Fees for Testing, Evaluation, and Approval of Mining Products, 46345-46353 [05-15494]

Download as PDF Federal Register / Vol. 70, No. 152 / Tuesday, August 9, 2005 / Proposed Rules DEPARTMENT OF LABOR Mine Safety and Health Administration 30 CFR Parts 5, 15, 18, 19, 20, 22, 23, 27, 28, 33, 35, and 36 RIN 1219–AB38 Fees for Testing, Evaluation, and Approval of Mining Products Mine Safety and Health Administration (MSHA), Labor. ACTION: Proposed rule. AGENCY: our Web site at https://www.msha.gov. The public docket may be viewed at our Office of Standards, Regulations, and Variances, 1100 Wilson Blvd., Room 2350, Arlington, Virginia. FOR FURTHER INFORMATION CONTACT: Rebecca J. Smith, Acting Director, Office of Standards, Regulations, and Variances at 202–693–9440 (voice), 202–693–9441 (fax), or smith.rebecca@dol.gov (e-mail). SUPPLEMENTARY INFORMATION: SUMMARY: I. Direct Final Rule and Concurrent, Identical Proposed Rule Comments must be received by October 11, 2005. ADDRESSES: Comments must include Regulation Identifier Number (RIN) 1219–AB38 and may be submitted by any of the following methods: • Federal eRulemaking Portal: https:// www.regulations.gov. Follow the instructions for submitting comments. • E-mail to comments@zzmsha.gov. Please include RIN 1219–AB38 in the subject line of the message. If you are unable to submit comments by e-mail or through the Federal eRulemaking portal, please identify your comments by RIN 1219–AB38 and submit them by any of the following methods: • Facsimile: (202) 693–9441. • Regular Mail or Hand Delivery: MSHA, Office of Standards, Regulations, and Variances, 1100 Wilson Blvd., Room 2313, Arlington, Virginia 22201–3939. Access to Docket: We post all comments received without change, including any personal information provided, at https://www.msha.gov at the ‘‘Rules & Regs’’ link. Additionally, we post this document, our Program Policy Manual, and all Program Information Bulletins, Standard Administrative Procedures, and Program Policy Letters discussed in the SUPPLEMENTARY INFORMATION section of this preamble on We have determined that the subject of this rulemaking is suitable for a direct final rule. Since the rule requirements are not controversial and primarily concern agency procedures, no significant adverse comments are anticipated. Therefore, concurrent with this proposed rule, a separate, identical direct final rule is published in today’s issue of the Federal Register. The duplicate direct final rule will speed notice and comment rulemaking in the event we receive no significant adverse comments to this proposed rule. All interested parties should comment at this time because we will not initiate an additional comment period. If no significant adverse comments to this proposed rule are received on or before October 11, 2005, the direct final rule will become effective November 7, 2005, without further notice. If significant adverse comments are received, we will publish a timely notice in the Federal Register withdrawing the direct final rule, and will then proceed with the rulemaking by addressing the comments and developing a final rule from this proposed rule. For purposes of withdrawing 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 the accompanying direct final rule, we will 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 will not be considered significant and adverse unless the comment explains how this rule would be ineffective without the addition. We are proposing to amend our regulations to reflect established policy and procedures for administering fees for testing, evaluation, and approval of equipment and materials manufactured for use in the mining industry. This proposed rule would eliminate the application fee, allow applicants to pre-authorize expenditures for processing applications, allow outside organizations conducting part 15 testing (explosives and sheathed explosive units) on our behalf to set fees for this testing, incorporate changes concerning our programs and organization, and make non-substantive conforming changes to related regulations. DATES: VerDate jul<14>2003 16:45 Aug 08, 2005 Jkt 205001 PO 00000 Frm 00001 Fmt 4701 Sfmt 4702 46345 II. Background A. Rulemaking History The Federal Mine Safety and Health Act of 1977 (the Mine Act) (Pub. L. 91– 173, as amended by Pub. L. 95–164) gives the Mine Safety and Health Administration responsibility for prescribing the technical design, construction, and evaluation criteria for certain products used in underground mines and for testing and approving these products so that the products will not cause a mine fire explosion or a mine fire. Most of the Mine Act’s regulations for testing and approving these products relate to ‘‘permissible’’ equipment. The Mine Act’s implementing regulations at Title 30 of the Code of Federal Regulations (30 CFR), parts 6 through 36 contain procedures by which applicants may apply for and have equipment approved as ‘‘permissible,’’ as defined in section 318 of the Mine Act, 30 U.S.C. 878, for use in mines. On May 8, 1987, we published a final rule (52 FR 17506) adding 30 CFR part 5 (Fees for testing, evaluation, and approval of mining products). This rule created a uniform method for calculating fees and established specific procedures for administering the fee program. 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. This proposed rule would update part 5 to reflect these initiatives. Additionally, this proposed rule would remove a number of references to the Department of the Interior’s former Bureau of Mines, which was dissolved in 1996 (Pub. L. 104–99). Prior to that time, the Bureau of Mines conducted part 15 testing on our behalf. NIOSH has assisted us with part 15 testing; however, NIOSH no longer has the resources to conduct these tests. This proposed rule would allow us to use other organizations to conduct part 15 testing. B. Scope of Approval Activities The mining products that we approve range from small electronic devices to large complex mining systems. Our Approval and Certification Center (Center) evaluates and tests these mining products and issues, among other things, ‘‘approvals,’’ E:\FR\FM\09AUP2.SGM 09AUP2 46346 Federal Register / Vol. 70, No. 152 / Tuesday, August 9, 2005 / Proposed Rules ‘‘certifications,’’ ‘‘acceptances,’’ ‘‘extensions,’’ and ‘‘field modifications.’’ Under the narrow definition of ‘‘approval,’’ approvals are issued to a completely assembled machine or system or to an explosive. Under this definition, approval of a mining product constitutes a license authorizing the approval-holder to build and distribute the product for use in underground mines, and to advertise the product as ‘‘MSHA-approved.’’ The approvalholder accepts the responsibility for constructing or formulating the product in exact accordance with all drawings and specifications that accompany the approval. A ‘‘certification’’ is issued to a component or sub-system of a completely assembled machine or system. An ‘‘acceptance’’ is issued for materials and certain other products. An ‘‘extension’’ of an approval or certification allows the applicant to make design modifications to the product. A ‘‘field modification’’ allows the owner of an MSHA approved piece of equipment to make specific changes to approved electrical equipment. A ‘‘certification’’ is issued to a component or sub-system of a completely assembled machine or system. An ‘‘acceptance’’ is issued for materials and certain other products. An ‘‘extension’’ of an approval or certification allows the applicant to make design modifications to the product. A ‘‘field modification’’ allows the owner of an MSHA approved piece of equipment to make specific changes to approved electrical equipment. Additionally, we administer a number of voluntary programs which are covered by this regulation to evaluate products to determine conformance to safety requirements of 30 CFR parts 56, 57, 75, and 77, or to determine the product’s suitability for specific mining applications. For example, we use these voluntary programs to evaluate ground wire monitors, lighting systems, sealants and stopping systems, conveyor belt lagging material, belt wipers, and hydraulic hose and fire suppression agents and systems. Except where stated otherwise, we use the term ‘‘approval’’ in this preamble and regulation in a broad sense to represent our formal recognition of products that are approved, certified, or otherwise formally accepted for use in mining operations. Our regulations also allow other parties to perform product testing under certain circumstances. Part 6 of 30 CFR allows independent laboratories to test and evaluate certain mining products. It also permits MSHA to approve VerDate jul<14>2003 16:45 Aug 08, 2005 Jkt 205001 equipment designed to non-MSHA product safety standards once we have determined that the standard(s) can provide at least the same degree of protection or can be modified to provide at least the same degree of protection as 30 CFR requirements. Part 7 allows the applicant or a third party to test certain products for which the testing requirements are objective in nature and can be routinely conducted by personnel knowledgeable in the particular product line or category. We retain the responsibility for evaluating the test results and issuing the approval for all products tested and evaluated under parts 6 and 7. C. The Approval Process The approval process begins with the filing of an application. Parts 6 through 36 provide instructions for preparing and filing applications, which can vary with the type of mining product and type of approval requested. We administratively review each new application, and upon determination that the application is in order, prepare a fee estimate, if one is required. Our technical experts then thoroughly investigate, test, and evaluate the product. Following successful completion of the evaluation and testing, we provide the applicant with a written notice that the product meets all the applicable requirements. III. Section-by-Section Analysis A. Section 5.10 Purpose and Scope Existing section 5.10 sets out the purpose and scope of part 5. Revised section 5.10 remains substantially unchanged from the existing regulation. The term ‘‘testing, evaluation and approval’’ in existing paragraph 5.10(a) would be changed to ‘‘services provided under this subchapter.’’ This change would more clearly convey that part 5 applies to all services which the Center provides and for which a fee is charged. These services include ‘‘approvals’’ as defined in both the narrow and broad sense as explained earlier in Part II B, ‘‘Scope of Approval Activities.’’ The term ‘‘Except as provided in section 5.30(a)’’ would be added to the beginning of 5.10(b) to clarify that outside organizations conducting part 15 testing on our behalf may set the fees for this testing. These outside organizations will likely be government agencies or non-government organizations with laboratory facilities capable of performing part 15 tests. PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 B. Section 5.20 Effective Date Existing section 5.20 established the effective date of the 1987 rule. Such a notice is not needed at this time because the Federal Register document containing the final rule would provide the effective date for the rule. For this reason, this proposed rule would delete existing § 5.20, which established the effective date of the 1987 rule. C. Section 5.30 Fee Calculation Existing paragraph 5.30(a) imposes a non-refundable application fee. This fee was intended to recover costs for initial review and administrative processing of the application in the event the applicant cancelled the action prior to commencement of the technical evaluation. Upon completion of the evaluation and testing, this payment was credited against the total charges billed to the applicant. Paying and processing this fee placed an additional administrative burden on the applicants and on us, and delayed the approval process. The applicant incurred the burden of remitting two payments during the application process, and we expended resources to process both payments. The technical evaluation could not begin until our finance office confirmed that the payment for the application fee had been posted. After reviewing this activity, we issued Program Policy Letter (PPL) No. 96–II–1, ‘‘Waiver of the $100 Application Fee for Testing, Evaluation, and Approval of Mining Products,’’ effective January 1, 1996. This policy is now incorporated into our Program Policy Manual. In proposed paragraph 5.30(a), the requirement for an application fee would be removed to reflect our elimination of this fee. Proposed paragraph 5.30(a) would also incorporate and revise provisions from existing paragraphs 5.30(b) and (e). The provision from revised paragraph 5.30(b), which lists criteria for determining hourly fees, would contain three revisions. First, the term ‘‘testing, evaluation and approval’’ would be in existing paragraph 5.30(b) is changed to ‘‘services provided under this subchapter’’ and moved to revised paragraph 5.30(b). Second, the existing language concerning direct and indirect costs that is repeated from Section 5.10(b)(1) would be omitted to eliminate redundancy. Third, since these criteria for determining hourly fees also apply to any flat rate fees that we would establish, the term ‘‘hourly fees’’ would be changed to ‘‘fees.’’ As noted earlier, when the existing rule was promulgated, we charged flat rate fees for certain services for which E:\FR\FM\09AUP2.SGM 09AUP2 Federal Register / Vol. 70, No. 152 / Tuesday, August 9, 2005 / Proposed Rules turnaround time was predictable and stable. The shift to the current system of hourly fees was driven partially by concerns about the equitable distribution of costs among applicants. As mentioned above, the provision in existing paragraph 5.30(e), concerning fees for tests conducted for MSHA by the former Bureau of Mines under part 15 (Requirements for approval of explosives and sheathed explosive units) would be incorporated into revised paragraph 5.30(a) and substantially revised. The existing paragraph provides that ‘‘Tests conducted by the Bureau of Mines for MSHA under part 15 are flat rate items.’’ When the existing rule was promulgated, the former Bureau of Mines conducted these tests on our behalf. After the Bureau was dissolved, its facility for conducting explosives testing was transferred first to the Department of Energy and subsequently to NIOSH as a purely research function (30 U.S.C. 1 note). In January 1996 we received one application for the full range of part 15 tests. Since then we have received six part 15 applications, all for minor tests. During this time we relied on NIOSH to conduct part 15 tests; however, NIOSH did not have the facilities for conducting part 15 chemical analysis tests, and contracted another organization to conduct these tests. That organization subsequently ceased doing chemical analysis tests. NIOSH recently informed us that they no longer have the resources to perform all the part 15 tests. Since we do not have the facilities to conduct these tests, we must contract with other organizations to do any future part 5 testing. Revised paragraph 5.30(a) would allow organizations conducting part 15 testing on our behalf to set the fees for these tests. Since we cannot predict what fees the outside organizations will charge for any of these tests, the regularly published fee schedule, required under paragraph 5.50, would no longer specify the fees for part 15 testing. Proposed paragraph 5.30(a) would remove the term ‘‘Bureau of Mines’’ as well as the requirement to charge flat rate fees for part 15 testing. The proposed paragraph would provide that ‘‘part 15 fees for services provided to MSHA by other organizations may be set by those organizations.’’ That is, the proposed rule language would allow us to pass on the cost of services provided to MSHA by other organizations so that these costs could be billed to the applicant. Existing paragraph 5.30(b), as explained above, would also be moved to revised paragraph 5.30(a). Revised VerDate jul<14>2003 16:45 Aug 08, 2005 Jkt 205001 paragraph 5.30(b) would contain the provision from existing paragraph 5.30(c) concerning our maximum fee estimate. Under existing paragraph 5.30(c), we prepare an estimate of the maximum fees that would be incurred during evaluation of the product. The preamble to the existing rule, at 52 FR 17509, indicates our intent to provide this estimate to the applicant before beginning the technical evaluation ‘‘to provide the applicant the opportunity to discuss the estimate or withdraw the application.’’ Existing paragraph 5.30(c) further provides that if unforeseen circumstances are discovered during the evaluation that would result in the actual fees exceeding this estimate, the applicant has the choice of canceling the action and paying for all work done up to the time of the cancellation, or approving our estimated maximum amount. If the estimate exceeds the actual fees, the applicant is charged the lesser amount. An exception to this provision exists for applications that were submitted under our two former flat rate fee programs. These services were charged a predetermined amount and therefore no estimate was provided. These two programs are outlined in detail below in the discussion of existing paragraph 5.30(d). In 1991, we revised our Program Policy Manual to allow applicants seeking approval of longwall equipment the option of pre-authorizing fees for testing and evaluation. The preauthorization statement, submitted as part of the application, allowed the technical evaluation to begin immediately. At the request of applicants seeking testing and evaluation of other products, we expanded the policy to allow a preauthorization option for all products submitted for approval. We published this policy in Program Policy Letter No. 92–II–3, ‘‘30 CFR Part 5 Fee PreAuthorization,’’ effective June 1, 1992. Under this policy, which is currently incorporated into our Program Policy Manual, applicants, other than those seeking modifications under our program for expedited modifications, may elect to pre-authorize an expenditure for fees by submitting a preauthorization statement with the application. The applicant must either specify a maximum authorized expenditure for fees, or authorize an expenditure with no maximum amount. The latter option authorizes us to perform all testing and evaluation services that we deem necessary. Under existing policy, we determine whether or not to prepare a maximum fee estimate and when to begin the PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 46347 technical evaluation using the following guidelines: No pre-authorization statement: We prepare a maximum fee estimate which the applicant must authorize before the technical evaluation begins. Pre-authorized maximum expenditure: The applicant provides us with a maximum pre-authorized amount. We prepare a maximum fee estimate and at the same time forward the application for the technical evaluation. If no other applications are waiting in the queue, the technical evaluation may begin immediately. Where our estimate exceeds the preauthorized amount, the applicant has the choice of canceling the action and paying for all work done up to the time of the cancellation, or approving our estimated maximum amount. Pre-authorized expenditure with no stated maximum: The applicant preauthorizes an expenditure with no stated maximum amount. We forward the application immediately for the technical evaluation, and the applicant receives no estimated maximum fee estimate. The revised paragraph would modify provisions in existing paragraph 5.30(c) to provide exceptions for pre-authorized fees and flat rate programs. Paragraph 5.30(b)(1) would be added to reflect our policy of allowing applicants the option of pre-authorizing fees. Paragraph 5.30(b)(2) would be added to reflect our policy of requiring a specific pre-authorized expenditure for applications submitted under the Revised Application Modification Program (RAMP). This program is discussed in the narrative for § 5.30(d). Finally, the existing rule uses the term ‘‘estimated maximum fee (cap).’’ For a number of reasons, including continuity, we no longer use the term ‘‘cap’’ to refer to this amount. The proposed rule would replace this term wherever it appears in the rule with the term ‘‘maximum fee estimate.’’ The provisions of existing paragraph 5.30(c) address: (1) Our determination of a maximum fee estimate prior to the start of technical evaluation; (2) Unforeseen circumstances during the technical evaluation which could result in the actual cost exceeding the maximum fee estimate; and (3) The situation where the maximum fee estimate exceeds the actual cost. The first provision would be moved to paragraph 5.30(b), and is discussed above. The second provision would remain in paragraph 5.30(c), and third provisions would be moved to paragraph 5.30(d). E:\FR\FM\09AUP2.SGM 09AUP2 46348 Federal Register / Vol. 70, No. 152 / Tuesday, August 9, 2005 / Proposed Rules The second provision, involving unforeseen circumstances during the technical evaluation that could result in the actual cost exceeding the maximum fee estimate, requires us to provide the applicant with a revised maximum fee estimate for completing the evaluation. The applicant may then either cancel the evaluation or authorize the revised fee estimate. Under our policy, if the applicant chooses to cancel the evaluation, fees will be charged for work performed up to the cancellation. If the applicant authorizes the new maximum fee estimate, we will continue testing and evaluating the product. Proposed paragraph 5.30(c) would leave this provision substantially unchanged, but the concept would applied to any expenditure approved by the applicant, whether that expenditure is the estimated maximum fee or the applicant’s pre-authorized expenditure. This provision is not applicable where the pre-authorized expenditure has no stated maximum. Additionally, the term ‘‘cap’’ would be changed to ‘‘maximum fee estimate.’’ Existing paragraph 5.30(d) addresses the former Stamped Notification Acceptance Program (SNAP) and Stamped Revision Acceptance (SRA) program. These programs were developed to expedite the acceptance of certain minor changes to previously approved products, and required only a few documents to be submitted with the application. SNAP addressed acceptance of single changes to an approved product, including changes that pertained to the technical requirements of an approved product without adversely affecting permissibility. SRA addressed acceptance of single or multiple changes to an approved product, provided the change(s) did not affect the technical requirements. The Center charged a flat rate fee for services provided under these programs. Over time, using and administering both of these programs created inefficiency and unnecessary duplication. Applicants were often uncertain which program (e.g., SNAP, SRA, or an extension of approval) to use for requesting changes in the design of approved products. This confusion often led to administrative errors and the need to re-submit the application. Further, since SNAP applied to single changes to approved products, a separate application was required for each specific proposed change. In 1998, both programs were replaced with the Revised Approval Modification Program (RAMP). Under RAMP, requests for acceptance of minor changes to approved products are made by VerDate jul<14>2003 16:45 Aug 08, 2005 Jkt 205001 submitting a letter of application describing the changes, along with drawings and specifications that fully describe each change. Services provided under RAMP are charged an hourly fee, and the letter of application must contain a statement authorizing a minimum dollar amount set by the Agency. A discussion of RAMP was included in the notice of fee adjustments, published on December 18, 1998 (63 FR 70163), and in Standard Application Procedure ASAP1005, ‘‘Revised Approval Modification Program (RAMP) Application Procedure’’ published on March 28, 2000. Revised paragraph 5.30(d) would remove the SNAP and SRA requirements, and would retain the provision in existing paragraph 5.30(c) concerning applications for which the estimated maximum fee exceeds the actual hourly fee. The existing provision requires us to charge the actual fee. Proposed paragraph 5.30(d) leaves this provision substantially unchanged; however, the scope would be expanded to include instances where the actual hourly fee exceeds any expenditure approved by the applicant, whether that expenditure is the estimated maximum fee or the applicant’s pre-authorized expenditure. Existing paragraph 5.30(e) addresses fees for testing under part 15. The proposed rule would move this provision to paragraph 5.30(a) and would delete paragraph 5.30(e) entirely. The proposed revisions to part 15 fees are discussed in the narrative for proposed paragraph 5.30(a). D. 5.40 Fee Administration Existing paragraph 5.40(a) provides applicants with detailed instructions for submitting the application fee. Existing paragraph (b) concerns the method of paying for services provided under SNAP and SRA. Since the application fee, SNAP, and SRA have been eliminated, as discussed above, these paragraphs are removed. Existing paragraph 5.40(a) provides applicants with detailed instructions for submitting the application fee. Existing paragraph 5.40(b) concerns the method of paying for services provided under SNAP and SRA. Since the application fee, SNAP, and SRA have been eliminated, as discussed above, these paragraphs are removed. Existing paragraph 5.40(c) addresses billing procedures for services which are billed at an hourly rate. The existing paragraph provides that applicants are billed when processing of the application is complete; any actual travel expenses are included in the bill; and the invoice will PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 contain specific payment instructions. Our current regulations in 30 CFR Parts 18 through 36 allow payment for part 5 fees only by check, bank draft, or money order. Proposed section 5.40 would apply the billing procedures in existing paragraph 5.40(c) to all fees administered under part 5, and would inform applicants that invoices will contain specific payment instructions, including the address to mail payments and authorized methods of payment. Applicants had informally requested that MSHA allow payment by credit card as a means of expediting the payment process and decreasing administrative costs to applicants. MSHA determined that this option can benefit both the applicant and the government, and recently began accepting payments by credit card. Proposed paragraph 5.40 would allow MSHA the flexibility to accept credit card payment as an authorized method of payment. The remaining provisions of existing paragraph 5.40(c) would be substantially unchanged. E. Overview of Conforming Changes Parts 18, 19, 20, 22, 23, 27, 28, 33, 35, and 36 contain detailed instructions for submitting applications for approvals and certifications. Each part instructs the applicant to send a check, bank draft, or money order with the application. The proposed rule would remove this instruction, and any other reference to payments submitted with applications, to allow these sections to conform to the proposed part 5 provisions concerning application fees and payment of fees, and to reflect our current policy, as stated in the Program Policy Manual. Additionally, the proposed rule would update the Center’s address and would remove outdated references to the former Bureau of Mines. F. Section 15.3 Observers at Tests and Evaluations The term ‘‘Bureau of Mines, U.S. Department of the Interior’’ would be replaced with the term ‘‘designees of MSHA.’’ As explained in the discussion of revised paragraph 5.30(a), the Bureau of Mines no longer exists. G. Section 18.6 Applications In paragraph 18.6(a)(1), the term ‘‘accompanied by a check, bank draft, or money order, payable to the U.S. Mine Safety and Health Administration to cover the fees,’’ would be removed from the application instructions to reflect our policy of waiving the application fee. Additionally, language would be added to specify that the procedures for E:\FR\FM\09AUP2.SGM 09AUP2 46349 Federal Register / Vol. 70, No. 152 / Tuesday, August 9, 2005 / Proposed Rules payment of fees are found in § 5.40 of the proposed rule. payment of fees are found in § 5.40 of the proposed rule. H. Section 19.3 Applications In paragraph (a), the term ‘‘accompanied by a check, bank draft, or money order, payable to U.S. Mine Safety and Health Administration, to cover all the necessary fees,’’ would be removed from the application instructions to reflect our policy of waiving the application fee. Additionally, language would be added to specify that the procedures for payment of fees are found in § 5.40 of the proposed rule. M. Section 27.9 Tests I. Section 20.3 Applications In paragraph (a), the term ‘‘accompanied by a check, bank draft, or money order, payable to the U.S. Mine Safety and Health Administration, to cover all the necessary fees,’’ would be removed from the application instructions to reflect our policy of waiving the application fee. Additionally, language would be added to specify that the procedures for payment of fees are found in § 5.40 of the proposed rule. J. Section 22.4 Applications In paragraph (a), the term ‘‘accompanied by a check, bank draft, or money order, payable to the U.S. Mine Safety and Health Administration, to cover all the necessary fees,’’ would be removed from the application instructions to reflect our policy of waiving the application fee. Additionally, language would be added to specify that the procedures for payment of fees are found in § 5.40 of the proposed rule. K. Section 23.3 Applications In paragraph (a), the term ‘‘accompanied by a check, bank draft, or money order, payable to the U.S. Mine Safety and Health Administration, to cover all the necessary fees,’’ would be removed from the application instructions to reflect our policy of waiving the application fee. Additionally, language would be added to specify that the procedures for payment of fees are found in § 5.40 of the proposed rule. L. Section 27.4 Applications In paragraph (a)(1), the term ‘‘and also a check, bank draft, or money order payable to the U.S. Mine Safety and Health Administration, to cover the fees’’ would be removed from the application instructions to reflect our policy of waiving the application fee. Additionally, language would be added to specify that the procedures for VerDate jul<14>2003 16:45 Aug 08, 2005 Jkt 205001 Date for Conducting The existing section lists the ‘‘application, payment of necessary fees, and submission of required material’’ as criteria for determining the order of testing when more than one application is pending. The proposed section would remove the reference to payment of fees and would revise the sentence to conform to similar provisions in existing § 18.8 (Date for conducting investigation and tests). The proposed sentence would read: ‘‘The date of receipt of an application will determine the order of precedence for investigation and testing.’’ The proposed section would reflect our policy of waiving the application fee. N. Section 28.10 Procedures Application Existing § 28.10 requires applicants seeking approval of certain fuses to submit the fuses to a nationally recognized independent testing laboratory for examination, inspection, and testing prior to submitting an approval application to the Center. Paragraph 28.10(c) contains instructions for submitting these laboratory data and results to the Center, and includes a requirement that payment for the application fee accompany these documents. Proposed paragraph 28.10(c) would remove the requirement to send a payment with the laboratory documents. This proposed change corresponds to the elimination of the application fee. Additionally, language would be added to specify that the procedures for payment of fees are found in § 5.40 of the proposed rule. O. Section 33.3 Consultation This section contains an outdated address for the Center and a reference to the former Bureau of Mines. The proposed section would update the Center’s address and would replace the term ‘‘Bureau’’ with ‘‘MSHA.’’ P. Section 33.6 Frm 00005 Applications In paragraph (a)(1), the term ‘‘accompanied by a check, bank draft, or money order, payable to the U.S. Mine Safety and Health Administration, to cover the fees;’’ would be removed from the application instructions to reflect our policy of waiving the application fee. Additionally, language would be added to specify that the procedures for payment of fees are found in § 5.40 of the proposed rule. R. Section 36.6 Applications In paragraph (a)(1), the term ‘‘accompanied by a check, bank draft, or money order, payable to the U.S. Mine Safety and Health Administration, to cover the fees;’’ would be removed from the application instructions to reflect our policy of waiving the application fee. Additionally, language would be added to specify that the procedures for payment of fees are found in § 5.40 of the proposed rule. S. Derivation and Distribution Tables The following derivation table lists each section number of the final rule and the section number of the existing standard from which the section is derived. DERIVATION TABLE Existing section Final rule Removed ................................. Removed ................................. 5.30(a) ..................................... 5.30(b) ..................................... 5.30(c) ..................................... 5.30(d) ..................................... Removed ................................. 5.40 ......................................... 5.20. 5.30(a). 5.30(b). 5.30(c). 5.30(c). 5.30(c). 5.30(e). 5.40(c). The following distribution table lists each section number of the existing standards, and the section number of the final rule which contains provisions derived from the corresponding existing section. DISTRIBUTION TABLE Applications In paragraph 33.6(a)(1), the term ‘‘accompanied by a check, bank draft, or money order, payable to the U.S. Mine Safety and Health Administration, to cover the fees;’’ would be removed from the application instructions to reflect our policy of waiving the application fee. Additionally, language would be added to specify that the procedures for payment of fees are found in § 5.40 of the proposed rule. PO 00000 Q. Section 35.6 Fmt 4701 Sfmt 4702 Existing section 5.20(a) 5.30(a) 5.30(b) 5.30(c) ..................................... ..................................... ..................................... ..................................... 5.30(d) 5.30(e) 5.40(a) 5.40(b) 5.40(c) ..................................... ..................................... ..................................... ..................................... ..................................... E:\FR\FM\09AUP2.SGM 09AUP2 Final rule Removed. Removed. 5.30(a). 5.30(b), (c), and (d). Removed. Removed. Removed. Removed. 5.40. 46350 Federal Register / Vol. 70, No. 152 / Tuesday, August 9, 2005 / Proposed Rules IV. Regulatory Impact Analysis A. Executive Order 12866 Planning and Review Regulatory Compliance Costs Executive Order 12866, as amended by Executive Order 13258, requires that regulatory agencies assess both the costs and benefits of intended regulations. We have satisfied the requirement of Executive Order 12866 for this proposed rule and determined that the proposed rule would not have an annual effect of $100 million or more on the economy. Therefore, the proposed rule is not an economically significant regulatory action pursuant to § 3(f)(1) of Executive Order 12866. The proposed rule affects applicants who request approval for products used in the mining industry. The proposed rule would not result in any cost increases or savings to these applicants. As noted earlier, existing § 5.30(a) imposes a non-refundable standard application fee on each initial application. Since we eliminated this application fee in 1996, deleting the application fee language from existing § 5.30(a) would not cause applicants to incur any costs or cost savings. Benefits The proposed rule would change our existing regulatory language to be consistent with our current practices and will continue to allow us to process applications in a timely and efficient manner. Thus, new and improved products that enhance the safety of the miner will be allowed to enter the mine as soon as possible. The application fee discussed above was intended to offset administrative review costs in the event that the applicant cancelled an application prior to commencement of the technical evaluation. We eliminated this fee because it tended to lengthen the approval and certification process and placed unnecessary burdens on us and the applicant. This proposed rule would eliminate the outdated application fee language in the existing regulation. Also as noted earlier, since 1992, we have allowed the applicant to preauthorize an expenditure for the testing and evaluation that is associated with an application. This permits us to begin immediate evaluation work if no other applications are awaiting initial actions. This rulemaking would add regulatory language that continues to allow applicants the option to pre-authorize an expenditure for testing and evaluation that is associated with an application. VerDate jul<14>2003 16:45 Aug 08, 2005 Jkt 205001 Furthermore, no provision in this rulemaking would diminish the health or safety of U.S. miners. B. Regulatory Flexibility Act and Small Business Regulatory Enforcement Fairness Act The Regulatory Flexibility Act (RFA) requires regulatory agencies to consider a rule’s economic impact on small entities. Under the RFA, we must use the Small Business Administration’s (SBA’s) criterion for a small entity in determining a rule’s economic impact unless, after consultation with the SBA Office of Advocacy, we established an alternative definition for a small entity and publish that definition in the Federal Register for notice and comment. This proposed rule would apply to persons or entities applying for approval of products used in the mining industry. These applicants operate in industries involved in measurement, analysis, or controlling instruments; photographic instruments; commercial and industrial lighting fixtures; conveyors; or mining equipment. SBA’s definition of a small business for these industries is 500 or fewer employees. Therefore, we examined the impact on applicants which have 500 or fewer employees and seek MSHA approval for mining products. C. Factual Basis for Certification Using SBA’s definition of a small entity, there are no annual cost increases or savings to applicants affected by this rulemaking. Therefore, we concluded that this proposed rule would not have a significant economic impact on a substantial number of small entities. V. Other Regulatory Matters A. Unfunded Mandates Reform Act of 1995 This proposed rule does not include any Federal mandate that may result in increased expenditures by State, local, or tribal governments, nor does it increase private sector expenditures by more than $100 million annually, nor does it significantly or uniquely affect small governments. Accordingly, the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501 et seq.) requires no further agency action or analysis. B. Treasury And General Government Appropriations Act of 1999, Assessment of Federal Regulations and Policies on Families This proposed rule would have no effect on family well-being or stability, marital commitment, parental rights or authority, or income or poverty of families and children. Accordingly, PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 Section 654 of the Treasury and General Government Appropriations Act of 1999 (5 U.S.C. 601 note) requires no further agency action, analysis, or assessment. C. Executive Order 12630 Government Actions and Interference With Constitutionally Protected Property Rights This proposed rule would not implement a policy with takings implications. Accordingly, Executive Order 12630, Governmental Actions and Interference With Constitutionally Protected Property Rights, requires no further agency action or analysis. D. Executive Order 12988 Civil Justice Reform This proposed rule was drafted and reviewed in accordance with Executive Order 12988, Civil Justice Reform. The proposed rule was written to provide a clear legal standard for affected conduct and was carefully reviewed to eliminate drafting errors and ambiguities, so as to minimize litigation and undue burden on the Federal court system. We have determined that this proposed rule would meet the applicable standards provided in Section 3 of Executive Order 12988. E. Executive Order 13045 Protection of Children From Environmental Health Risks and Safety Risks This proposed rule would have no adverse impact on children. Accordingly, Executive Order 13045, Protection of Children From Environmental Health Risks and Safety Risks, as amended by Executive Orders 13229 and 13296, requires no further agency action or analysis. F. Executive Order 13132 Federalism This proposed rule does not have ‘‘federalism implications’’ because it does 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, Executive Order 13132, Federalism, requires no further agency action or analysis. G. Executive Order 13175 Consultation and Coordination With Indian Tribal Governments This proposed rule does not have ‘‘tribal implications’’ because it does 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 E:\FR\FM\09AUP2.SGM 09AUP2 Federal Register / Vol. 70, No. 152 / Tuesday, August 9, 2005 / Proposed Rules government and Indian tribes.’’ Accordingly, Executive Order 13175, Consultation and Coordination With Indian Tribal Governments, requires no further agency action or analysis. H. Executive Order 13211 Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use 2. Section 5.10 is amended by revising paragraph (a) to read as follows: I. Executive Order 13272 Proper Consideration of Small Entities in Agency Rulemaking We thoroughly reviewed this proposed rule to assess and take appropriate account of its potential impact on small businesses, small governmental jurisdictions, and small organizations. We determined and certified that this proposed rule would not have a significant economic impact on a substantial number of small entities. Dated: July 29, 2005. David G. Dye, Deputy Assistant Secretary of Labor for Mine Safety and Health. List of Subjects 30 CFR Part 5 Fees, Mine safety and health. 30 CFR Parts 15 and 18 Fees, Mine safety and health, Reporting and recordkeeping requirements. 30 CFR Parts 19, 20, 22, 27, and 28 Fees, Mine safety and health. 30 CFR Parts 23, 33, 35, and 36 Fees, Mine safety and health, Reporting and recordkeeping requirements, Research. Accordingly, Chapter I of Title 30 of the Code of Federal Regulations is proposed to be amended as follows: 16:45 Aug 08, 2005 Jkt 205001 1. The authority citation for part 5 continues to read as follows: Authority: 30 U.S.C. 957. This proposed rule regulates both the coal and metal/nonmetal mining sectors. Because this proposed rule would result in no yearly net cost to the coal mining industry, the proposed rule would neither reduce the supply of coal nor increase its price. This proposed rule is not a ‘‘significant energy action’’ because it would not be ‘‘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, Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use, requires no further agency action or analysis. VerDate jul<14>2003 PART 5—FEES FOR TESTING, EVALUATION, AND APPROVAL OF MINING PRODUCTS § 5.10 Purpose and scope. (a) This part establishes a system under which MSHA charges a fee for services provided under this subchapter. This part includes the management and calculation of these fees. * * * * * § 5.20 [Removed] 3. Section 5.20 is removed. 4. Section 5.30 is revised to read as follows: § 5.30 Fee calculation. (a) MSHA bases fees under this subchapter on the direct and indirect costs of the services provided, except that part 15 fees for services provided to MSHA by other organizations may be set by those organizations. (b) Except as provided in paragraphs (b)(1) and (2) of this section, upon 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 under this subchapter, and may further choose to pre-authorize either a maximum dollar amount or an expenditure without a specified maximum amount. All applications containing a preauthorization statement will immediately 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 pre- PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 46351 authorize a fixed dollar amount, set by MSHA, for processing the application. (c) 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. (d) If the actual cost of processing the application is less than MSHA’s maximum fee estimate, MSHA will charge the actual cost. 5. Section 5.40 is revised to read as follows: § 5.40 Fee administration. Applicants will be billed for all fees, including actual travel expenses, if any, when processing of the application is completed. Invoices will contain specific payment instructions, including the address to mail payments and authorized methods of payment. PART 15—REQUIREMENTS FOR APPROVAL OF EXPLOSIVES AND SHEATHED EXPLOSIVE UNITS 6. The authority citation for part 15 continues to read as follows: Authority: 30 U.S.C. 957. 7. Section 15.3 is revised to read as follows: § 15.3 Observers at tests and evaluation. Only personnel of MSHA, designees of MSHA, representatives of the applicant, and such other persons as agreed upon by MSHA and the applicant shall be present during tests and evaluations conducted under this part. PART 18—ELECTRIC MOTOR-DRIVEN MINE EQUIPMENT AND ACCESSORIES 8. The authority citation for part 18 continues to read as follows: Authority: 30 U.S.C. 957, 961. 9. Section 18.6 (a)(1) is revised to read as follows: § 18.6 Application procedures and requirements. (a)(1) Investigation leading to approval, certification, extension thereof, or acceptance of hose or conveyor belt, will be undertaken by E:\FR\FM\09AUP2.SGM 09AUP2 46352 Federal Register / Vol. 70, No. 152 / Tuesday, August 9, 2005 / Proposed Rules MSHA only pursuant to a written application. The application shall be accompanied by all necessary drawings, specifications, descriptions, and related materials, as set out in this part. Fees calculated in accordance with part 5 of this title shall be submitted in accordance with § 5.40. * * * * * PART 22—PORTABLE METHANE DETECTORS 14. The authority citation for part 22 continues to read as follows: Authority: 30 U.S.C. 957, 961. 15. In § 22.4 the heading and paragraph (a) are revised to read as follows: PART 19—ELECTRIC CAP LAMPS § 22.4 Application procedures and requirements. 10. The authority citation for part 19 continues to read as follows: (a) Before MSHA will undertake the active investigation of leading to approval of any methane detector, the applicant shall make application by letter for an investigation leading to approval of the detector. This application shall be sent to: U.S. Department of Labor, Mine Safety and Health Administration, Approval and Certification Center, RR #1, Box 251, Industrial Park Road, Triadelphia, West Virginia 26059, together with the required drawings, one complete detector, and instructions for its operation. Fees calculated in accordance with part 5 of this title shall be submitted in accordance with § 5.40. * * * * * Authority: 30 U.S.C. 957, 961. 11. In § 19.3 the heading and paragraph (a) are revised to read as follows: § 19.3 Application procedures and requirements. (a) Before MSHA will undertake the active investigation leading to approval of any lamp, the applicant shall make application by letter for an investigation leading to approval of the lamp. This application shall be sent to: U.S. Department of Labor, Mine Safety and Health Administration, Approval and Certification Center, RR #1, Box 251, Industrial Park Road, Triadelphia, West Virginia 26059, together with the required drawings, one complete lamp, and instructions for its operation. Fees calculated in accordance with part 5 of this title shall be submitted in accordance with § 5.40. * * * * * PART 20—ELECTRIC MINE LAMPS OTHER THAN STANDARD CAP LAMPS 12. The authority citation for part 20 continues to read as follows: Authority: 30 U.S.C. 957, 961. 13. In § 20.3 the heading and paragraph (a) are revised to read as follows: § 20.3 Application procedures and requirements. (a) Before MSHA will undertake the active investigation of any lamp, the applicant shall make application by letter for an investigation of the lamp. This application shall be sent to: U.S. Department of Labor, Mine Safety and Health Administration, Approval and Certification Center, RR #1, Box 251, Industrial Park Road, Triadelphia, West Virginia 26059, together with the required drawings, one complete lamp, and instructions for its operation. Fees calculated in accordance with part 5 of this title shall be submitted in accordance with § 5.40. * * * * * VerDate jul<14>2003 16:45 Aug 08, 2005 Jkt 205001 PART 23—TELEPHONES AND SIGNALING DEVICES 16. The authority citation for part 23 continues to read as follows: Authority: 30 U.S.C. 957, 961. 17. In § 23.3 the heading and paragraph (a) are revised to read as follows: § 23.3 Application procedures and requirements. (a) Before MSHA will undertake the active investigation of leading to approval of any telephone or signaling device, the applicant shall make application by letter for an investigation leading to approval of the device. This application shall be sent to: U.S. Department of Labor, Mine Safety and Health Administration, Approval and Certification Center, RR #1, Box 251, Industrial Park Road, Triadelphia, West Virginia 26059, together with the required drawings, one complete telephone or signaling device, and instructions for its operation. Fees calculated in accordance with part 5 of this title shall be submitted in accordance with § 5.40. * * * * * PART 27—METHANE-MONITORING SYSTEMS 18. The authority citation for part 27 continues to read as follows: PO 00000 Authority: 30 U.S.C. 957, 961. Frm 00008 Fmt 4701 Sfmt 4702 19. In § 27.4 the heading and paragraph (a)(1) are revised to read as follows: § 27.4 Application procedures and requirements. (a)(1) No investigation or testing for certification will be undertaken by MSHA except pursuant to a written application, accompanied by all drawings, specifications, descriptions, and related materials. The application and all related matters and correspondence shall be addressed to: U.S. Department of Labor, Mine Safety and Health Administration, Approval and Certification Center, RR #1, Box 251, Industrial Park Road, Triadelphia, West Virginia 26059. Fees calculated in accordance with part 5 of this title shall be submitted in accordance with § 5.40. * * * * * § 27.9 [Amended] 20. Section 27.9 is amended by revising the first sentence to read ‘‘The date of receipt of an application will determine the order of precedence for investigation and testing.’’ PART 28—FUSES FOR USE WITH DIRECT CURRENT IN PROVIDING SHORT-CIRCUIT PROTECTION FOR TRAILING CABLES IN COAL MINES 21. The authority citation for part 28 continues to read as follows: Authority: 30 U.S.C. 957, 961. § 28.10 [Amended] 22. Section 28.10, paragraph (c), is amended by removing the final sentence and adding ‘‘Fees calculated in accordance with part 5 of this title shall be submitted in accordance with § 5.40.’’ in its place. PART 33—DUST COLLECTORS FOR USE IN CONNECTION WITH ROCK DRILLING IN COAL MINES 23. The authority citation for part 33 continues to read as follows: Authority: 30 U.S.C. 957, 961. 24. Section 33.3 is revised to read as follows: § 33.3 Consultation. By appointment, applicants or their representatives may visit the Approval and Certification Center, Industrial Park Road, Dallas Pike, Triadelphia, WV 26059, to discuss with MSHA personnel proposed designs of equipment to be submitted in accordance with the regulations of this part. No charge is made for such consultation and no written report thereof will be made to the applicant. E:\FR\FM\09AUP2.SGM 09AUP2 Federal Register / Vol. 70, No. 152 / Tuesday, August 9, 2005 / Proposed Rules 25. In § 33.6 the heading and paragraph (a)(1) are revised to read as follows: § 33.6 Application procedures and requirements. (a)(1) No investigation or testing for certification will be undertaken by MSHA except pursuant to a written application (except as provided in paragraph (e) of this section), accompanied by all prescribed drawings, specifications, and related materials. The application and all related matters and correspondence shall be addressed to: U.S. Department of Labor, Mine Safety and Health Administration, Approval and Certification Center, RR #1, Box 251, Industrial Park Road, Triadelphia, West Virginia 26059. Fees calculated in accordance with part 5 of this title shall be submitted in accordance with § 5.40. * * * * * Authority: 30 U.S.C. 957, 961. Authority: 30 U.S.C. 957, 961. 27. In § 35.6 the heading and paragraph (a)(1) are revised to read as follows: § 35.6 Application procedures and requirements. (a)(1) No investigation or testing will be undertaken by MSHA except pursuant to a written application accompanied by all descriptions, specifications, test samples, and related materials. The application and all related matters and correspondence shall be addressed to: U.S. Department of Labor, Mine Safety and Health Administration, Approval and Certification Center, RR #1, Box 251, Industrial Park Road, Triadelphia, West Virginia 26059. Fees calculated in accordance with part 5 of this title shall be submitted in accordance with § 5.40. * * * * * PART 35—FIRE-RESISTANT HYDRAULIC FLUIDS PART 36—APPROVAL REQUIREMENTS FOR PERMISSIBLE MOBILE DIESEL-POWERED TRANSPORTATION EQUIPMENT 26. The authority citation for part 35 continues to read as follows: 29. In § 36.6 the heading and paragraph (a)(1) are revised to read as follows: § 36.6 Application procedures and requirements. (a)(1) No investigation or testing will be undertaken by MSHA except pursuant to a written application accompanied by all descriptions, specifications, test samples, and related materials. The application and all related matters and correspondence shall be addressed to: U.S. Department of Labor, Mine Safety and Health Administration, Approval and Certification Center, RR #1, Box 251, Industrial Park Road, Triadelphia, West Virginia 26059. Fees calculated in accordance with part 5 of this title shall be submitted in accordance with § 5.40. * * * * * 28. The authority citation for part 36 continues to read as follows: VerDate jul<14>2003 16:45 Aug 08, 2005 Jkt 205001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 46353 [FR Doc. 05–15494 Filed 8–8–05; 8:45 am] BILLING CODE 4510–43–P E:\FR\FM\09AUP2.SGM 09AUP2

Agencies

[Federal Register Volume 70, Number 152 (Tuesday, August 9, 2005)]
[Proposed Rules]
[Pages 46345-46353]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-15494]



Federal Register / Vol. 70, No. 152 / Tuesday, August 9, 2005 / 
Proposed Rules

[[Page 46345]]


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DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Parts 5, 15, 18, 19, 20, 22, 23, 27, 28, 33, 35, and 36

RIN 1219-AB38


Fees for Testing, Evaluation, and Approval of Mining Products

AGENCY: Mine Safety and Health Administration (MSHA), Labor.

ACTION: Proposed rule.

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SUMMARY: We are proposing to amend our regulations to reflect 
established policy and procedures for administering fees for testing, 
evaluation, and approval of equipment and materials manufactured for 
use in the mining industry. This proposed rule would eliminate the 
application fee, allow applicants to pre-authorize expenditures for 
processing applications, allow outside organizations conducting part 15 
testing (explosives and sheathed explosive units) on our behalf to set 
fees for this testing, incorporate changes concerning our programs and 
organization, and make non-substantive conforming changes to related 
regulations.

DATES: Comments must be received by October 11, 2005.

ADDRESSES: Comments must include Regulation Identifier Number (RIN) 
1219-AB38 and may be submitted by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     E-mail to comments@zzmsha.gov. Please include RIN 1219-
AB38 in the subject line of the message.
    If you are unable to submit comments by e-mail or through the 
Federal eRulemaking portal, please identify your comments by RIN 1219-
AB38 and submit them by any of the following methods:
     Facsimile: (202) 693-9441.
     Regular Mail or Hand Delivery: MSHA, Office of Standards, 
Regulations, and Variances, 1100 Wilson Blvd., Room 2313, Arlington, 
Virginia 22201-3939.
    Access to Docket: We post all comments received without change, 
including any personal information provided, at https://www.msha.gov at 
the ``Rules & Regs'' link. Additionally, we post this document, our 
Program Policy Manual, and all Program Information Bulletins, Standard 
Administrative Procedures, and Program Policy Letters discussed in the 
SUPPLEMENTARY INFORMATION section of this preamble on our Web site at 
https://www.msha.gov. The public docket may be viewed at our Office of 
Standards, Regulations, and Variances, 1100 Wilson Blvd., Room 2350, 
Arlington, Virginia.

FOR FURTHER INFORMATION CONTACT: Rebecca J. Smith, Acting Director, 
Office of Standards, Regulations, and Variances at 202-693-9440 
(voice), 202-693-9441 (fax), or smith.rebecca@dol.gov (e-mail).

SUPPLEMENTARY INFORMATION: 

I. Direct Final Rule and Concurrent, Identical Proposed Rule

    We have determined that the subject of this rulemaking is suitable 
for a direct final rule. Since the rule requirements are not 
controversial and primarily concern agency procedures, no significant 
adverse comments are anticipated. Therefore, concurrent with this 
proposed rule, a separate, identical direct final rule is published in 
today's issue of the Federal Register. The duplicate direct final rule 
will speed notice and comment rulemaking in the event we receive no 
significant adverse comments to this proposed rule. All interested 
parties should comment at this time because we will not initiate an 
additional comment period. If no significant adverse comments to this 
proposed rule are received on or before October 11, 2005, the direct 
final rule will become effective November 7, 2005, without further 
notice.
    If significant adverse comments are received, we will publish a 
timely notice in the Federal Register withdrawing the direct final 
rule, and will then proceed with the rulemaking by addressing the 
comments and developing a final rule from this proposed rule. For 
purposes of withdrawing 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 the accompanying direct 
final rule, we will 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 will 
not be considered significant and adverse unless the comment explains 
how this rule would be ineffective without the addition.

II. Background

A. Rulemaking History

    The Federal Mine Safety and Health Act of 1977 (the Mine Act) (Pub. 
L. 91-173, as amended by Pub. L. 95-164) gives the Mine Safety and 
Health Administration responsibility for prescribing the technical 
design, construction, and evaluation criteria for certain products used 
in underground mines and for testing and approving these products so 
that the products will not cause a mine fire explosion or a mine fire. 
Most of the Mine Act's regulations for testing and approving these 
products relate to ``permissible'' equipment. The Mine Act's 
implementing regulations at Title 30 of the Code of Federal Regulations 
(30 CFR), parts 6 through 36 contain procedures by which applicants may 
apply for and have equipment approved as ``permissible,'' as defined in 
section 318 of the Mine Act, 30 U.S.C. 878, for use in mines.
    On May 8, 1987, we published a final rule (52 FR 17506) adding 30 
CFR part 5 (Fees for testing, evaluation, and approval of mining 
products). This rule created a uniform method for calculating fees and 
established specific procedures for administering the fee program. 
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. 
This proposed rule would update part 5 to reflect these initiatives.
    Additionally, this proposed rule would remove a number of 
references to the Department of the Interior's former Bureau of Mines, 
which was dissolved in 1996 (Pub. L. 104-99). Prior to that time, the 
Bureau of Mines conducted part 15 testing on our behalf. NIOSH has 
assisted us with part 15 testing; however, NIOSH no longer has the 
resources to conduct these tests. This proposed rule would allow us to 
use other organizations to conduct part 15 testing.

B. Scope of Approval Activities

    The mining products that we approve range from small electronic 
devices to large complex mining systems. Our Approval and Certification 
Center (Center) evaluates and tests these mining products and issues, 
among other things, ``approvals,''

[[Page 46346]]

``certifications,'' ``acceptances,'' ``extensions,'' and ``field 
modifications.''
    Under the narrow definition of ``approval,'' approvals are issued 
to a completely assembled machine or system or to an explosive. Under 
this definition, approval of a mining product constitutes a license 
authorizing the approval-holder to build and distribute the product for 
use in underground mines, and to advertise the product as ``MSHA-
approved.'' The approval-holder accepts the responsibility for 
constructing or formulating the product in exact accordance with all 
drawings and specifications that accompany the approval.
    A ``certification'' is issued to a component or sub-system of a 
completely assembled machine or system. An ``acceptance'' is issued for 
materials and certain other products. An ``extension'' of an approval 
or certification allows the applicant to make design modifications to 
the product. A ``field modification'' allows the owner of an MSHA 
approved piece of equipment to make specific changes to approved 
electrical equipment.
    A ``certification'' is issued to a component or sub-system of a 
completely assembled machine or system. An ``acceptance'' is issued for 
materials and certain other products. An ``extension'' of an approval 
or certification allows the applicant to make design modifications to 
the product. A ``field modification'' allows the owner of an MSHA 
approved piece of equipment to make specific changes to approved 
electrical equipment.
    Additionally, we administer a number of voluntary programs which 
are covered by this regulation to evaluate products to determine 
conformance to safety requirements of 30 CFR parts 56, 57, 75, and 77, 
or to determine the product's suitability for specific mining 
applications. For example, we use these voluntary programs to evaluate 
ground wire monitors, lighting systems, sealants and stopping systems, 
conveyor belt lagging material, belt wipers, and hydraulic hose and 
fire suppression agents and systems.
    Except where stated otherwise, we use the term ``approval'' in this 
preamble and regulation in a broad sense to represent our formal 
recognition of products that are approved, certified, or otherwise 
formally accepted for use in mining operations.
    Our regulations also allow other parties to perform product testing 
under certain circumstances. Part 6 of 30 CFR allows independent 
laboratories to test and evaluate certain mining products. It also 
permits MSHA to approve equipment designed to non-MSHA product safety 
standards once we have determined that the standard(s) can provide at 
least the same degree of protection or can be modified to provide at 
least the same degree of protection as 30 CFR requirements. Part 7 
allows the applicant or a third party to test certain products for 
which the testing requirements are objective in nature and can be 
routinely conducted by personnel knowledgeable in the particular 
product line or category. We retain the responsibility for evaluating 
the test results and issuing the approval for all products tested and 
evaluated under parts 6 and 7.

C. The Approval Process

    The approval process begins with the filing of an application. 
Parts 6 through 36 provide instructions for preparing and filing 
applications, which can vary with the type of mining product and type 
of approval requested. We administratively review each new application, 
and upon determination that the application is in order, prepare a fee 
estimate, if one is required. Our technical experts then thoroughly 
investigate, test, and evaluate the product.
    Following successful completion of the evaluation and testing, we 
provide the applicant with a written notice that the product meets all 
the applicable requirements.

III. Section-by-Section Analysis

A. Section 5.10 Purpose and Scope

    Existing section 5.10 sets out the purpose and scope of part 5. 
Revised section 5.10 remains substantially unchanged from the existing 
regulation. The term ``testing, evaluation and approval'' in existing 
paragraph 5.10(a) would be changed to ``services provided under this 
subchapter.'' This change would more clearly convey that part 5 applies 
to all services which the Center provides and for which a fee is 
charged. These services include ``approvals'' as defined in both the 
narrow and broad sense as explained earlier in Part II B, ``Scope of 
Approval Activities.'' The term ``Except as provided in section 
5.30(a)'' would be added to the beginning of 5.10(b) to clarify that 
outside organizations conducting part 15 testing on our behalf may set 
the fees for this testing. These outside organizations will likely be 
government agencies or non-government organizations with laboratory 
facilities capable of performing part 15 tests.

B. Section 5.20 Effective Date

    Existing section 5.20 established the effective date of the 1987 
rule. Such a notice is not needed at this time because the Federal 
Register document containing the final rule would provide the effective 
date for the rule. For this reason, this proposed rule would delete 
existing Sec.  5.20, which established the effective date of the 1987 
rule.

C. Section 5.30 Fee Calculation

    Existing paragraph 5.30(a) imposes a non-refundable application 
fee. This fee was intended to recover costs for initial review and 
administrative processing of the application in the event the applicant 
cancelled the action prior to commencement of the technical evaluation. 
Upon completion of the evaluation and testing, this payment was 
credited against the total charges billed to the applicant.
    Paying and processing this fee placed an additional administrative 
burden on the applicants and on us, and delayed the approval process. 
The applicant incurred the burden of remitting two payments during the 
application process, and we expended resources to process both 
payments. The technical evaluation could not begin until our finance 
office confirmed that the payment for the application fee had been 
posted. After reviewing this activity, we issued Program Policy Letter 
(PPL) No. 96-II-1, ``Waiver of the $100 Application Fee for Testing, 
Evaluation, and Approval of Mining Products,'' effective January 1, 
1996. This policy is now incorporated into our Program Policy Manual. 
In proposed paragraph 5.30(a), the requirement for an application fee 
would be removed to reflect our elimination of this fee.
    Proposed paragraph 5.30(a) would also incorporate and revise 
provisions from existing paragraphs 5.30(b) and (e). The provision from 
revised paragraph 5.30(b), which lists criteria for determining hourly 
fees, would contain three revisions. First, the term ``testing, 
evaluation and approval'' would be in existing paragraph 5.30(b) is 
changed to ``services provided under this subchapter'' and moved to 
revised paragraph 5.30(b). Second, the existing language concerning 
direct and indirect costs that is repeated from Section 5.10(b)(1) 
would be omitted to eliminate redundancy. Third, since these criteria 
for determining hourly fees also apply to any flat rate fees that we 
would establish, the term ``hourly fees'' would be changed to ``fees.'' 
As noted earlier, when the existing rule was promulgated, we charged 
flat rate fees for certain services for which

[[Page 46347]]

turnaround time was predictable and stable. The shift to the current 
system of hourly fees was driven partially by concerns about the 
equitable distribution of costs among applicants.
    As mentioned above, the provision in existing paragraph 5.30(e), 
concerning fees for tests conducted for MSHA by the former Bureau of 
Mines under part 15 (Requirements for approval of explosives and 
sheathed explosive units) would be incorporated into revised paragraph 
5.30(a) and substantially revised. The existing paragraph provides that 
``Tests conducted by the Bureau of Mines for MSHA under part 15 are 
flat rate items.'' When the existing rule was promulgated, the former 
Bureau of Mines conducted these tests on our behalf. After the Bureau 
was dissolved, its facility for conducting explosives testing was 
transferred first to the Department of Energy and subsequently to NIOSH 
as a purely research function (30 U.S.C. 1 note).
    In January 1996 we received one application for the full range of 
part 15 tests. Since then we have received six part 15 applications, 
all for minor tests. During this time we relied on NIOSH to conduct 
part 15 tests; however, NIOSH did not have the facilities for 
conducting part 15 chemical analysis tests, and contracted another 
organization to conduct these tests. That organization subsequently 
ceased doing chemical analysis tests. NIOSH recently informed us that 
they no longer have the resources to perform all the part 15 tests. 
Since we do not have the facilities to conduct these tests, we must 
contract with other organizations to do any future part 5 testing. 
Revised paragraph 5.30(a) would allow organizations conducting part 15 
testing on our behalf to set the fees for these tests. Since we cannot 
predict what fees the outside organizations will charge for any of 
these tests, the regularly published fee schedule, required under 
paragraph 5.50, would no longer specify the fees for part 15 testing.
    Proposed paragraph 5.30(a) would remove the term ``Bureau of 
Mines'' as well as the requirement to charge flat rate fees for part 15 
testing. The proposed paragraph would provide that ``part 15 fees for 
services provided to MSHA by other organizations may be set by those 
organizations.'' That is, the proposed rule language would allow us to 
pass on the cost of services provided to MSHA by other organizations so 
that these costs could be billed to the applicant.
    Existing paragraph 5.30(b), as explained above, would also be moved 
to revised paragraph 5.30(a). Revised paragraph 5.30(b) would contain 
the provision from existing paragraph 5.30(c) concerning our maximum 
fee estimate.
    Under existing paragraph 5.30(c), we prepare an estimate of the 
maximum fees that would be incurred during evaluation of the product. 
The preamble to the existing rule, at 52 FR 17509, indicates our intent 
to provide this estimate to the applicant before beginning the 
technical evaluation ``to provide the applicant the opportunity to 
discuss the estimate or withdraw the application.'' Existing paragraph 
5.30(c) further provides that if unforeseen circumstances are 
discovered during the evaluation that would result in the actual fees 
exceeding this estimate, the applicant has the choice of canceling the 
action and paying for all work done up to the time of the cancellation, 
or approving our estimated maximum amount. If the estimate exceeds the 
actual fees, the applicant is charged the lesser amount. An exception 
to this provision exists for applications that were submitted under our 
two former flat rate fee programs. These services were charged a 
predetermined amount and therefore no estimate was provided. These two 
programs are outlined in detail below in the discussion of existing 
paragraph 5.30(d).
    In 1991, we revised our Program Policy Manual to allow applicants 
seeking approval of longwall equipment the option of pre-authorizing 
fees for testing and evaluation. The pre-authorization statement, 
submitted as part of the application, allowed the technical evaluation 
to begin immediately. At the request of applicants seeking testing and 
evaluation of other products, we expanded the policy to allow a pre-
authorization option for all products submitted for approval. We 
published this policy in Program Policy Letter No. 92-II-3, ``30 CFR 
Part 5 Fee Pre-Authorization,'' effective June 1, 1992. Under this 
policy, which is currently incorporated into our Program Policy Manual, 
applicants, other than those seeking modifications under our program 
for expedited modifications, may elect to pre-authorize an expenditure 
for fees by submitting a pre-authorization statement with the 
application. The applicant must either specify a maximum authorized 
expenditure for fees, or authorize an expenditure with no maximum 
amount. The latter option authorizes us to perform all testing and 
evaluation services that we deem necessary.
    Under existing policy, we determine whether or not to prepare a 
maximum fee estimate and when to begin the technical evaluation using 
the following guidelines:
    No pre-authorization statement: We prepare a maximum fee estimate 
which the applicant must authorize before the technical evaluation 
begins.
    Pre-authorized maximum expenditure: The applicant provides us with 
a maximum pre-authorized amount. We prepare a maximum fee estimate and 
at the same time forward the application for the technical evaluation. 
If no other applications are waiting in the queue, the technical 
evaluation may begin immediately. Where our estimate exceeds the pre-
authorized amount, the applicant has the choice of canceling the action 
and paying for all work done up to the time of the cancellation, or 
approving our estimated maximum amount.
    Pre-authorized expenditure with no stated maximum: The applicant 
pre-authorizes an expenditure with no stated maximum amount. We forward 
the application immediately for the technical evaluation, and the 
applicant receives no estimated maximum fee estimate.
    The revised paragraph would modify provisions in existing paragraph 
5.30(c) to provide exceptions for pre-authorized fees and flat rate 
programs. Paragraph 5.30(b)(1) would be added to reflect our policy of 
allowing applicants the option of pre-authorizing fees.
    Paragraph 5.30(b)(2) would be added to reflect our policy of 
requiring a specific pre-authorized expenditure for applications 
submitted under the Revised Application Modification Program (RAMP). 
This program is discussed in the narrative for Sec.  5.30(d).
    Finally, the existing rule uses the term ``estimated maximum fee 
(cap).'' For a number of reasons, including continuity, we no longer 
use the term ``cap'' to refer to this amount. The proposed rule would 
replace this term wherever it appears in the rule with the term 
``maximum fee estimate.''
    The provisions of existing paragraph 5.30(c) address:
    (1) Our determination of a maximum fee estimate prior to the start 
of technical evaluation;
    (2) Unforeseen circumstances during the technical evaluation which 
could result in the actual cost exceeding the maximum fee estimate; and
    (3) The situation where the maximum fee estimate exceeds the actual 
cost.
    The first provision would be moved to paragraph 5.30(b), and is 
discussed above. The second provision would remain in paragraph 
5.30(c), and third provisions would be moved to paragraph 5.30(d).

[[Page 46348]]

    The second provision, involving unforeseen circumstances during the 
technical evaluation that could result in the actual cost exceeding the 
maximum fee estimate, requires us to provide the applicant with a 
revised maximum fee estimate for completing the evaluation. The 
applicant may then either cancel the evaluation or authorize the 
revised fee estimate. Under our policy, if the applicant chooses to 
cancel the evaluation, fees will be charged for work performed up to 
the cancellation. If the applicant authorizes the new maximum fee 
estimate, we will continue testing and evaluating the product.
    Proposed paragraph 5.30(c) would leave this provision substantially 
unchanged, but the concept would applied to any expenditure approved by 
the applicant, whether that expenditure is the estimated maximum fee or 
the applicant's pre-authorized expenditure. This provision is not 
applicable where the pre-authorized expenditure has no stated maximum. 
Additionally, the term ``cap'' would be changed to ``maximum fee 
estimate.''
    Existing paragraph 5.30(d) addresses the former Stamped 
Notification Acceptance Program (SNAP) and Stamped Revision Acceptance 
(SRA) program. These programs were developed to expedite the acceptance 
of certain minor changes to previously approved products, and required 
only a few documents to be submitted with the application. SNAP 
addressed acceptance of single changes to an approved product, 
including changes that pertained to the technical requirements of an 
approved product without adversely affecting permissibility. SRA 
addressed acceptance of single or multiple changes to an approved 
product, provided the change(s) did not affect the technical 
requirements. The Center charged a flat rate fee for services provided 
under these programs.
    Over time, using and administering both of these programs created 
inefficiency and unnecessary duplication. Applicants were often 
uncertain which program (e.g., SNAP, SRA, or an extension of approval) 
to use for requesting changes in the design of approved products. This 
confusion often led to administrative errors and the need to re-submit 
the application. Further, since SNAP applied to single changes to 
approved products, a separate application was required for each 
specific proposed change. In 1998, both programs were replaced with the 
Revised Approval Modification Program (RAMP). Under RAMP, requests for 
acceptance of minor changes to approved products are made by submitting 
a letter of application describing the changes, along with drawings and 
specifications that fully describe each change. Services provided under 
RAMP are charged an hourly fee, and the letter of application must 
contain a statement authorizing a minimum dollar amount set by the 
Agency. A discussion of RAMP was included in the notice of fee 
adjustments, published on December 18, 1998 (63 FR 70163), and in 
Standard Application Procedure ASAP1005, ``Revised Approval 
Modification Program (RAMP) Application Procedure'' published on March 
28, 2000.
    Revised paragraph 5.30(d) would remove the SNAP and SRA 
requirements, and would retain the provision in existing paragraph 
5.30(c) concerning applications for which the estimated maximum fee 
exceeds the actual hourly fee. The existing provision requires us to 
charge the actual fee. Proposed paragraph 5.30(d) leaves this provision 
substantially unchanged; however, the scope would be expanded to 
include instances where the actual hourly fee exceeds any expenditure 
approved by the applicant, whether that expenditure is the estimated 
maximum fee or the applicant's pre-authorized expenditure.
    Existing paragraph 5.30(e) addresses fees for testing under part 
15. The proposed rule would move this provision to paragraph 5.30(a) 
and would delete paragraph 5.30(e) entirely. The proposed revisions to 
part 15 fees are discussed in the narrative for proposed paragraph 
5.30(a).

D. 5.40 Fee Administration

    Existing paragraph 5.40(a) provides applicants with detailed 
instructions for submitting the application fee. Existing paragraph (b) 
concerns the method of paying for services provided under SNAP and SRA. 
Since the application fee, SNAP, and SRA have been eliminated, as 
discussed above, these paragraphs are removed.
    Existing paragraph 5.40(a) provides applicants with detailed 
instructions for submitting the application fee. Existing paragraph 
5.40(b) concerns the method of paying for services provided under SNAP 
and SRA. Since the application fee, SNAP, and SRA have been eliminated, 
as discussed above, these paragraphs are removed. Existing paragraph 
5.40(c) addresses billing procedures for services which are billed at 
an hourly rate. The existing paragraph provides that applicants are 
billed when processing of the application is complete; any actual 
travel expenses are included in the bill; and the invoice will contain 
specific payment instructions. Our current regulations in 30 CFR Parts 
18 through 36 allow payment for part 5 fees only by check, bank draft, 
or money order.
    Proposed section 5.40 would apply the billing procedures in 
existing paragraph 5.40(c) to all fees administered under part 5, and 
would inform applicants that invoices will contain specific payment 
instructions, including the address to mail payments and authorized 
methods of payment.
    Applicants had informally requested that MSHA allow payment by 
credit card as a means of expediting the payment process and decreasing 
administrative costs to applicants. MSHA determined that this option 
can benefit both the applicant and the government, and recently began 
accepting payments by credit card. Proposed paragraph 5.40 would allow 
MSHA the flexibility to accept credit card payment as an authorized 
method of payment. The remaining provisions of existing paragraph 
5.40(c) would be substantially unchanged.

E. Overview of Conforming Changes

    Parts 18, 19, 20, 22, 23, 27, 28, 33, 35, and 36 contain detailed 
instructions for submitting applications for approvals and 
certifications. Each part instructs the applicant to send a check, bank 
draft, or money order with the application. The proposed rule would 
remove this instruction, and any other reference to payments submitted 
with applications, to allow these sections to conform to the proposed 
part 5 provisions concerning application fees and payment of fees, and 
to reflect our current policy, as stated in the Program Policy Manual. 
Additionally, the proposed rule would update the Center's address and 
would remove outdated references to the former Bureau of Mines.

F. Section 15.3 Observers at Tests and Evaluations

    The term ``Bureau of Mines, U.S. Department of the Interior'' would 
be replaced with the term ``designees of MSHA.'' As explained in the 
discussion of revised paragraph 5.30(a), the Bureau of Mines no longer 
exists.

G. Section 18.6 Applications

    In paragraph 18.6(a)(1), the term ``accompanied by a check, bank 
draft, or money order, payable to the U.S. Mine Safety and Health 
Administration to cover the fees,'' would be removed from the 
application instructions to reflect our policy of waiving the 
application fee. Additionally, language would be added to specify that 
the procedures for

[[Page 46349]]

payment of fees are found in Sec.  5.40 of the proposed rule.

H. Section 19.3 Applications

    In paragraph (a), the term ``accompanied by a check, bank draft, or 
money order, payable to U.S. Mine Safety and Health Administration, to 
cover all the necessary fees,'' would be removed from the application 
instructions to reflect our policy of waiving the application fee. 
Additionally, language would be added to specify that the procedures 
for payment of fees are found in Sec.  5.40 of the proposed rule.

I. Section 20.3 Applications

    In paragraph (a), the term ``accompanied by a check, bank draft, or 
money order, payable to the U.S. Mine Safety and Health Administration, 
to cover all the necessary fees,'' would be removed from the 
application instructions to reflect our policy of waiving the 
application fee. Additionally, language would be added to specify that 
the procedures for payment of fees are found in Sec.  5.40 of the 
proposed rule.

J. Section 22.4 Applications

    In paragraph (a), the term ``accompanied by a check, bank draft, or 
money order, payable to the U.S. Mine Safety and Health Administration, 
to cover all the necessary fees,'' would be removed from the 
application instructions to reflect our policy of waiving the 
application fee. Additionally, language would be added to specify that 
the procedures for payment of fees are found in Sec.  5.40 of the 
proposed rule.

K. Section 23.3 Applications

    In paragraph (a), the term ``accompanied by a check, bank draft, or 
money order, payable to the U.S. Mine Safety and Health Administration, 
to cover all the necessary fees,'' would be removed from the 
application instructions to reflect our policy of waiving the 
application fee. Additionally, language would be added to specify that 
the procedures for payment of fees are found in Sec.  5.40 of the 
proposed rule.

L. Section 27.4 Applications

    In paragraph (a)(1), the term ``and also a check, bank draft, or 
money order payable to the U.S. Mine Safety and Health Administration, 
to cover the fees'' would be removed from the application instructions 
to reflect our policy of waiving the application fee. Additionally, 
language would be added to specify that the procedures for payment of 
fees are found in Sec.  5.40 of the proposed rule.

M. Section 27.9 Date for Conducting Tests

    The existing section lists the ``application, payment of necessary 
fees, and submission of required material'' as criteria for determining 
the order of testing when more than one application is pending. The 
proposed section would remove the reference to payment of fees and 
would revise the sentence to conform to similar provisions in existing 
Sec.  18.8 (Date for conducting investigation and tests). The proposed 
sentence would read: ``The date of receipt of an application will 
determine the order of precedence for investigation and testing.'' The 
proposed section would reflect our policy of waiving the application 
fee.

N. Section 28.10 Application Procedures

    Existing Sec.  28.10 requires applicants seeking approval of 
certain fuses to submit the fuses to a nationally recognized 
independent testing laboratory for examination, inspection, and testing 
prior to submitting an approval application to the Center. Paragraph 
28.10(c) contains instructions for submitting these laboratory data and 
results to the Center, and includes a requirement that payment for the 
application fee accompany these documents. Proposed paragraph 28.10(c) 
would remove the requirement to send a payment with the laboratory 
documents. This proposed change corresponds to the elimination of the 
application fee. Additionally, language would be added to specify that 
the procedures for payment of fees are found in Sec.  5.40 of the 
proposed rule.

O. Section 33.3 Consultation

    This section contains an outdated address for the Center and a 
reference to the former Bureau of Mines. The proposed section would 
update the Center's address and would replace the term ``Bureau'' with 
``MSHA.''

P. Section 33.6 Applications

    In paragraph 33.6(a)(1), the term ``accompanied by a check, bank 
draft, or money order, payable to the U.S. Mine Safety and Health 
Administration, to cover the fees;'' would be removed from the 
application instructions to reflect our policy of waiving the 
application fee. Additionally, language would be added to specify that 
the procedures for payment of fees are found in Sec.  5.40 of the 
proposed rule.

Q. Section 35.6 Applications

    In paragraph (a)(1), the term ``accompanied by a check, bank draft, 
or money order, payable to the U.S. Mine Safety and Health 
Administration, to cover the fees;'' would be removed from the 
application instructions to reflect our policy of waiving the 
application fee. Additionally, language would be added to specify that 
the procedures for payment of fees are found in Sec.  5.40 of the 
proposed rule.

R. Section 36.6 Applications

    In paragraph (a)(1), the term ``accompanied by a check, bank draft, 
or money order, payable to the U.S. Mine Safety and Health 
Administration, to cover the fees;'' would be removed from the 
application instructions to reflect our policy of waiving the 
application fee. Additionally, language would be added to specify that 
the procedures for payment of fees are found in Sec.  5.40 of the 
proposed rule.

S. Derivation and Distribution Tables

    The following derivation table lists each section number of the 
final rule and the section number of the existing standard from which 
the section is derived.

                            Derivation Table
------------------------------------------------------------------------
                Final rule                       Existing  section
------------------------------------------------------------------------
Removed..................................  5.20.
Removed..................................  5.30(a).
5.30(a)..................................  5.30(b).
5.30(b)..................................  5.30(c).
5.30(c)..................................  5.30(c).
5.30(d)..................................  5.30(c).
Removed..................................  5.30(e).
5.40.....................................  5.40(c).
------------------------------------------------------------------------

    The following distribution table lists each section number of the 
existing standards, and the section number of the final rule which 
contains provisions derived from the corresponding existing section.

                           Distribution Table
------------------------------------------------------------------------
             Existing section                        Final rule
------------------------------------------------------------------------
5.20(a)..................................  Removed.
5.30(a)..................................  Removed.
5.30(b)..................................  5.30(a).
5.30(c)..................................  5.30(b), (c), and (d).
5.30(d)..................................  Removed.
5.30(e)..................................  Removed.
5.40(a)..................................  Removed.
5.40(b)..................................  Removed.
5.40(c)..................................  5.40.
------------------------------------------------------------------------


[[Page 46350]]

IV. Regulatory Impact Analysis

A. Executive Order 12866 Regulatory Planning and Review

Compliance Costs
    Executive Order 12866, as amended by Executive Order 13258, 
requires that regulatory agencies assess both the costs and benefits of 
intended regulations. We have satisfied the requirement of Executive 
Order 12866 for this proposed rule and determined that the proposed 
rule would not have an annual effect of $100 million or more on the 
economy. Therefore, the proposed rule is not an economically 
significant regulatory action pursuant to Sec.  3(f)(1) of Executive 
Order 12866.
    The proposed rule affects applicants who request approval for 
products used in the mining industry. The proposed rule would not 
result in any cost increases or savings to these applicants.
    As noted earlier, existing Sec.  5.30(a) imposes a non-refundable 
standard application fee on each initial application. Since we 
eliminated this application fee in 1996, deleting the application fee 
language from existing Sec.  5.30(a) would not cause applicants to 
incur any costs or cost savings.
Benefits
    The proposed rule would change our existing regulatory language to 
be consistent with our current practices and will continue to allow us 
to process applications in a timely and efficient manner. Thus, new and 
improved products that enhance the safety of the miner will be allowed 
to enter the mine as soon as possible.
    The application fee discussed above was intended to offset 
administrative review costs in the event that the applicant cancelled 
an application prior to commencement of the technical evaluation. We 
eliminated this fee because it tended to lengthen the approval and 
certification process and placed unnecessary burdens on us and the 
applicant. This proposed rule would eliminate the outdated application 
fee language in the existing regulation.
    Also as noted earlier, since 1992, we have allowed the applicant to 
pre-authorize an expenditure for the testing and evaluation that is 
associated with an application. This permits us to begin immediate 
evaluation work if no other applications are awaiting initial actions. 
This rulemaking would add regulatory language that continues to allow 
applicants the option to pre-authorize an expenditure for testing and 
evaluation that is associated with an application.
    Furthermore, no provision in this rulemaking would diminish the 
health or safety of U.S. miners.

B. Regulatory Flexibility Act and Small Business Regulatory Enforcement 
Fairness Act

    The Regulatory Flexibility Act (RFA) requires regulatory agencies 
to consider a rule's economic impact on small entities. Under the RFA, 
we must use the Small Business Administration's (SBA's) criterion for a 
small entity in determining a rule's economic impact unless, after 
consultation with the SBA Office of Advocacy, we established an 
alternative definition for a small entity and publish that definition 
in the Federal Register for notice and comment. This proposed rule 
would apply to persons or entities applying for approval of products 
used in the mining industry. These applicants operate in industries 
involved in measurement, analysis, or controlling instruments; 
photographic instruments; commercial and industrial lighting fixtures; 
conveyors; or mining equipment. SBA's definition of a small business 
for these industries is 500 or fewer employees. Therefore, we examined 
the impact on applicants which have 500 or fewer employees and seek 
MSHA approval for mining products.

C. Factual Basis for Certification

    Using SBA's definition of a small entity, there are no annual cost 
increases or savings to applicants affected by this rulemaking. 
Therefore, we concluded that this proposed rule would not have a 
significant economic impact on a substantial number of small entities.

V. Other Regulatory Matters

A. Unfunded Mandates Reform Act of 1995

    This proposed rule does not include any Federal mandate that may 
result in increased expenditures by State, local, or tribal 
governments, nor does it increase private sector expenditures by more 
than $100 million annually, nor does it significantly or uniquely 
affect small governments. Accordingly, the Unfunded Mandates Reform Act 
of 1995 (2 U.S.C. 1501 et seq.) requires no further agency action or 
analysis.

B. Treasury And General Government Appropriations Act of 1999, 
Assessment of Federal Regulations and Policies on Families

    This proposed rule would have no effect on family well-being or 
stability, marital commitment, parental rights or authority, or income 
or poverty of families and children. Accordingly, Section 654 of the 
Treasury and General Government Appropriations Act of 1999 (5 U.S.C. 
601 note) requires no further agency action, analysis, or assessment.

C. Executive Order 12630 Government Actions and Interference With 
Constitutionally Protected Property Rights

    This proposed rule would not implement a policy with takings 
implications. Accordingly, Executive Order 12630, Governmental Actions 
and Interference With Constitutionally Protected Property Rights, 
requires no further agency action or analysis.

D. Executive Order 12988 Civil Justice Reform

    This proposed rule was drafted and reviewed in accordance with 
Executive Order 12988, Civil Justice Reform. The proposed rule was 
written to provide a clear legal standard for affected conduct and was 
carefully reviewed to eliminate drafting errors and ambiguities, so as 
to minimize litigation and undue burden on the Federal court system. We 
have determined that this proposed rule would meet the applicable 
standards provided in Section 3 of Executive Order 12988.

E. Executive Order 13045 Protection of Children From Environmental 
Health Risks and Safety Risks

    This proposed rule would have no adverse impact on children. 
Accordingly, Executive Order 13045, Protection of Children From 
Environmental Health Risks and Safety Risks, as amended by Executive 
Orders 13229 and 13296, requires no further agency action or analysis.

F. Executive Order 13132 Federalism

    This proposed rule does not have ``federalism implications'' 
because it does 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, Executive Order 13132, Federalism, 
requires no further agency action or analysis.

G. Executive Order 13175 Consultation and Coordination With Indian 
Tribal Governments

    This proposed rule does not have ``tribal implications'' because it 
does 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

[[Page 46351]]

government and Indian tribes.'' Accordingly, Executive Order 13175, 
Consultation and Coordination With Indian Tribal Governments, requires 
no further agency action or analysis.

H. Executive Order 13211 Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This proposed rule regulates both the coal and metal/nonmetal 
mining sectors. Because this proposed rule would result in no yearly 
net cost to the coal mining industry, the proposed rule would neither 
reduce the supply of coal nor increase its price. This proposed rule is 
not a ``significant energy action'' because it would not be ``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, Executive Order 
13211, Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use, requires no further agency action or 
analysis.

I. Executive Order 13272 Proper Consideration of Small Entities in 
Agency Rulemaking

    We thoroughly reviewed this proposed rule to assess and take 
appropriate account of its potential impact on small businesses, small 
governmental jurisdictions, and small organizations. We determined and 
certified that this proposed rule would not have a significant economic 
impact on a substantial number of small entities.

    Dated: July 29, 2005.
David G. Dye,
Deputy Assistant Secretary of Labor for Mine Safety and Health.

List of Subjects

30 CFR Part 5

    Fees, Mine safety and health.

30 CFR Parts 15 and 18

    Fees, Mine safety and health, Reporting and recordkeeping 
requirements.

30 CFR Parts 19, 20, 22, 27, and 28

    Fees, Mine safety and health.

30 CFR Parts 23, 33, 35, and 36

    Fees, Mine safety and health, Reporting and recordkeeping 
requirements, Research.
    Accordingly, Chapter I of Title 30 of the Code of Federal 
Regulations is proposed to be amended as follows:

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. Section 5.10 is amended by revising paragraph (a) to read as 
follows:


Sec.  5.10  Purpose and scope.

    (a) This part establishes a system under which MSHA charges a fee 
for services provided under this subchapter. This part includes the 
management and calculation of these fees.
* * * * *


Sec.  5.20  [Removed]

    3. Section 5.20 is removed.
    4. Section 5.30 is revised to read as follows:


Sec.  5.30  Fee calculation.

    (a) MSHA bases fees under this subchapter on the direct and 
indirect costs of the services provided, except that part 15 fees for 
services provided to MSHA by other organizations may be set by those 
organizations.
    (b) Except as provided in paragraphs (b)(1) and (2) of this 
section, upon 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 
under this subchapter, 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 
immediately 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 pre-authorize a fixed dollar amount, set by MSHA, for processing 
the application.
    (c) If unforeseen circumstances are discovered during the 
evaluation, and MSHA determines that these circumstances would result 
in the actual costs exceeding either the pre-authorized 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.
    (d) If the actual cost of processing the application is less than 
MSHA's maximum fee estimate, MSHA will charge the actual cost.
    5. Section 5.40 is revised to read as follows:


Sec.  5.40  Fee administration.

    Applicants will be billed for all fees, including actual travel 
expenses, if any, when processing of the application is completed. 
Invoices will contain specific payment instructions, including the 
address to mail payments and authorized methods of payment.

PART 15--REQUIREMENTS FOR APPROVAL OF EXPLOSIVES AND SHEATHED 
EXPLOSIVE UNITS

    6. The authority citation for part 15 continues to read as follows:

    Authority: 30 U.S.C. 957.

    7. Section 15.3 is revised to read as follows:


Sec.  15.3  Observers at tests and evaluation.

    Only personnel of MSHA, designees of MSHA, representatives of the 
applicant, and such other persons as agreed upon by MSHA and the 
applicant shall be present during tests and evaluations conducted under 
this part.

PART 18--ELECTRIC MOTOR-DRIVEN MINE EQUIPMENT AND ACCESSORIES

    8. The authority citation for part 18 continues to read as follows:

    Authority: 30 U.S.C. 957, 961.

    9. Section 18.6 (a)(1) is revised to read as follows:


Sec.  18.6  Application procedures and requirements.

    (a)(1) Investigation leading to approval, certification, extension 
thereof, or acceptance of hose or conveyor belt, will be undertaken by

[[Page 46352]]

MSHA only pursuant to a written application. The application shall be 
accompanied by all necessary drawings, specifications, descriptions, 
and related materials, as set out in this part. Fees calculated in 
accordance with part 5 of this title shall be submitted in accordance 
with Sec.  5.40.
* * * * *

PART 19--ELECTRIC CAP LAMPS

    10. The authority citation for part 19 continues to read as 
follows:

    Authority: 30 U.S.C. 957, 961.

    11. In Sec.  19.3 the heading and paragraph (a) are revised to read 
as follows:


Sec.  19.3  Application procedures and requirements.

    (a) Before MSHA will undertake the active investigation leading to 
approval of any lamp, the applicant shall make application by letter 
for an investigation leading to approval of the lamp. This application 
shall be sent to: U.S. Department of Labor, Mine Safety and Health 
Administration, Approval and Certification Center, RR 1, Box 
251, Industrial Park Road, Triadelphia, West Virginia 26059, together 
with the required drawings, one complete lamp, and instructions for its 
operation. Fees calculated in accordance with part 5 of this title 
shall be submitted in accordance with Sec.  5.40.
* * * * *

PART 20--ELECTRIC MINE LAMPS OTHER THAN STANDARD CAP LAMPS

    12. The authority citation for part 20 continues to read as 
follows:

    Authority: 30 U.S.C. 957, 961.

    13. In Sec.  20.3 the heading and paragraph (a) are revised to read 
as follows:


Sec.  20.3  Application procedures and requirements.

    (a) Before MSHA will undertake the active investigation of any 
lamp, the applicant shall make application by letter for an 
investigation of the lamp. This application shall be sent to: U.S. 
Department of Labor, Mine Safety and Health Administration, Approval 
and Certification Center, RR 1, Box 251, Industrial Park Road, 
Triadelphia, West Virginia 26059, together with the required drawings, 
one complete lamp, and instructions for its operation. Fees calculated 
in accordance with part 5 of this title shall be submitted in 
accordance with Sec.  5.40.
* * * * *

PART 22--PORTABLE METHANE DETECTORS

    14. The authority citation for part 22 continues to read as 
follows:

    Authority: 30 U.S.C. 957, 961.

    15. In Sec.  22.4 the heading and paragraph (a) are revised to read 
as follows:


Sec.  22.4  Application procedures and requirements.

    (a) Before MSHA will undertake the active investigation of leading 
to approval of any methane detector, the applicant shall make 
application by letter for an investigation leading to approval of the 
detector. This application shall be sent to: U.S. Department of Labor, 
Mine Safety and Health Administration, Approval and Certification 
Center, RR 1, Box 251, Industrial Park Road, Triadelphia, West 
Virginia 26059, together with the required drawings, one complete 
detector, and instructions for its operation. Fees calculated in 
accordance with part 5 of this title shall be submitted in accordance 
with Sec.  5.40.
* * * * *

PART 23--TELEPHONES AND SIGNALING DEVICES

    16. The authority citation for part 23 continues to read as 
follows:

    Authority: 30 U.S.C. 957, 961.

    17. In Sec.  23.3 the heading and paragraph (a) are revised to read 
as follows:


Sec.  23.3  Application procedures and requirements.

    (a) Before MSHA will undertake the active investigation of leading 
to approval of any telephone or signaling device, the applicant shall 
make application by letter for an investigation leading to approval of 
the device. This application shall be sent to: U.S. Department of 
Labor, Mine Safety and Health Administration, Approval and 
Certification Center, RR 1, Box 251, Industrial Park Road, 
Triadelphia, West Virginia 26059, together with the required drawings, 
one complete telephone or signaling device, and instructions for its 
operation. Fees calculated in accordance with part 5 of this title 
shall be submitted in accordance with Sec.  5.40.
* * * * *

PART 27--METHANE-MONITORING SYSTEMS

    18. The authority citation for part 27 continues to read as 
follows:

    Authority: 30 U.S.C. 957, 961.

    19. In Sec.  27.4 the heading and paragraph (a)(1) are revised to 
read as follows:


Sec.  27.4  Application procedures and requirements.

    (a)(1) No investigation or testing for certification will be 
undertaken by MSHA except pursuant to a written application, 
accompanied by all drawings, specifications, descriptions, and related 
materials. The application and all related matters and correspondence 
shall be addressed to: U.S. Department of Labor, Mine Safety and Health 
Administration, Approval and Certification Center, RR 1, Box 
251, Industrial Park Road, Triadelphia, West Virginia 26059. Fees 
calculated in accordance with part 5 of this title shall be submitted 
in accordance with Sec.  5.40.
* * * * *


Sec.  27.9  [Amended]

    20. Section 27.9 is amended by revising the first sentence to read 
``The date of receipt of an application will determine the order of 
precedence for investigation and testing.''

PART 28--FUSES FOR USE WITH DIRECT CURRENT IN PROVIDING SHORT-
CIRCUIT PROTECTION FOR TRAILING CABLES IN COAL MINES

    21. The authority citation for part 28 continues to read as 
follows:

    Authority: 30 U.S.C. 957, 961.


Sec.  28.10  [Amended]

    22. Section 28.10, paragraph (c), is amended by removing the final 
sentence and adding ``Fees calculated in accordance with part 5 of this 
title shall be submitted in accordance with Sec.  5.40.'' in its place.

PART 33--DUST COLLECTORS FOR USE IN CONNECTION WITH ROCK DRILLING 
IN COAL MINES

    23. The authority citation for part 33 continues to read as 
follows:

    Authority: 30 U.S.C. 957, 961.

    24. Section 33.3 is revised to read as follows:


Sec.  33.3  Consultation.

    By appointment, applicants or their representatives may visit the 
Approval and Certification Center, Industrial Park Road, Dallas Pike, 
Triadelphia, WV 26059, to discuss with MSHA personnel proposed designs 
of equipment to be submitted in accordance with the regulations of this 
part. No charge is made for such consultation and no written report 
thereof will be made to the applicant.

[[Page 46353]]

    25. In Sec.  33.6 the heading and paragraph (a)(1) are revised to 
read as follows:


Sec.  33.6  Application procedures and requirements.

    (a)(1) No investigation or testing for certification will be 
undertaken by MSHA except pursuant to a written application (except as 
provided in paragraph (e) of this section), accompanied by all 
prescribed drawings, specifications, and related materials. The 
application and all related matters and correspondence shall be 
addressed to: U.S. Department of Labor, Mine Safety and Health 
Administration, Approval and Certification Center, RR 1, Box 
251, Industrial Park Road, Triadelphia, West Virginia 26059. Fees 
calculated in accordance with part 5 of this title shall be submitted 
in accordance with Sec.  5.40.
* * * * *

PART 35--FIRE-RESISTANT HYDRAULIC FLUIDS

    26. The authority citation for part 35 continues to read as 
follows:

    Authority: 30 U.S.C. 957, 961.

    27. In Sec.  35.6 the heading and paragraph (a)(1) are revised to 
read as follows:


Sec.  35.6  Application procedures and requirements.

    (a)(1) No investigation or testing will be undertaken by MSHA 
except pursuant to a written application accompanied by all 
descriptions, specifications, test samples, and related materials. The 
application and all related matters and correspondence shall be 
addressed to: U.S. Department of Labor, Mine Safety and Health 
Administration, Approval and Certification Center, RR 1, Box 
251, Industrial Park Road, Triadelphia, West Virginia 26059. Fees 
calculated in accordance with part 5 of this title shall be submitted 
in accordance with Sec.  5.40.
* * * * *

PART 36--APPROVAL REQUIREMENTS FOR PERMISSIBLE MOBILE DIESEL-
POWERED TRANSPORTATION EQUIPMENT

    28. The authority citation for part 36 continues to read as 
follows:

    Authority: 30 U.S.C. 957, 961.

    29. In Sec.  36.6 the heading and paragraph (a)(1) are revised to 
read as follows:


Sec.  36.6  Application procedures and requirements.

    (a)(1) No investigation or testing will be undertaken by MSHA 
except pursuant to a written application accompanied by all 
descriptions, specifications, test samples, and related materials. The 
application and all related matters and correspondence shall be 
addressed to: U.S. Department of Labor, Mine Safety and Health 
Administration, Approval and Certification Center, RR 1, Box 
251, Industrial Park Road, Triadelphia, West Virginia 26059. Fees 
calculated in accordance with part 5 of this title shall be submitted 
in accordance with Sec.  5.40.
* * * * *

[FR Doc. 05-15494 Filed 8-8-05; 8:45 am]
BILLING CODE 4510-43-P