67632 Federal Register / Vol. 70, No. 214 / Monday, November 7, 2005 / Rules and Regulations 

DEPARTMENT OF LABOR 

Mine Safety and Health Administration 

RIN 1219–AB38 

30 CFR Parts 5, 15, 18, 19, 20, 22, 23, 

27, 28, 33, 35, and 36 

Fees for Testing, Evaluation, and 

Approval of Mining Products 

AGENCY: Mine Safety and Health 

Administration (MSHA), Labor. 

ACTION: Direct final rule; confirmation of 

effective date. 

SUMMARY: On August 9, 2005, we issued 

a direct final rule amending our 

regulations to reflect changes in policies 

and procedures for administering fees 

for testing, evaluation, and approval of 

equipment and materials manufactured 

for use in the mining industry. The 

direct final rule had an effective date of 

November 7, 2005, provided we did not 

receive significant adverse comments. 

Concurrent with the direct final rule’s 

publication in the Federal Register, we 

published a separate, identical proposed 

rule to speed notice and comment 

rulemaking in the event we received 

significant adverse comments which 

required the withdrawal of the direct 

final rule. 

One interested party submitted a 

comment to us regarding this 

rulemaking. The comment raises an 

issue beyond the scope of the 

rulemaking, and we do not consider the 

comment to be a ‘‘significant adverse 

comment.’’ Therefore, this notice 

confirms the effective date of the direct 

final rule. 

DATES: The direct final rule (Fees for 

Testing, Evaluation, and Approval of 

Mining Products (70 FR 46336) 

published August 9, 2005) is effective 

November 7, 2005. 

FOR FURTHER INFORMATION CONTACT: 

Rebecca J. Smith, Acting Director, Office 

of Standards, Regulations, and 

Variances, Mine Safety and Health 

Administration, 1100 Wilson Blvd., 

Room 2302, Arlington, Virginia 22209– 

3939, 202–693–9440 (telephone), 202– 

693–9441 (telefax), or 

smith.rebecca@dol.gov. 

SUPPLEMENTARY INFORMATION: 

I. Summary of the Direct Final Rule 

On August 9, 2005, we published a 

direct final rule (70 FR 46336) amending 

our regulations to reflect established 

policies and procedures relating to 

testing, evaluation, and approval of 

equipment and materials manufactured 

for use in the mining industry. 

Since our initial implementation of 

part 5, changes to agency policies and 

procedures have significantly increased 

the efficiency of the approval process 

and the administration of the fee 

program. In particular, we have 

eliminated the application fee, allowed 

applicants to pre-authorize 

expenditures, and restructured existing 

programs for expediting requests for 

changes to previously approved mining 

products. The direct final rule updates 

part 5 to reflect these initiatives and 

makes corresponding changes 

throughout parts 15 through 36. The 

primary purpose of the direct final rule 

was to address fee calculation and 

administration to cover the cost of 

Approval and Certification Center 

services including ‘‘approvals’’ as 

explained in the direct final rule’s 

preamble 70 FR 46336–46337. 

Additionally, the rule removes 

references in parts 5, 15, and 33 to the 

Department of the Interior’s former 

Bureau of Mines (BOM), which was 

dissolved in 1996 (Pub. L. 104–99). 

Prior to its dissolution, BOM conducted 

testing required by part 15 

(Requirements for approval of 

explosives and sheathed explosive 

units) on our behalf at its Pittsburgh 

Research Center. In 1996 this facility 

was transferred to the Department of 

Health and Human Services, National 

Institute for Occupational Safety and 

Health (NIOSH) as a purely research 

function (Pub. L. 104–208). NIOSH 

initially assisted us with part 15 testing, 

but no longer has the resources to 

conduct these tests. To resolve this 

issue, the direct final rule allows us to 

use other organizations to conduct part 

15 testing. The direct final rule does not 

diminish existing safety or health 

protections for miners. 

II. Discussion of Comments 

Since the rule requirements were not 

controversial and primarily concerned 

agency procedures, we determined that 

the subject of this rulemaking was 

suitable for a direct final rule. We 

anticipated no significant adverse 

comments; however, we published a 

separate, identical proposed rule (70 FR 

46345) concurrently with the direct 

final rule. A significant adverse 

comment is one that explains (1) why 

the direct final rule is inappropriate, 

including challenges to the rule’s 

underlying premise or approach; or (2) 

why the direct final rule will be 

ineffective or unacceptable without a 

change. In determining whether a 

significant adverse comment 

necessitates withdrawal of a direct final 

rule, we consider whether the comment 

raises an issue serious enough to 

warrant a substantive response through 

the notice and comment process. A 

comment recommending an addition to 

the rule is not considered significant 

and adverse unless the comment 

explains how the rule would be 

ineffective without the addition. 

We received only one comment on the 

direct final rule. The commenter stated 

that fees should be increased and used 

to offset environmental damage caused 

by mining operations. The commenter 

misinterprets the purpose of the fees in 

the direct final rule. As noted earlier, 

the primary purpose of the direct final 

rule was to address fee calculation and 

administration to cover the cost of 

Approval and Certification Center 

services, including ‘‘approvals’’ as 

explained in the direct final rule’s 

preamble 70 FR 46336–46337. 

Accordingly, we do not consider this 

comment to be a significant adverse 

comment because it goes beyond the 

scope of the rulemaking, does not 

explain why the direct final rule is 

inappropriate, does not challenge the 

rule’s underlying premise, and does not 

explain why the direct final rule would 

be ineffective or unacceptable without a 

change. 

Since we have received no significant 

adverse comments, the direct final rule 

is effective on the date indicated above. 

Dated: November 1, 2005. 

David G. Dye, 

Acting Assistant Secretary for Mine Safety 

and Health. 

[FR Doc. 05–22091 Filed 11–4–05; 8:45 am] 

BILLING CODE 4510–43–P