragraph (f)(1) of this
section." (Emphasis added). Similarly, OSHA proposes to revise
paragraph (f)(3)(i) to clarify that the two references to the cost of
the program mean the full cost of the program.
OSHA is also proposing to change the language in paragraphs 29 CFR
1910.7(f)(1) and (4) to require advance payment of the fees. The first
sentence of 29 CFR 1910.7(f)(1) would be revised to specify that NRTLs
must pay all applicable fees in advance. In addition, the table in 29
CFR 1910.7(f)(4), which sets out important billing periods and related
actions, would be revised to accommodate the proposed advanced- billing
process. Included in the proposed changes to this section is a revision
of the amount of time that OSHA must wait before publishing its
intention to revoke its recognition of NRTLs that have not paid their
audit fees: "60 days after the bill date" would be changed to "30
days after due date." See "III. Audit Fees" in proposed 29 CFR
1910.7(f)(4).
X. Preliminary Economic Analysis and Initial Regulatory Flexibility
Analysis
Executive Order (E.O.) 12866 and the Regulatory Flexibility Act
(RFA), as amended in 1996, require Federal agencies to analyze the
costs, and other consequences and impacts, including small business
impacts, of their rules. Consistent with these requirements, OSHA has
analyzed the costs of the proposed rule and the impacts of the rule on
affected laboratories and small businesses.
Affected Industry
When the Agency established its NRTL fee schedule in 2000, there
were 17 NRTLs with 42 sites of operation. Today, there are 15 NRTLs
(including two foreign-owned and operated NRTLs) with 49 sites (see
Table C).
Table C--Nationally Recognized Testing Laboratories (NRTLs)
------------------------------------------------------------------------
Number
NRTL name of sites
------------------------------------------------------------------------
Canadian Standards Association (CSA)......................... 6
Communication Certification Laboratory, Inc. (CCL)........... 1
Curtis-Straus LLC (CSL)...................................... 1
FM Global Technologies LLC (FM).............................. 2
Intertek Testing Services NA, Inc. (ITSNA)................... 13
MET Laboratories, Inc. (MET)................................. 1
National Technical Systems, Inc. (NTS)....................... 1
NSF International (NSF)...................................... 1
SGS U.S. Testing Co., Inc. (SGSUS)........................... 1
Southwest Research Institute (SwRI).......................... 1
TUV America, Inc. (TUVAM).................................... 3
TUV Product Services GmbH (TUVPSG)........................... 1
TUV Rheinland of North America, Inc. (TUV)................... 1
Underwriters Laboratories Inc. (UL).......................... 15
Wyle Laboratories, Inc. (WL)................................. 1
----------
Total (15 NRTLs)......................................... 49
------------------------------------------------------------------------
OSHA: Directorate of Technical Support and Emergency Management.
Costs
The Agency had estimated in 2000 that approximately $239,000 in
fees would be collected annually (65 FR 46815). OSHA most recently
updated its fees in February 2007, and showed total estimated program
costs of approximately $755,000 (72 FR 7469), only about half of which
(about $380,000) would have been collected through the 2007 updated
fees. As Figure 1, above, shows, revising the approach of calculating
OSHA costs and updating Federal-employee salary levels will increase
the fees collected to about $1,152,000. In comparison, if costs were
updated using the original approach of calculation (without adjustment
for ancillary activities and leave), and included the increase in staff
resources, the total fees collected would have increased to about
$583,000. The impact of the revised approach on all existing NRTLs is
$772,000 ($1,152,000 minus $380,000). The actual impact on these NRTLs
would be less because some of the increase will be paid by new
applicants.
Economic Impacts
The proposed fee increase represents a tiny impact on industry
revenues and profits. NAICS 54138 Testing Laboratories had $8.77
billion in revenues in 2002 (2002 Bureau of Economic Census publication
EC02-54A-1 US), and the Agency estimates that revenues in 2006 have
grown to approximately $11.0 billion. In the 2000 rulemaking, as here,
the Agency estimated that net before-tax profits were 5.7 percent of
revenues (Robert Morris Associates, Annual Statement Studies). The
Agency, therefore, estimates 2006 industry before-tax profits as $627
million (5.7% of $11 billion). Even the entire $1.15 million in user
fees represents 0.000104, or 0.0104 percent, of industry revenues
($1.15 million/$11 billion) and 0.0018, or 0.18 percent, of industry
profits (1.15/627). The impact of the additional, new user fees of
$772,000 would be even less. The Agency concludes that imposition of
higher user fees is economically feasible for the industry.
Average cost per affected firm of the higher NRTL fees is about
$76,867 ($1,152,000/15); while average cost per affected NRTL
establishment (site) is about $23,510 ($1,152,000/49). Larger firms
with more recognized sites are expected to have higher total user fees.
The Agency believes that higher proposed NRTL user fees would have
little, if any, impact on the affected firms. Demand for NRTL services
continues to grow and there was no apparent adverse affect of the
imposition of the NRTL fees in 2000.
Any impact on the NRTLs would hinge on whether or not they can
raise prices to their customers. The Agency believes that there are no
good substitutes for the certification supplied by NRTLs, and that it
is likely that the higher user fees would be passed on to the very
large number of NRTL customers via small price increases. The Agency
preliminarily concludes that the new, higher NRTL fees will have little
economic impact on the affected firms and establishments.
Regulatory Flexibility Act Certification
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.),
federal agencies must assess the impact of their proposed rules on
small entities and prepare an initial regulatory flexibility analysis
unless the head of the agency can certify that the rule will not, if
promulgated, have a significant economic impact on a substantial number
of small entities. Thus, the Agency has also estimated the relative
effect of the new user fees on small businesses. In the original fees
rulemaking in 2000, small businesses were defined as those with less
than $5 million in sales (the Small Business Administration criterion
for the industry). These businesses have fewer than 100 employees and
average revenue of about $2.4 million. User fees were estimated to be
about $6,000 per "small" testing laboratory, which was less than 0.3
percent of average small business revenues and less than 5 percent of
before-tax profits (Table 6, 65 FR 46817). The February 15, 2007,
revision raised the average establishment's fee to about $7,700
($380,000/49). The higher user fees proposed by the Agency herein
increases the expected average user fee for a small testing laboratory
to about $23,500.
Revenues for the industry have also increased, from $5 billion in
1992 to an estimated $11 billion in 2006 (1992 and 2002 Economic
Census). Similarly, the SBA size criterion of a small business in the
testing laboratory industry has increased to $11 million in annual
revenues (SBA Web site). The Agency estimates that the new user fees
still represent less than 1 percent of revenues and 5 percent of
profits for small businesses in this industry. The marginal increase in
user fees, which is about $15,800 per testing laboratory (to $23,500
from $7,700), is an even smaller fraction of current revenues and
profits. The economic costs are less than 1 percent of revenues and 5
percent of before-tax profits, and the Agency believes that the costs
will be passed on to the firms' customers. The Agency, therefore,
certifies that the proposed higher NRTLs fees will not have a
significant impact on a substantial number of small entities. The
Agency has preliminarily concluded that 13 of the 15 affected NRTLs are
small entities, as defined by SBA size criterion.
Finally, as noted in the 2000 rulemaking, the collection of user
fees from NRTLs is not a new cost to society, but represents a transfer
of the governmental cost of the NRTL Program from taxpayers to an
industry directly consuming government services.
References
1. U.S. Department of Commerce, Bureau of the Census, 1992 Census of
Service Industries: Industry Series: SC92-S-1, -4, -5. Washington,
DC, February 1995.
2. U.S. Department of Commerce, Bureau of the Census, Economic
Census, 2002, publication EC02-54A-1 US.
3. Risk Management Associates (formerly Robert Morris Associates),
Annual Statement Studies, September 1995.
4. U.S. Small Business Administration Web site http://www.sba.gov.
Table of Small Business Size Standards Matched to North American
Industry Classification System Codes http://www.sba.gov/idc/groups/
public/documents/sba_homepage/serv_sstd_tablepdf.pdf.
XI. Unfunded Mandates Reform Act
For the purposes of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1501, et seq.), this rule does not include any federal mandate
that may result in increased expenditures by State, local, or tribal
governments, or an increased expenditure by the private sector of more
than $100 million.
XII. Paperwork Reduction Act
This rule does not impose or remove any information collection
requirements for purposes of the Paperwork Reduction Act of 1995, 44
U.S.C. 3501-30.
XIII. Federalism
OSHA has reviewed this proposed rule in accordance with Executive
Order 13132. This final rule would only set fees for services provided
by the Federal government to private entities and has no impact on
Federalism. The rule does not limit or restrict State policy options.
XIV. State Plan States
The 26 States and territories with their own OSHA-approved
occupational safety and health plans are not affected by this final
rule. These 26 States and territories include: Alaska; Arizona;
California; Hawaii; Indiana; Iowa; Kentucky; Maryland; Michigan;
Minnesota; Nevada; New Mexico; North Carolina; Oregon; Puerto Rico;
South Carolina; Tennessee; Utah; Vermont; Virginia; Washington; and
Wyoming; all of which operate plans covering both private and public
sector employees. Connecticut, New Jersey, New York, and the Virgin
Islands have OSHA-approved State Plans that apply to State and local
government employees only.
XV. Public Participation
OSHA invites comments on all aspects of the proposed rule. OSHA
will carefully review and evaluate these comments, information, and
data, as well as all other information in the rulemaking record, before
it decides how to proceed.
You may submit comments in response to this document (1)
Electronically at http://www.regulations.gov, which is the Federal
eRulemaking Portal; (2) by facsimile (FAX); or (3) by hard copy. All
comments, attachments and other material must identify the Agency name
and the OSHA docket number for this rulemaking. You may supplement
electronic submissions by uploading document files electronically. If,
instead, you wish to mail additional materials in reference to an
electronic or fax submission, you must submit three copies to the OSHA
Docket Office (see ADDRESSES section). The additional materials must
clearly identify your electronic comments by name, date, and docket
number so OSHA can attach them to your comments.
Because of security-related procedures, the use of regular mail may
cause a significant delay in the receipt of comments. For information
about security procedures concerning the delivery of materials by hand,
express delivery, messenger or courier service, please contact the OSHA
Docket Office at (202) 693-2350 (TTY (877) 889-5627).
Comments and submissions in response to this Federal Register
notice are posted without change at http://www.regulations.gov.
Therefore, OSHA cautions commenters about submitting personal
information such as Social Security numbers and date of birth.
Although all submissions in response to this Federal Register
notice and exhibits referenced in this Federal Register notice are
listed in the http://www.regulations.gov and/or http://dockets.osha.gov
indexes, some information (e.g., copyrighted material) is not publicly
available to read or download through those Webpages. All submissions
and exhibits, including copyrighted material, are available for
inspection and copying at the OSHA Docket Office. Information on using
http://www.regulations.gov to submit comments and access dockets is
available at the Webpage's User Tips link. Contact the OSHA Docket
Office for information about materials not available through the
Webpage and for assistance in using the Internet to locate docket
submissions.
Electronic copies of this Federal Register document are available
at http://www.regulations.gov. This document, as well as news releases
and other relevant information, also are available at OSHA's Webpage at
http://www.osha.gov.
XVI. List of Subjects
Fees, Occupational safety and health, Product testing and
certification, Safety, Testing laboratories.
XVII. Authority and Signature
This document was prepared under the direction of Jordan Barab,
Acting Assistant Secretary of Labor for Occupational Safety and Health,
200 Constitution Avenue, NW., Washington, DC 20210. This action is
taken pursuant to Section 8 of the Occupational Safety and Health Act
of 1970 (29 U.S.C. 657); Secretary of Labor's Order No. 5-2007 (72 FR
31160), and 29 CFR Part 1911. This action is also taken pursuant to the
Independent Offices Appropriations Act (31 U.S.C. 9701); Public Law
111-8; the Administrative Procedures Act (31 U.S.C. 553); 29 U.S.C. 9a;
and OMB Circular A-25.
Signed at Washington, DC, on November 30, 2009.
Jordan Barab,
Acting Assistant Secretary of Labor for Occupational Safety and Health.
XVIII. Proposed Changes
For the reasons stated in the preamble of this proposed rule, OSHA
is proposing to amend Subpart A of 29 CFR part 1910 as follows:
PART 1910--[AMENDED]
Subpart A--General--[Amended]
1. The authority citation for Subpart A of part 1910 is revised to
read as follows:
Authority: Sections 4, 6, and 8 of the Occupational Safety and
Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's
Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR
35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR 50017),
5-2002 (67 FR 65008), and 5-2007 (72 FR 31159), as applicable.
Sections 1910.6, 1910.7, 1910.8 and 1910.9 are also issued under
29 CFR Part 1911. Section 1910.7(f) is also issued under 31 U.S.C.
9701, 29 U.S.C. 9a, 5 U.S.C. 553; Pub. L. 106-113 (113 Stat. 1501A-
222); Public Law 111-8; and OMB Circular A-25 (dated July 8, 1993)
(58 FR 38142, July 15, 1993).
2. In Sec. 1910.7, revise the first sentence of paragraphs (f)(1)
and (f)(2) and revise paragraphs (f)(3)(i) and (f)(4) to read as
follows:
Sec. 1910.7 Definition and requirements for a nationally recognized
testing laboratory.
* * * * *
(f) * * *
(1) Each applicant for NRTL recognition and each NRTL must pay fees
for services provided by OSHA in advance of the provision of those
services. OSHA will assess fees for the following services:
* * * * *
(2) The fee schedule established by OSHA reflects the full cost of
performing the activities for each service listed in paragraph (f)(1)
of this section. * * *
(3)(i) OSHA will review the full costs periodically and will
propose a revised fee schedule, if warranted. In its review, OSHA will
apply the formula established in paragraph (f)(2) of this section to
the current estimated full costs for the NRTL Program. If a change is
warranted, OSHA will follow the implementation shown in paragraph
(f)(4) of this section.
* * * * *
(4) OSHA will implement periodic review, and fee assessment,
collection, and payment, as follows:
------------------------------------------------------------------------
Dates Action required
------------------------------------------------------------------------
I. Periodic Review of Fee Schedule
------------------------------------------------------------------------
When review completed........ OSHA will publish any proposed new Fee
Schedule in the Federal Register, if
OSHA determines changes in the schedule
are warranted.
Fifteen days after Comments due on the proposed new Fee
publication. Schedule.
When Fee Schedule is approved OSHA will publish the final Fee Schedule
in the Federal Register, making it
effective.
------------------------------------------------------------------------
II. Application Processing Fees
------------------------------------------------------------------------
Time of application.......... Applicant must pay the applicable fees in
the Fee Schedule that are due when
submitting an application; OSHA will not
begin processing until fees are
received. OSHA may cancel an application
if the fees are not paid when due.
Before assessment performed.. Applicant must pay the estimated staff
time and travel costs for its assessment
based upon the fees in effect at the
time of the assessment. Applicant also
must pay the Final Report/Register
notice and other applicable fees, as
specified in the Fee Schedule. OSHA will
cancel an application if the fees are
not paid when due.
------------------------------------------------------------------------
III. Audit Fees
------------------------------------------------------------------------
Before audit performed....... NRTL must pay the estimated staff time
and travel costs for its audit based
upon the fees in effect at the time of
the audit. NRTL also must pay other
applicable fees, as specified in the Fee
Schedule. After the audit, OSHA adjusts
the audit fees to account for the actual
travel and staff time costs.
On due date.................. NRTLs must pay the estimated audit fees
or any balance due by the due date
established by OSHA; OSHA will assess a
late fee if audit fees (or any balance
of fees due) is not paid by the due
date. OSHA may still perform the audit.
Thirty days after due date... OSHA will publish a notice in the Federal
Register announcing its intent to revoke
recognition for NRTLs that have not paid
the estimated audit fees and any balance
of fees due.
------------------------------------------------------------------------
For the purposes of 29 CFR 1910.7(f)(4), "days" means "calendar
days," and "applicant" means "the NRTL" or "an applicant for
NRTL recognition."
* * * * *
[FR Doc. E9-28958 Filed 12-4-09; 8:45 am]
BILLING CODE 4510-26-P
