[Federal Register Volume 84, Number 182 (Thursday, September 19, 2019)]
[Notices]
[Pages 49336-49344]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-20212]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

[Docket No. OSHA-2007-0031]


Nationally Recognized Testing Laboratories; Revised Fee Schedule 
and Adoption of New Application Acceptance and Review Procedures

AGENCY: Occupational Safety and Health Administration (OSHA), Labor.

ACTION: Notice.

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SUMMARY: In this notice, OSHA revises the schedule of fees that the 
agency charges to Nationally Recognized Testing Laboratories (NRTLs) 
and NRTL applicants. In addition, OSHA adopts new streamlined 
procedures for accepting and reviewing applications of organizations 
seeking to obtain, renew, or expand NRTL recognition.

DATES: The revised NRTL Fee Schedule and New Application Acceptance and 
Review Procedures become effective on October 21, 2019.

FOR FURTHER INFORMATION CONTACT: 
    Press inquiries: Contact Mr. Frank Meilinger, Director, OSHA Office 
of Communications, U.S. Department of Labor; telephone: (202) 693-1999; 
email: meilinger.francis2@dol.gov.
    General and technical information: Contact Mr. Kevin Robinson, 
Director, Office of Technical Programs and Coordination Activities, 
Directorate of Technical Support and Emergency Management, Occupational 
Safety and Health Administration, U.S. Department of Labor; telephone: 
(202) 693-2110 or email: robinson.kevin@dol.gov.

SUPPLEMENTARY INFORMATION:

I. Notice

    On September 22, 2015, OSHA published a notice proposing the 
adoption of new streamlined procedures for accepting and reviewing 
applications of organizations seeking to obtain, renew, or expand NRTL

[[Page 49337]]

recognition, and the revision of the existing NRTL Program fee schedule 
pursuant to the NRTL Program regulation, 29 CFR 1910.7(f) (80 FR 
57222). The agency received one comment in response to this notice, 
available on www.regulations.gov under docket number OSHA-2007-0031. 
OSHA addresses this comment, infra, in section III of this notice.
    OSHA now is proceeding with this notice and hereby adopts the 
proposed streamlined procedures for accepting and reviewing 
applications, with one minor, non-substantive change, as discussed 
infra, in section III of this notice. OSHA also adopts the proposed 
NRTL Program fee schedule, without change, as discussed infra, in 
section IV of this notice.

II. Background on the NRTL Program

    Many of OSHA's safety standards (e.g., 29 CFR part 1910, subpart S) 
require that equipment and products be tested and certified to help 
ensure their safe use in the workplace. To implement these 
requirements, OSHA established the NRTL Program and the agency 
generally requires NRTLs to perform this testing and certification.
    The NRTL Program regulation, 29 CFR 1910.7, requires that, to 
obtain and retain OSHA recognition as a NRTL, an organization must: (1) 
Have the appropriate capability to test, evaluate, and approve products 
to assure their safe use in the workplace; (2) be completely 
independent of employers subject to the tested equipment requirements 
and manufacturers and vendors of products for which OSHA requires 
certification; (3) have internal programs that ensure proper control of 
the testing and certification process; and (4) have effective reporting 
and complaint handling procedures (29 CFR 1910.7(b)). OSHA requires 
organizations applying for NRTL recognition to provide, in their 
applications, detailed and comprehensive information about their 
programs, processes, and procedures, in writing. When an organization 
makes an initial application to be recognized as a NRTL, OSHA reviews 
the written information contained in the organization's application and 
conducts an on-site assessment to determine whether the organization 
meets the requirements of 29 CFR 1910.7. OSHA uses a similar process 
when a NRTL applies for expansion or renewal of its recognition, 
although the type and amount of information in some areas can differ 
significantly from those of initial applications. In addition, the 
agency conducts annual assessments \1\ of NRTLs to ensure that the 
recognized laboratories adequately maintain their programs and continue 
to meet the recognition requirements.
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    \1\ OSHA uses the term ``assessments'' to mean those activities 
described by the term ``audits'' under 29 CFR 1910.7(f). OSHA uses 
the term ``assessments,'' rather than ``audits'' because it better 
reflects the overall purpose of the program's activities, i.e., 
conformity assessments.
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    To support these core functions, OSHA also performs a number of 
ancillary activities. For example, OSHA investigates complaints filed 
against NRTLs to ensure that the laboratories are performing their 
testing and certification functions adequately; represents the NRTL 
Program in a variety of forums related to conformity assessment 
products used in the workplace; and maintains a detailed website that 
both explains the program and lists all the laboratories currently 
recognized under the NRTL Program, the products each laboratory can 
test, and registered certification marks used by each laboratory.

III. Revision of Existing Application Acceptance and Review Procedures

    OSHA currently has a number of initiatives underway to improve the 
operations of the NRTL Program. This section of the notice discusses 
one such initiative, under which OSHA adopts new streamlined procedures 
for accepting and reviewing applications of organizations seeking to 
obtain, renew, or expand NRTL recognition. OSHA will follow these new 
procedures in lieu of those contained in the agency's existing NRTL 
Program Directive (CPL 01-00-004, NRTL Program Policies, Procedures, 
and Guidelines, September 5, 2019) (``Directive'' or ``NRTL Program 
Directive'') and the additional practices OSHA has routinely followed 
in accepting applications.
    OSHA adopts the new streamlined procedures to eliminate delays 
caused by multiple revisions by an applicant during the application-
acceptance and -review process. In addition, OSHA simplifies the 
application process to make it clearer when the application acceptance 
process ends and the substantive application review process begins. 
This streamlined application process will also reduce NRTL Program 
fees, as OSHA will discuss later in this notice.
    The existing procedures for application acceptance and review are 
contained in both Appendix A to the NRTL Program regulations, 
(``Appendix A'') and the NRTL Program Directive, CPL-01-00-004. OSHA 
does not, in this notice, revise Appendix A; instead, OSHA has updated 
the NRTL Program Directive to include the revised application 
acceptance and review procedures made final by this notice.

A. Existing Procedures in Appendix A That Were Not Subject to Revision

    Per Appendix A, the burden is generally ``on the applicant to 
establish by a preponderance of the evidence that it is entitled to 
recognition as an NRTL'' (App. A. Introduction). Thus, in its 
application, an applicant must ``provide sufficient information and 
detail demonstrating that it meets the requirements set forth in Sec.  
1910.7, in order for an informed decision concerning recognition to be 
made'' by the Assistant Secretary for Occupational Safety and Health 
(``Assistant Secretary''), and must also ``identify the scope of the 
NRTL-related activity for which the applicant wishes to be recognized'' 
(i.e., the test standards the applicant will use for testing products) 
(App. A.I.A.2.b). To meet its burden, the applicant may include any 
documentation (i.e., enclosures, attachments, or exhibits) it deems 
appropriate (App. A.I.A.2.c).
    Also under Appendix A, ``[a]pplications submitted by eligible 
testing agencies will be accepted by OSHA, and their receipt 
acknowledged in writing'' (App. A.I.B.1.a). Moreover, ``[a]fter receipt 
of an application, OSHA may request additional information if it 
believes information relevant to the requirements for recognition has 
been omitted'' (Id.). In addition, ``OSHA shall, as necessary, conduct 
an on-site review of the testing facilities of the applicant, as well 
as the applicant's administrative and technical practices, and, if 
necessary, review any additional documentation underlying the 
application'' (App. A.I.B.1.b).
    Appendix A provides the responsible OSHA staff with two options 
following review of the application, and any additional information and 
on-site review report. On the one hand, if ``the applicant appears to 
have met the requirements for recognition,'' responsible OSHA staff 
must make a ``positive finding'' to the Assistant Secretary, which 
consists of ``a written recommendation . . . that the application be 
approved, accompanied by a supporting explanation'' (App. A.I.B.2). 
Once this recommendation is made, OSHA follows the procedures in the 
Appendix for making preliminary and final findings on the application 
(App. A.I.B.4, A.I.B.5, A.I.B.6).
    On the other hand, if ``the applicant does not appear to have met 
the requirements for recognition,'' responsible OSHA staff must make a

[[Page 49338]]

``negative finding'' to the ``applicant in writing, listing the 
specific requirements of Sec.  1910.7 and [Appendix A] which the 
applicant has not met, and allow[ing] a reasonable period for 
response'' (App. A.I.B.3.a). After the applicant receives ``a 
notification of negative finding (i.e., for intended disapproval of the 
application), and within the response period provided,'' the applicant 
may either (1) ``[s]ubmit a revised application for further review, 
which could result in a positive finding'' (the procedures for which 
are explained in the previous paragraph), or (2) ``[r]equest that the 
original application be submitted to the Assistant Secretary with an 
attached statement of reasons, supplied by the applicant of why the 
application should be approved'' (App. A.I.B.3.b.i). In either case 
(i.e., if a positive finding is made on a revised application or if the 
applicant requests that the original application be submitted to the 
Assistant Secretary), OSHA would follow the procedures in the Appendix 
for making preliminary and final findings on the application (App. 
A.I.B.4, A.I.B.5, A.I.B.6). The ``procedure for applicant notification 
and potential revision shall be used only once during each recognition 
process'' (App. A.I.B.3.b.ii).

B. OSHA Will No Longer Follow Existing NRTL Program Directive 
Procedures for Accepting and Reviewing Applications

    Existing policies contained in the NRTL Program Directive expand on 
the application procedures contained in Appendix A, as follows. Per the 
Directive, OSHA staff ``formally accept or reject the application'' 
based on a review of the application for ``completeness and for 
adequacy'' (Directive Ch. 2.V.B, Ch. 3.II.B.1). The procedures for this 
review are contained in Appendix D to the Directive (Directive Ch. 
3.II.B.1). An application is considered complete ``if it contains all 
necessary documents, and sufficient information for all relevant 
items,'' and is considered adequate ``if the information submitted 
sufficiently demonstrates that the requirements for recognition can be 
met, and where relevant, if at least one test standard requested can be 
approved'' (Directive App. D) (emphasis in original).
    In reviewing the application, OSHA staff will return and ``take[ ] 
no further action'' on an application ``[i]f [the] application is 
frivolous or grossly incomplete or inadequate.'' In such circumstances, 
``any future application from the applicant'' will be processed ``as a 
new application'' (Directive Ch. 3.II.A).
    If the application is not ``frivolous or grossly incomplete or 
inadequate,'' OSHA staff discusses its review with the applicant, 
``noting any deficiencies found or clarifications needed'' (Directive 
Ch. 3.II.B.2). If the ``application is determined to be complete and 
adequate,'' OSHA ``sends a letter to the applicant to accept the 
application'' (Directive Ch. 3.II.C).
    If the application is determined to be incomplete or inadequate, 
the Directive provides two opportunities for applicants to correct 
deficiencies before rejection of an application (Directive Ch. 3.II.C). 
In practice, however, OSHA has given applicants three such 
opportunities. Per the Directive, OSHA ``sends a letter to the 
applicant, detailing the deficiencies and the additional information 
needed and requesting a response by an appropriate deadline,'' and if 
``the response does not adequately resolve the deficiencies,'' OSHA 
``provides the applicant a [second] opportunity to respond within a 
given period.'' (Directive Ch. 3.II.C.) If deficiencies remain after 
the second opportunity, OSHA, in practice, gives applicants a third, 
but relatively limited, opportunity to make corrections before the 
effective date of the rejection. This limited duration is sufficient 
for applicants to correct deficiencies if only a few critical 
deficiencies remain.
    If an applicant's timely response cures the deficiencies in its 
application, OSHA ``sends an acceptance letter to the applicant'' 
(Directive Ch. 3.II.C). However, ``[i]f the applicant does not respond 
adequately or fails to reply by any deadline(s) provided or an approved 
extension of these deadline(s),'' OSHA ``sends a letter notifying the 
applicant that the application is not accepted and the Case File is 
closed'' (Directive Ch. 3.II.C.2).
    Finally, the Directive provides that, after an application is 
accepted, ``the assigned staff determines whether an on-site review is 
necessary'' (Directive Ch. 3.II.D). However, the Directive also 
provides for non-acceptance during the on-site review process, if an 
applicant fails to respond adequately to the findings of an on-site 
review (Directive Ch.4.IV.C).
    OSHA proposed that it will no longer follow the existing 
procedures, described above, to afford applicants three opportunities 
to modify their applications before acceptance or non-acceptance. These 
existing procedures are inefficient and cause delays because, in some 
cases, these multiple opportunities cause the process to take years. 
OSHA also proposed that it will also not follow its existing procedure 
for accepting an application only when it is found to be complete and 
adequate. This existing procedure has caused confusion as to when the 
application acceptance process ends and the substantive application 
review process begins. OSHA received no comments objecting to its 
proposed decision to no longer follow the above-described existing 
procedures. OSHA therefore adopts its proposed decision, without 
change.

C. OSHA Adopts New Streamlined Procedures for Accepting and Reviewing 
Applications, as Proposed, With One Minor, Non-Substantive Change

    In lieu of the existing NRTL Program Directive procedures, 
described above, OSHA proposed to follow streamlined procedures for 
accepting and reviewing applications. OSHA received one comment in 
response to the proposal, from Curtis-Strauss, LLC, a NRTL (available 
on www.regulations.gov under Docket Number OSHA-2007-0031). Curtis-
Strauss was generally supportive of the proposed streamlined procedures 
for accepting and reviewing applications, and of the proposed revised 
NRTL Program fee schedule, discussed below, but suggested two additions 
to the proposed procedures:
     Curtis-Strauss suggested that ``OSHA provide updates to 
applicants every 60 days because ``[t]his would keep applicants 
informed and could also enhance OSHA's management of the agency's 
application queue as grouped by applicant,'' and because ``[t]his may 
help OSHA to realize other process efficiencies when scheduling on-site 
audits or performing technical reviews.''
     Curtis-Strauss suggested that ``OSHA offer an opportunity 
to the applicant to have a conference call or an in-person meeting with 
the relevant OSHA staff promptly after the notice of intent to 
recommend a negative finding'' because ``[t]his would give applicants 
the ability to ask questions and better understand the application's 
deficiencies while still leaving enough time to correct them prior to 
the deadline.''
    OSHA supports keeping lines of communication open during the 
application process. However, OSHA does not believe that formalizing 
rules for open dialogue, as suggested by Curtis-Strauss, will make the 
application process more effective. Each application is different and 
requires different levels and types of communication. The degree and 
types of communication suggested by Curtis-Strauss may be too little in 
some cases and too much in others. Therefore,

[[Page 49339]]

OSHA is not adopting the suggestions made by Curtis-Strauss.
    OSHA hereby adopts the streamlined procedures, as proposed, with 
one minor, non-substantive change, discussed, infra. These streamlined 
procedures will reduce delays, fees, and confusion associated with 
application processing. Under these streamlined procedures, OSHA will 
review an application for completeness, but not adequacy, in deciding 
whether to accept the application. OSHA's review for adequacy, and any 
on-site review, will occur only after OSHA accepted the application. 
Furthermore, OSHA will permit the applicant one opportunity only, 
rather than three, to resolve deficiencies in the completeness of its 
application before deciding whether to accept it. OSHA describes the 
new streamlined procedures it adopts in this notice in more detail, 
immediately below.
1. Initial Review and Acceptance
    OSHA proposed that, when OSHA receives an application, it will 
acknowledge its receipt, establish (for initial applications) or update 
(for expansion and renewal applications) the docket for the 
organization, and upload the application materials to the docket.\2\ 
For this notice, OSHA decided that it will not establish or update a 
docket for an organization in connection with an application upon 
receipt. Instead, OSHA will establish a docket for an application only 
in connection with the preparation of a Federal Register notice 
announcing a preliminary finding on the application. Establishing 
dockets for applications at this later point in the application process 
will further streamline the application acceptance and review process, 
as many applications are withdrawn or amended before the applications 
reach the preliminary determination stage.
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    \2\ As currently used by OSHA, the term ``docket'' means an 
electronic file folder containing documents that pertain to an 
official action taken by the agency. OSHA generally makes these 
documents available to the public.
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    After it receives an application, OSHA will perform an 
administrative review of the application to determine whether it is 
complete (i.e., has sufficient information to determine whether the 
applicant meets the requirements for recognition). If not complete, 
OSHA will notify the applicant, in writing, that it has 30 days from 
the date of the notice to provide the missing or additional 
information. OSHA will also inform the applicant, in the notice, that 
it is unable to review the merits of the application because the 
application itself does not contain sufficient information to show that 
the requirements for recognition can be met. Finally, OSHA will inform 
the applicant, in the notice, that this review involved no technical 
determination, only an administrative one of whether the application 
has all of the necessary documentation. If the applicant does not 
respond by the 30-day deadline, or does not adequately respond, and the 
application remains incomplete, OSHA will inform the applicant that 
OSHA cannot accept the application, and the applicant must reapply. If 
the applicant provides a complete application within the 30 days, or 
provided a complete application when it was first received, OSHA will 
accept the application.
2. Determination of Adequacy
    After accepting the application, OSHA will review the merits of the 
application to determine whether the application is adequate. OSHA will 
first conduct a technical review of the application (i.e., a detailed 
review of all of the application's administrative and technical 
procedures and content). Following this technical review, OSHA will 
determine whether to conduct an on-site assessment as part of 
evaluating the management system and technical capabilities of the 
organization. OSHA will generally conduct an on-site review for initial 
applications and for expansion applications that involve new areas of 
testing for the NRTL or areas of concern to OSHA. If OSHA finds 
deficiencies during the technical review or during the on-site 
assessment, OSHA will provide the applicant with an explanation of 
deficiencies and needed corrections, and a 90-day opportunity to 
respond. Failure to respond by the 90-day deadline will constitute a 
withdrawal of the application, and OSHA will take no further action on 
it. If the applicant or NRTL responds, it will need to demonstrate it 
corrected all deficiencies found in its application and/or during the 
assessment, and provide evidence to OSHA that the corrections have been 
implemented into the applicant's or NRTL's management systems. In that 
case, OSHA will conclude the application is adequate. On the other 
hand, if OSHA finds that deficiencies remain, OSHA will conclude the 
application is not adequate.
    If OSHA staff determines an application is adequate, OSHA will 
follow existing procedures, and recommend a positive finding, per 
Appendix A.I.B.2. Otherwise, OSHA staff will notify the applicant in 
writing that they intend to recommend a negative finding. In that case, 
the applicant has two options under Appendix A.I.B.3. First, the 
applicant has one additional chance to revise its application within 30 
days of receipt of OSHA's written notice. Second, the applicant may 
request that its original application (as supplemented in response 
during the review for adequacy) be submitted to the Assistant Secretary 
(also within 30 days of receipt of OSHA's written notice). In this 
case, the applicant must attach a statement of reasons to the 
application explaining why the application should be approved. OSHA 
would consider the failure to submit a revised application or a request 
that the original application be submitted to the Assistant Secretary 
within the 30-day deadline to be a withdrawal of the application.
    If the applicant opts to revise its application, OSHA will invoice 
the applicant for the fee to review its revised submission. This fee 
would equal the estimated hours for the review multiplied by the hourly 
rate for the applicable Miscellaneous Fee in the NRTL Program's fee 
schedule. Like other application fees, this review fee will not be 
refundable. The applicant will need to pay this fee before OSHA 
performs the review of the revised application. OSHA will consider a 
failure to pay the fee within 30 days of receipt of the invoice as a 
withdrawal of the application. When OSHA receives the fee, OSHA will 
review the revised application to determine whether to sustain the 
negative finding or change it to a positive one. If OSHA staff decides 
to sustain the recommendation for a negative finding, they will first 
afford the applicant the opportunity to withdraw the application. If 
the applicant does not withdraw it, OSHA will proceed with the 
preliminary finding.
    Once OSHA staff recommends a positive finding on either an original 
or revised application, sustains its recommendation for a negative 
finding after a review of a revised application, or the applicant 
requests that the original application be submitted to the Assistant 
Secretary, OSHA will follow the procedures in Appendix A for making 
preliminary and final findings on the application (App. A.I.B.4, 
A.I.B.5, A.I.B.6).
    OSHA will no longer follow the existing NRTL Program Directive 
procedures for accepting and reviewing applications, as described in 
section III.B. of this notice. Instead, OSHA adopts the proposed 
streamlined procedures for accepting and reviewing applications, with 
one minor non-substantive change, as described above.

[[Page 49340]]

IV. Revision of the NRTL Program Fee Schedule

A. Background

    OSHA revises the existing NRTL Program fee schedule pursuant to the 
NRTL Program regulation, 29 CFR 1910.7(f). That regulation requires 
NRTLs and applicants to ``pay fees for services provided by OSHA in 
advance of the provision of those services'' (29 CFR 1910.7(f)(1)). 
OSHA assesses fees for core service activities, that is, for 
``[p]rocessing of applications for initial recognition, expansion of 
recognition, or renewal of recognition, including on-site reviews; 
review and evaluation of the applications; and preparation of reports, 
evaluations and Federal Register notices;'' and ``[a]udits of sites'' 
(Id.). OSHA's fee schedule ``reflects the full cost of performing the 
activities'' for these services (29 CFR 1910.7(f)(2)).
    OSHA calculates fees ``based on either the average or actual time 
required to perform the work necessary; the staff costs per hour (which 
include wages, fringe benefits, and expenses other than travel for 
personnel that perform or administer the activities covered by the 
fees); and the average or actual costs for travel when on-site reviews 
are involved'' (Id.). Thus, the formula for calculating a fee for an 
activity is the ``[Average (or Actual) Hours to Complete the Activity x 
Staff Costs per Hour] + Average (or Actual) Travel Costs'' (Id.).
    OSHA periodically reviews the full costs of performing core 
services and, if warranted, will propose a revised fee schedule in the 
Federal Register (29 CFR 1910.7(f)(3), (f)(4)). If OSHA approves the 
proposed fee schedule (after giving the public an opportunity to 
comment), it ``publish[es] the final fee schedule in the Federal 
Register, making the fee schedule effective on a specific date'' (29 
CFR 1910.7(f)(3), (f)(4)).
    To ensure that its fees for core services reflect the full cost of 
those services, OSHA's existing fee schedule (which OSHA adopted in 
2011) takes into account both the direct and indirect costs it incurs 
in performing those services (76 FR 10501-10504). Direct costs include 
staff costs (i.e. the applicable portion of the salaries and fringe 
benefits of the applicable staff) incurred for application processing 
and assessment (Id.). Ancillary (or indirect) costs include staff costs 
incurred for the administration and support of the program, including 
legal support, budgeting, policy matters, intragency and international 
coordination, responses to requests for information related to the 
program, handling complaints, website development and maintenance, and 
participation in meetings with stakeholders and outside interest groups 
(Id.). OSHA refers to the sum of its direct costs and ancillary costs 
as the total program costs (TPC) for the purpose of this notice. TPC 
does not include travel expenses, which are assessed separately (29 CFR 
1910.7(f)(2), 76 FR 10504 n.5).
    In the existing fee schedule, OSHA calculates the fee for each core 
service activity by multiplying an equivalent average cost per hour 
rate (ECR) by the time it takes to perform that activity: Fee for 
Activity = ECR x Time for Activity (76 FR 10504). In 2000, when OSHA 
began assessing fees for services, OSHA explained that it derived that 
fee schedule's ECR by dividing TPC by the total available annual work 
hours of the NRTL Program and legal staff that perform the services 
(TAW) (Id.). Accordingly, ECR2000 = TPC2000/TAW2000. The approach used 
in 2000 resulted in fees that recouped the costs only of the time spent 
actually performing individualized audits and application processing, 
which is only a portion of TAW, and did not recoup the costs of the 
time associated with running the program and providing other benefits 
shared among all NRTLs (Id.).
    To account for the costs associated with these shared benefits, 
OSHA adopted a new approach in 2011 for calculating ECR (ECR2011) in 
the existing fee schedule (Id.). Under the new approach, OSHA divides 
the estimated total cost of the NRTL Program (TPC2011) by the total 
annual service hours (TAS2011) (Id.). This latter term equals the total 
estimated work hours that the NRTL Program staff spend on the core 
service activities for which OSHA would bill NRTLs; accordingly, 
ECR2011 = TPC2011/TAS2011 (Id.). By way of comparison with the 2000 fee 
schedule, TAS equals TAW minus estimated hours spent on ancillary 
activities (AH) and leave (LH) (i.e., TAS = TAW-AH-LH) (Id.). By 
continuing to include the full program costs in the numerator 
(TPC2011), but including in the denominator (TAS2011) only the amount 
of time spent on providing ``billable'' core services, OSHA believed 
the revised ECR would more accurately represent the total work hours 
spent on those core activities than the 2000 equation \3\ (Id.).
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    \3\ The existing fee schedule was supposed to have been phased 
in over a three-year phase-in period. (76 FR 10508). OSHA 
implemented the first phase on March 28, 2011. However, due to other 
priorities and factors, OSHA was unable to implement the second and 
third phases of the increase, as planned. This revised fee schedule 
renders moot the implementation of the second and third phases.
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B. Explanation of Revised Fee Schedule

    OSHA reviewed its existing fee schedule and, based on that review, 
proposed to revise its fee schedule. OSHA received one comment in 
response to the proposal, from Curtis-Strauss, LLC, a NRTL (available 
on www.regulations.gov under Docket Number OSHA-2007-0031). Curtis-
Strauss was generally supportive of the proposed NRTL Program fee 
schedule. OSHA hereby adopts the proposed NRTL Program fee schedule, 
without change. The revised fee schedule more accurately reflects the 
full cost of performing the activities for which OSHA charges fees. 
OSHA explains the details of the revised fee schedule, as follows:
    1. OSHA adopts a new grouping of fees for each of the core 
activities for which OSHA charges fees to NRTLs (i.e., ``[p]rocessing 
of applications for initial recognition, expansion of recognition, or 
renewal of recognition, including on-site reviews; review and 
evaluation of the applications; and preparation of reports, evaluations 
and Federal Register notices;'' and ``[a]udits of sites'' (29 CFR 
1910.7(f)(1)). Under the existing fee schedule, OSHA groups these 
activities under the terms Application Processing, Audits, and 
Miscellaneous (76 FR 10508). Under OSHA's revised fee schedule, shown 
below in Table 6, OSHA groups these activities under the terms: 
Administrative Evaluation, Technical Evaluation, Assessments, Federal 
Register Notices, and Miscellaneous (which includes late fees and other 
activities not specifically described). OSHA adopts these new groupings 
to align its fee schedule with the newly-adopted streamlined procedures 
for accepting and reviewing applications, described above. OSHA also 
believes that the times it now estimates for completion of these 
activities (see Tables 2 thru 5, below) more accurately represent the 
actual time it takes to complete the core activities for which OSHA 
charges fees. Therefore, adoption of the groupings more accurately 
reflects the full cost of the services for which fees are assessed.
    2. OSHA revises the approach it uses to calculate ECR. Again, under 
the existing approach, OSHA calculates ECR by dividing TPC by the total 
estimated work hours that the NRTL Program staff and legal staff spend 
on the core service activities for which OSHA bills NRTLs (or TAS) (76 
FR 10504).

[[Page 49341]]

    The existing approach depends, in large measure, on OSHA estimating 
an accurate TAS (i.e., number of ``billable'' core hours). If this 
estimate is accurate, the ECR (i.e., the hourly rate OSHA charges for 
services) will accurately reflect the full cost of services (because 
ECR = TPC/TAS). But OSHA's estimate has not been accurate in practice. 
Due in part to insufficient program staffing and other uncontrollable 
factors, the staff has been unable to work the number of estimated 
billable hours. This has resulted in an hourly rate charged by OSHA 
that results in fees that are far lower than the fees OSHA would be 
charging if its estimate had been accurate.
    OSHA could reassess TAS on a regular basis to achieve a more 
accurate estimate. However, due to the changing nature of the staff's 
workload, OSHA likely would need to make such calculation adjustments, 
and thus publish fee schedules, more than once within a given year to 
ensure an accurate estimate. OSHA likely could not make such 
adjustments in a timely manner, largely due to the length of the 
process for issuing fee schedules.
    Under the revised fee schedule, OSHA simplifies the existing 
calculation. For the purpose of the revised fee schedule, OSHA assumes 
that certain NRTL Program staff (which OSHA calls ``direct staff'' in 
this notice) work exclusively on core billable activities, and that 
other NRTL Program staff (which OSHA calls ``indirect staff'' in this 
notice) work exclusively on ancillary activities. OSHA calculates the 
ECR (ECR2015) by dividing TPC by total direct staff annual paid (i.e., 
compensable) hours, or simply, direct staff annual hours (DSH).
    Because of the difficulties of implementing the existing approach, 
OSHA believes the change in approach in the revised fee schedule 
(replacing TAS with DSH) will, on average and in practice, more 
accurately reflect the full cost of services for which OSHA charges 
fees than the existing approach. The accuracy of the DSH approach also 
does not depend on the variable workload of staff, and will therefore 
be simpler to implement than the existing approach.
    OSHA estimates for the revised fee schedule that four full-time 
NRTL Program staff members are direct staff and the other full-time 
NRTL Program staff member is indirect staff. OSHA believes the estimate 
of four full-time direct staff is reasonable because OSHA projects a 
significant increase in the number of applications the NRTL Program 
will process and audits the NRTL Program will perform (i.e., a 
significant increase in the time NRTL Program staff will spend on core 
activities).
    For the purposes of the revised fee calculation, DSH equals 8,352 
hours. This was derived by multiplying 2,088, the regular annual paid 
hours for one full-time staff, by the number of full-time direct staff 
\4\ (again, currently four).
---------------------------------------------------------------------------

    \4\ This figure is the number of compensable hours in a fiscal 
year, which is used to determine full-time equivalents (FTE) (i.e., 
full-time staffing levels) for purposes of the Federal Budget. See 
Office and Management and Budget (OMB) Circular A-11, Preparation, 
Submission, and Execution of the Budget, Section 85--Estimating 
Employment Levels and the Employment Summary (Schedule Q), 2015 
(available at the time of publication of the proposal at http://www.whitehouse.gov/sites/default/files/omb/assets/a11_current_year/s85.pdf).
---------------------------------------------------------------------------

    As explained more fully in the notice of proposed decision, the 
proposed (now revised) fees for individual core service activities are 
often significantly less than the analogous existing fees for such 
services. These changes arise from the change in the way that OSHA will 
calculate the ECR (which excludes some previously included indirect 
costs but increases the number of direct staff hours) and streamlined 
review procedures (which decrease the amount of staff hours needed for 
some tasks in the process). OSHA nonetheless estimates that fees 
collected under the revised fee schedule will, in toto, approximate the 
full costs of administering the NRTL Program because, as stated above, 
OSHA estimated a significant increase in the number of applications the 
NRTL Program will process and audits the NRTL Program will perform 
(i.e., a significant increase in the time NRTL Program staff will spend 
on core service activities).
    3. Under the revised fee schedule, OSHA breaks out the fees for the 
legal review of Federal Register notices associated with initial, 
renewal, and expansion applications from the general fees it charges 
for preparation of these Federal Register notices by NRTL Program 
staff. Under the existing fee structure, OSHA charges one general fee 
that covers both preparation and legal review of a Final Report and 
Federal Register notice (76 FR 10505-10511).\5\
---------------------------------------------------------------------------

    \5\ Although OSHA did not state explicitly in the 2011 notice 
that the Final Report and Federal Register notice fee included legal 
review, the hours used for calculating this fee did in fact include 
the legal staff's time for this review.
---------------------------------------------------------------------------

    The revision more accurately reflects the portion of the fees 
attributed to legal review. Under the existing fee structure, OSHA 
charges a single hourly rate for core activities, regardless of whether 
the time charged is attorney time or NRTL Program staff time (76 FR 
10505). Under the revised fee structure, OSHA calculates a separate 
hourly rate for core activities performed by legal staff to reflect 
that certain ancillary costs, such as website development and 
maintenance, which are properly incorporated into the hourly rate for 
NRTL Program staff, should not be incorporated into the hourly rate for 
legal services. OSHA continues to incorporate in the hourly rate for 
legal costs those indirect costs that tie directly into the salary of 
legal staff, such as fringe benefits. As a result of the revision, the 
hourly rate for legal fees, shown in Table 5, is less than the rate for 
NRTL Program staff fees, shown in Table 1.
    OSHA notes that the Department of Labor incurs legal costs in 
connection with the NRTL Program other than costs associated with the 
legal review of Federal Register notices associated with initial, 
renewal, and expansion applications. These other legal costs are 
included in the existing fee schedule (See 76 FR 10504 n.5), and 
continue to be included in the revised fee schedule, as elements in 
TPC, and therefore, as elements of the calculation of the hourly rate 
for NRTL Program staff.
    4. OSHA revises the manner it calculates the salaries of NRTL 
Program staff and Solicitor of Labor staff for the purpose of 
calculating TPC. For the existing fee schedule, OSHA calculates staff 
costs using actual staff salaries, which can vary, sometimes 
significantly, over time due to changes in personnel and positions. 
Under the revised fee schedule, OSHA calculates salaries using midpoint 
salaries. These midpoint salaries are the Step 5 amounts shown for a 
particular grade (e.g., grade 13) in the Office of Personnel Management 
(OPM) General Schedule (GS) salary table for 2015, called the ``Salary 
Table 2015-DCB,'' which pertains to federal workers who have duty 
stations located mostly in Washington, DC, Maryland, and Virginia. (See 
Office of Personnel Management 2015 General Schedule (GS) Locality Pay 
Tables at www.opm.gov.) These midpoint salaries may differ from actual 
staff salaries, which depend on the actual grade and step for each 
staff. However, using these midpoint figures simplifies the calculation 
of the staff costs and provides a consistent fee that OSHA expects will 
reflect, on average, actual staff salaries over time. Because OPM 
adjusts its salary tables annually, OSHA will monitor the adjustments 
to determine if their magnitude requires modification of the fee 
schedule.
    Also, to include an amount for regular fringe benefits, OSHA 
multiplies the midpoint salaries by a fringe benefit rate. Under the 
revised fee schedule,

[[Page 49342]]

OSHA uses a 29% rate, and based this rate on the one the agency uses to 
estimate fringe costs of other OSHA activities.
    5. OSHA revises the manner in which it calculates ancillary (or 
indirect) costs. Under the existing fee schedule, OSHA includes, in its 
calculation of ancillary (or indirect) costs, equipment, training, and 
space of the staff. Under the revised fee schedule, OSHA does not 
include these items in its calculation of ancillary costs because NRTLs 
do not derive a special benefit from these cost items. For example, 
training costs for the program staff currently consist of general 
training available to all employees. OSHA will include such costs in 
future fee schedules if it determines that NRTLs do derive special 
benefits from the items. OSHA believes the revision to the fee schedule 
more accurately reflects the full costs of performing the activities 
for which OSHA charges fees.
    6. Under the revised fee schedule, OSHA does not charge fees for 
determining whether proposed test standards are appropriate test 
standards under the NRTL Program. OSHA charges such fees under the 
existing fee schedule. However, OSHA recently updated its process 
whereby it incorporates new test standards into the NRTL Program's list 
of appropriate test standards (the scope of an appropriate test 
standard must cover products for which OSHA requires NRTL approval and 
must meet the requirements of 29 CFR 1910.7(c)(1)). Under the updated 
policy, OSHA adds new test standards when it is made aware of new test 
standards and determines them appropriate (79 FR 17188). It is 
therefore no longer necessary to charge NRTLs specific fees in 
connection with the incorporation of standards into the list of 
appropriate test standards. OSHA notes, however, that the costs 
associated with the incorporation of test standards will be ancillary 
costs under the revised fee schedule, and will therefore be an element 
in the calculation of the fees OSHA assesses.

C. Basis and Derivation of Revised Fee Amounts

    Table 1, below, shows the direct and indirect program costs (TPC), 
direct staff annual hours (DSH), and hourly rate OSHA uses to calculate 
the revised fees.

          Table 1--NRTL Program Staff--Hourly Rate Calculation
------------------------------------------------------------------------
                         Description
------------------------------------------------------------------------
OSHA Direct Costs............................................   $579,383
OSHA Ancillary Costs.........................................    287,541
OSHA Total Costs of NRTL Program, excluding travel (TPC).....    866,924
OSHA Direct Staff Annual Hours (DSH).........................      8,352
OSHA Hourly rate (TPC divided by DSH)........................        104
------------------------------------------------------------------------

    Tables 2 to 5, below, describe the fees OSHA adopts in conjunction 
with the core services for which OSHA charges fees. OSHA calculates 
each fee (with the exception of fees for legal review of Federal 
Register notices) by multiplying the NRTL Program staff hourly rate of 
$104 (see Table 1, above) by the time OSHA estimates it takes NRTL 
Program staff to perform the activity at issue, on average (i.e., fee 
for activity = NRTL Program staff hourly rate ($104) x estimated time 
for activity). OSHA calculates the fees for legal review of Federal 
Register notices by multiplying the hourly rate for legal services of 
$89 (see Table 5, below) by the time OSHA estimates its takes legal 
staff to perform the activity at issue, on average (i.e., fee for 
activity = legal staff hourly rate ($89) x estimated time for 
activity). OSHA notes that it rounds the revised fees down to the lower 
multiple of ten.
    OSHA's revised (and existing) fee for travel related to assessments 
is based on actual travel expenses, and thus OSHA does not derive a fee 
to charge for travel.

               Table 2--Fees for Administrative Evaluation
------------------------------------------------------------------------
            Program component             Average  hours        Fee
------------------------------------------------------------------------
Initial Application--Limited review (per              40          $4,160
 application)...........................
Expansion Application--Limited review                 24           2,490
 (per application)......................
Renewal request review..................              16           1,660
------------------------------------------------------------------------


                 Table 3--Fees for Technical Evaluation
------------------------------------------------------------------------
            Program component             Average  hours        Fee
------------------------------------------------------------------------
Initial Application--Management                       80          $8,320
 Procedures review (per application)....
Initial or Expansion Application--                    24           2,490
 Testing capability review (per
 standard)..............................
Initial or Expansion Application--Site                24           2,490
 capability review (per site)...........
------------------------------------------------------------------------


                      Table 4--Fees for Assessments
------------------------------------------------------------------------
            Program component             Average  hours        Fee
------------------------------------------------------------------------
Assessment preparation and close out                  54          $5,610
 (per lead auditor).....................
Assessment preparation and close out                  32           3,320
 (per assistant auditor)................
Each day on-site or at office (per                     8             830
 auditor)...............................
------------------------------------------------------------------------


               Table 5--Fees for Federal Register Notices
------------------------------------------------------------------------
            Program component             Average  hours        Fee
------------------------------------------------------------------------
Initial Application Federal Register                  20          $4,080
 notice preparation (per application) **

[[Page 49343]]

 
Initial Application Federal Register                  16           1,420
 notice legal review (per application)..
                                         -------------------------------
    Total for Initial Application                     36           5,500
     Federal Register notices...........
------------------------------------------------------------------------
Renewal or Expansion Application Federal              16           2,470
 Register notice preparation (per
 application) **........................
Renewal or Expansion Application Federal               8             710
 Register notice legal review (per
 application)...........................
                                         -------------------------------
    Total for Renewal or Expansion                    24           3,180
     Application Federal Register
     notices............................
------------------------------------------------------------------------
** Includes estimated Office of Federal Register (OFR) processing fees:
  $2,000 per initial application notice, or $810 per expansion and
  renewal notice, as applicable.\6\

     
---------------------------------------------------------------------------

    \6\ The OFR charges Federal agencies a per column rate for 
publishing Federal Register notices. See http://www.archives.gov/federal-register/write/conference/publishing-billing.pdf. OSHA 
derived an estimated average processing fee based on the number of 
columns in typical Federal Register notices published for the NRTL 
Program.
---------------------------------------------------------------------------

D. Revised Fee Schedule and Description of Fees

    OSHA adopts the revised fee schedule shown below in Table 6.

                                   Table 6--Revised NRTL Program Fee Schedule
----------------------------------------------------------------------------------------------------------------
                Fee category                          Fee activity                         Fee *
----------------------------------------------------------------------------------------------------------------
Administrative Evaluation...................  Initial application--        $4,160.
                                               Limited review.
                                              Expansion application--      $2,490.
                                               Limited review.
                                              Renewal request review.....  $1,660.
Technical Evaluation........................  Initial application--        $8,320.
                                               Detailed management
                                               procedures review.
                                              Initial or Expansion         $2,490.
                                               application--Testing
                                               capability review (per
                                               standard).
                                              Initial or Expansion         $2,490.
                                               application--Site
                                               capability review (per
                                               site).
Assessment..................................  Assessment preparation and   $5,610.
                                               close out (per lead
                                               auditor, per site).
                                              Assessment preparation and   $3,320.
                                               close out (per assistant
                                               auditor, per site).
                                              Assessment--per day at       $830 plus travel expenses.
                                               office, on-site, or on
                                               travel (per auditor, per
                                               site).
Federal Register Notices....................  Federal Register notices--   $5,500.
                                               initial application.
                                              Federal Register notices--   $3,180.
                                               renewal or expansion
                                               application.
Miscellaneous...............................  Late Fees..................  $210.
                                              Other activities or          $104.
                                               services not specifically
                                               described (per hour).
----------------------------------------------------------------------------------------------------------------
* All fees must be paid in advance of activity or service.

General Information Regarding the Fees
    1. Explanation of Fees
     The Administrative Evaluation fee covers an administrative 
review of the application packet to ensure completeness. It also covers 
creating the docket and addition of the application to the docket. An 
applicant must submit this fee with the application.
     The Technical Evaluation fee covers a detailed examination 
of the application packet to determine the applicant's ability to meet 
the requirements of the requested recognition/expansion. An applicant 
must submit this fee with the application.
     On-site or office assessment fees are calculated based on 
estimated staff time and, if applicable, actual travel expenses. Travel 
expenses include expenses for hotel, air transportation, ground 
transportation, and per diem. The assessment preparation and close-out 
fees (per lead and assistant auditor, as applicable) include staff time 
to make travel arrangements and file travel reimbursement claims. At 
the conclusion of the assessment, actual travel expenses are calculated 
based on the government per diem and other travel rules. OSHA will bill 
or refund the difference between the prepaid and the actual travel 
amounts.
     The fees for ``Other activities or services not 
specifically described'' cover application- or assessment-related 
activities that are not specifically covered by the other fee 
categories. One example would be the technical review of a revised 
application that an applicant submits to OSHA in response to OSHA's 
negative finding on an applicant's original application.
    2. Refunds
     If an application is withdrawn before OSHA commences the 
Technical Evaluation, or the application is rejected after OSHA 
completes the Administrative Evaluation, OSHA will refund the Technical 
Evaluation fee.
     If an application is withdrawn before OSHA commences 
travel to a site to perform an on-site assessment, the agency will 
refund any prepaid assessment fees.
    3. Late Fees/Failure to Pay. If an invoice is not paid in full by 
the due date, the Late Payment fee will be assessed. If payment for an 
application is not received within 30 days of the invoice's original 
due date, the application will be rejected. If payment for an 
assessment is not received within 30 days of the invoice's original due 
date, OSHA will commence the process to revoke the NRTL's recognition 
(see 29 CFR 1910.7, App. A.II.E). OSHA notes that NRTLs or applicants 
may be subject to collection procedures under U.S. Federal law for 
unpaid fees.

[[Page 49344]]

    4. Changes to Fee Schedule. The effective date of this fee schedule 
is thirty days after the publication of the Assistant Secretary's 
notice in the Federal Register. A NRTL or applicant pays fees according 
to the fee schedule in effect on the date the agency receives an 
application or commences an on-site assessment.

V. Paperwork Reduction Act Requirements

    The revisions adopted in this notice contains collections of 
information (also referred to as ``paperwork'' requirements) that are 
subject to review by the Office of Management and Budget (OMB) under 
the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq., and 
OMB's regulations at 5 CFR part 1320. The purposes of the PRA include 
enhancing the quality and utility of information the Federal government 
requires and minimizing the information collection burden on affected 
entities. The PRA requires certain actions before an agency can adopt 
or revise a collection of information, including publishing a summary 
of the collection of information and a brief description of the need 
for and proposed use of the information. The PRA defines ``collection 
of information'' to mean, ``the obtaining, causing to be obtained, 
soliciting, or requiring the disclosure to third parties or the public, 
of facts or opinions by or for an agency, regardless of form or 
format'' (44 U.S.C. 3502(3)(A)).
    Under the PRA, a Federal agency may not conduct or sponsor a 
collection of information unless it is approved by OMB under the PRA 
and displays a currently valid OMB control number (44 U.S.C. 3507). 
Also, notwithstanding any other provisions of law, no person shall be 
subject to penalty for failing to comply with a collection of 
information if the collection of information does not display a 
currently valid OMB control number (44 U.S.C. 3512).
    As required by 5 CFR 1320.8(d), OSHA published a Federal Register 
notice on December 28, 2016 (81 FR 95650, Docket No. OSHA-2010-0007) 
requesting comments from the public and other interested parties on 
proposed revisions to the Information Collection Requirements approved 
by OMB as part of the NRTL Program's Paperwork Package. The notice was 
part of a preclearance consultation program that provided interested 
parties with an opportunity to comment on the current request for OMB 
approval of modification of the existing Paperwork Reduction Act 
package by the Office of Management and Budget (OMB). The previous 
approval of the existing information collection requirements by OMB and 
the request for modification of that approval both addressed the 
information collection requirements found in the NRTL Program 
requirements (29 CFR 1910.7) (OMB Control Number 1218-0147).
    The Federal Register notice generated two comments from the public. 
Both comments are available on regulations.gov under docket number 
OSHA-2010-0007. OSHA responded to these comments in a Supporting 
Statement for the Revised Information Collection Requirements. A copy 
of the revised Information Collection Requirements, with applicable 
supporting documentation, including a description of the likely 
respondents, frequency of response, and estimated total burden, may be 
obtained free of charge from the RegInfo.gov website at http://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=1218-0147.
    On June 29, 2018, the Department of Labor submitted to OMB for 
approval the proposed revisions to the Information Collection 
Requirements (83 FR 30779). OMB provided approval of this submission on 
November 29, 2018.
    Agency: DOL--OSHA.
    Title of Collection: Definition and Requirements of a Nationally 
Recognized Testing Laboratory (29 CFR 1910.7).
    OMB Control Number: 1218-0147.
    Affected Public: Business or other for-profit.
    Total Estimated Number of Respondents: 20.
    Total Estimated Number of Responses: 140.
    Total Estimated Annual Time Burden: 1,523 hours.
    Total Estimated Annual Other Costs Burden: $718,836.

VI. Final Decision

    OSHA will no longer follow the existing NRTL Program Directive 
procedures for accepting and reviewing applications, as described in 
section III.B. of this notice. Instead, OSHA adopts the proposed 
streamlined procedures for accepting and reviewing applications, with 
one minor, non-substantive change, as described in section III.C. of 
this notice.
    OSHA also adopts the proposed revised fee schedule, as described in 
sections IV.B, IV.C, and IV.D of this notice, without change. Moreover, 
as described in sections IV.B, IV.C, and IV.D of this notice, the 
revised fee schedule adopted herein replaces OSHA's existing fee 
schedule.

Authority and Signature

    Loren Sweatt, Principal Deputy Assistant Secretary of Labor for 
Occupational Safety and Health, 200 Constitution Avenue NW, Washington, 
DC 20210, authorized the preparation of this notice. Accordingly, the 
agency is issuing this notice pursuant to 29 U.S.C. 657(g)(2), 
Secretary of Labor's Order No. 1-2012 (77 FR 3912, Jan. 25, 2012), and 
29 CFR 1910.7.

    Signed at Washington, DC, on September 12, 2019.
Loren Sweatt,
Principal Deputy Assistant Secretary of Labor for Occupational Safety 
and Health.
[FR Doc. 2019-20212 Filed 9-18-19; 8:45 am]
 BILLING CODE 4510-26-P


