10500 Federal Register / Vol. 76, No. 38 / Friday, February 25, 2011 / Rules and Regulations 

litigation, establish clear legal 

standards, and reduce burden. 

Executive Orders 12372 and 13132 

This regulation will not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with section 6 of Executive 

Order 13132, it is determined that this 

rule does not have sufficient federalism 

implications to require consultations or 

warrant the preparation of a federalism 

summary impact statement. The 

regulations implementing Executive 

Order 12372 regarding 

intergovernmental consultation on 

Federal programs and activities do not 

apply to this regulation. 

Paperwork Reduction Act 

The information collection 

requirements contained in this 

rulemaking are pursuant to the 

Paperwork Reduction Act, 44 U.S.C. 

chapter 35 and OMB Control Number 

1405–0147, expiring on November 30, 

2013. 

List of Subjects in 22 CFR Part 62 

Cultural exchange program. 

Accordingly, 22 CFR part 62 is 

amended as follows: 

PART 62—EXCHANGE VISITOR 

PROGRAM 

■ 1. The authority citation for part 62 is 

revised to read as follows: 

Authority: 8 U.S.C. 1101(a)(15)(J), 1182, 

1184, 1258; 22 U.S.C. 1431–1442, 2451 et 

seq.; Foreign Affairs Reform and 

Restructuring Act of 1998, Pub. L. 105–277, 

Div. G, 112 Stat. 2681 et seq.; Reorganization 

Plan No. 2 of 1977, 3 CFR, 1977 Comp. p. 

200; E.O. 12048 of March 27, 1978; 3 CFR, 

1978 Comp. p. 168; the Illegal Immigration 

Reform and Immigrant Responsibility Act 

(IIRIRA) of 1996, Pub. L. 104–208, Div. C, 110 

Stat. 3009–546, as amended; Uniting and 

Strengthening America by Providing 

Appropriate Tools Required to Intercept and 

Obstruct Terrorism Act of 2001 (USA 

PATRIOT ACT), Pub. L. 107–56, section 416, 

115 Stat. 354; and the Enhanced Border 

Security and Visa Entry Reform Act of 2002, 

Pub. L. 107–173, 116 Stat. 543. 

■ 2. Section 62.17 is revised to read as 

follows: 

§ 62.17 [Amended] 

(a) Remittances. Fees prescribed 

within the framework of 31 U.S.C. 9701 

must be submitted as directed by the 

Department and must be in the amount 

prescribed by law or regulation. 

(b) Amounts of fees. The following 

fees are prescribed. 

(1) For filing an application for 

program designation and/or 

redesignation (Form DS–3036)— 

$2,700.00. 

(2) For filing an application for 

exchange visitor status changes (i.e., 

extension beyond the maximum 

duration, change of category, 

reinstatement, reinstatement-update 

SEVIS status, ECFMG sponsorship 

authorization, and permission to 

issue)—$233.00. 

Dated: February 22, 2011. 

Stanley S. Colvin, 

Deputy Assistant Secretary for Private Sector 

Exchange, Bureau of Educational and 

Cultural Affairs, Department of State. 

[FR Doc. 2011–4276 Filed 2–24–11; 8:45 am] 

BILLING CODE 4710–05–P 

DEPARTMENT OF LABOR 

Occupational Safety and Health 

Administration 

29 CFR Part 1910 

[Docket No. OSHA–2007–0031] 

Nationally Recognized Testing 

Laboratories Fees 

AGENCY: Occupational Safety and Health 

Administration (OSHA), Labor. 

ACTION: Final rule. 

SUMMARY: The Occupational Safety and 

Health Administration (OSHA) is 

adjusting the approach it uses for 

calculating the fees the Agency charges 

Nationally Recognized Testing 

Laboratories (NRTLs), and also is 

requiring prepayment of these fees. This 

adjustment increases the fees; OSHA is 

phasing in the fee increase over three 

years for existing NRTLs and pending 

NRTL applicants. OSHA began charging 

NRTLs fees in 2000, and revised the fee 

schedule only twice since then (in 2002 

and 2007). 

DATES: This final rule becomes effective 

on March 28, 2011. 

FOR FURTHER INFORMATION CONTACT: 

MaryAnn Garrahan, Director, Office of 

Technical Programs and Coordination 

Activities, NRTL Program, Occupational 

Safety and Health Administration, U.S. 

Department of Labor, 200 Constitution 

Avenue, NW., Room N–3655, 

Washington, DC 20210, or phone (202) 

693–2110. OSHA’s 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 the Revised Approach for 

Calculating Fees 

V. Basis and Derivation of Fee Amounts 

VI. Revised Fee Schedules 

VII. Description of Fees 

VIII. Major Changes to the Fee Schedule 

IX. Changes to 29 CFR 1910.7(f) 

X. Final Economic Analysis and Regulatory 

Flexibility Analysis 

XI. Unfunded Mandates Reform Act 

XII. Paperwork Reduction Act 

XIII. Federalism 

XIV. State Plan States 

XV. Authority and Signature 

I. Introduction 

The Occupational Safety and Health 

Administration (OSHA) is adjusting the 

approach it uses to calculate the fees 

charged to Nationally Recognized 

Testing Laboratories (NRTLs). This 

adjustment will recoup a larger 

percentage of the cost of administering 

the NRTL Program than the current 

approach. This adjustment allows 

OSHA to continue to charge NRTLs for 

the core application processing and 

audit functions performed under the 

NRTL Program, while also recouping 

the other costs, such as the cost for 

ancillary activities that provide special 

benefits to NRTLs, that currently 

represent a significant portion of 

OSHA’s costs of running the NRTL 

Program. 

Because the revised approach results 

in a large increase in the fees for 

existing NRTLs and pending NRTL 

applicants, OSHA is instituting a threeyear phase-in period for any fee increase 

that is greater than $200. OSHA also is 

revising language in 29 CFR 1910.7(f) 

(the OSHA rule implementing the NRTL 

fee structure) to clarify the cost basis for 

the fees. In addition, OSHA will now 

require advance payment of all NRTL 

fees, which complies with instructions 

to Federal agencies issued by the Office 

of Management and Budget (OMB). 

In this notice, section II describes the 

NRTL Program and the prior 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 will recoup the 

ancillary and leave costs, and section V 

shows the derivation of the fee amounts. 

Sections VI and VII present the revised 

fee schedule and fee descriptions, 

respectively, and address the sole 

comment OSHA received in response to 

the proposal. Finally, in sections VIII 

and IX, respectively, OSHA explains the 


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1OSHA 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.’’ (see item 12.2, ISO 

Guide 2—Standardization and related activities— 

General vocabulary.) 

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. OSHA 

based the increase in the February 2007 fees on cost 

of living and time adjustments, but used the same 

calculation set forth in the initial Federal Register 

notice published in July 2000. OSHA previously 

updated the initial fees in January 2002 (see 67 FR 

5299). 

major revisions to the fees and to the 

regulatory text of 29 CFR 1910.7(f). 

II. Background 

Many of OSHA’s safety standards 

require approval (i.e., tested and 

certified) of equipment or products used 

in the workplace to help ensure that 

workers can use them safely. See, e.g., 

29 CFR part 1910, subpart S. In general, 

an NRTL must approve such equipment 

and products. The NRTL Program 

administered by OSHA ensures that 

laboratories perform testing and 

certification appropriately, 

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 receive and maintain 

recognition as an NRTL, an organization 

must: (1) Have the appropriate 

capability to test, evaluate, and approve 

products to assure safe use of the 

products 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 

applying for initial recognition as an 

NRTL provide, in writing, detailed and 

comprehensive information about their 

programs, processes, and procedures. To 

process an application, 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. 

To perform these core functions, 

OSHA also must perform a number of 

ancillary activities that support these 

functions. OSHA investigates 

complaints filed against NRTLs to 

ensure that the laboratories are 

performing their testing and 

certification functions adequately. In 

addition, 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 currently recognized under 

the NRTL Program, the products each 

laboratory can test, and registered 

certification marks used by each 

laboratory. 

On August 30, 2000, OSHA 

established a schedule of fees for several 

of the 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. At 65 FR 

46807, 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. 

Through that 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 activities: (1) Processing 

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 OSHA bases the fees, in 

part, on the staff costs per hour of 

performing application processing and 

audit activities. 

This final rule adjusts the approach 

that OSHA uses to calculate the fees 

charged for the services it provides to 

NRTLs. OSHA makes this adjustment 

because the prior fee schedule only 

allowed recovery of about half of the 

allowable reimbursable costs of the 

NRTL Program.2 For example, the prior 

approach did not recover the costs of 

the ancillary activities that are necessary 

to the program’s functioning. 

III. Legal Considerations 

This final 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 

shared by all NRTLs. As described 

above, these costs include costs 

associated with ancillary activities and 

leave. Although OSHA still does not 

charge separate fees for the time spent 

on ancillary activities and leave, it 

adjusted the rate charged for the feegenerating activities 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 the objective of collecting fees and 

charges for services and things of value 

provided by an agency. As noted in this 

statute, ‘‘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). 

Additionally, the Congressional 

Committee that drafted 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). Accordingly, 

Congress enacted the statute to ensure 

that the specific individuals and 

companies that receive benefits from 

agency programs, not taxpayers at large, 

fund the programs. 


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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 the costs to the 

Government, the value of the service or 

thing to the recipient, public policy or 

interest served, and other relevant facts. 

See 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 specifically 

authorized the Secretary of Labor to 

collect and retain fees charged to sustain 

the NRTL Program, stating, ‘‘[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, Pub. L. 106–113 (113 Stat. 1501A– 

222) and Consolidated Appropriations 

Act, 2009, Pub. L. 111–117 (123 Stat. 

3034). 

2. Case Law 

The Supreme Court and the Courts of 

Appeals issued decisions addressing the 

application of the IOAA and its 

interpretation by Federal agencies. 

These cases provide guidance that 

provides specific information regarding 

the fee schedules, and the methods of 

assessing fees, that agencies may use. 

These decisions 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 the agency 

should base the fee 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, to prevent 

charging twice for the same service, 

makes clear the activities covered by 

each fee. 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 

are 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 same Court of Appeals 

clarified in a companion case 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. v. FCC, 554 F.2d 

1135, 1138 (DC Cir. 1976). 

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 Nuclear 

Regulatory Commission’s (NRC) 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 

OMB issued Circular No. A–25, 

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.’’ Examples of such 

costs 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 an agency can assess 

fees for services rendered: (1) The 

agency must base the fees on special 

benefits derived from Federal activities 

beyond those benefits received by the 

general public; (2) the agency must 

confer the benefits 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 endeavor to make 

agency programs self-sustaining to the 

extent that the programs 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 

1. The Agency Must Base Fees on the 

Costs To Confer Special Benefits 

Derived From Federal Activities Beyond 

Those Benefits Received by the General 

Public 

OSHA based the implemented fee 

structure on the costs of providing 

services that confer special benefits. As 

noted earlier, NRTLs and NRTL 

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 


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them to offer their testing and 

certification services to manufacturers 

of products that require NRTL testing 

and certification when used in the 

workplace. 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 by 

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 must recover the costs of these 

activities because it incurs such costs 

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 

OSHA recognition. Two examples 

illustrate this point. First, through 

application processing and audits, 

OSHA determines which organizations 

qualify as NRTLs and which products 

each NRTL can approve under the 

NRTL Program. By maintaining a Web 

site, OSHA shares this information with 

the public. This activity benefits NRTLs 

by making current and potential clients, 

as well as employers, aware that OSHA 

qualified the NRTLs to approve those 

products. 

Second, complaint handling is a 

valuable activity that OSHA relies upon, 

especially between audits, to learn of 

inappropriate or questionable activities 

by an NRTL. If, for example, OSHA 

receives a complaint that an NRTL is 

testing equipment made for use in 

extremely hazardous environments, but 

OSHA does not recognize the NRTL to 

perform this testing, OSHA would 

investigate the complaint to determine 

whether the testing jeopardizes the 

safety of the equipment. If so, OSHA 

could take steps to prevent accidents 

from occurring as a result of using this 

equipment. Through complaint 

handling, OSHA reinforces the NRTL 

Program’s effectiveness, which 

maintains confidence in the program, 

and, thus, assures the benefits derived 

by NRTLs from participation in the 

program. 

2. 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 

attributed to individual NRTLs than 

ancillary activities. To share the costs of 

these benefits equitably, while still 

ensuring that the fees charged are 

specific with regard to the services 

provided to individual NRTLs, OSHA is 

apportioning the costs of the shared 

benefits in accordance with the time 

OSHA spends on core services rendered 

to each NRTL. This approach recognizes 

that an individual NRTL’s portion of the 

shared benefits relates directly to the 

core benefits it receives. OSHA is, 

therefore, retaining its fee structure of 

charging the NRTLs fees involving core 

actions directed at, or initiated by, an 

NRTL, while adjusting the rate used to 

compute the fee to recoup a greater 

portion of the actual program costs than 

is the case currently. 

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 

increase its scope of recognition. The fee 

that OSHA would charge in this 

instance is related directly to the NRTL 

seeking the expansion. The converse is 

also true: If in any year an NRTL does 

not apply to expand its recognition, 

OSHA will not charge the NRTL an 

expansion-application fee. Thus, the 

new fee schedule would reimburse 

OSHA for ancillary activities, but would 

do so by charging specific NRTLs only 

when these NRTLs receive the core 

services of the program. 

3. The Fees Charged Bear a Reasonable 

Relationship to the Costs of the Program 

OSHA is basing much of the fee 

schedule on the average documented 

cost of specific activities performed to 

benefit the NRTLs. Through the revised 

fee schedule issued by this rule, OSHA 

will recover a large percentage of the 

costs of the NRTL Program. To ensure 

that it does not overcharge, OSHA 

structured this revised fee schedule to 

capture approximately 95% of the costs 

of the NRTL Program. 

4. OSHA Is Fully Complying With the 

IOAA and OMB Circular A–25 

Finally, by including the costs of 

ancillary activities in the fees, OSHA 

now is fully compliant with the IOAA 

and OMB Circular A–25, both of which 

require agency programs to be selfsustaining to the extent that the 

programs 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 was recovering 

only about 30% of the costs of the NRTL 

Program; taxpayers were funding the 

remaining 70% through OSHA’s annual 

appropriations. This arrangement does 

not comport with the IOAA and OMB 

Circular A–25, and OSHA is correcting 

this deficiency through this final rule. 

In summary, including the cost of 

ancillary activities in the fees comports 

with the legal framework described in 

the preceding section. That is, OSHA 

based the fees 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 the NRTLs. 

OSHA recognizes that its new 

approach differs from the position it 

took in the 2000 rulemaking 

implementing the initial fee structure. 

In that rulemaking, OSHA stated that it 

would not seek to recover costs for some 

ancillary activities such as Web site 

development and training compliance 

officers on the NRTL Program. See, e.g., 

65 FR 46802. At the time of that 

rulemaking, however, OSHA believed 

those activities would use only a small 

portion of the NRTL Program’s 

resources. Recent workload reviews 

show that these activities have become 

a large part of the program, and now are 

critical in supporting the NRTL 

Program’s core functions. It is, therefore, 

appropriate for OSHA to include these 

costs in the revised fees. 

Because work on ancillary activities 

grew so much faster than program 

resources over the last several years, 

OSHA has less time available for 

application processing and audits than 

was the case in 2000. Moreover, because 

existing fees only recoup the cost of 

time spent on core services, OSHA is 

recovering a dwindling percentage of 

the NRTL Program costs. For OSHA to 

meet, on a timely basis, the needs of the 

NRTLs in application processing and 

auditing, while recovering its costs for 

providing those services, is a significant 

challenge. Through this final rule, 

OSHA will fund the resources to 

improve its effectiveness in rendering 

these core services. 

C. Explanation for Assessing Costs for 

Leave 

Although the prior fee structure 

accounted for some personnel costs for 

core NRTL activities, it did not account 


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3A small portion of NRTL fees covers the costs 

of legal services performed by attorneys in the 

Office of the Solicitor of Labor. OSHA included 

leave costs in that portion of the fees. 

4Section 20.13(a) is a description of revolving 

funds that requires that, in the absence of a 

revolving fund, ‘‘advance payments must 

accompany orders.’’ Section 20.13(b) specifies that 

agencies may use one of two methods to cover 

obligations by expenditure accounts, either using 

‘‘advances collected up to the amount of 

accompanying orders’’ or ‘‘[w]orking capital that is 

available for this purpose.’’ 

5The TPC includes 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. 

The ECR does not include travel expenses because 

OSHA charges for the actual staff travel expenses 

for an on-site visit after the auditor completes the 

visit. 

6 In discussing total hours in this notice, we often 

refer to ‘‘FTEs,’’ which stands for ‘‘full-time 

equivalents.’’ For purposes of this notice, FTEs 

equals total work hours divided by 2,080, the total 

available annual work hours (TAW) for one fulltime Federal employee (i.e., 1 FTE = 2,080 work 

hours). 

7We use the TPC abbreviation in discussing our 

calculations in this final rule, but the total amount 

shown in the July 2000 notice (i.e., TPC2000) will 

differ from the total shown in this final rule (i.e., 

TPC2009) because of changes in the total costs of 

the program. 

for all personnel costs; therefore, it did 

not account for the total time spent on 

core activities. As Federal employees, 

Department of Labor employees, 

including OSHA employees, earn leave 

as part of their regular compensation. 

However, the prior fee structure failed 

to account for leave earned by OSHA 

employees, even though that leave is 

part of the personnel costs of rendering 

NRTL services.3 In this respect, the 

prior fee structure was not compliant 

with OMB Circular A–25 and the other 

legal authorities described above. Thus, 

in this revised fee structure, OSHA is 

adjusting the personnel costs to include 

leave earned by all Federal employees 

performing services in support of the 

NRTL Program. 

D. Explanation for Advance Collection 

of the Fees 

Previously, OSHA required that 

NRTLs and applicants pay an 

application review fee when submitting 

an application, and, for initial 

applications, prepay the fee for an onsite assessment. OSHA generally billed 

the remainder of the fees to the NRTLs 

or applicants after it rendered the 

services. When OSHA adopted this 

billing system in the 2000 final rule, 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. 

However, in recent years this postcollection system resulted in problems, 

including 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 

requested that NRTLs pay fees in 

advance for any audits that it conducted 

in 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 fees received after the end 

of a fiscal year, but would have to forfeit 

them to a general Federal Government 

fund. The current fee-collection system 

also made it difficult to ensure that the 

Agency complied with OMB Circular 

A–25. 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

Therefore, while the current program 

directly benefits NRTLs, OSHA must 

advance funds to cover the program 

costs until the NRTLs or applicants 

reimburse OSHA for its program 

activities. Given the competing 

demands on the appropriations from 

which OSHA draws these funds, 

continued use of these general operating 

funds to pre-fund the NRTL Program 

could adversely impact OSHA’s ability 

to perform other operational functions. 

In summary, OSHA will now bill in 

advance for audits and other fees to 

ensure compliance with OMB guidance, 

and to reduce any financial impact on 

OSHA’s other functions caused by 

advancing funds to the NRTL Program. 

OSHA will estimate and collect travel 

costs and other expenses in advance, 

and will adjust any difference between 

actual costs and estimated costs after 

completion of the audit or other activity. 

IV. Explanation of the Revised 

Approach for Calculating Fees 

Through this final 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 × Time for Activity. 

In the July 31, 2000, Federal Register 

notice, OSHA explained that it derived 

the initial fee schedule’s ECR 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 OSHA did not 

illustrate the derivation of the ECR as an 

equation in the 2000 notice, it does so 

here for clarification, and refers to it as 

ECR2000 (to contrast it with the 

equation for ECR2009, which we 

explain later in this notice); accordingly, 

ECR2000 = TPC2000/TAW2000.7 As 

discussed above, 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. 

To account properly for the costs 

associated with these shared benefits, 

OSHA proposed and requested 

comment on the following calculation 

for the new ECR (ECR2009): Dividing 

the new estimated 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 work hours that the 

NRTL Program staff spend on the core 

service activities for which OSHA will 

bill NRTLs; accordingly, ECR2009 = 

TPC2009/TAS2009. By way of 

comparison with the prior fee 

schedules, TAS equals TAW minus 

estimated hours spent on ancillary 

activities (AH) and leave (LH) (i.e., TAS 

= TAW¥AH¥LH). By continuing to 

include the full program costs in the 

numerator (TPC2009), but including in 

the denominator (TAS2009) only the 

amount of time spent on providing 

‘‘billable’’ core services, the revised ECR 

more accurately represents the total 

work hours spent on those core 

activities than the current 2000 

equation; OSHA bills these hours to the 

NRTLs. The Agency did not receive any 

comments on this new calculation 

methodology, and is including it in the 

final rule as proposed. 

OSHA could achieve the same result 

by charging each NRTL separately for its 

share of the program resources used to 

produce the shared benefits. OSHA did 

not use this method primarily because 

it would be impractical to calculate and 

track these shared costs separately for 

each NRTL, and to attribute the costs 

appropriately to individual NRTLs 

through separate fees. As explained 

above, the new fee approach adopted in 

this final rule, in which OSHA charges 

NRTLs only for core services, provides 


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8TAW2009 equals 7.0 FTE (i.e., 7.0 FTE currently 

working on OSHA’s NRTL Program); 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 also can 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 derivation here since the calculation is more 

involved than, and gives the same result as, the 

simple equation above. 

9The term ‘‘staff’’ encompasses Federal 

employees, as well as any contract employees 

retained by OSHA for work on the NRTL Program. 

a more straightforward and manageable 

method, in comparison to the previous 

approach, 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 revised 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 OSHA charges fees. 

OSHA estimated that TAS2009 = 

3.5075 FTEs (7295.6 work 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 Table 

1 below, the new rate is: ECR2009 = 

$1,079,090/7295.6 hours = $147.90. 

Table 1 below shows a summary of 

program costs and value of revised 

ECR2009, which OSHA uses later to 

generate the revised fee schedule in 

section VI below. 

TABLE 1—NRTL PROGRAM ANNUAL

COST ESTIMATES—NEW ECR2009 

CALCULATION

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 × 

2,080 work 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: OSHA incurs most of these costs, but 

the costs also include applicable costs of a division of the Department of Labor’s Office of 

the Solicitor. 

** OSHA estimates the amount of fee collections to be approximately 95.2% of this total, 

or $1,096,000. 

Finally, as mentioned above, the total 

cost of administering the NRTL Program 

increased since the last revision to the 

fee schedule published on February 15, 

2007. This cost increase is due to two 

main reasons: an increase to account for 

additional program-staff resources, and 

the annual salary adjustments for 

Federal employees. Because of the 

increase to the TPC, and the revised 

approach for calculating ECR2009 

described in this notice, OSHA’s base 

rate (ECR) is increasing almost 132%, 

from $63.80 (in effect since February 15, 

2007) to $147.90 shown above. OSHA 

estimates that this rate would result in 

total annual collections of $1,096,000 

beginning three years after this rule’s 

effective date, provided OSHA’s NRTL 

Program costs remain unchanged. In 

fact, due to the three-year phase-in 

period, the rate and estimated total 

annual collections will increase the first 

year to about $91.80 and $690,000, 

respectively. Without a change in the 

fee schedule, but with the increase in 

staffing requirements for the NRTL 

Program, the first year’s rate and 

estimated total annual collections 

would increase to $73.72 and $583,000, 

respectively. If the program’s costs 

remain unchanged in the second year of 

the phase-in period, the rate and total 

annual collections resulting from to the 

new approach would be about $119.90 

and $880,000, respectively. 

For existing NRTLs and applicants 

that submit applications prior to the 

effective date of this final rule, OSHA 

will phase in, over three years, any fee 

increase that is greater than $200: a 33% 

increase for the first year’s fees; a 

similar increase for the second year’s 

fees; and the remaining increase in the 

third year. OSHA uses this $200 

threshold because it limits the number 

of fees that would otherwise increase 

100% for the first year; OSHA will 

phase in the increase for the remaining 

fees, thus reducing the financial impact 

the increase may have on any existing 

NRTL or applicant. As evident from the 

comparison of fees shown in VIII of this 

notice, this approach affects only three 

fees, which will increase by a combined 

total of $510. The $200 threshold and 

the three-year phase-in period will 

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. Although OSHA 

requested comments on these 

approaches and suggested alternatives, 

it received no comments. 

The entire increase is effective 

immediately for any organization that 

submits an application to become a new 

NRTL if OSHA receives the application 

on or after the effective date of this final 

rule. OSHA is taking this approach 

because, unlike currently recognized 

NRTLs and pending applicants, new 

applicants are free to choose whether or 

not to participate in the NRTL Program. 

V. Basis and Derivation of Fee Amounts 

Tables 2, 3, 4, and 5, below, present 

the costs of the major activities for the 

various fee categories. In general, OSHA 

calculated the cost of these activities by 

multiplying the staff 9 activity time by 

ECR, and adding any applicable average 

travel costs. However, because OSHA 

charges for actual travel, only non-travel 

costs serve as the basis for the fees 

shown later in Tables A and B. In 

deriving the fee amounts shown in the 

fee schedule (Table A or B), OSHA 

generally rounded the costs shown in 

Tables 2, 3, 4, and 5, up or down, to the 

nearest $5 or $10 amount. 

TABLE 2—INITIAL APPLICATION COST ESTIMATES

Major activity Type of cost Average 

hours 

Average 

cost * 

Initial application review ....................................................................... Office and field staff time ...................................... 120 $17,749 

Additional review time .......................................................................... Office staff ............................................................. 16 2,367 

Limited review time .............................................................................. Office staff ............................................................. 24 3,550 

On-site assessment—first day (per site, per assessor) ...................... Field staff time (16 hours preparation, 6 hours to 

process travel documents, and 8 hours at site).

30 4,437 

Field staff travel expense ($700 airfare/other + 

$100 per diem).

NA 800 


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TABLE 2—INITIAL APPLICATION COST ESTIMATES—Continued 

Major activity Type of cost Average 

hours 

Average 

cost * 

Total for on-site assessment—first day 5,237 

On-site assessment—each additional day ** (per site, per assessor) Field staff time (at site) ......................................... 8 1,183 

Field staff travel expense (per diem only) ............ NA 100 

Total for on-site assessment—each additional day 1,283 

On-site assessment travel time—per day (per site, per assessor) ..... Field staff ............................................................... 8 1,183 

Review and evaluation (10 test standards) ......................................... Office staff time ..................................................... 2 296 

Final report and Federal Register notice ............................................. Field and office staff time ...................................... 132 19,524 

Fees invoice processing ...................................................................... Office staff time ..................................................... 2 296 

*Average cost for staff time = average 

hours × equivalent average direct staff 

cost/hr. ($147.90). 

**Note: 2 additional days estimated 

for 2 assessors, and 4 additional days 

estimated for 1 assessor. 

See notes to Table A below for more 

information concerning the activities 

listed in this table. 

TABLE 3—EXPANSION APPLICATION (ADDITIONAL SITE) COST ESTIMATES

Major activity Type of cost Average 

hours 

Average 

cost * 

Application review (expansion for site) ................................................ Office and field staff time ...................................... 56 $8,283 

Additional review time .......................................................................... Office staff ............................................................. 8 1,183 

On-site assessment—first day (per site, per assessor) ...................... Field staff time (12 hours preparation, 4 hours to 

process travel documents, and 8 hours at site).

40 5,916 

Field staff travel time expense ($700 airfare/other 

+ $100 per diem).

NA 800 

Total for on-site assessment—first day 6,716 

On-site assessment—additional day ** (per site, per assessor) ......... Field staff time (at site) ......................................... 8 1,183 

Field staff travel expense (per diem only) ............ NA 100 

Total for on-site assessment—each additional day 1,283 

On-site assessment travel time—per day (per site, per assessor) ..... Field staff ............................................................... 8 1,183 

Review and evaluation fee (10 test standards) ................................... Office staff time ..................................................... 2 296 

Final report and Federal Register notice ............................................. Field and office staff time ...................................... 50 7,396 

Fees invoice processing ...................................................................... Office staff time ..................................................... 2 296 

*Average cost for staff time = average 

hours × equivalent average direct staff 

cost/hr. ($147.90). 

**Note: 2 additional days estimated 

for 1 assessor. 

See notes to Table A below for more 

information concerning the activities 

listed in this table. 

TABLE 4—RENEWAL OR EXPANSION (OTHER THAN ADDITIONAL SITE) APPLICATION COST ESTIMATES

Major activity Type of cost Average 

hours 

Average 

cost * 

Application review (renewal or expansion other than additional site) Office and field staff time ...................................... 2 296 

Additional review time .......................................................................... Office staff ............................................................. 8 1,183 

Renewal application—information review ............................................ Office staff ............................................................. 40 5,916 

On-site assessment—first day (expansion) (per site, per assessor) .. Field staff time (8 hours preparation, 4 hours to 

process travel documents, and 8 hours at site).

20 2,958 

Field staff travel expense ($700 airfare/other + 

$100 per diem).

NA 800 

Total for on-site assessment—first day (expansion) 3,758 

On-site assessment—first day (renewal) (per site, per assessor) ...... Field staff time (16 hours preparation, 4 hours to 

process travel documents, and 8 hours at site).

28 4,141 

Field staff travel expense ($700 airfare/other + 

$100 per diem).

NA 800 

Total for on-site assessment—first day (renewal) 4,941 

On-site assessment—additional day ** (per site, per assessor) ......... Field staff time (at site) ......................................... 8 1,183 


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TABLE 4—RENEWAL OR EXPANSION (OTHER THAN ADDITIONAL SITE) APPLICATION COST ESTIMATES—Continued 

Major activity Type of cost Average 

hours 

Average 

cost * 

Field staff travel expense (covers per diem only) NA 100 

Total for on-site assessment—each additional day 1,283 

On-site assessment travel time—per day (per site, per assessor) ..... Field staff ............................................................... 8 1,183 

Review and evaluation fee (10 test standards) (expansion) ............... Office staff time ..................................................... 2 296 

Final report and Federal Register notice (with on-site assessment) .. Office and field staff time ...................................... 50 7,396 

Final report and Federal Register notice (no on-site assessment) ..... Office and field staff time ...................................... 30 4,437 

Supplemental program review ............................................................. Office and field staff time (per program requested, including consultation and assessor’s 

memo).

4 592 

Fees invoice processing ...................................................................... Office staff time ..................................................... 2 296 

*Average cost for staff time = average 

hours × equivalent average direct staff 

cost/hr. ($147.90). 

**Note: 2 additional days estimated 

for renewal assessment; no additional 

days for expansion assessment. 

See notes to Table A below for more 

information concerning the activities 

listed in this table. 

TABLE 5—ON-SITE OR OFFICE AUDIT COST ESTIMATES

Major activity Type of cost Average 

hours 

Average 

cost*

On-site audit—first day (per site, per auditor) ** ........................ Field staff time (12 hours pre-site review preparation, 4 hours to process travel documents, and 8 

hours at site).

24 $3,550 

Prepare report/contact NRTL plus office review 

staff time (3 days for field staff and 2 hours for 

office staff).

26 3,846 

Subtotal (first day—regular audit) 7,396 

Field staff travel expense (700 airfare/other + 100 

per diem).

NA 800 

Total for on-site audit—first day (regular audit) 8,196 

On-site audit—first day (per site, per auditor)** (no nonconformances or observations requiring a response).Prepare report plus office review staff time (4 

hours for field staff and 2 hours for office staff).

6 887 

Total for on-site audit (first day—audit with no 

nonconformances) 

5,237 

On-site audit—additional day** * (per site, per auditor) .............. Field staff time (at site) ........................................... 8 1,183 

Travel expense (covers per diem only) .................. NA 100 

Total for on-site audit—each additional day 1,283 

On-site audit travel time—per day (per site, per auditor); also 

review of revised audit response—per on-site or office audit.

Field staff ................................................................. 8 1,183 

Office audit—per day (per site, per auditor); no 

nonconformances or observations requiring a response.

Field staff ................................................................. 8 1,183 

Office audit—per day (per site, per auditor); with 

nonconformances.

Field staff ................................................................. 16 2,367 

Fees invoice processing ............................................................ Office staff time ....................................................... 2 296 

* Average cost for staff time = average hours × equivalent average direct staff cost/hr. ($147.90). 

** OSHA charges this first-day fee only once if it audits multiple sites of the NRTL during one trip. 

*** Note: One additional day is estimated for one auditor. 

**** The 3,550 Field staff time and $800 Field staff travel expense are identical to those for the regular audit. 

See notes to Table A below for more information concerning the activities listed in this table. 

VI. Revised Fee Schedules 

A. First Phase Fee Schedule for Existing 

NRTLs and Pending Applicants 

OSHA is implementing the revised fee 

schedules shown below in Tables A and 

B. All existing NRTLs and any initial 

applicant (i.e., an entity not presently 

approved by OSHA as an NRTL) having 

a pending application (i.e., received by 

OSHA before the effective date of this 

rule), must pay the fees set forth in 

Table A during the first year of the 

three-year phase-in period. OSHA will 

publish the revised fee schedule for the 

second year at a later date, as explained 

below. In this final rule, OSHA revised 

the audit fees as explained above, and 

modified the fee schedule in Table A of 

the proposal slightly to clarify that 

initial NRTL applicants having 


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applications received by OSHA on or 

after the effective date of this rule must 

pay the fees in Table B, not Table A. 

The Agency eliminated the initialapplication review fee in Table A, and 

added a reference to footnote 7 of the 

table to explain the fee amount that 

OSHA charges to pending applicants 

(i.e., those applicants having 

applications received before the 

effective date of this rule) that 

substantially modify their applications 

after the effective date of the rule. 

The fees in Table A are the fees for the 

first phase of OSHA’s fee increase, 

which are applicable to existing NRTLs 

and pending applicants. As explained 

above, for existing NRTLs and pending 

applicants, OSHA is phasing in over a 

period of three years any fee increase 

that is greater than 200: 33% of the 

increased fees specified in this final rule 

on the effective date of the rule; another 

33% increase in the second year; and 

the final 34% increase in the third year. 

OSHA will adjust the percentage 

increase when it performs its periodic 

review of the fees during the next two 

years; it will base the adjustment on any 

increase or decrease in fees calculated 

for each of those years. During this 

review, OSHA will determine the 

amount of time it actually charged for 

application processing and audits, and 

the actual indirect travel OSHA 

performed, and adjust the amount in the 

fee schedule by the amount over- or 

underestimated. OSHA then will 

publish the second-year fee schedule in 

the Federal Register. 

TABLE A—NATIONALLY RECOGNIZED TESTING LABORATORY PROGRAM FEE SCHEDULE FOR EXISTING NRTLS AND

APPLICANTS WHEN OSHA RECEIVES THE APPLICATION BEFORE MARCH 28, 2011 

Type of service Activity or category 

(fee charged per application unless noted otherwise) Fee amount 

APPLICATION PROCESSING .................. Initial application review 1 8 (this fee is applicable only as described in 

note 7 to this table).

See note 7. 

Expansion-application review (per additional site) 1 8 ............................. $3,420. 

Renewal or expansion (other) application review 1 ................................ $300. 

Renewal information review fee 7 ........................................................... $1,470. 

Additional review—initial application (if the application requires substantial revision, submit one-half of initial-application review fee) 7.$2,370. 

Additional review—renewal or expansion application 7 .......................... $730. 

Limited review—initial application 7 ........................................................ $1,170. 

Assessment—initial application (per person, per site—first day) 2 10 ..... $2,740 + travel expenses. 

Assessment—renewal application (per person, per site—first day) 3 10 $2,570 + travel expenses. 

Assessment—expansion application (additional site) (per person, per 

site—first day) 3.

$2,200 + travel expenses. 

Assessment—expansion application (other) (per person, per site—first 

day) 3.

$1,830 + travel expenses. 

Assessment—each additional day or each day on travel (per person, 

per site) 2 3.

$730 + travel expenses. 

Review and evaluation 5 ($30 per standard if already recognized for 

NRTLs and requires minimal review; otherwise, $296 per standard).

$30 per standard OR $296 

per standard. 

Final report and Federal Register notice—initial application 5 9 ............ $12,080. 

Final report and Federal Register notice—renewal or expansion application (if OSHA performs on-site assessment) 5 9.$4,580. 

Final report and Federal Register notice—renewal or expansion application (if OSHA performs no on-site assessment) 5 9.$2,740. 

AUDITS ..................................................... On-site audit (per person, per site, first day) 6 ($3,260—no 

nonconformances).

$4,240 + travel expenses. 

On-site audit—each additional day (on-site or on travel) ......................

(per person, per site); or review of revised audit response—per onsite or office audit 6.

$730 + travel expenses. 

Office audit (per person, per site, per day) 6—$730 if no 

nonconformances, $1,120 if nonconformances found.

$730 or $1,120. 

MISCELLANEOUS .................................... Supplemental travel (per site—for sites located outside the 48 contiguous U.S. states or the District of Columbia) 4.$1,000. 

Supplemental program review (per program requested) 4 ..................... $270. 

Fees invoice processing (per application or audit) 4 .............................. $300. 

Travel document processing (4 hours, per application or audit) 4 ......... $270. 

Late payment 11 ...................................................................................... $150. 

Compensatory time for travel (per hour) 10 ............................................ $56.40. 

Notes to Table A (‘‘Nationally Recognized Testing Laboratory Program Fee Schedule’’): 

1. Must I pay the application-review fees, and when must I pay these fees? 

If you are applying for initial recognition as an NRTL, and OSHA receives your application on or after the effective date of this fee schedule, 

you must pay the initial-application review fee in Table B when you submit your initial application. Pay this fee as two payments: one equaling 

the limited-review fee amount, and the remainder of the fee as a second payment. (See note 7 to this fee schedule if you submit your initial application before this schedule’s effective date.) 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 I pay these fees? 

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. We base the prepaid assessment fee on estimated staff time and travel costs. After completing the actual 

assessment, we calculate the assessment fee based on the actual staff time and travel costs incurred in performing the assessment. The fee for 

staff time equals the first-day assessment fee for an initial application, plus the assessment fee for each additional at the site or on travel. (Note: 

Days charged for being in travel status are those allowed under government travel rules. This note applies to any assessment or audit.) We determine actual travel expenses based on 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 I pay these fees? 


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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. We will base the prepaid fee on estimated staff time and travel costs. Following the assessment, we will calculate the fee based 

on the actual staff time and travel costs we incurred in performing the assessment. The fee for staff time equals the first-day assessment fee for 

the particular type of application, plus the assessment fee for each additional at the site or on travel. We determine actual travel expenses based 

on government per diem and other travel rules. OSHA charges the NRTL the first-day fee only once if OSHA audits multiple sites of the NRTL 

during one trip. We bill or refund the difference between the prepaid amount and the amount of the final invoice 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 identified for recognition is 

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 note 2 to Table A 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 regarding supplemental programs. We will include the 

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, which we generally include in the first-day fee for assessments and audits. We charge 

this fee for additional sites of the NRTL visited during one trip. We also charge this fee separately for trips to a location when the preparation 

time for the trip is minimal; for example, trips to a site that the NRTL 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 and Federal Register notice, fees? 

An applicant or an NRTL also must pay these 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 fee based on actual staff time and travel costs 

incurred in performing the audit. We charge the first-day audit fee at the rate of $4,240 for the first day at the site if the audit finds 

nonconformances or observations requiring a response. If the audit finds none, OSHA will credit the NRTL’s account to reduce the fee to $3,260. 

In addition, we charge $730 for each additional day at the site, and $730 for each day in travel, plus actual travel expenses for each auditor. We 

also charge at the rate of $730 per day to review the NRTL’s revised or supplemental response when its original response did not adequately resolve all the nonconformances documented in OSHA’s audit report. OSHA charges the NRTL the first-day fee only once if OSHA audits multiple 

sites of the NRTL during one trip. However, see note 4 above. We determine actual travel expenses based on 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. For an office 

audit, we charge $730, per site, per person, per day, if the audit finds no nonconformances, and $1,120, if we find nonconformances or observations requiring a response. When the NRTL’s response does not adequately resolve the nonconformances, the $730 per-day fee also applies to 

review the NRTL’s revised or supplemental response. 

7. When do I pay the additional review fee, renewal information review fee, or limited review fee? 

The additional review fee covers the staff time required to review new or modified information submitted after we 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 the 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 you exceed that 50% threshold when submitting revised documentation for 

your application (i.e., you substantially revise your application), you must pay half of the initial-application review fee ($4,635, if a pending applicant; $8,875 if a new applicant), the expansion-application review fee for adding a site, or the renewal- or expansion (other)-application fee, as 

applicable. If this latter fee applies, you also must pay review and evaluation fee ($296) for each test standard affected by the revision. 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. OSHA deducts this fee from any refund 

due to the applicant. 

8. When and how can I obtain a refund for the fees that I paid? 

If you withdraw an initial application, or an expansion application for an additional site, after we commenced but before completing the full review, we will refund half of the application review fee. If you withdraw your application before we commence travel to your site to perform the onsite assessment, we will refund any prepaid assessment fees, or credit your account. We also will 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 (i.e., we return the 

application), we will refund the balance of the initial-application review fee (i.e., the amount in excess of the limited review fee). If an organization 

is no longer part of the NRTL Program, we will refund any funds collected in excess of all actual costs incurred through the date of termination. 

Other than these cases, we do not generally refund or grant credit for any other fees due or collected. 

9. Am I still liable for any fees even if OSHA rejects my application or terminates my recognition? 

If we reject your application, we will retain the fees pertaining to tasks we 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 wrote the report and published the notice. See note 11 to this Table A for the consequences of nonpayment. 

10. What rate does OSHA use to charge for staff time (including Comp Time)? 

OSHA estimated an equivalent staff cost per hour that it uses for determining the fees 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). OSHA also will charge this rate for any other OSHA staff travel time in excess of the staff’s normal 40-hour work 

week. 

(For more information about Compensatory 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 you bill to me? 

As explained above, if you are an applicant, we will send you a final bill (for any assessment and for the fees related to the review and evaluation, and the final report and Federal Register notice) 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 Table A of this notice. This late-payment fee represents one hour of staff time at the equivalent staff cost per 

hour (see note 10). We also will halt any work on your 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 Table A of 

this notice. 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 fee, we will publish a Federal Register notice stating our plan to revoke your NRTL recognition. However, 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 may contact OSHA’s NRTL Program (202–693–2110 or 2300) 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 alphabetical Index at http://www.osha.gov. Any application-review fees are those 

fees in effect on the date you submit your application. Other application-processing fees are those fees in effect when we perform the activity 

covered by the fee. Audit fees are those fees in effect on the date we begin the audit. 


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10510 Federal Register / Vol. 76, No. 38 / Friday, February 25, 2011 / Rules and Regulations 

B. Fee Schedule for Applicants When 

OSHA Receives the Initial Application 

on or After March 28, 2011 

Table B below is the fee schedule 

applicable to any applicant having an 

initial application received by OSHA on 

or after the effective date of this rule. 

This fee schedule also represents the 

projected fee that would apply to all 

other NRTLs and applicants when 

OSHA fully implements the final phase 

of the fee phase-in beginning in the 

third year after this rule’s effective date. 

Table B is based on current projections, 

and it is likely that OSHA will adjust 

these fees during its periodic fee-review 

process. 

TABLE B—NATIONALLY RECOGNIZED TESTING LABORATORY PROGRAM FEE SCHEDULE FOR APPLICANTS WHEN OSHA 

RECEIVES THE INITIAL APPLICATION ON OR AFTER MARCH 28, 2011 

Type of service Activity or category 

(fee charged per application unless noted otherwise) Fee amount 

APPLICATION PROCESSING .................. Initial application review (submit fee as two payments) 1 8 .................... $17,750. 

Expansion-application review (per additional site) 1 8 ............................. $8,280. 

Renewal or expansion (other) application review 1 ................................ $300. 

Renewal Information Review Fee 7 ........................................................ $2,370. 

Additional review—initial application (if the application requires substantial revision, submit one-half of initial-application review fee) 7.$2,370. 

Additional review—renewal or expansion application 7 .......................... $730. 

Limited review—initial application 7 ........................................................ $3,550. 

Assessment—initial application (per person, per site—first day) 2 10 ..... $4,440 + travel expenses. 

Assessment—renewal application (per person, per site—first day) 3 10 $4,140 + travel expenses. 

Assessment—expansion application (additional site) (per person, per 

site—first day) 3.

$3,550 + travel expenses. 

Assessment—expansion application (other) (per person, per site—first 

day) 3.

$2,960 + travel expenses. 

Assessment—each additional day or each day on travel (per person, 

per site) 2 3.

$1,180 + travel expenses. 

Review and evaluation 5 ($30 per standard if OSHA already recognizes the NRTLs and requires minimal review; otherwise, $296 per 

standard).

$30 per standard OR $296 

per standard. 

Final report and Federal Register notice—initial application 5 9 ............ $19,520. 

Final report and Federal Register notice—renewal or expansion application (if OSHA performs on-site assessment) 5 9.$7,390. 

Final report and FEDERAL REGISTER notice—renewal or expansion application (if OSHA performs no on-site assessment) 5 9.$4,440. 

AUDITS ..................................................... On-site audit (per person, per site, first day) 6 .......................................

($4,440—no nonconformances) .............................................................

$7,400 + travel expenses. 

On-site audit—each additional day (on-site or on travel) ......................

(per person, per site), or review of revised audit response—per onsite or office audit 6.

$1,180 + travel expenses. 

Office audit (per person, per site, per day) 6—$1,180 if no 

nonconformances, $2,370 if nonconformances found.

$1,180 or $2,370. 

MISCELLANEOUS .................................... Supplemental travel (per site—for sites located outside the 48 contiguous U.S. states or the District of Columbia) 4.$1,000. 

Supplemental program review (per program requested) 4 ..................... $590. 

Fees invoice processing (per application or audit) 4 .............................. $300. 

Travel document processing (4 hours, per application or audit) 4 ......... $590. 

Late payment 11 ...................................................................................... $150. 

Compensatory time for travel (per hour) 10 ............................................ $56.40. 

The notes to Table B are the same as the notes to Table A, except that the corresponding Table B fees apply instead of the Table A fees 

shown in these notes. 

VII. Description of Fees and Review of 

Comment 

This section describes the major tasks 

and functions covered currently by each 

type of fee category, e.g., application 

fees, and the basis used to charge each 

fee. 

Application Fees. This fee is for the 

technical work performed by OSHA’s 

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 OSHA covers in the 

review and evaluation fee. OSHA based 

the application fees on the average cost 

per type of application. OSHA uses an 

average cost because the amount of time 

spent on application review does not 

vary greatly by type of application, i.e., 

the number and type of documents 

submitted generally will be the same for 

a specific type of application. 

Experience shows 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. 

OSHA based this fee on the number of 

days for staff preparatory and on-site 

work, and related travel. OSHA uses six 

types of assessment fees, five of which 

involve charges per site and per person. 

The four assessment fees for the first 

day represent charges for office 

preparation and 8 hours visiting an 

applicant’s facility. There is one fee 

covering either additional days at the 

facility or additional days in travel. 

OSHA assesses additional days in travel 

for either a half or a full day of travel. 

OSHA also assesses a supplemental 

travel amount for travel outside the 

contiguous 48 U.S. states or the District 

of Columbia. For initial applications, 

applicants must submit the amount to 

cover the assessment in advance with 

the application. In addition to the first 


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10The amount of time spent arranging travel 

plans for each site visited during one trip is 

typically the same regardless of whether the site is 

for the same, or a different, NRTL. Therefore, OSHA 

will continue to account for this part of the 

preparation time through the travel document 

processing fee. OSHA charges this fee when the 

auditor visits more than one NRTL site during one 

trip. See note 4 to Table A, below. 

11This portion of the audit fee was shown as 26 

work hours in the proposed rule, of which 24 hours, 

i.e., 3 work days, was field time, and not the 2 days 

that was shown in the proposed rule. Table 5 of this 

final rule reflects the correct days. Eight of these 24 

hours apply to reviewing the NRTL’s response and 

contacting the NRTL, if needed. 

12 In this rule, when the term ‘‘nonconformance’’ 

is used alone, it also includes observations for 

which OSHA requires a response from the NRTL. 

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, OSHA will adjust the final 

bill or refund to the applicant for any 

difference between actual travel 

expenses and the advance travel 

amount. 

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 spend at least a full day 

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. OSHA 

charges this fee for evaluating each test 

standard that an applicant is proposing 

be part of its scope of recognition. The 

fee represents the staff time spent 

during the office review of such an 

application, and varies with the number 

of test standards requested by the 

applicant. In general, OSHA bases the 

fee 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 

required to determine the current 

designation and status (i.e., active or 

withdrawn) of a test standard, which 

involves reviewing current directories of 

the applicable standards-development 

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 previously 

approved by OSHA for other NRTLs. 

When the review is minimal, these 

activities take approximately 2 hours for 

10 standards. When the review is more 

substantial, the estimated average 

review time per standard is one hour for 

each standard. Substantial review will 

occur when OSHA did not previously 

recognize the standard for any NRTL, or 

when the NRTL is proposing to test in 

a new area, i.e., for a type of product not 

similar to any product currently 

included under its scope of recognition. 

Final Report/Federal Register Notice 

Fees. OSHA charges these two fees for 

each application. The fee involves the 

staff time required to prepare a 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 raised by 

findings made by OSHA during the onsite review. The fee also represents 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 Federal Register notice. 

OSHA bases these fees 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 

recommendation regarding expansion or 

renewal. 

On-site Audit Fees. These fees include 

the time for office preparation, time at 

the NRTL facility and travel, and time 

to prepare the report of the on-site audit. 

OSHA assesses the fee on a per-site 

basis, because the amount of 

preparation time generally does not vary 

significantly between sites. The actual 

time on site will vary depending on the 

scope of the audit but, currently, the 

limit generally is two days. As 

previously described, the audit fee 

includes amounts for travel based on 

actual travel expenses. 

OSHA received only one comment in 

response to the proposed rule (see Ex. 

OSHA–2007–0031–0002), and the 

commenter expressed three concerns 

regarding the proposed audit fees. First, 

the commenter had a concern about the 

applicability of the first-day fee for an 

audit listed in Table 5 of the proposed 

rule. This table detailed the average 

actual costs that the Agency incurred in 

conducting an audit. The commenter 

noted that, under the rule as proposed, 

each audit would include a first-day fee, 

thereby changing OSHA’s past practice 

of charging this fee only once if it 

visited multiple sites of an NRTL during 

one trip. OSHA will continue this 

practice, but did not explicitly note the 

practice in the proposal. Accordingly, 

OSHA revised Table 5 and the 

applicable note in the fee schedule to 

state the practice OSHA will follow. The 

revision, however, also clarifies that the 

fee for making travel arrangements still 

applies to each site, even though they 

may be sites of the same NRTL.10

Second, the commenter asserted that 

OSHA was charging too much time for 

the ‘‘prepare report/contact NRTL’’ 

portion of the audit fee. The commenter 

questioned the number of days of field 

staff time shown in Figure 5 of the 

proposed rule.11 These days cover 

preparation of the report, any discussion 

with the NRTL when its response is 

unclear or unacceptable, and review and 

analysis of the NRTL’s response to any 

nonconformances and observations 

identified during the audit.12 The 

proposed rule was unclear regarding 

this latter task as evidenced by the 

commenter’s statement that the proposal 

excluded a charge for this activity. 

While OSHA will continuously search 

for efficiencies in administering the 

NRTL Program, it cannot deviate from 

the actual costs of the program as would 

be necessary if it followed the 

commenter’s recommendation. 

The commenter also did not recognize 

the work done by OSHA auditors after 

the site visit, which is part of this item. 

An OSHA auditor develops an internal 

report detailing the auditor’s review of 

each element of the NRTL’s operations, 

and preparing the final version of the 

report detailing the nonconformances 

found. In addition, the auditor will be 

uploading this information into an audit 

report database. Three days to 

accomplish all of these tasks is 

reasonable, and represents OSHA’s 

actual experience. 

The third concern involved the 

commenter’s belief that OSHA’s audit 

fee excluded review and analysis of an 

NRTL’s response to determine whether 

the corrective or other actions are 

acceptable. As explained earlier, the 

‘‘prepare report/contact NRTL’’ portion 

of the audit fee includes this task. The 

commenter, believing OSHA omitted 

this portion of the audit fee, 

recommended that OSHA charge a fee 

based on the ‘‘levels of noncompliance,’’ 

which OSHA takes to mean the number 

of nonconformances found during an 

audit. In response to this 

recommendation, OSHA notes that it 

calculates each fee based on the average 

time taken to complete an activity, and, 

in the case of the ‘‘prepare report/ 

contact NRTL’’ part of the audit fee, the 

time taken to prepare and record the 

reports, review the NRTL’s response, 

and contact the NRTL to address any 

remaining issues. Therefore, it would be 

inappropriate to charge a fee based on 

the number of nonconformances 

because that number does not 


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10512 Federal Register / Vol. 76, No. 38 / Friday, February 25, 2011 / Rules and Regulations 

13See 73 FR 7468 (February 15, 2007) for the 

2007 fee schedule. 

necessarily correspond to the time spent 

by the auditor. In addition, it would be 

impractical to track, and base a fee on, 

the time taken to review the corrective 

action for each nonconformance or any 

response required for an observation. In 

practice, the time taken for the auditor’s 

review is simply the time to review the 

NRTL’s entire response to OSHA’s audit 

report, which OSHA already included 

in the 26 work hours shown in Table 5 

for the ‘‘prepare report/contact NRTL’’ 

part of the audit fee. 

The commenter’s concern pointed out 

that the proposed on-site audit fee 

calculation inaccurately captures the 

staff’s review time in the extreme cases, 

i.e., it is too high when there are no 

nonconformances, and too low when 

the resolution of nonconformances 

consumes a great deal of OSHA staff’s 

time. To correct this inaccuracy, OSHA 

adjusted the audit fees by: (1) Reducing 

the fee by 20 work hours when there are 

no nonconformances, and (2) charging 

for extra time when the NRTL must 

submit a revised or supplemental 

response because the original one did 

not adequately address all of the 

nonconformances. In these latter cases, 

OSHA will charge the NRTL a daily 

rate, or a fraction of this rate, for the 

actual time OSHA staff spends 

reviewing the revised response. OSHA 

expects that it will rarely need to charge 

for extra time. However, in these cases, 

the program office will alert the NRTL 

about the extra charge, and then 

document the extra time and bill the 

NRTL accordingly. Based on its past 

experience, OSHA expects that the 

number of audits without 

nonconformances will exceed those 

audits that will require revised 

responses. Accordingly, it does not 

expect the additional fees to result in a 

significant increase in the overall cost 

impact to NRTLs. 

Office Audit Fees. OSHA charges a 

separate fee for an office audit 

conducted instead of an on-site visit. 

OSHA provides a per-day rate, and the 

description in the schedule now makes 

this clear. Originally, this type of audit 

was to apply to an NRTL that regularly 

has little or no nonconformances during 

OSHA’s on-site audit of the NRTL’s 

site(s). Accordingly, the fee for the office 

audit, $730 per day under Table A, 

reflects the time to perform the audit 

and prepare a relatively short report. 

However, while addressing the sole 

comment to the Docket, OSHA also 

determined that a clarification was 

necessary regarding the fee for an office 

audit. OSHA adjusted the fee schedule 

to include a fee for office audits that 

find nonconformances, $1,120 under 

Table A. This fee reflects 16 hours for 

preparation of the audit report and 

review of the NRTL’s response. This fee 

is lower than the similar fee for an onsite audit because office audits generally 

require less auditor review time than for 

on-site audits. As in the case of the onsite, an additional per-day fee also 

applies to an office audit when the 

NRTL must submit a revised or 

supplemental response. 

Miscellaneous Fees. The fee schedule 

shows the average cost for one full day 

of staff time. OSHA uses this fee 

primarily when refunding the 

assessment fee. OSHA will also charge 

a fee for late payment of the audit fee. 

OSHA bases the amount for the late fee 

on 1 hour of staff time charged at the 

fully implemented rate shown in Table 

B above. OSHA also charges a 

supplemental program-review fee, 

which represents the time OSHA needs 

to review the documents that an NRTL 

submits to justify its proposed use of a 

supplemental program. Supplemental 

programs allow NRTLs to use other 

qualified parties or facilities to perform 

the specific tasks 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 OSHA made to the 

fee schedule in Table A compared to the 

prior 2007 fee schedule.13

Description of activity or category Prior fee amount New fee amount—first year 

increase 

New fee amount— 

full 

increase 

Initial application review .................................................................. $5,100 .................... $17,750 ...................................... $17,750. 

Expansion-application review ......................................................... $1,020 .................... $3,420 ........................................ $8,280. 

Additional review—initial application ............................................... $1,020 .................... $2,370 ........................................ $2,370. 

Renewal application—information review ....................................... $1,020 .................... $1,470 ........................................ $2,370. 

Additional review—renewal or expansion application .................... $510 ....................... $730 ........................................... $1,180. 

Limited review—initial application ................................................... $0 ........................... $3,550 ........................................ $3,550. 

Assessment—initial application (per person, per site—first day) ... $1,910 .................... $4,440 ........................................ $4,440. 

Assessment—renewal application (per person, per site—first day) $1,790 .................... $2,570 ........................................ $4,140. 

Assessment—expansion (additional site) (per person, per site— 

first day).

$1,530 .................... $2,200 ........................................ $3,550. 

Assessment—expansion (other) (per person, per site—first day) $1,280 .................... $1,830 ........................................ $2,960. 

Assessment—each additional day, or travel time—each day (per 

person, per site).

$510 ....................... $1,180 (new applications); 730 

other applications.

$1,180. 

Review and evaluation .................................................................... $13 per standard ... $30 per standard ....................... $30 per standard. 

Final report and Federal Register notice—initial application ........ $8,420 .................... $19,520 ...................................... $19,520. 

Final report and Federal Register notice—renewal or expansion 

application (if OSHA performs on-site assessment).

$3,190 .................... $4,580 ........................................ $7,390. 

Final report and Federal Register notice—renewal or expansion 

application (if OSHA performs no on-site assessment).

$1,910 .................... $2,740 ........................................ $4,440. 

On-site audit (first day) ................................................................... $2,680 .................... $4,240 ........................................ $7,400. 

On-site audit (first day) (no nonconformances) .............................. $0 ........................... $3,260 ........................................ $4,400. 

On-site audit—each additional day ................................................. $510 ....................... $730 ........................................... $1,180. 

Office audit—nonconformances found ........................................... $0 ........................... $1,120 ........................................ $2,370. 

Supplemental program review ........................................................ $260 ....................... $270 ........................................... $590. 

Invoice processing .......................................................................... $130 ....................... $300 ........................................... $300. 


srobinson on DSKHWCL6B1PROD with RULES
Federal Register / Vol. 76, No. 38 / Friday, February 25, 2011 / Rules and Regulations 10513 

Clarification of Travel Expenses Fee. 

The fee schedule states that OSHA will 

charge for time on travel following 

government travel rules. Those rules 

permit a traveler to earn a special type 

of leave called ‘‘compensatory time for 

travel,’’ or simply ‘‘travel comp time.’’ 

The traveler generally earns this time 

when in transit for a duration of time 

that exceeds the traveler’s regular work 

schedule. Travel comp time is earned 

time off, as opposed to receiving 

overtime pay. The amount of travel 

comp time varies depending on the 

specific circumstances of the travel. In 

general, it is greater for trips outside the 

contiguous 48 U.S. states and the 

District of Columbia than for trips 

within the U.S. Travel comp time is for 

travel time that exceeds an employee’s 

regular work hours, i.e., the total 

available work hours (TAW) discussed 

under section III above. Because this 

time is specific to a particular trip, 

OSHA will include it in the travel fee 

that OSHA charges for a trip. OSHA 

does not include travel comp time in the 

total time used to develop the ECR, i.e., 

the TAS. Instead, OSHA will charge 

travel comp time at the average rate for 

direct OSHA staff time, which will be 

$56.40 under the revised fee schedule. 

Although this discussion focuses on 

travel comp time, OSHA also will 

charge this rate for any other OSHA staff 

travel time in excess of the staff’s 

regular work hours. 

IX. Changes to 29 CFR 1910.7(f) 

As noted earlier, 29 CFR 1910.7(f) 

specifies the conditions for assessing 

and determining fees. This rule states 

that OSHA will assess fees for 

processing applications for initial 

recognition, expansion of recognition, or 

renewal of recognition, review and 

evaluation of the applications, and 

preparation of reports, evaluations, 

publishing Federal Register notices, and 

audits of sites. It further states that 

OSHA will calculate 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 for on-site 

reviews. 29 CFR 1910.7(f)(1) and (2). In 

addition, this rule states that OSHA will 

review costs annually, and will propose 

a revised fee schedule if warranted. In 

this final rule, OSHA is replacing the 

reference to an ‘‘annual review’’ with a 

‘‘periodic review’’ to allow it more 

flexibility in adjusting fees as 

appropriate. OSHA does not expect to 

review the fee schedule more than once 

annually, but anticipates situations in 

which it may not complete the cost 

review within a single-year period. 

OSHA also is revising the language in 

paragraph (f) to clarify the basis used for 

calculating fees, consistent with OMB 

Circular A–25. Specifically, this 

revision makes clear that the term 

‘‘costs’’ means the full costs of 

performing the activities that benefit the 

NRTLs. Thus, as revised, paragraph 

(f)(2) reads: ‘‘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 is revising paragraph (f)(3)(i) to 

clarify that the two references to the cost 

of the program mean the full cost of the 

program. 

OSHA also is revising the language in 

paragraphs 29 CFR 1910.7(f)(1) and 

(f)(4) to require advance payment of the 

fees. In this regard, OSHA is revising the 

first sentence of 29 CFR 1910.7(f)(1) to 

specify that NRTLs and applicants must 

pay all applicable fees in advance. In 

addition, OSHA is revising the table in 

29 CFR 1910.7(f)(4), which establishes 

important billing periods and related 

actions, to provide information on the 

new advanced-billing process. One of 

the revisions to this table reduces the 

amount of time OSHA must wait before 

publishing its plan to revoke recognition 

of NRTLs that do pay audit fees. 

Accordingly, OSHA revised the current 

provision of ‘‘60 days after the bill date’’ 

to ‘‘30 days after due date.’’ OSHA 

requested comment on this revision in 

the proposal, but received none. 

X. Final Economic Analysis and Final 

Regulatory Flexibility Analysis 

Executive Order 12866 and the 

Regulatory Flexibility Act (RFA), as 

amended in 1996, require each Federal 

agency to analyze the costs, and other 

consequences and impacts, including 

small business impacts, of its rules. 

Consistent with these requirements, 

OSHA analyzed the costs of this final 

rule and the impacts of this rule on 

affected laboratories and small 

businesses. 

The Agency received one comment on 

the proposal (Ex. OSHA 2007–0031– 

0002). The commenter suggested 

revisions to the unit costs used to 

determine NRTLs’ fees. As noted above 

in this preamble, OSHA revised the unit 

costs in response to this comment; 

however, the average cost of NRTLs’ 

fees remains unchanged from the 

proposal. The Agency updated 

information on revenue for the affected 

industry and laboratories; otherwise, 

this final economic analysis changed 

little from the preliminary economic 

analysis (PEA) accompanying the 

proposed regulation. 

Affected Industries 

When the Agency established its 

NRTL fee schedule in 2000, there were 

17 NRTLs with 42 operational sites. 

Today, there are 15 NRTLs (including 

two foreign-owned and -operated 

NRTLs) with 49 sites (see the following 

table for a list of current NRTLs). 

NRTL name Number 

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 

Source: OSHA Directorate of Technical 

Support and Emergency Management. 

Costs 

The Agency estimated in 2000 that it 

would collect approximately $239,000 

in fees annually (65 FR 46815). OSHA 

updated its fee schedule in February, 

2007, and showed total estimated 

program costs of approximately 

$755,000 (72 FR 7469), estimating that 

these updated fees would enable it to 

collect only about half of these costs 

(i.e., $380,000). As Table 1 above shows, 

the revisions made in this final rule, 

including revisions to calculating OSHA 

costs and updating Federal employee 

salary levels, could increase the fees 

collected to about $1,096,000. In 

comparison, if OSHA updated costs 

using the original calculation method 

(without adjustment for ancillary 

activities and leave), and included the 

increase in staff resources, the total fees 

collected would only increase to about 

$583,000. The impact of the increase, 

when fully implemented, will be 

$513,000 ($1,096,000 minus $583,000). 

Because OSHA’s analysis evaluates the 

impact of the final rule as if the full 

increase during the third year was in 


srobinson on DSKHWCL6B1PROD with RULES
10514 Federal Register / Vol. 76, No. 38 / Friday, February 25, 2011 / Rules and Regulations 

effect, the impact will actually be less 

during the first two years after the rule’s 

effective date because OSHA is phasing 

in the fee increase. In addition, OSHA’s 

analysis evaluates the total impact on 

existing NRTLs and on new applicants. 

Accordingly, the actual impact on 

existing NRTLs will be less because new 

applicants will pay some of the 

increased fees. 

Economic Impacts 

The fee increase will have only a 

minor impact on industry revenues and 

profits. NAICS 54138 (‘‘Testing 

Laboratories’’) had $12.3 billion in 

revenues in 2007 (updated from the 

PEA) (U.S. Census Bureau, 2007 

Economic Census). 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, Reference 2). The Agency, 

therefore, estimates 2007 industry 

before-tax profits as $701 million (5.7% 

of $12.3 billion). The entire $1,096,000 

million in user fees represents 0.00009, 

or 0.009 percent, of industry revenues 

($1.09 million/$12.3 billion) and 

0.00155, or 0.155 percent, of industry 

profits (1.09/701). Thus, the impact of 

the additional new user fees of $513,000 

will be even less. The Agency concludes 

that the changes to the fee calculation, 

and the resulting increase in fees, are 

economically feasible for the industry. 

Average cost per affected firm of the 

increase in NRTL fees is about $73,067 

($1,096,000/15); while average cost per 

affected NRTL establishment (site) is 

about $22,367 ($1,096,000/49). As a 

result, OSHA expects larger firms with 

multiple recognized sites to have higher 

total user fees. The Agency believes that 

the increase in NRTL user fees will have 

little, if any, impact on the affected 

firms because demand for NRTL 

services continues to grow, and there 

was no apparent adverse affect from 

increasing NRTL fees in 2000 and 2007. 

Any impact on the NRTLs depends on 

whether the NRTLs can raise prices to 

their customers. The Agency concludes 

that there are no good substitutes for the 

certification supplied by NRTLs, and it 

is likely that the NRTLs will pass the 

higher user fees on to the large number 

of NRTL customers via small price 

increases. The Agency 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.), each Federal 

agency must assess the impact of its 

rules on small entities, and prepare a 

final regulatory flexibility analysis 

unless the head of the agency certifies 

that the rule will not, if promulgated, 

have a significant economic impact on 

a substantial number of small entities. 

Thus, the Agency also estimated in this 

final rule the relative effect of the new 

user fees on small businesses. In the 

original fees rulemaking in 2000, OSHA 

defined small businesses as those 

businesses with less than $5 million in 

sales (the Small Business 

Administration (SBA) criterion for the 

industry, see SBA Web site Reference 3 

below). These businesses have fewer 

than 100 employees and average 

revenue of about $2.4 million. In the 

2000 rulemaking, OSHA estimated user 

fees 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 

(73 FR 7468) raised the average 

establishment’s fee to about $7,700 

($380,000/49). The higher user fees 

adopted by the Agency herein increased 

the expected average user fee for a small 

testing laboratory to about $22,367. 

Revenues for the industry also 

increased, from $5 billion in 1992, to an 

estimated $12.3 billion in 2007 (1992 

and 2007 Economic Census). Similarly, 

the SBA size criterion of a small 

business in the testing-laboratory 

industry increased to $11 million in 

annual revenues (SBA Web site; see link 

under ‘‘References’’ below). 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 $14,667 per testing laboratory (to 

$22,367 from $7,700), is a small 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 concludes that 

these NRTLs will pass the costs on to 

the firms’ customers. The Agency, 

therefore, certifies that the higher 

NRTLs fees will not have a significant 

impact on a substantial number of small 

entities. The Agency concludes that 13 

of the 15 affected NRTLs are small 

entities, as defined by current SBA 

criterion. Finally, as noted in the 2000 

rulemaking (65 FR 46797), 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. 

OSHA did not receive any comments 

on the initial regulatory flexibility 

analysis or the economic analysis 

published in the proposal. 

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. Risk Management Associates (formerly 

Robert Morris Associates), Annual 

Statement Studies, September 1995. 

3. 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 the purposes of the Paperwork 

Reduction Act of 1995, 44 U.S.C. 3501– 

30. Under the Office of Management and 

Budget (OMB) control number 1218– 

0147, OSHA has authority to collect 

information for purposes of NRTL 

Program activities. 

XIII. Federalism 

OSHA reviewed this final rule in 

accordance with Executive Order 13132. 

This final rule only sets 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 

This final rule will not affect the 27 

States and Territories that have OSHAapproved occupational safety and health 

plans. Twenty-two of these States and 

Territories operate OSHA-approved 

State Plans covering both private- and 

public-sector employees: 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. 

Four States (Connecticut, Illinois, New 

Jersey, and New York) plus the Virgin 

Islands have OSHA-approved State 

Plans that apply to State and local 

government employees only. 


srobinson on DSKHWCL6B1PROD with RULES
Federal Register / Vol. 76, No. 38 / Friday, February 25, 2011 / Rules and Regulations 10515 

XV. Authority and Signature 

David Michaels, PhD, 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 Sections 

6(b) and 8(g) of the Occupational Safety 

and Health Act of 1970 (29 U.S.C. 655 

and 657), Secretary of Labor’s Order No. 

4–2010 (75 FR 55355), and 29 CFR part 

1911. 

Signed at Washington, DC, on February 16, 

2011. 

David Michaels, 

Assistant Secretary of Labor for Occupational 

Safety and Health. 

List of Subjects in 29 CFR Part 1910 

Fees, Occupational safety and health, 

Product testing and certification, Safety, 

Testing laboratories. 

For the reasons stated in the preamble 

of this final rule, OSHA amends subpart 

A of 29 CFR part 1910 as follows: 

PART 1910—OCCUPATIONAL SAFETY 

AND HEALTH STANDARDS 

Subpart A—General [Amended] 

■ 1. Revise the authority citation for 

subpart A 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), 5–2007 (72 FR 

31159), and 4–2010 (75 FR 55355), as 

applicable. 

Sections 1910.6, 1910.7, 1910.8 and 1910.9 

also issued under 29 CFR part 1911. Section 

1910.7(f) 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); Pub. L. 111–8 and 

111–317; and OMB Circular A–25 (dated July 

8, 1993) (58 FR 38142, July 15, 1993). 

■ 2. In § 1910.7: 

■ a. Revise paragraph (f)(1) introductory 

text; 

■ b. Revise the first sentence of 

paragraph (f)(2) introductory text; 

■ c. Revise paragraph (f)(3)(i); and 

■ d. Revise paragraph (f)(4). 

The revisions read as follows: 

§ 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: 

Milestones/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 that 

costs warrant changes in the fee schedule. 

Fifteen days after publication ............. Comments due on the proposed new fee schedule. 

When OSHA approves the fee schedule.OSHA will publish the final fee schedule in the Federal Register, making the fee schedule effective on a 

specific date. 

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 the application until it receives the fees. 

Before assessment performed ........... Applicant must pay the estimated staff time and travel costs for its assessment based on the fees in effect at the time of the assessment. Applicant also must pay the fees for the final report and Federal 

Register notice, and other applicable fees, as specified in the fee schedule. OSHA may cancel an application if the applicant does not pay these fees, or any balance of these fees, when due. 

III. Audit Fees 

Before audit performed ....................... NRTL must pay the estimated staff time and travel costs for its audit based on 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 costs for travel and staff time. 

On due date ........................................ NRTL must pay the estimated audit fees, or any balance due, by the due date established by OSHA; 

OSHA will assess a late fee if NRTL does not pay audit fees (or any balance of fees due) by the due 

date. OSHA may still perform the audit when an NRTL does not pay the fees or does not pay them on 

time. 

Thirty days after due date or, if earlier, date NRTL refuses to pay.OSHA will begin processing a notice for publication in the Federal Register announcing its plan to revoke recognition for NRTLs that do not pay the estimated audit fees and any balance of audit fees 

due. 

Note: 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.’’ 


srobinson on DSKHWCL6B1PROD with RULES
10516 Federal Register / Vol. 76, No. 38 / Friday, February 25, 2011 / Rules and Regulations 

1 See 75 FR 65806 (October 26, 2010) (Transfer 

and Reorganization of Bank Secrecy Act 

Regulations Final Rule). 

2 See 75 FR 19241 (April 14, 2010) (Final Rule 

defining Mutual Funds as Financial Institutions). 

3See 75 FR 63382. 

* * * * * 

[FR Doc. 2011–3937 Filed 2–24–11; 8:45 am] 

BILLING CODE 4510–26–P 

DEPARTMENT OF THE TREASURY 

Financial Crimes Enforcement Network 

31 CFR Parts 1020, 1021, 1022, 1023, 

1024, 1025, 1026, 1027, and 1028 

RIN 1506–AA92 

Transfer and Reorganization of Bank 

Secrecy Act Regulations—Technical 

Amendment. 

AGENCY: Financial Crimes Enforcement 

Network (FinCEN), Treasury. 

ACTION: Final rule. 

SUMMARY: FinCEN is issuing this final 

rule as a technical amendment to new 

Chapter X of Title 31 of the Code of 

Federal Regulations, which was 

published on October 26, 2010. After 

that date, FinCEN published two final 

rules in Part 103 of Title 31 of the Code 

of Federal Regulations, one concerning 

mutual funds and the other concerning 

the confidentiality of a report of 

suspicious activity (SAR). This final 

rule moves the SAR confidentiality rule 

from Part 103 to new Chapter X and 

addresses the compliance date of the 

mutual fund rule. Additionally, the 

Chapter X Final Rule contained an 

inadvertent typographical error that 

omitted several sections from Subpart C 

of Part 1026 Rules for Futures 

Commission Merchants and Introducing 

Brokers in Commodities. This final rule 

corrects those omissions. 

DATES: Effective Date: March 1, 2011. 

FOR FURTHER INFORMATION CONTACT: 

Regulatory Policy and Programs 

Division, FinCEN (800) 949–2732 and 

select option 6. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On October 26, 2010, FinCEN issued 

a final rule (‘‘the Chapter X Final Rule’’), 

creating a new Chapter X in title 31 of 

the Code of Federal Regulations (CFR) 

for Bank Secrecy Act (BSA) regulations. 

As discussed in the Chapter X Final 

Rule, FinCEN is reorganizing its 

regulations in new Chapter X to make 

them more accessible for covered 

individuals and financial institutions. 

The reorganization is not intended to 

have any substantive effect on the BSA 

regulations. Chapter X will be effective 

on March 1, 2011.1

On April 14, 2010, FinCEN issued a 

final rule to include mutual funds 

within the general definition of 

‘‘financial institution’’ in the BSA 

regulations.2 On October 15, 2010, 

FinCEN published a final rule extending 

the compliance date for those provisions 

of 31 CFR 103.33 that apply to mutual 

funds from January 10, 2011 to April 10, 

2011; however, this extension of the 

compliance date has not otherwise 

amended the applicable regulation.3

The regulatory changes made by 

including mutual funds within the 

general definition of ‘‘financial 

institution’’ were contained in the 

Chapter X Final Rule. The extended 

compliance date for these provisions 

still applies even though they have 

moved to 31 CFR Chapter X. 

On December 3, 2010, FinCEN issued 

a final rule to amend the BSA 

regulations regarding the confidentiality 

of a report of suspicious activity 

(‘‘SAR’’). To reflect the reorganization of 

BSA rules in Chapter X, FinCEN is 

issuing this technical amendment rule 

to move the revised SAR confidentiality 

rules, without any change to their 

applicability date, to Chapter X. 

As published, the Chapter X Final 

Rule contains omissions from Subpart C 

of Part 1026 Rules for Futures 

Commission Merchants and Introducing 

Brokers in Commodities. This final rule 

corrects those omissions. 

II. Effective Date 

The effective date of this technical 

amendment to Chapter X will be March 

1, 2011. As noted above, this technical 

amendment does not affect any of the 

applicability dates of the rules that are 

being moved to Chapter X by this 

technical amendment. 

III. Regulatory Matters 

A. Executive Order 12866 

It has been determined that this 

rulemaking is not a significant 

regulatory action for purposes of 

Executive Order 12866. Accordingly, a 

regulatory impact analysis is not 

required. 

B. Unfunded Mandates Reform Act of 

1995 

Section 202 of the Unfunded 

Mandates Reform Act of 1995 

(‘‘Unfunded Mandates Act’’), Public Law 

104–4 (March 22, 1995), requires that an 

agency prepare a budgetary impact 

statement before promulgating a rule 

that may result in expenditure by state, 

local, and tribal governments, in the 

aggregate, or by the private sector, of 

$100 million or more in any one year. 

If a budgetary impact statement is 

required, section 202 of the Unfunded 

Mandates Act also requires an agency to 

identify and consider a reasonable 

number of regulatory alternatives before 

promulgating a rule. FinCEN has 

determined that it is not required to 

prepare a written statement under 

Section 202 and has concluded that on 

balance the rule provides the most costeffective and least burdensome 

alternative to achieve the objectives of 

the rule. 

C. Regulatory Flexibility Act 

Pursuant to the Regulatory Flexibility 

Act (RFA) (5 U.S.C. 602 et seq.), FinCEN 

certifies that this final regulation likely 

will not have a significant economic 

impact on a substantial number of small 

entities. The regulatory changes in this 

final rule merely restructure and recodify existing regulations and do not 

alter current regulatory obligations. 

D. Paperwork Reduction Act 

This regulation contains no new 

information collection requirements 

subject to review and approval by the 

Office of Management and Budget under 

the Paperwork Reduction Act of 1995 

(44 U.S.C. 3507(d) et seq.). The 

information collection requirements for 

the Bank Secrecy Act, currently codified 

at 31 CFR Part 103, were previously 

approved by the Office of Management 

and Budget under OMB Control 

numbers 1506–0001 through 1506– 

0046. Under the Paperwork Reduction 

Act, an agency may not conduct or 

sponsor and a person is not required to 

respond to a collection of information 

unless it displays a valid OMB control 

number. 

List of Subjects in 31 CFR Parts 1020, 

1021, 1022, 1023, 1024, 1025, 1026, 

1027, and 1028 

Administrative practice and 

procedure, Banks, Banking, Brokers, 

Currency, Foreign banking, Foreign 

currencies, Gambling, Investigations, 

Penalties, Reporting and recordkeeping 

requirements, Securities, Terrorism. 

Authority and Issuance 

For the reasons set forth above, 31 

CFR Chapter X, published October 26, 

2010 (75 FR 65842), is amended as 

follows: 

PART 1020—RULE FOR BANKS 

■ 1. The authority citation for part 1020 

is added to read as follows: 


srobinson on DSKHWCL6B1PROD with RULES