Federal Register / Vol. 79, No. 196 / Thursday, October 9, 2014 / Proposed Rules 61035 

1These authorities are: Public Law 61–525, Ch. 

285, 36 Stat. 1419 (1911); Public Law 62–386, Ch. 

72, Sec. 5, 37 Stat. 682 (1913); Public Law 72–212, 

Ch. 314, Sec. 311, 47 Stat. 410 (1932); 30 U.S.C. 

961(c)(2); and Title V of the Independent Offices 

Appropriations Act of 1952, Public Law 82–137, 65 

Stat. 290 (1951), as amended, 31 U.S.C. 9701. 

(2) Inform the spokesperson for the 

petitioners and the recognized tribal 

governing body, in writing, whether the 

petition is valid, the basis for that 

determination, and a statement that the 

decision of the Authorizing Official is 

final for the Department. 

(i) If the petition is determined valid 

for the purposes of calling a Secretarial 

election, the Authorizing Official will 

instruct the Local Bureau Official to call 

and conduct the Secretarial Election in 

accordance with §§ 81.19 through 81.45. 

(ii) If the petition is determined 

invalid, the Authorizing Official will 

notify the spokesperson for the 

petitioners, with a courtesy copy to the 

tribe’s governing body, that the petition 

was not valid and a Secretarial Election 

will not be called. 

§ 81.66 May the same petition be used for 

more than one Secretarial Election? 

No. A petition may not be used for 

more than one Secretarial Election. Each 

request for a Secretarial Election 

requires a new petition. 

PART 82—[REMOVED AND 

RESERVED] 

■ 2. Remove and reserve part 82. 

Dated: October 3, 2014. 

Kevin K. Washburn, 

Assistant Secretary—Indian Affairs. 

[FR Doc. 2014–24118 Filed 10–8–14; 8:45 am] 

BILLING CODE 4310–4J–P 

DEPARTMENT OF LABOR 

Mine Safety and Health Administration 

30 CFR Part 5 

[Docket No. MSHA–2014–0016] 

RIN 1219–AB82 

Fees for Testing, Evaluation, and 

Approval of Mining Products 

AGENCY: Mine Safety and Health 

Administration, Labor. 

ACTION: Proposed rule. 

SUMMARY: The Mine Safety and Health 

Administration (MSHA) proposes to 

amend the Agency’s regulations for 

administering fees for testing, 

evaluation, and approval of products 

manufactured for use in mines. This 

proposed rule would revise the fees 

charged for these services. The proposed 

rule also would include a fee for 

approval services that MSHA provides 

to applicants or approval holders under 

the existing rule, but for which the 

Agency currently does not charge a fee, 

and for other activities required to 

support the approval process. 

DATES: Comments must be received or 

postmarked by midnight Eastern 

Daylight Saving Time on November 10, 

2014. 

ADDRESSES: Submit comments and 

informational materials, identified by 

RIN 1219–AB82 or Docket No. MSHA– 

2014–0016, by one of the following 

methods: 

• Federal E-Rulemaking Portal: 

http://www.regulations.gov. Follow the 

on-line instructions for submitting 

comments for Docket No. MSHA–2014– 

0016. 

• Electronic mail: zzMSHAcomments@dol.gov. Include RIN 1219– 

AB82 or Docket No. MSHA–2014–0016 

in the subject line of the message. 

• Mail: MSHA, Office of Standards, 

Regulations, and Variances, 1100 

Wilson Boulevard, Room 2350, 

Arlington, Virginia 22209–3939. 

• Facsimile: 202–693–9441. 

• Hand Delivery or Courier: MSHA, 

Office of Standards, Regulations, and 

Variances, 1100 Wilson Boulevard, 

Room 2350, Arlington, Virginia, 

between 9:00 a.m. and 5:00 p.m. 

Monday through Friday, except Federal 

holidays. Sign in at the receptionist’s 

desk on the 21st floor. 

• Instructions: All submissions must 

include RIN 1219–AB82 or Docket No. 

MSHA–2014–0016. Do not include 

personal information that you do not 

want publicly disclosed; MSHA will 

post all comments without change to 

http://www.regulations.gov, and http://

www.msha.gov/currentcomments.asp, 

including any personal information 

provided. 

FOR FURTHER INFORMATION CONTACT: 

Sheila A. McConnell, Acting Director, 

Office of Standards, Regulations, and 

Variances, MSHA, at 

mcconnell.sheila.a@dol.gov (email); 

202–693–9440 (voice); or 202–693–9441 

(facsimile). (These are not toll-free 

numbers). 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

MSHA is including the following 

outline to assist the public in finding 

information in this preamble. 

I. Availability of Information 

II Background 

III. Section-by-Section Analysis 

IV. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

V. Feasibility 

VI. Regulatory Flexibility Act, Small 

Business Regulatory Enforcement 

Fairness Act, and Executive Order 

13272: Proper Consideration of Small 

Entities in Agency Rulemaking 

VII. Paperwork Reduction Act of 1995 

VIII. Other Regulatory Considerations 

I. Availability of Information 

Docket: For access to the docket to 

read comments received, go to http://

www.regulations.gov or http://

www.msha.gov/currentcomments.asp. 

To read background documents, go to 

http://www.regulations.gov. Review the 

docket in person at MSHA, Office of 

Standards, Regulations, and Variances, 

1100 Wilson Boulevard, Room 2350, 

Arlington, Virginia, between 9:00 a.m. 

and 5:00 p.m. Monday through Friday, 

except Federal Holidays. Sign in at the 

receptionist’s desk on the 21st floor. 

Email notification: To subscribe to 

receive an email notification when 

MSHA publishes rules in the Federal 

Register go to http://www.msha.gov/

subscriptions/subscribe.aspx. 

II. Background 

As part of the U.S. Department of 

Labor, under the Federal Mine Safety 

and Health Act of 1977 (Mine Act), as 

amended, MSHA’s mission is to prevent 

death, disease, and injury from mining 

and promote safe and healthy 

workplaces for the Nation’s miners. 

Since 1911, MSHA and its predecessor 

agencies have evaluated and tested 

products for use in mines to prevent 

fires, explosions, and accidents. 

Under various authorities,1 MSHA 

historically has collected fees for its 

services in evaluating, testing, and 

approving products. Originally, the U.S. 

Bureau of Mines, an MSHA predecessor 

agency, billed applicants for approval 

services using published individual fee 

schedules, e.g., each approval part in 

Title 30, Chapter I, provided a list of flat 

fees for different tests, evaluations, and 

other services performed for approval 

activities (30 FR 3752–3757). On May 8, 

1987, MSHA eliminated the individual 

fee schedules and established part 5 

which created an hourly rate for 

administration and calculation of fees 

for services in Title 30, Chapter I, 

Subchapter B, Testing, Evaluation, and 

Approval of Mining Products (52 FR 

17506). On August 9, 2005, MSHA 

revised part 5 and its fee procedures. 

That rule eliminated the application fee, 

allowed preauthorization of 

expenditures for processing 

applications, and allowed outside 

organizations conducting part 15 testing 


tkelley on DSK3SPTVN1PROD with PROPOSALS
61036 Federal Register / Vol. 79, No. 196 / Thursday, October 9, 2014 / Proposed Rules 

2An extension of the approval is a document 

MSHA issues that states that a change to the 

product previously approved by MSHA is approved 

and authorizes the continued use of the approval 

marking with the appropriate extension number 

added. 

on MSHA’s behalf to set fees (70 FR 

46336). 

Section 205 of the Chief Financial 

Officers Act of 1990 (CFO Act) and 

Office of Management and Budget 

(OMB) Circular No. A–25 Revised, User 

Charges (7/8/1993), require agencies to 

review the user charges in their 

programs to ensure that charges reflect 

the full costs of the services provided. 

Traditionally, MSHA reviews its user 

charges annually. MSHA last revised its 

hourly rate under part 5 to $97.00 on 

December 29, 2010 (75 FR 82074). 

Section 1503 of the Consolidated and 

Further Continuing Appropriations Act, 

2013 (Pub. L. 113–6) provided new 

authority for MSHA to collect fees for 

the approval and certification of 

equipment, materials, and explosives for 

use in mines. That law also provided 

that MSHA may retain up to $2,499,000 

of fees collected. The Department of 

Labor Appropriations Act, 2014 (Pub. L. 

113–76), provides authority for MSHA 

to collect and retain these fees. 30 

U.S.C. 966. Prior to this change, MSHA 

could retain up to $1,499,000 of fees 

collected. 

In this proposal, the term ‘‘approval’’ 

includes approvals, certifications, 

acceptances, and evaluations MSHA 

issues under Title 30, Chapter I, 

Subchapter B, Testing, Evaluation, and 

Approval of Mining Products. 

Under the proposed rule, MSHA 

would (1) revise the hourly rate to 

include all costs associated with the 

approval program and (2) include 

internal quality control activities and 

post-approval product audits in the fees 

charged to applicants and approval 

holders. 

Under the proposed rule, MSHA 

would continue to charge an hourly rate 

based on costs of the Agency’s overall 

approval activities. The approval 

program includes: Application 

processing; testing and evaluation; 

approval decisions; post-approval 

activities; and termination of approvals. 

These Approval and Certification Center 

(A&CC) activities are necessary to assure 

that approved mine products are 

designed, manufactured, and 

maintained so their use will not cause 

a fire, an explosion, or other accident. 

MSHA proposes to calculate the 

hourly rate by dividing the total 

approval program costs (direct and 

indirect) by the number of direct hours 

worked on all approval program 

activities. Under the proposal, the 

hourly rate would increase from $97 

under the existing rule to $121. Using 

FY 2012 data, MSHA estimates that the 

increased hourly rate would have 

resulted in approximately $1.5 million 

in fees collected, an increase of 

$300,000 from that collected under the 

existing rule. 

In addition to increasing the hourly 

rate, MSHA also proposes to charge a 

fee for two services for which the 

Agency does not charge under the 

existing rule: (1) Internal quality control 

activities and (2) post-approval product 

audits. Internal quality control activities 

are an important part of the approval 

process. MSHA uses internal quality 

control activities to monitor and 

improve its testing and evaluation 

processes. Post-approval product audits 

are necessary to assure that mining 

products continue to be manufactured 

as approved. For this reason, MSHA is 

proposing to charge for these activities. 

Using FY 2012 data, internal quality 

control activities and post-approval 

product audits would have resulted in 

approximately $1.2 million in 

additional fees at the proposed rate of 

$121 per hour. 

Under this proposed rule, MSHA 

estimates that the Agency would collect 

approximately $2.7 million in total fees 

(based on FY 2012 approvals). MSHA 

recognizes that the FY 2013 and FY 

2014 appropriations language provides 

MSHA the authority to retain only up to 

$2,499,000 of fees collected. Any fees 

collected by MSHA above the 

$2,499,000 will be credited to the 

Treasury general fund. 

III. Section-by-Section Analysis 

MSHA is proposing the following 

changes to its existing regulation 

addressing fees for testing, evaluation, 

and approval of mining products. 

A. § 5.10 Purpose and Scope 

Existing § 5.10 would be revised by 

redesignating paragraph (a) as an 

undesignated paragraph, and by moving 

and revising existing § 5.10(b) and (c) to 

proposed § 5.30. Paragraph § 5.10(b) 

would be redesignated as § 5.30(c) and 

paragraph § 5.10(c) would be 

redesignated as paragraph § 5.30(d). 

Additionally, MSHA would move 

paragraph § 5.10(c)(5) (post-approval 

product audits) from those services for 

which ‘‘fees are not charged’’ to 

proposed § 5.30(c)(4) ‘‘fees are charged’’. 

Proposed § 5.10 would provide the 

purpose and scope of this part: To 

establish a system under which MSHA 

charges a fee for approval program 

services for mining products 

manufactured for use in mines. 

The approval program represents all 

the activities necessary for MSHA to 

assure that products approved for use in 

mines are designed, manufactured, and 

maintained in accordance with approval 

requirements. The approval program 

includes: (1) Application processing; (2) 

testing and evaluation; (3) approval 

decisions; (4) post-approval activities; 

and (5) the termination of approvals. 

Application processing begins when 

an applicant files a new application for 

approval. MSHA administratively 

reviews each new application and, on 

determining that the application is 

complete, prepares a maximum fee 

estimate and sends it to the applicant. 

The applicant must agree to pay the 

estimated fee before MSHA will begin 

testing, as appropriate, and evaluating 

the product. 

Testing and evaluation includes 

technical evaluation, analysis, test set 

up, testing, test tear down, any 

consultation on the application, and 

internal quality control activities. To 

assure that approved products continue 

to be designed, manufactured, and 

maintained in accordance with approval 

requirements, the Agency uses internal 

quality control programs to monitor and 

improve its testing and evaluation 

processes (e.g., internal administrative 

and technical reviews, internal audits, 

and calibration, repair, and maintenance 

of test equipment). 

Following testing and evaluating a 

product, MSHA makes an approval 

decision and notifies the applicant by 

letter of its findings and decision. If the 

product is approved, the letter identifies 

the approved specifications for the 

design, construction, maintenance, and 

conditions of use for the product. If the 

product is not approved or if the 

application is cancelled, the letter 

identifies the reasons for the decision. 

All approval documentation is kept on 

file at MSHA. 

MSHA also conducts various postapproval activities: changing approvals 

(e.g., extensions 2 of approvals, field 

modifications, modification through the 

Revised Acceptance Modification 

Program), conducting post-approval 

product audits, field audits, responding 

to complaints, investigating product 

failures, monitoring regional or 

nationwide product recall or retrofit 

programs, and conducting 

administrative actions such as transfer 

of approval numbers. 

Termination of an approval may occur 

when an approval holder voluntarily 

requests termination of an approval, 

when MSHA revokes an approval 

because of compliance or safety issues, 

or when MSHA issues regulations that 

make an approval obsolete. 


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B. § 5.30 Fee Calculation 

Proposed § 5.30 would address the 

hourly rate calculation, the activities for 

which MSHA would charge a fee, 

activities that are not subject to a fee, 

the fee estimate, and any changes to the 

fee estimate. 

Under proposed § 5.30(a), MSHA 

would continue to charge a fee based on 

an hourly rate for approval program 

activities and other associated costs 

such as travel expenses and Part 15 fees. 

Part 15 fees for services provided to 

MSHA by other organizations would be 

set by those organizations. 

Proposed paragraph § 5.30(b) is 

derived from existing § 5.30(a) and 

identifies the costs MSHA incurs in 

administering the approval program. 

Under the proposed rule, the hourly rate 

would be calculated to reflect the costs 

of the overall approval program. Under 

the existing rule, the hourly rate 

includes only the application 

processing, testing and evaluation, and 

approval decision costs. 

Also under the existing rule, some 

post-approval activities, such as changes 

to approvals, are included in the 

approval program costs used in 

calculating the hourly rate. However, 

the costs of monitoring to assure 

approved products continue to be safe 

and manufactured and maintained as 

approved (e.g., post-approval product 

audits) are excluded because MSHA 

historically considered these activities 

to be enforcement activities rather than 

approval program activities (52 FR 

17507–17508). OMB Circular No. A–25 

requires that agencies recover the full 

costs of services rendered. In light of the 

increase in authority to retain fees and 

to more accurately account for costs, 

MSHA proposes to include the direct 

and indirect cost of these activities in 

the hourly rate because these activities 

are an important part of the approval 

program to assure that products 

continue to be designed, manufactured, 

and maintained in accordance with the 

approval requirements. 

Under the proposed rule, MSHA 

would continue to determine an hourly 

rate to cover direct and indirect costs. 

MSHA would base the hourly rate on all 

approval program costs the Agency 

incurred during a prior fiscal year. The 

hourly rate would be the total approval 

program costs (direct and indirect) 

divided by the number of direct hours 

spent on all approval program activities. 

Proposed paragraph § 5.30(b) lists the 

approval program costs that MSHA 

would include in the hourly rate 

calculation. 

Proposed paragraph § 5.30(b)(1) 

defines direct costs as consisting of 

compensation and benefit costs for all 

hours worked in support of the approval 

program and is derived, in part, from 

existing § 5.10(b)(1) and (b)(2). These 

costs include approval program 

activities such as testing and evaluation, 

including internal quality control, and 

post-approval activities, including postapproval product audits. 

Proposed paragraph § 5.30(b)(2) 

defines indirect costs and is derived, in 

part, from existing § 5.10(b)(3) and 

(b)(4). Indirect costs include the 

approval program’s proportionate share 

of the hours worked to manage and 

operate the A&CC. These costs are 

associated with activities required for 

information technology (IT) and A&CC 

management and administration. 

Indirect costs would also include the 

approval program’s proportionate share 

of depreciation for buildings, their 

improvements, and equipment; a 

proportionate share of utilities, 

equipment rental, facility and 

equipment maintenance, security, 

supplies and materials, and other costs 

necessary for the operation and 

maintenance of the A&CC; and a 

proportionate share of Department of 

Labor-provided services that would 

include financial systems, and audit and 

IT support. 

Proposed § 5.30(c) is derived from 

existing § 5.10(b) and includes activities 

for which MSHA would charge a fee. 

These activities would continue to 

include application processing (e.g., 

administrative and technical review of 

applications, computer tracking and 

status reporting); testing and evaluation 

(e.g., analysis of drawings, technical 

evaluation, testing, test set up and test 

tear down, and internal quality control 

activities); approval decisions (e.g., 

consultation on applications, records 

control and security, document 

preparation); and post-approval 

activities such as changes to approvals. 

Under the proposed rule, MSHA 

would begin to charge applicants and 

approval holders a fee for internal 

quality control activities. These 

activities are part of the approval 

program. MSHA uses internal quality 

control activities to monitor and 

improve the Agency’s testing and 

evaluation processes and quality 

control. These internal quality control 

activities assure applicants and 

approval holders that consistent, 

accurate, and up-to-date scientific 

methods are used when MSHA is 

evaluating and testing products. For 

example, MSHA has standard 

procedures to repair, maintain, and 

calibrate laboratory equipment in 

accordance with the manufacturers’ 

specifications. Each applicant and 

approval holder receives a benefit from 

these internal quality control activities: 

MSHA would distribute the hours 

worked and costs of internal quality 

control, based on the hours worked on 

each application. However, hours 

worked on specific internal quality 

control activities are not charged to a 

particular application. Instead, MSHA 

would charge each applicant a prorated 

share. MSHA proposes to calculate the 

prior year’s quality control hours as a 

percentage of total hours, multiply that 

percentage by the number of direct 

hours worked on a particular 

application, and add the result to the 

number of direct hours worked on the 

application. 

Under the proposed rule, MSHA also 

would begin charging approval holders 

for the Agency’s post-approval product 

audits, but would not include 

investigations or audits based on 

complaints about the products. Postapproval product audits are part of the 

approval program (post-approval 

activities) because they are necessary to 

assure that products have been 

manufactured as approved. Under 

existing 30 CFR parts 7, 14, and 15, 

approval holders are subject to a postapproval product audit upon request by 

MSHA. The Agency also would 

continue charging approval holders for 

changes to approvals. 

Internal quality control activities and 

post-approval audits assure that 

products are and continue to be 

designed, manufactured, and 

maintained in accordance with the 

approval requirements to ensure the 

health and safety of miners. For these 

reasons, MSHA is proposing to charge a 

fee for these activities. 

Existing § 5.10(c)(1), (c)(2), (c)(3), and 

(c)(4) would be revised and 

redesignated, in part, as proposed 

§ 5.30(d). 

Proposed § 5.30(d) would address the 

activities for which MSHA would not 

charge a fee. These include technical 

assistance not related to approval 

applications; technical programs 

including development of new 

technology programs; participation in 

research conducted by other 

government agencies or private 

organizations; and regulatory review 

activities, including participation in the 

development of health and safety 

standards, regulations, and legislation. 

Existing § 5.30(b), § 5.30(c), and 

§ 5.30(d) would be redesignated as 

proposed § 5.30(e), § 5.30(f), and 

§ 5.30(g) under the Fee Calculation 

section. 

Proposed paragraph § 5.30(e) would 

be revised by renumbering paragraphs 

§ 5.30(b)(1) and (b)(2) as § 5.30(e)(1) and 


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61038 Federal Register / Vol. 79, No. 196 / Thursday, October 9, 2014 / Proposed Rules 

(e)(2), respectively. Proposed paragraphs 

§ 5.30(f) and (g) would remain 

unchanged. 

C. § 5.40 Fee Administration 

Proposed § 5.40 is revised by adding 

‘‘approval holders’’ to entities to be 

billed and replacing ‘‘processing of the 

application is completed’’ with 

‘‘approval program activities are 

completed.’’ MSHA would continue to 

charge applicants a fee for approvals 

and some post-approval activities (e.g., 

modification to approvals), and 

proposes to charge approval holders a 

fee for post-approval product audits 

when the approval program activities 

are completed. 

D. § 5.50 Fee Revisions 

Proposed § 5.50 is amended by 

replacing ‘‘fee schedule’’ with ‘‘hourly 

rate’’ because MSHA no longer has a fee 

schedule. 

IV. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

Executive Orders (E.O.) 12866 and 

13563 direct agencies to assess all costs 

and benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). E.O. 13563 emphasizes the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. To comply with these 

Executive Orders, MSHA has included 

the following impact analysis. 

Section 3(f) of the E.O. 12866 defines 

a significant regulatory action as an 

action that is likely to result in a rule 

that: (1) Has an annual effect on the 

economy of $100 million or more, or 

adversely and materially affects a sector 

of the economy, productivity, 

competition, jobs, the environment, 

public health or safety, or State, local or 

tribal governments or communities; (2) 

creates serious inconsistency or 

otherwise interferes with an action 

taken or planned by another agency; (3) 

materially alters the budgetary impacts 

of entitlement grants, user fees, or loan 

programs, or the rights and obligations 

of recipients thereof; or (4) raises novel 

legal or policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in the Executive 

Order. OMB has determined that this is 

a significant regulatory action. 

The proposed rule would not have an 

annual effect of $100 million or more on 

the economy and, under E.O. 12866, is 

not considered economically significant. 

MSHA has not prepared a separate 

preliminary regulatory economic 

analysis for this rulemaking. Rather, the 

analysis is presented below. 

A. Overview 

MSHA proposes to continue to charge 

a fee for approval services based on an 

hourly rate. As under the existing rule, 

MSHA’s hourly rate would include 

direct costs and indirect costs. However, 

under the proposed rule, MSHA would 

calculate the hourly rate by dividing all 

approval program costs incurred by the 

Agency during a prior fiscal year by the 

number of direct hours spent on 

approval program activities for the same 

period. 

The proposed rule would increase the 

hourly rate from $97 to $121, an 

increase of $24. 

MSHA would also begin to charge a 

fee for internal quality control activities 

and post-approval product audits. In FY 

2012, MSHA collected approximately 

$1.2 million in fees. Under this 

proposed rule, MSHA estimates that the 

Agency would have collected a total of 

$2.7 million in fees in FY 2012, an 

increase of $1.5 million. 

The charges under the proposed rule 

are fees and are considered under OMB 

Circular No. A–4, Regulatory Analysis 

(09/17/2003) as transfer payments, not 

costs. Transfer payments are payments 

from one group to another that do not 

affect total resources available to 

society. Under the proposed rule, the 

applicant or the approval holder pays 

for services for which they receive a 

benefit. These services are currently 

paid for by the taxpayer. 

Because the fees MSHA collects are a 

transfer, there are zero costs and zero 

benefits regardless of the discount rate 

(OMB Circular No. A–4, Regulatory 

Analysis (09/17/2003,) Section (G) 

Accounting Statement). 

B. Benefits 

The rule would not produce any 

quantifiable benefits because the only 

impact is the transfer payment. 

C. Projected Impacts 

MSHA analyzed A&CC invoice data 

from Fiscal Year (FY) 2012. Using the 

U.S. Economic Census North American 

Industry Classification System (NAICS) 

data, MSHA estimated the impact of the 

proposed rule on mining and nonmining industries. NAICS is the 

standard used by Federal statistical 

agencies in classifying business 

establishments for the purpose of 

collecting, analyzing, and publishing 

statistical data related to the U.S. 

business economy (http://

www.census.gov/eos/www/naics/). 

From the A&CC post-approval 

product audit data and FY 2012 

invoices, MSHA identified 30 industries 

that received A&CC approval program 

services. MSHA grouped this data into 

three general industry categories: Coal 

Mining, Other Mining, and Non-Mining. 

MSHA estimated the fees that would 

be collected under this proposed rule by 

summing the impact of the hourly rate 

increase and the increase from charging 

for internal quality control activities and 

post-approval product audits. Under 

this proposed rule, fees would increase 

by approximately $1.5 million annually 

($0.3 million from the hourly rate 

increase + $1.1 million for internal 

quality control activities + $0.1 million 

for post-approval product audit 

activities). Of the $1.5 million, the 

increase in fees for the mining 

industries would total approximately 

$0.9 million annually. The remaining 

$0.6 million would be distributed 

among the non-mining industries that 

seek product approval from MSHA. 

MSHA estimated the fee increase from 

the proposed hourly rate by multiplying 

the number of chargeable hours for FY 

2012 (12,189), by the proposed hourly 

rate of $121. In 2012, MSHA estimated 

that the proposed hourly rate would 

have resulted in approximately $1.5 

million in fees collected, an increase of 

$300,000 (($121 new rate ¥ $97 old 

rate) × 12,189 hours)). 

MSHA also estimated the fees from 

charging for internal quality control 

activities. MSHA uses internal quality 

control activities to monitor and 

improve the Agency’s testing and 

evaluation processes. These activities 

include internal process reviews, 

maintaining laboratory equipment, and 

repairing, maintaining, and calibrating 

laboratory equipment to assure the 

equipment produces reliable and 

accurate results. In FY 2012, MSHA 

spent 9,015 hours on these activities. 

MSHA multiplied the 9,015 hours by 

the proposed $121 hourly rate. This 

results in an estimated annual impact of 

$1.1 million. 

In addition, MSHA analyzed postapproval product audit data from 2008 

to 2012 to estimate the increase in fees 

from charging for these services. In any 

given year, post-approval product audits 

are completed only on a subset of the 

total products approved by the A&CC. In 

2012, MSHA spent approximately 1,000 

hours on 125 post-approval product 

audits. Multiplying the 1,000 hours by 

the proposed $121 hourly rate results in 

an estimated annual impact of $121,000. 

The average estimated impact would 


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Federal Register / Vol. 79, No. 196 / Thursday, October 9, 2014 / Proposed Rules 61039 

have been $970 for each approval holder 

audited in 2012. 

V. Feasibility 

MSHA concludes that the proposed 

rule would be economically feasible. 

MSHA has traditionally used a 

revenue screening test—whether the 

annualized compliance costs of a 

regulation are less than one percent of 

revenues (dollar change/revenue), or are 

negative (i.e., provide net cost savings) 

to establish presumptively that 

compliance with the regulation is 

economically feasible. MSHA relies on 

Agency data to identify revenue for 

covered mining entities and the 2007 

Economic Census data to identify 

revenue by NAICS industry categories 

for non-mining entities. 

MSHA performed the revenue 

screening test comparing the annual 

impact to annual revenues for all three 

categories and found that the percentage 

impact rounds to zero percent of 

revenue in each case. Given the 

relatively small impact compared to 

industry total revenues, any further 

analysis would not be productive. 

Because the estimated impacts are 

below one percent of estimated annual 

revenue of the impacted industries, 

MSHA concludes that compliance with 

the provisions of the proposed rule is 

economically feasible. 

VI. Regulatory Flexibility Act, Small 

Business Regulatory Enforcement 

Fairness Act, and Executive Order 

13272: Proper Consideration of Small 

Entities in Agency Rulemaking 

The Regulatory Flexibility Act of 1980 

(RFA) as amended by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996 and other statutes, 

and E.O. 13272 requires agencies to 

consider the effects of their proposed 

and existing regulations on small 

entities and to examine alternatives that 

would minimize the small entity 

impacts while still meeting the 

regulations’ purposes. MSHA has 

reviewed the proposed rule to assess the 

potential impact on small businesses, 

small governmental jurisdictions, and 

small organizations. 

The applicants who would be affected 

by the proposed rule represent 30 

industries. The SBA size standard for a 

small entity (13 CFR 121.201) differs by 

industry code. For mining, SBA defines 

a small entity as one with 500 or fewer 

employees. For non-mining industries 

that would be impacted by this rule, 

SBA defines a small entity as one that 

has revenues of $7.5 million or less. 

MSHA used the FY 2012 invoice data 

and NAICS industry data to evaluate the 

small business impact. For the nonmining industries, the affected 

industries represent small business 

revenues of approximately $474 billion. 

The proposed rule would increase fees 

for non-mining industries by 

approximately $0.5 million. The impact 

from an increase in fees is essentially 

zero percent of revenue ($0.5 million/ 

$474 billion). 

For the mining industries, MSHA data 

shows small coal mine revenues of $31 

billion. The proposed rule would 

increase fees for coal mines by 

approximately $0.9 million. MSHA data 

shows other than coal small mine 

revenues of $57 billion. The proposed 

rule would increase fees for mines other 

than coal by approximately $6,000. The 

impact from an increase in fees is zero 

percent for both mining categories. 

Approximately $100,000 in increased 

fees is primarily attributable to foreign 

entities. MSHA concludes that the 

impact on the U.S. economy and its 

businesses would be de minimis. 

Given that the maximum possible 

impact for both mining and non-mining 

categories rounds to zero percent, the 

Agency concludes that, using either the 

SBA definition of small mines (500 or 

fewer employees) or using MSHA’s 

traditional definition of small mines (1– 

19 employees), it can certify that the 

proposed rule would not have a 

significant economic impact on a 

substantial number of small entities. 

VII. Paperwork Reduction Act of 1995 

This proposed rule contains no 

information collections subject to 

review by OMB under the Paperwork 

Reduction Act of 1995. 

VIII. Other Regulatory Considerations 

A. The Unfunded Mandates Reform Act 

of 1995 

MSHA has reviewed the proposed 

rule under the Unfunded Mandates 

Reform Act of 1995 (2 U.S.C. 1501 et 

seq.). MSHA has determined that this 

proposed rule does not include any 

federal mandate that may result in 

increased expenditures by State, local, 

or tribal governments; nor would it 

increase private sector expenditures by 

more than $100 million (adjusted for 

inflation) in any one year or 

significantly or uniquely affect small 

governments. Accordingly, under the 

Unfunded Mandates Reform Act, no 

further Agency action or analysis is 

required. 

B. The Treasury and General 

Government Appropriations Act of 

1999: Assessment of Federal 

Regulations and Policies on Families 

Section 654 of the Treasury and 

General Government Appropriations 

Act of 1999 (5 U.S.C. 601 note), as 

amended, requires agencies to assess the 

impact of agency action on family wellbeing. MSHA has determined that this 

proposed rule would have no effect on 

family stability or safety, marital 

commitment, parental rights and 

authority, or income or poverty of 

families and children. Accordingly, 

MSHA certifies that this proposed rule 

would not impact family well-being. 

C. Executive Order 12630: Government 

Actions and Interference With 

Constitutionally Protected Property 

Rights 

Executive Order 12630 requires 

Federal agencies to ‘‘identify the takings 

implications of proposed regulatory 

actions . . .’’ MSHA has determined 

that this proposed rule would not 

include a regulatory or policy action 

with takings implications. Accordingly, 

under E.O. 12630, no further Agency 

action or analysis is required. 

D. Executive Order 12988: Civil Justice 

Reform 

Executive Order 12988 contains 

requirements for Federal agencies 

promulgating new regulations or 

reviewing existing regulations to 

minimize litigation by eliminating 

drafting errors and ambiguity, providing 

a clear legal standard for affected 

conduct rather than a general standard, 

promoting simplification, and reducing 

burden. MSHA has reviewed this 

proposed rule and has determined that 

it would meet the applicable standards 

provided in E.O. 12988 to minimize 

litigation and undue burden on the 

Federal court system. 

E. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

MSHA has determined that this 

proposed rule would have no adverse 

impact on children. Accordingly, under 

E.O. 13045, no further Agency action or 

analysis is required. 

F. Executive Order 13132: Federalism 

MSHA has determined that this 

proposed rule does not have federalism 

implications because it would 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. Accordingly, 

under E.O. 13132, no further Agency 

action or analysis is required. 


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61040 Federal Register / Vol. 79, No. 196 / Thursday, October 9, 2014 / Proposed Rules 

G. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

MSHA has determined that this 

proposed rule does not have tribal 

implications because it would not have 

substantial direct effects on one or more 

Indian tribes, on the relationship 

between the Federal Government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian tribes. 

Accordingly, under E.O. 13175, no 

further Agency action or analysis is 

required. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

MSHA has reviewed this proposed 

rule for its impact on the supply, 

distribution, and use of energy because 

it applies to the coal mining industry. 

Insofar as the proposed rule would 

result in an increase to the yearly 

transfer of $0.9 million for the coal 

mining industry relative to annual 

revenues of $45 billion in 2011 (latest 

full year of data), it is not a ‘‘significant 

energy action’’ because it is not ‘‘likely 

to have a significant adverse effect on 

the supply, distribution, or use of 

energy (including a shortfall in supply, 

price increases, and increased use of 

foreign supplies).’’ Accordingly, under 

E.O. 13211, no further Agency action or 

analysis is required. 

List of Subjects in 30 CFR Part 5 

Mine safety and health. 

Dated: October 6, 2014. 

Joseph A. Main, 

Assistant Secretary for Mine Safety and 

Health. 

For the reasons set out in the 

preamble, and under the authority of the 

Federal Mine Safety and Health Act of 

1977, as amended, MSHA is proposing 

to amend Chapter I of Title 30 of the 

Code of Federal Regulations as follows: 

Subchapter B—Testing, Evaluation, and 

Approval of Mining Products 

PART 5—FEES FOR TESTING, 

EVALUATION, AND APPROVAL OF 

MINING PRODUCTS 

■ 1. The authority citation for part 5 

continues to read as follows: 

Authority: 30 U.S.C. 957. 

■ 2. Revise § 5.10 to read as follows: 

§ 5.10 Purpose and scope. 

This part establishes a system under 

which MSHA charges a fee for services 

provided. This part includes the 

management and calculation of fees for 

the approval program which includes: 

application processing, testing and 

evaluation, approval decisions, postapproval activities, and termination of 

approvals. 

■ 3. Revise § 5.30 to read as follows: 

§ 5.30 Fee calculation. 

(a) Fee calculation. MSHA charges a 

fee based on an hourly rate for approval 

activities and other associated costs 

such as travel expenses and Part 15 fees. 

Part 15 fees for services provided to 

MSHA by other organizations may be 

set by those organizations. 

(b) Hourly rate calculation. The 

hourly rate consists of direct and 

indirect costs of the approval program, 

divided by the number of direct hours 

worked on all approval program 

activities. 

(1) Direct costs are compensation and 

benefit costs for hours worked on 

approval program activities. 

(2) Indirect costs are a proportionate 

share of the following costs: 

(i) Compensation and benefit hours 

worked in support of all activities of the 

Approval and Certification Center; 

(ii) Building and equipment 

depreciation costs of the Approval and 

Certification Center; 

(iii) Utilities, facility and equipment 

maintenance, and supplies and 

materials of the Approval and 

Certification Center; and 

(iv) Information Technology and other 

services centrally provided by MSHA to 

the Approval and Certification Center. 

(c) Fees are charged for: 

(1) Application processing (e.g., 

administrative and technical review of 

applications, computer tracking and 

status reporting); 

(2) Testing and evaluation (e.g., 

analysis of drawings, technical 

evaluation, testing, test set up and test 

tear down, and internal quality control 

activities); 

(3) Approval decisions (e.g., 

consultation on applications, records 

control and security, document 

preparation); and 

(4) Post-approval activities: Changes 

to approvals and post-approval product 

audits. 

(d) Fees are not charged for: 

(1) Technical assistance not related to 

processing an approval application; 

(2) Technical programs including 

development of new technology 

programs; 

(3) Participation in research 

conducted by other government 

agencies or private organizations; and 

(4) Regulatory review activities, 

including participation in the 

development of health and safety 

standards, regulations, and legislation. 

(e) Fee estimate. Except as provided 

in paragraphs (e)(1) and (e)(2) of this 

section, on completion of an initial 

administrative review of the 

application, the Approval and 

Certification Center will prepare a 

maximum fee estimate for each 

application and will begin the technical 

evaluation once the applicant authorizes 

the fee estimate. 

(1) The applicant may pre-authorize 

an expenditure for services, and may 

further choose to pre-authorize either a 

maximum dollar amount or an 

expenditure without a specified 

maximum amount. All applications 

containing a pre-authorization statement 

will be put in the queue for the 

technical evaluation upon completion of 

an initial administrative review. MSHA 

will concurrently prepare a maximum 

fee estimate for applications containing 

a statement pre-authorizing a maximum 

dollar amount, and will provide the 

applicant with this estimate. Where 

MSHA’s estimated maximum fee 

exceeds the pre-authorized maximum 

dollar amount, the applicant has the 

choice of cancelling the action and 

paying for all work done up to the time 

of the cancellation, or authorizing 

MSHA’s estimate. 

(2) Under the Revised Acceptance 

Modification Program (RAMP), MSHA 

expedites applications for acceptance of 

minor changes to previously approved, 

certified, accepted, or evaluated 

products. The applicant must preauthorize a fixed dollar amount, set by 

MSHA, for processing the application. 

(f) If unforeseen circumstances are 

discovered during the evaluation, and 

MSHA determines that these 

circumstances would result in the actual 

costs exceeding either the preauthorized expenditure or the 

authorized maximum fee estimate, as 

appropriate, MSHA will prepare a 

revised maximum fee estimate for 

completing the evaluation. The 

applicant will have the option of either 

cancelling the action and paying for 

services rendered or authorizing 

MSHA’s revised estimate, in which case 

MSHA will continue to test and 

evaluate the product. 

(g) If the actual cost of processing the 

application is less than MSHA’s 

maximum fee estimate, MSHA will 

charge the actual cost. 

■ 4. Revise § 5.40 to read as follows: 

§ 5.40 Fee administration. 

Applicants and approval holders will 

be billed for all fees, including actual 

travel expenses, if any, when approval 

program activities are completed. 

Invoices will contain specific payment 

instruction, including the address to 


tkelley on DSK3SPTVN1PROD with PROPOSALS
Federal Register / Vol. 79, No. 196 / Thursday, October 9, 2014 / Proposed Rules 61041 

mail payments and authorized methods 

of payment. 

■ 5. Revise § 5.50 to read as follows: 

§ 5.50 Fee revisions. 

The hourly rate will remain in effect 

for at least one year and be subject to 

revision at least once every three years. 

[FR Doc. 2014–24130 Filed 10–8–14; 8:45 am] 

BILLING CODE 4510–43–P 

DEPARTMENT OF THE INTERIOR 

Bureau of Ocean Energy Management 

30 CFR Parts 550, 551, 556, 581, 582 

and 585 

[Docket ID: BOEM–2013–0058; 

MMAA104000] 

RIN 1010–AD83 

Risk Management, Financial 

Assurance and Loss Prevention 

AGENCY: Bureau of Ocean Energy 

Management (BOEM), Interior. 

ACTION: Advance Notice of Proposed 

Rulemaking—Extension of Public 

Comment Period. 

SUMMARY: BOEM has recognized the 

need to develop a comprehensive 

program to assist in identifying, 

prioritizing, and managing the risks 

associated with industry activities on 

the Outer Continental Shelf (OCS). 

BOEM intends to design and implement 

a more robust and comprehensive risk 

management, financial assurance and 

loss prevention program to address the 

complex issues and cost differences 

associated with offshore operations. As 

part of its overall effort to establish this 

program and associated changes to 

regulations, BOEM is seeking 

stakeholder comments regarding various 

risk management and monitoring 

activities pertaining to financial risks to 

taxpayers that may result from activities 

on the OCS. 

BOEM currently requires lessees to 

provide performance bonds and/or one 

of various alternative forms of financial 

assurance to ensure compliance with 

the terms and conditions of leases, 

Rights-of-Use and Easements and 

Pipeline Rights-of-Way. BOEM is 

seeking comments on who is best suited 

to mitigate risks and whether other 

forms of financial assurance should be 

used, as well as whether, or to what 

extent, the current forms of financial 

assurance are adequate and appropriate. 

BOEM has received comments to its 

Advance Notice of Proposed 

Rulemaking (ANPR) indicating that the 

number of issues being addressed and 

the complexity of the topics being 

considered would justify a longer 

comment period. Various groups have 

also requested that additional time be 

provided to review and analyze the 

ANPR. For these reasons, BOEM has 

agreed to extend the comment period by 

an additional 30 days. The new 

comment period will elapse 90 days 

from August 19, 2014, the date of the 

original of publication of the ANPR. 

DATES: BOEM published the ANPR on 

August 19, 2014 (79 FR 49027) with a 

sixty day comment period. With this 

extension, comments must be received 

by November 17, 2014. 

ADDRESSES: You may submit comments 

on the rulemaking by any of the 

following methods. Please use the 

Regulation Identifier Number (RIN) 

1010–AD83 as an identifier in your 

submission. 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. In the entry 

entitled, ‘‘Enter Keyword or ID,’’ enter 

BOEM–2013–0058, then click search. 

Follow the instructions to submit public 

comments and view supporting and 

related materials available for this 

rulemaking. BOEM will post all 

comments received during the comment 

period. 

• Mail or hand-carry comments to the 

Department of the Interior; Bureau of 

Ocean Energy Management; Attention: 

Terry Scholten at terry.scholten@

boem.gov (504–810–2078) or Donna 

Dixon at Donna.Dixon@boem.gov (504– 

731–1527), or by mail at 1201 Elmwood 

Park Boulvard, GM364D, New Orleans, 

LA 70123. For issues related to the 

rulemaking process or timetable, contact 

Peter Meffert at peter.meffert@boem.gov 

(703–787–1610), or by mail at 381 Elden 

Street, Herndon, VA 20170. Please 

reference ‘‘Risk Management, Financial 

Assurance and Loss Prevention.’’ 

• In your comments include your 

name and return address so that we may 

contact you if we have questions 

regarding your submission. 

Public Availability of Comments: 

Before including your address, phone 

number, email address, or other 

personal identifying information in your 

comment, you should be aware that 

your entire comment—including your 

personal identifying information—may 

be made publicly available at any time. 

While you can ask us in your comment 

to withhold your personal identifying 

information from public review, we 

cannot guarantee that we will be able to 

do so. 

FOR FURTHER INFORMATION CONTACT: 

Questions regarding the risk 

management, financial assurance or loss 

prevention aspects of this ANPR should 

be directed to Terry Scholten or Donna 

Dixon, using the contact information 

listed above. 

Dated: September 30, 2014. 

Janice M. Schneider, 

Assistant Secretary—Land and Minerals 

Management. 

[FR Doc. 2014–24165 Filed 10–8–14; 8:45 am] 

BILLING CODE 4310–MR–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 117 

[Docket No. USCG–2014–0281] 

RIN 1625–AA09 

Drawbridge Operation Regulations; 

Oceanport Creek, Oceanport, NJ 

AGENCY: Coast Guard, DHS. 

ACTION: Notice of proposed rulemaking; 

withdrawal. 

SUMMARY: The Coast Guard is 

withdrawing its notice of proposed 

rulemaking concerning the New Jersey 

Transit Rail Operations (NJTRO) Bridge 

across Oceanport Creek at mile 8.4, at 

Oceanport, New Jersey. The bridge 

owner submitted a request to require a 

four-hour advance notice for bridge 

openings year-round based upon 

infrequent requests to open the draw 

over the last three years. 

The Coast Guard is withdrawing this 

notice of proposed rulemaking because 

the data supporting the bridge owner’s 

request was based upon the past three 

years of bridge openings; however, we 

received comments in response to our 

notice of proposed rulemaking that 

advised us that the Fort Monmouth 

Marina and Restaurant, located 

upstream from the bridge, was closed 

during the three year time period when 

the bridge opening data was collected. 

Subsequently, marina and restaurant 

has re-opened and it is now anticipated 

that the number of bridge opening 

requests will significantly increase. 

As a result of the above information 

we do not believe that a four-hour 

advance notice for bridge openings is 

justified at this time and that a fourhour advance notice for bridge openings 

would not meet the reasonable needs of 

navigation. 

DATES: The notice of proposed 

rulemaking is withdrawn on October 9, 

2014. 

ADDRESSES: The docket for this 

deviation, [USCG–2014–0281] is 

available at http://www.regulations.gov. 

Type the docket number in the 


tkelley on DSK3SPTVN1PROD with PROPOSALS