[Federal Register Volume 80, Number 183 (Tuesday, September 22, 2015)][Notices][Pages 57222-57231]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-24107]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
[Docket No. OSHA-2007-0031]
Nationally Recognized Testing Laboratories; Proposed Revised Fee
Schedule and Proposed Adoption of New Application Acceptance and Review
Procedures
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Notice.
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SUMMARY: In this notice, OSHA proposes to revise the schedule of fees
that the Agency charges to Nationally Recognized Testing Laboratories
(NRTLs) and NRTL applicants. In addition, OSHA proposes to adopt new
streamlined procedures for accepting and reviewing applications of
organizations seeking to obtain, renew, or expand NRTL recognition.
DATES: Submit comments, information, and documents in response to this
notice, or requests for an extension of time to make a submission, on
or before October 22, 2015.
ADDRESSES: Submit comments by any of the following methods:
1. Electronically: Submit comments and attachments electronically
at http://www.regulations.gov, which is the Federal eRulemaking Portal.
Follow the instructions online for making electronic submissions.
2. Facsimile: If submissions, including attachments, are not longer
than 10 pages, commenters may fax them to the OSHA Docket Office at
(202) 693-1648.
3. Regular or express mail, hand delivery, or messenger (courier)
service: Submit comments, requests, and any attachments to the OSHA
Docket Office, Docket No. OSHA-2007-0031, Technical Data Center, U.S.
Department of Labor, 200 Constitution Avenue NW., Room N-2625,
Washington, DC 20210; telephone: (202) 693-2350 (TTY number: (877) 889-
5627). Note that security procedures may result in significant delays
in receiving comments and other written materials by regular mail.
Contact the OSHA Docket Office for information about security
procedures concerning delivery of materials by express mail, hand
delivery, or messenger service. The hours of operation for the OSHA
Docket Office are 8:15 a.m.-4:45 p.m., e.t.
4. Instructions: All submissions must include the Agency name and
the OSHA docket number (OSHA-2007-0031). OSHA places comments and other
materials, including any personal information, in the public docket
without revision, and these materials may be available online at http://www.regulations.gov.
Therefore, the Agency cautions commenters about submitting statements they
do not want made available to the public, or submitting comments that contain
personal information (either about themselves or others) such as
Social Security numbers, birth dates, and medical data.
5. Docket: To read or download submissions or other material in the
docket, go to http://www.regulations.gov or to 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 at the OSHA Docket Office. Contact the
OSHA Docket Office for assistance in locating docket submissions.
6. Extension of comment period: Submit requests for an extension of
the comment period on or before October 7, 2015 to the Office of
Technical Programs and Coordination Activities, Directorate of
Technical Support and Emergency Management, Occupational
Safety and Health Administration, U.S. Department of Labor, 200
Constitution Avenue NW., Room N-3655, Washington, DC 20210, or by fax
to (202) 693-1644.
FOR FURTHER INFORMATION CONTACT: Press inquiries: Contact Mr. Frank
Meilinger, Director, OSHA Office of Communications, U.S. Department of
Labor, 200 Constitution Avenue NW., Room N-3647, Washington, DC 20210;
telephone: (202) 693-1999; email: Meilinger.francis2@dol.gov.
General and technical information: Contact Mr. Kevin Robinson,
Director, Office of Technical Programs and Coordination Activities,
Directorate of Technical Support and Emergency Management, Occupational
Safety and Health Administration, U.S. Department of Labor, 200
Constitution Avenue NW., Room N-3655, Washington, DC 20210; phone:
(202) 693-2110 or email: robinson.kevin@dol.gov.
SUPPLEMENTARY INFORMATION:
I. Introduction
OSHA proposes to adopt new streamlined procedures for accepting and
reviewing applications of organizations seeking to obtain, renew, or
expand NRTL recognition, and to revise the existing NRTL Program fee
schedule pursuant to the NRTL Program regulation, 29 CFR 1910.7(f).
Section III of this notice covers the proposed adoption of new
application acceptance and review procedures, and Section IV covers the
proposed revision of the fee schedule.
II. Background on the NRTL Program
Many of OSHA's safety standards (e.g., 29 CFR 1910, Subpart S)
require that equipment and products be tested and certified to help
ensure their safe use in the workplace. To implement these
requirements, OSHA established the NRTL Program and the Agency
generally requires NRTLs to perform this testing and certification.
The NRTL Program regulation, 29 CFR 1910.7, requires that, to
obtain and retain OSHA recognition as 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 employers subject to the tested equipment requirements
and manufacturers and vendors of products for which OSHA requires
certification; (3) have internal programs that ensure proper control of
the testing and certification process; and (4) have effective reporting
and complaint handling procedures (29 CFR 1910.7(b)). OSHA requires
organizations applying for NRTL recognition to provide, in their
applications, detailed and comprehensive information about their
programs, processes, and procedures, in writing. When an organization
makes an initial application to be recognized as an NRTL, OSHA reviews
the written information contained in the organization's application and
conducts an on-site assessment to determine whether the organization
meets the requirements of 29 CFR 1910.7. OSHA uses a similar process
when an NRTL applies for expansion or renewal of its recognition,
although the type and amount of information in some areas can differ
significantly from those of initial applications. In addition, the
Agency conducts annual assessments \1\ of NRTLs to ensure that the
recognized laboratories adequately maintain their programs and continue
to meet the recognition requirements.
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\1\ OSHA uses the term "assessments" to mean those activities
described by the term "audits" under 29 CFR 1910.7(f). OSHA uses
the term "assessments," rather than "audits" because it better
reflects the overall purpose of the program's activities, i.e.,
conformity assessments.
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To support these core functions, OSHA also performs a number of
ancillary activities. For example, OSHA: Investigates complaints filed
against NRTLs to ensure that the laboratories are performing their
testing and certification functions adequately; represents the NRTL
Program in a variety of forums related to conformity assessment
products used in the workplace; and maintains a detailed Web site that
both explains the program and, more importantly for the NRTLs, lists
all the laboratories currently recognized under the NRTL Program, the
products each laboratory can test, and registered certification marks
used by each laboratory.
III. Proposed Revision of Existing Application Acceptance and Review
Procedures
OSHA currently has a number of initiatives underway to improve the
operations of the NRTL Program. This section of the notice discusses
one such initiative, under which OSHA proposes new streamlined
procedures for accepting and reviewing applications of organizations
seeking to obtain, renew, or expand NRTL recognition. OSHA would follow
these new procedures in lieu of those contained in the Agency's
existing NRTL Program Directive (CPL 1-0.3, NRTL Program Policies,
Procedures, and Guidelines, December 2, 1999) ("Directive" or "NRTL
Program Directive") and the additional practices OSHA has routinely
followed in accepting applications.
OSHA proposes the adoption of the new streamlined procedures to
eliminate delays caused by multiple revisions by an applicant during
the application-acceptance and -review process. In addition, OSHA seeks
to simplify the application process to make it clearer when the
application acceptance process ends and the substantive application
review process begins. This streamlined application process would also
reduce NRTL Program fees, as OSHA will discuss later in this notice.
The existing procedures for application acceptance and review are
contained in both Appendix A to the NRTL Program regulations
("Appendix A") and the NRTL Program Directive. OSHA does not propose,
in this notice, to revise Appendix A; instead, as stated, OSHA proposes
to follow new streamlined procedures in lieu of the existing procedures
in the Directive. The new streamlined procedures would be consistent
with, and would clarify, the procedures contained in Appendix A.
A. Existing Procedures in Appendix A That Are Not Subject to Revision
in This Notice
Per Appendix A, the burden is generally "on the applicant to
establish by a preponderance of the evidence that it is entitled to
recognition as an NRTL" (App. A. Introduction). Thus, in its
application, an applicant must "provide sufficient information and
detail demonstrating that it meets the requirements set forth in Sec.
1910.7, in order for an informed decision concerning recognition to be
made" by the Assistant Secretary for Occupational Safety and Health
("Assistant Secretary"), and must also "identify the scope of the
NRTL-related activity for which the applicant wishes to be recognized"
(i.e., the test standards the applicant will use for testing products)
(App. A.I.A.2.b). To meet its burden, the applicant may include any
documentation (i.e., enclosures, attachments, or exhibits) it deems
appropriate (App. A.I.A.2.c).
Also under Appendix A, "[a]pplications submitted by eligible
testing agencies will be accepted by OSHA, and their receipt
acknowledged in writing" (App. A.I.B.1.a). Moreover, "[a]fter receipt
of an application, OSHA may request additional information if it
believes information relevant to the requirements for recognition has
been omitted" (Id.). In addition, "OSHA shall, as necessary, conduct
an on-site review of the testing facilities of the applicant,
as well as the applicant's administrative and technical practices,
and, if necessary, review any additional documentation underlying
the application" (App. A.I.B.1.b).
Appendix A provides the responsible OSHA staff with two options
following review of the application, and any additional information and
on-site review report. On the one hand, if "the applicant appears to
have met the requirements for recognition," responsible OSHA staff
must make a "positive finding" to the Assistant Secretary, which
consists of "a written recommendation... that the application be
approved, accompanied by a supporting explanation" (App. A.I.B.2).
Once this recommendation is made, OSHA follows the procedures in the
Appendix for making preliminary and final findings on the application
(App. A.I.B.4, A.I.B.5, A.I.B.6).
On the other hand, if "the applicant does not appear to have met
the requirements for recognition," responsible OSHA staff must make a
"negative finding" to the "applicant in writing, listing the
specific requirements of Sec. 1910.7 and [Appendix A] which the
applicant has not met, and allow[ing] a reasonable period for
response" (App. A.I.B.3.a). After the applicant receives "a
notification of negative finding (i.e., for intended disapproval of the
application), and within the response period provided," the applicant
may either (1) "[s]ubmit a revised application for further review,
which could result in a positive finding" (the procedures for which
are explained in the previous paragraph), or (2) "[r]equest that the
original application be submitted to the Assistant Secretary with an
attached statement of reasons, supplied by the applicant of why the
application should be approved" (App. A.I.B.3.b.i). In either case
(i.e., if a positive finding is made on a revised application or if the
applicant requests that the original application be submitted to the
Assistant Secretary), OSHA would follow the procedures in the Appendix
for making preliminary and final findings on the application (App.
A.I.B.4, A.I.B.5, A.I.B.6). The "procedure for applicant notification
and potential revision shall be used only once during each recognition
process" (App. A.I.B.3.b.ii).
B. OSHA Proposes That It Will No Longer Follow Existing NRTL Program
Directive Procedures for Accepting and Reviewing Applications
Existing policies contained in the NRTL Program Directive expand on
the application procedures contained in Appendix A, as follows. Per the
Directive, OSHA staff "formally accept or reject the application"
based on a review of the application for "completeness and for
adequacy" (Directive Ch.2.V.B, Ch. 3.II.B.1). The procedures for this
review are contained in Appendix D to the Directive (Directive Ch.
3.II.B.1). An application is considered complete "if it contains all
necessary documents, and sufficient information for all relevant
items," and is considered adequate "if the information submitted
sufficiently demonstrates that the requirements for recognition can be
met, and where relevant, if at least one test standard requested can be
approved" (Directive App. D) (emphasis in original).
In reviewing the application, OSHA staff will return and "take[]
no further action" on an application "[i]f [the] application is
frivolous or grossly incomplete or inadequate." In such circumstances,
"any future application from the applicant" will be processed "as a
new application" (Directive Ch. 3.II.A).
If the application is not "frivolous or grossly incomplete or
inadequate," OSHA staff discusses its review with the applicant,
"noting any deficiencies found or clarifications needed" (Directive
Ch. 3.II.B.2). If the "application is determined to be complete and
adequate," OSHA "sends a letter to the applicant to accept the
application" (Directive Ch. 3.II.C).
If the application is determined to be incomplete or inadequate,
the Directive provides two opportunities for applicants to correct
deficiencies before rejection of an application (Directive Ch. 3.II.C).
In practice, however, OSHA has given applicants three such
opportunities. Per the Directive, OSHA "sends a letter to the
applicant, detailing the deficiencies and the additional information
needed and requesting a response by an appropriate deadline," and if
"the response does not adequately resolve the deficiencies," OSHA
"provides the applicant a [second] opportunity to respond within a
given period." (Directive Ch. 3.II.C.) If deficiencies remain after
the second opportunity, OSHA, in practice, gives applicants a third,
but relatively limited, opportunity to make corrections before the
effective date of the rejection. This limited duration is sufficient
for applicants to correct deficiencies if only a few critical
deficiencies remain.
If an applicant's timely response cures the deficiencies in its
application, OSHA "sends an acceptance letter to the applicant"
(Directive Ch. 3.II.C). However, "[i]f the applicant does not respond
adequately or fails to reply by any deadline(s) provided or an approved
extension of these deadline(s)," OSHA "sends a letter notifying the
applicant that the application is not accepted and the Case File is
closed" (Directive Ch. 3.II.C.2).
Finally, the Directive provides that, after an application is
accepted, "the assigned staff determines whether an on-site review is
necessary" (Directive Ch.3.II.D). However, the Directive also provides
for non-acceptance during the on-site review process, if an applicant
fails to respond adequately to the findings of an on-site review
(Directive Ch.4.IV.C).
Under OSHA's proposal, it would no longer follow the existing
procedures, described above, to afford applicants three opportunities
to modify their applications before acceptance or non-acceptance. This
existing procedure is inefficient and causes delays because, in some
cases, these multiple opportunities cause the process to take years.
OSHA would also not follow its existing procedure for accepting an
application only when it is found to be complete and adequate. This
existing procedure has caused confusion as to when the application
acceptance process ends and the substantive application review process
begins.
C. OSHA Proposes new Streamlined Procedures for Accepting and Reviewing
Applications
In lieu of the existing NRTL Program Directive procedures,
described above, OSHA proposes to follow streamlined procedures for
accepting and reviewing applications. These streamlined procedures
would reduce delays, fees, and confusion associated with application
processing. Under these streamlined procedures, OSHA would review an
application for completeness, but not adequacy, in deciding whether to
accept the application. OSHA's review for adequacy, and any on-site
review, would occur only after OSHA accepted the application.
Furthermore, OSHA would permit the applicant one opportunity only,
rather than three, to resolve deficiencies in the completeness of its
application before deciding whether to accept it. OSHA describes these
proposed streamlined procedures in more detail, below.
1. Initial Review and Acceptance
When it receives an application, OSHA would acknowledge its
receipt, establish (for initial applications) or update (for expansion
and renewal applications) the docket for the organization, and upload
the application materials to the docket.\2\ OSHA would perform an
administrative review of the application to determine whether it is
complete (i.e., has sufficient information to determine whether the
applicant meets the requirements for recognition). If not complete,
OSHA would notify the applicant, in writing, that it has 30 days from
the date of the notice to provide the missing or additional
information. OSHA would also inform the applicant, in the notice, that
it is unable to review the merits of the application because the
application itself does not contain sufficient information to show that
the requirements for recognition can be met. Finally, OSHA would inform
the applicant, in the notice, that this review involved no technical
determination, only an administrative one of whether the application
has all of the necessary documentation. If the applicant does not
respond by the 30-day deadline, or does not adequately respond, and the
application remains incomplete, OSHA would inform the applicant that
OSHA cannot accept the application, and the applicant must reapply. If
the applicant provides a complete application within the 30 days, or
provided a complete application when it was first received, OSHA would
accept the application.
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\2\ As currently used by OSHA, the term "docket" means an
electronic file folder containing documents that pertain to an
official action taken by the Agency. OSHA generally makes these
documents available to the public.
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2. Determination of Adequacy
After accepting the application, OSHA would review the merits of
the application to determine whether the application is adequate. OSHA
would first conduct a technical review of the application (i.e., a
detailed review of all of the application's administrative and
technical procedures and content). Following this technical review,
OSHA would determine whether to conduct an on-site assessment as part
of evaluating the management system and technical capabilities of the
organization. OSHA would generally conduct an on-site review for
initial applications and for expansion applications that involve new
areas of testing for the NRTL or areas of concern to OSHA. If OSHA
finds deficiencies during the technical review or during the on-site
assessment, OSHA would provide the applicant with an explanation of
deficiencies and needed corrections, and a 90-day opportunity to
respond. Failure to respond by the 90-day deadline would constitute a
withdrawal of the application, and OSHA would take no further action on
it. If the applicant or NRTL responds, it would need to demonstrate it
corrected all deficiencies found in its application and/or during the
assessment, and provide evidence to OSHA that the corrections have been
implemented into the applicant's or NRTL's management systems. In that
case, OSHA would conclude the application is adequate. On the other
hand, if OSHA finds that deficiencies remain, OSHA would conclude the
application is not adequate.
If OSHA staff determines an application is adequate, OSHA would
follow existing procedures, and recommend a positive finding, per
Appendix A.I.B.2. Otherwise, OSHA staff would notify the applicant in
writing that they intend to recommend a negative finding. In that case,
the applicant has two options under Appendix A.I.B.3. First, the
applicant has one additional chance to revise its application within 30
days of receipt of OSHA's written notice. Second, the applicant may
request that its original application (as supplemented in response
during the review for adequacy) be submitted to the Assistant Secretary
(also within 30 days of receipt of OSHA's written notice). In this
case, the applicant must attach a statement of reasons to the
application explaining why the application should be approved. OSHA
would consider the failure to submit a revised application or a request
that the original application be submitted to the Assistant Secretary
within the 30-day deadline to be a withdrawal of the application.
If the applicant opts to revise its application, OSHA would invoice
the applicant for the fee to review its revised submission. This fee
would equal the estimated hours for the review multiplied by the hourly
rate for the applicable Miscellaneous Fee in the NRTL Program's fee
schedule. Like other application fees, this review fee would not be
refundable. The applicant would need to pay this fee before OSHA
performs the review of the revised application. OSHA would consider a
failure to pay the fee within 30 days of receipt of the invoice as a
withdrawal of the application. When OSHA receives the fee, OSHA would
review the revised application to determine whether to sustain the
negative finding or change it to a positive one. If OSHA staff decides
to sustain the recommendation for a negative finding, they would first
afford the applicant the opportunity to withdraw the application. If
the applicant does not withdraw it, OSHA would proceed with the
preliminary finding.
Once OSHA staff recommends a positive finding on either an original
or revised application, sustains its recommendation for a negative
finding after a review of a revised application, or the applicant
requests that the original application be submitted to the Assistant
Secretary, OSHA would follow the procedures in Appendix A for making
preliminary and final findings on the application (App. A.I.B.4,
A.I.B.5, A.I.B.6).
IV. Proposed Revision of the NRTL Program Fee Schedule
A. Background
OSHA proposes to revise the existing NRTL Program fee schedule
pursuant to the NRTL Program regulation, 29 CFR 1910.7(f). That
regulation requires NRTLs and applicants to "pay fees for services
provided by OSHA in advance of the provision of those services" (29
CFR 1910.7(f)(1)). OSHA assesses fees for core service activities, that
is, for "[p]rocessing of applications for initial recognition,
expansion of recognition, or renewal of recognition, including on-site
reviews; review and evaluation of the applications; and preparation of
reports, evaluations and Federal Register notices;" and "[a]udits of
sites" (Id.). OSHA's fee schedule "reflects the full cost of
performing the activities" for these services (29 CFR 1910.7(f)(2)).
OSHA calculates fees "based on either the average or actual time
required to perform the work necessary; the staff costs per hour (which
include wages, fringe benefits, and expenses other than travel for
personnel that perform or administer the activities covered by the
fees); and the average or actual costs for travel when on-site reviews
are involved" (Id.). Thus, the formula for calculating a fee for an
activity is the "[Average (or Actual) Hours to Complete the Activity x
Staff Costs per Hour] + Average (or Actual) Travel Costs" (Id.).
OSHA periodically reviews the full costs of performing core
services and, if warranted, will propose a revised fee schedule in the
Federal Register (29 CFR 1910.7(f)(3), (f)(4)). If OSHA approves the
proposed fee schedule (after giving the public an opportunity to
comment), it "publish[es] the final fee schedule in the Federal
Register, making the fee schedule effective on a specific date" (29
CFR 1910.7(f)(3), (f)(4)).
To ensure that its fees for core services reflect the full cost of
those services, OSHA's existing fee schedule (which OSHA adopted in
2011) takes into account both the direct and indirect costs it incurs
in performing those services (76 FR 10501-10504). Direct costs include
staff costs (i.e. the applicable portion of the salaries and
fringe benefits of the applicable staff) incurred for application
processing and assessment (Id.). Ancillary (or indirect) costs include
staff costs incurred for the administration and support of the program,
including legal support, budgeting, policy matters, intragency and
international coordination, responses to requests for information
related to the program, handling complaints, Web site development and
maintenance, and participation in meetings with stakeholders and
outside interest groups (Id.). OSHA refers to the sum of its direct
costs and ancillary costs as the total program costs (TPC) for the
purpose of this notice. TPC does not include travel expenses, which are
assessed separately (29 CFR 1910.7(f)(2), 76 FR 10504 n.5).
In the existing fee schedule, OSHA calculates the fee for each core
service activity by multiplying an equivalent average cost per hour
rate (ECR) by the time it takes to perform that activity: Fee for
Activity = ECR x Time for Activity (76 FR 10504). In 2000, when OSHA
began assessing fees for services, OSHA explained that it derived that
fee schedule's ECR by dividing TPC by the total available annual work
hours of the NRTL Program and legal staff that perform the services
(TAW) (Id.). Accordingly, ECR2000 = TPC2000/TAW2000. The approach used
in 2000 resulted in fees that recouped the costs only of the time spent
actually performing individualized audits and application processing,
which is only a portion of TAW, and did not recoup the costs of the
time associated with running the program and providing other benefits
shared among all NRTLs (Id.).
To account for the costs associated with these shared benefits,
OSHA adopted a new approach for calculating ECR (ECR2011) in the
existing fee schedule (Id.). Under the new approach, OSHA divides the
estimated total cost of the NRTL Program (TPC2011) by the total annual
service hours (TAS2011) (Id.). This latter term equals the total
estimated work hours that the NRTL Program staff spend on the core
service activities for which OSHA would bill NRTLs; accordingly,
ECR2011 = TPC2011/TAS2011 (Id.). By way of comparison with the 2000 fee
schedule, TAS equals TAW minus estimated hours spent on ancillary
activities (AH) and leave (LH) (i.e., TAS = TAW - AH - LH) (Id.). By
continuing to include the full program costs in the numerator
(TPC2011), but including in the denominator (TAS2011) only the amount
of time spent on providing "billable" core services, OSHA believed
the revised ECR would more accurately represent the total work hours
spent on those core activities than the 2000 equation \3\ (Id.).
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\3\ The existing fee schedule was supposed to have been phased
in over a three-year phase-in period. (76 FR 10508). OSHA
implemented the first phase on March 28, 2011. However, due to other
priorities and factors, OSHA was unable to implement the second and
third phases of the increase, as planned. The revised fee schedule
OSHA proposes in the current notice would render moot the
implementation of the second and third phases.
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B. Explanation of Proposed Revision of Fee Schedule
OSHA has reviewed its existing fee schedule and, based on that
review, proposes to revise its fee schedule. This proposed fee schedule
would more accurately reflect the full cost of performing the
activities for which OSHA charges fees.
OSHA proposes the following:
1. OSHA proposes a new grouping of fees for each of the core
activities for which OSHA charges fees to NRTLs (i.e., "[p]rocessing
of applications for initial recognition, expansion of recognition, or
renewal of recognition, including on-site reviews; review and
evaluation of the applications; and preparation of reports, evaluations
and Federal Register notices;" and "[a]udits of sites" (29 CFR
1910.7(f)(1)). Under the existing fee schedule, OSHA groups these
activities under the terms Application Processing, Audits, and
Miscellaneous (76 FR 10508). Under OSHA's proposed fee schedule, shown
below in Table A, OSHA would group these activities under the terms:
Administrative Evaluation, Technical Evaluation, Assessments, Federal
Register Notices, and Miscellaneous (which includes late fees and other
activities not specifically described). OSHA proposes these new
groupings to align its fee schedule with the proposed streamlined
procedures for accepting and reviewing applications, described above.
OSHA also believes that the times it proposes estimating for completion
of these activities (see Tables 2 thru 5, below) more accurately
represent the actual time it takes to complete the core activities for
which OSHA charges fees. Therefore, adoption of the proposed groupings
would more accurately reflect the full cost of the services for which
fees are assessed.
2. OSHA proposes to revise the approach it uses to calculate ECR.
Again, under the existing approach, OSHA calculates ECR by dividing TPC
by the total estimated work hours that the NRTL Program staff and legal
staff spend on the core service activities for which OSHA bills NRTLs
(or TAS) (76 FR 10504).
The existing approach depends, in large measure, on OSHA estimating
an accurate TAS (i.e., number of "billable" core hours). If this
estimate is accurate, the ECR (i.e., the hourly rate OSHA charges for
services) will accurately reflect the full cost of services (because
ECR = TPC/TAS). But OSHA's estimate has not been accurate in practice.
Due in part to insufficient program staffing and other uncontrollable
factors, the staff has been unable to work the number of estimated
billable hours. This has resulted in an hourly rate charged by OSHA
that results in fees that are far lower than the fees OSHA would be
charging if its estimate had been accurate.
OSHA could reassess TAS on a regular basis to achieve a more
accurate estimate. However, due to the changing nature of the staff's
workload, OSHA likely would need to make such calculation adjustments,
and thus publish fee schedules, more than once within a given year to
ensure an accurate estimate. OSHA likely could not make such
adjustments in a timely manner, largely due to the length of the
process for issuing fee schedules.
OSHA proposes to simplify the existing calculation; for the purpose
of the fees proposed in this notice, OSHA would assume that certain
NRTL Program staff (which OSHA calls "direct staff" in this notice)
work exclusively on core billable activities, and that other NRTL
Program staff (which OSHA calls "indirect staff" in this notice) work
exclusively on ancillary activities. Under the proposal, OSHA would
calculate the ECR (ECR2015) by dividing TPC by total direct staff
annual paid (i.e., compensable) hours, or simply, direct staff annual
hours (DSH).
Because of the difficulties of implementing the existing approach,
OSHA believes the proposed change in approach (replacing TAS with DSH)
would, on average and in practice, more accurately reflect the full
cost of services for which OSHA charges fees than the existing
approach. The accuracy of the DSH approach also does not depend on the
variable workload of staff, and would therefore be simpler to implement
than the existing approach.
OSHA estimates for the proposal that four full-time NRTL Program
staff members are direct staff and the other full-time NRTL Program
staff member is indirect staff. OSHA believes the estimate of four
full-time direct staff is reasonable because OSHA projects a
significant increase in the number of applications the NRTL Program
will process and audits the NRTL Program will perform (i.e., a
significant increase in the time NRTL Program staff will spend on core activities).
For the purposes of the proposed fee calculation, DSH would equal
8,352 hours. This is derived by multiplying 2,088, the regular annual
paid hours for one full-time staff, by the number of full-time direct
staff \4\ (again, currently four).
---------------------------------------------------------------------------
\4\ This figure is the number of compensable hours in a fiscal
year, which is used to determine full-time equivalents (FTE) (i.e.,
full-time staffing levels) for purposes of the Federal Budget. See
Office and Management and Budget (OMB) Circular A-11, Preparation,
Submission, and Execution of the Budget, Section 85--Estimating
Employment Levels and the Employment Summary (Schedule Q), 2015
(available at http://www.whitehouse.gov/sites/default/files/omb/assets/a11_current_year/s85.pdf).
---------------------------------------------------------------------------
3. OSHA proposes to break out the fees for the legal review of
Federal Register notices associated with initial, renewal, and
expansion applications from the general fees it charges for preparation
of these Federal Register notices by NRTL Program staff. Under the
existing fee structure, OSHA charges one general fee that covers both
preparation and legal review of a Final Report and Federal Register
notice (76 FR 10505-10511).\5\
---------------------------------------------------------------------------
\5\ Although OSHA did not state explicitly in the 2011 notice
that the Final Report and Federal Register notice fee included legal
review, the hours used for calculating this fee did in fact include
the legal staff's time for this review.
---------------------------------------------------------------------------
OSHA proposes this revision to more accurately reflect the portion
of the fees attributed to legal review. Under the existing fee
structure, OSHA charges a single hourly rate for core activities,
regardless of whether the time charged is attorney time or NRTL Program
staff time (76 FR 10505). Under the proposed fee structure, OSHA
calculates a separate hourly rate for core activities performed by
legal staff to reflect that certain ancillary costs, such as Web site
development and maintenance, which are properly incorporated into the
hourly rate for NRTL Program staff, should not be incorporated into the
hourly rate for legal services. OSHA would continue to incorporate in
the hourly rate for legal costs those indirect costs that tie directly
into the salary of legal staff, such as fringe benefits. As a result of
the proposed change, the hourly rate for legal fees, shown in Table 5,
would be less than the rate for NRTL Program staff fees, shown in Table
1.
OSHA notes that the Department of Labor incurs legal costs in
connection with the NRTL Program other than costs associated with the
legal review of Federal Register notices associated with initial,
renewal, and expansion applications. These other legal costs are
included in the existing fee schedule (See 76 FR 10504 n.5), and would
continue to be included in the proposed fee schedule, as elements in
TPC, and therefore, as elements of the calculation of the hourly rate
for NRTL Program staff.
4. OSHA proposes to revise the manner it calculates the salaries of
NRTL Program staff and Solicitor of Labor staff for the purpose of
calculating TPC. For the existing fee schedule, OSHA calculates staff
costs using actual staff salaries, which can vary, sometimes
significantly, over time due to changes in personnel and positions.
OSHA proposes to calculate salaries using midpoint salaries. These
midpoint salaries are the Step 5 amounts shown for a particular grade
(e.g., grade 13) in the Office of Personnel Management (OPM) General
Schedule (GS) salary table for 2015, called the "Salary Table 2015-
DCB," which pertains to federal workers who have duty stations located
mostly in Washington, D.C, Maryland, and Virginia. (See Office of
Personnel Management 2015 General Schedule (GS) Locality Pay Tables at
www.opm.gov.) These midpoint salaries may differ from actual staff
salaries, which depend on the actual grade and step for each staff.
However, using these midpoint figures would simplify the calculation of
the staff costs and provide a consistent fee that OSHA expects will
reflect, on average, actual staff salaries over time. Because OPM
adjusts its salary tables annually, OSHA would monitor the adjustments
to determine if their magnitude requires modification of the fee
schedule.
Also, to include an amount for regular fringe benefits, OSHA would
multiply the midpoint salaries by a fringe benefit rate. OSHA proposes
to use a 29% rate, and bases this rate on the one the Agency uses to
estimate fringe costs of other OSHA activities.
5. OSHA proposes to revise the manner in which it calculates
ancillary (or indirect) costs. Under the existing fee schedule, OSHA
includes, in its calculation of ancillary (or indirect) costs,
equipment, training, and space of the staff. Under the proposed fee
schedule, OSHA would not include these items in its calculation of
ancillary costs because NRTLs do not derive a special benefit from
these cost items. For example, training costs for the program staff
currently consist of general training available to all employees. OSHA
would include such costs in future fee schedules if it determines that
NRTLs do derive special benefits from the items. OSHA believes the
proposed revision to the fee schedule would more accurately reflect the
full costs of performing the activities for which OSHA charges fees.
6. OSHA proposes to not charge fees for determining whether
proposed test standards are appropriate test standards under the NRTL
Program. OSHA charges such fees under the existing fee schedule.
However, OSHA recently updated its process whereby it incorporates new
test standards into the NRTL Program's list of appropriate test
standards (the scope of an appropriate test standard must cover
products for which OSHA requires NRTL approval and must meet the
requirements of 29 CFR 1910.7(c)(1)). Under the updated policy, OSHA
adds new test standards when it is made aware of new test standards and
determines them appropriate (79 FR 17188). It is therefore no longer
necessary to charge NRTLs specific fees in connection with the
incorporation of standards into the list of appropriate test standards.
OSHA notes, however, that the costs associated with the incorporation
of test standards would be ancillary costs under the proposed fee
schedule, and would therefore be an element in the calculation of the
fees OSHA proposes to assess.
C. Basis and Derivation of Proposed Fee Amounts
Table 1, below, shows the direct and indirect program costs (TPC),
direct staff annual hours (DSH), and hourly rate OSHA proposes to use
to calculate the revised fees.
Table 1--NRTL Program Staff--Hourly Rate Calculation
------------------------------------------------------------------------
Description
------------------------------------------------------------------------
OSHA Direct Costs.................................... $579,383
OSHA Ancillary Costs................................. 287,541
------------------
OSHA Total Costs of NRTL Program, excluding 866,924
travel (TPC)....................................
OSHA Direct Staff Annual Hours (DSH)................. 8,352
OSHA Hourly rate (TPC divided by DSH)................ 104
------------------------------------------------------------------------
Tables 2 to 5, below, describe the fees OSHA proposes to adopt in
conjunction with the core services for which OSHA charges fees. OSHA
would calculate each fee (with the exception of fees for legal review
of Federal Register notices) by multiplying the NRTL Program staff
hourly rate of $104 (see Table 1, above) by the time OSHA estimates it
takes NRTL Program staff to perform the activity at issue, on average
(i.e., fee for activity = NRTL Program staff hourly rate ($104) X
estimated time for activity). OSHA would calculate the fees for legal
review of Federal Register notices by multiplying the hourly rate for
legal services of $89 (see Table 5, below) by the time OSHA estimates
its takes legal staff to perform the activity at issue, on average
(i.e., fee for activity = legal staff hourly rate ($89) X estimated
time for activity). OSHA notes that it rounds the proposed fees down to
the lower multiple of ten.
OSHA's proposed (and existing) fee for travel related to
assessments is based on actual travel expenses, and thus OSHA does not
derive a fee to charge for travel.
Table 2--Proposed Fees for Administrative Evaluation
------------------------------------------------------------------------
Program component Average hours Fee
------------------------------------------------------------------------
Initial Application--Limited review (per 40 $4,160
application)...........................
Expansion Application--Limited review 24 2,490
(per application)......................
Renewal request review.................. 16 1,660
------------------------------------------------------------------------
Table 3--Proposed Fees for Technical Evaluation
------------------------------------------------------------------------
Program Component Average Hours Fee
------------------------------------------------------------------------
Initial Application--Management 80 $8,320
Procedures review (per application)....
Initial or Expansion Application-- 24 2,490
Testing capability review (per
standard)..............................
Initial or Expansion Application--Site 24 2,490
capability review (per site)...........
------------------------------------------------------------------------
Table 4--Proposed Fees for Assessments
------------------------------------------------------------------------
Program component Average hours Fee
------------------------------------------------------------------------
Assessment preparation and close out 54 $5,610
(per lead auditor).....................
Assessment preparation and close out 32 3,320
(per assistant auditor)................
Each day on-site or at office (per 8 830
auditor)...............................
------------------------------------------------------------------------
Table 5. Proposed Fees for Federal Register Notices
------------------------------------------------------------------------
Program component Average hours Fee
------------------------------------------------------------------------
Initial Application Federal Register 20 $4,080
notice preparation (per application)**.
Initial Application Federal Register 16 1,420
notice legal review (per application)..
Total for Initial Application Federal 36 5,500
Register notices.......................
Renewal or Expansion Application Federal 16 2,470
Register notice preparation (per
application) **........................
Renewal or Expansion Application Federal 8 710
Register notice legal review (per
application)...........................
Total for Renewal or Expansion 24 3,180
Application Federal Register notices...
------------------------------------------------------------------------
Includes estimated Office of Federal Register (OFR) processing
fees: $2,000 per initial application notice, or $810 per expansion and
renewal notice, as applicable.\6\
---------------------------------------------------------------------------
\6\ The OFR charges Federal agencies a per column rate for
publishing Federal Register notices. See http://www.archives.gov/federal-register/write/conference/publishing-billing.pdf.
OSHA derived an estimated average processing fee based on the number of
columns in typical Federal Register notices published for the NRTL
Program.
---------------------------------------------------------------------------
D. Proposed Fee Schedule and Description of Fees
OSHA proposes the adjusted fee schedule shown below in Table A.
Table A--Proposed NRTL Program Fee Schedule
------------------------------------------------------------------------
Fee category Fee activity Fee *
------------------------------------------------------------------------
Administrative Evaluation... Initial application-- $4,160.
Limited review.
Expansion 2,490.
application--Limite
d review.
Renewal request 1,660.
review.
Technical Evaluation........ Initial application-- 8,300.
Detailed management
procedures review.
Initial or Expansion 2,490.
application--Testin
g capability review
(per standard).
Initial or Expansion 2,490.
application--Site
capability review
(per site).
Assessment.................. Assessment 5,610.
preparation and
close out (per lead
auditor, per site).
Assessment 3,320.
preparation and
close out (per
assistant auditor,
per site).
Assessment--per day 830 plus travel
at office, on-site, expenses.
or on travel (per
auditor, per site).
Federal Register Notices.... Federal Register 5,500.
notices--initial
application.
Federal Register 3,180.
notices--renewal or
expansion
application.
Miscellaneous............... Late Fees........... 210.
Other activities or 104.
services not
specifically
described (per
hour).
------------------------------------------------------------------------
* All fees must be paid in advance of activity or service.
General Information Regarding the Fees
1. Explanation of Fees
The Administrative Evaluation fee covers an administrative
review of the application packet to ensure completeness. It also covers
creating the docket and addition of the application to the docket. An
applicant must submit this fee with the application.
The Technical Evaluation fee covers a detailed examination
of the application packet to determine the applicant's ability to meet
the requirements of the requested recognition/expansion. An applicant
must submit this fee with the application.
On-site or office assessment fees are calculated based on
estimated staff time and, if applicable, actual travel expenses. Travel
expenses include expenses for hotel, air transportation, ground
transportation, and per diem. The assessment preparation and close-out
fees (per lead and assistant auditor, as applicable) include staff time
to make travel arrangements and file travel reimbursement claims. At
the conclusion of the assessment, actual travel expenses are calculated
based on the government per diem and other travel rules. OSHA will bill
or refund the difference between the prepaid and the actual travel
amounts.
The fees for "Other activities or services not
specifically described" cover application- or assessment-related
activities that are not specifically covered by the other fee
categories. One example would be the technical review of a revised
application that an applicant submits to OSHA in response to OSHA's
negative finding on an applicant's original application.
2. Refunds
If an application is withdrawn before OSHA commences the
Technical Evaluation, or the application is rejected after OSHA
completes the Administrative Evaluation, OSHA will refund the Technical
Evaluation fee.
If an application is withdrawn before OSHA commences
travel to a site to perform an on-site assessment, the Agency will
refund any prepaid assessment fees.
3. Late Fees/Failure to Pay. If an invoice is not paid in full by
the due date, the Late Payment fee will be assessed. If payment for an
application is not received within 30 days of the invoice's original
due date, the application will be rejected. If payment for an
assessment is not received within 30 days of the invoice's original due
date, OSHA will commence the process to revoke the NRTL's recognition
(see 29 CFR 1910.7, App. A.II.E). OSHA notes that NRTLs or applicants
may be subject to collection procedures under U.S. Federal law for
unpaid fees.
4. Changes to Fee Schedule. The effective date of this fee schedule
is thirty days after the publication of the Assistant Secretary's final
decision in the Federal Register. An NRTL or applicant pays fees
according to the fee schedule in effect on the date the Agency receives
an application or commences an on-site assessment.
E. Comparison of Current and Proposed Fees
The following table shows the differences between the existing fee
schedule and the proposed fee schedule shown in Table A, above.
Table 6--Differences Between Planned 2013 Fees and the Proposed Fee Amounts
----------------------------------------------------------------------------------------------------------------
Proposed activity or
Current activity or category Planned 2013 fee amount * category Proposed fee amount.
----------------------------------------------------------------------------------------------------------------
Initial application review....... $17,750.................. Initial application-- $4,160.
Limited review.
Initial application-- 8,300.
Detailed management
procedures review.
Initial or Expansion 2,490.
application--Site
capability review
(assuming one site--add
$2,490 for each
additional site).
Subtotal Initial........ 14,950.
Expansion-application review (per 8,280.................... Expansion application-- 2,490.
additional site). Limited review.
Initial or Expansion 2,490.
application--Site
capability review
(assuming one site--add
$2,490 for each
additional site).
Subtotal Expansion...... 4,980.
Renewal or expansion (other) 300...................... Renewal request review.. 1,660.
application review.
Expansion application-- 2,490.
Limited review.
Renewal information review fee... 2,370.................... None.................... 0.
Additional review--initial 2,370.................... None.................... 0.
application (if the application
requires substantial revision,
submit one-half of initial-
application review fee).
Additional review--renewal or 730...................... None.................... 0.
expansion application.
Limited review--initial 3,550.................... Initial application-- 4,160.
application. Limited review.
Assessment--initial application 4,440 plus travel Assessment preparation 5,610.
(per person, per site--first expenses. and close out (per lead
day). auditor, per site).
Assessment--renewal application 4,140 plus travel
(per person, per site--first expenses..
day).
Assessment--expansion application 3,550 plus travel
(additional site) (per person, expenses..
per site--first day).
Assessment--expansion application 2,960 plus travel
(other) (per person, per site-- expenses..
first day).
None............................. NA....................... Assessment preparation 3,320.
and close out (per
assistant auditor, per
site).
Assessment--each additional day 1,180 plus travel Assessment--per day at 830 plus travel
or each day on travel (per expenses. office, on-site, or on expenses.
person, per site). travel (per auditor,
per site).
Review and evaluation ($30 per 30 per standard OR 296 Initial or Expansion 2,490.
standard if already recognized per standard. application--Testing
for NRTLs and requires minimal capability review (per
review; otherwise, $296 per standard).
standard).
Final report and Federal Register 19,520................... Federal Register 5,500.
notice--initial application. notices--initial
application.
Final report and Federal Register 7,390.................... Federal Register 3,180.
notice--renewal or expansion notices--renewal or
application (if OSHA performs on- expansion application.
site assessment).
Final report and Federal Register 4,440....................
notice--renewal or expansion
application (if OSHA performs no
on-site assessment).
On-site audit (per person, per 7,400 plus travel Assessment preparation 5,610.
site, first day) expenses. and close out (per lead
nonconformances). auditor, per site).
On-site audit (per person, per 7,400 plus travel Assessment preparation 3,320.
site, first day). expenses. and close out (per
assistant auditor, per
site).
On-site audit--each additional 1,180 plus travel Assessment--per day at 830 plus travel
day (on-site or on travel) (per expenses. office, on-site, or on Expenses.
person, per site); or review of travel (per auditor,
revised audit response--per on- per site).
site or office audit.
Office audit (per person, per 1,180 or 2,370........... Assessment preparation 5,610.
site, per day) (lower fee and close out (per lead
applies if no nonconformances). auditor, per site).
Supplemental travel (per site-- 1,000.................... None.................... 0.
for sites located outside the 48
contiguous U.S. states or the
District of Columbia).
Supplemental program review (per 590...................... None.................... 0.
program requested).
Invoice processing fee (per 300...................... Included in Assessment 0.
application or audit). preparation and close
out (per lead auditor,
per site).
Travel document processing (4 590...................... Included in Assessment 0.
hours, per application or audit). preparation and close
out.
Late payment..................... 150...................... Late payment............ 210.
Compensatory time for travel (per 56.40.................... Included in Assessment-- None.
hour). per day at office, on
site, or on travel (per
auditor, per hour).
----------------------------------------------------------------------------------------------------------------
* These fee amounts represent fees that were to have been associated with phase 3 of the fee increase authorized
by OSHA's February 2011 final rule pertaining to NRTL Program fees (see footnote 3, above).
As the Table shows, the proposed fees for individual core service
activities are often significantly less than the analogous existing
fees for such services. These changes arise from the change in the way
that OSHA is proposing to calculate the ECR (which excludes some
previously included indirect costs but increases the number of direct
staff hours) and streamlined review procedures (which decrease the
amount of staff hours needed for some tasks in the process). OSHA
nonetheless estimates that fees collected under the proposed fee
schedule will, in toto, approximate the full costs of administering the
NRTL Program because, as stated above, OSHA estimates a significant
increase in the number of applications the NRTL Program will process
and audits the NRTL Program will perform (i.e., a significant increase
in the time NRTL Program staff will spend on core service activities).
V. Proposed Decision
OSHA performed its periodic review of the fees it currently charges
to NRTLs, as provided under 29 CFR 1910.7(f). Based on this review,
OSHA preliminarily determined that the existing fee schedule warrants
adjustment, as detailed in this notice. As a result, OSHA proposes to
replace the existing fee schedule with the proposed fee schedule shown
in Table A, above. OSHA also proposes to adopt new streamlined
procedures for accepting and reviewing applications of organizations
seeking to obtain, renew, or expand NRTL recognition, as described
above.
OSHA welcomes public comments on this notice. Comments should
consist of pertinent written documents and exhibits. Commenters needing more
time to comment must submit a request in writing, stating the reasons for
the request. Commenters must submit comments or requests for extensions
by the due dates, and follow all instructions for submitting comments
and requests for extensions, specified in the DATES and ADDRESSES
sections of this notice. OSHA will limit any extension to 10 days
unless the requester justifies a longer period. OSHA may deny a request
for an extension if the request is not adequately justified.
OSHA staff will review all timely-submitted comments to the docket
and, after addressing the issues raised by timely-submitted comments,
will recommend to the Assistant Secretary for Occupational Safety and
Health whether to adopt the proposed NRTL Program fee schedule and new
streamlined procedures for accepting and reviewing applications. The
Agency will publish a final fee schedule in the Federal Register, as
provided under 29 CFR 1910.7, as well as a final decision on whether to
adopt the new streamlined procedures for accepting and reviewing
applications. The final fee schedule would become effective 30 days
after the date of publication of the schedule in the Federal Register,
and the final streamlined procedures for accepting and reviewing
applications would become effective on the date of publication of the
procedures in the Federal Register.
Authority and Signature
David Michaels, Ph.D., MPH, Assistant Secretary of Labor for
Occupational Safety and Health, 200 Constitution Avenue NW.,
Washington, DC 20210, authorized the preparation of this notice.
Accordingly, the Agency is issuing this notice pursuant to 29 U.S.C.
657(g)(2), Secretary of Labor's Order No. 1-2012 (77 FR 3912, Jan. 25,
2012), and 29 CFR 1910.7.
Signed at Washington, DC, on September 16, 2015.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 2015-24107 Filed 9-21-15; 8:45 am]
BILLING CODE 4510-26-P
