RULES AND REGULATIONS
Title 70—WEIGHTS, MEASURES AND STANDARDS
DEPARTMENT OF GENERAL SERVICES
[ 70 PA. CODE CH. 110 ]
State Metrology Laboratory Fee Schedule
[51 Pa.B. 5248]
[Saturday, August 21, 2021]The Department of General Services (Department or DGS) amends § 110.2 (relating to State Metrology Laboratory fee schedule) to read as set forth in Annex A.
This final-form rulemaking increases the existing State Metrology Laboratory fees and updates description fields to accurately reflect the parameters and ranges covered under the National Institute of Standards and Technology (NIST) Office of Weights and Measures Certificate of Metrological Traceability and the NIST National Voluntary Laboratory Accreditation Program Scope of Accreditation used by the State Metrology Laboratory.
Authority
This final-form rulemaking is authorized under 3 Pa.C.S. §§ 4101—4194 (relating to Consolidated Weights and Measures Act). under 3 Pa. C.S. § 4178 (relating to fees) the Department is required to establish, by regulation, fees for metrology laboratory calibration, type evaluation and other testing services. Section 4178 of 3 Pa. C.S. provides that the Department shall alter these fees by regulation. This final-form rulemaking increases fees to ensure the costs for the testing services rendered by the laboratory are borne by the parties who are receiving the services and not by the taxpayers.
Need for the Final Regulation
The final regulation fulfills the statutory requirement that the Department establish, charge and collect the fees described in 3 Pa. C.S. § 4178. Currently, the State Metrology Laboratory (Laboratory) provides these services based upon a fee schedule established in 2010. This final-form rulemaking will allow the Commonwealth to charge fees for the services provided that ensure that the cost of performing these testing services is borne by the parties who are receiving the services and not by the taxpayers.
This final-form rulemaking will increase the fees charged for metrology laboratory calibration, type evaluation and other services performed by the Laboratory. These fees were last increased in 2010. The amount of that increase was based upon average metrology fees charged by other state metrology laboratories in 2006. By the time the metrology laboratory began charging the fees that were increased by regulation in 2010, the fees collected were insufficient to cover the costs for the testing services rendered by the Laboratory, and this trend continued. For example, in Fiscal Year (FY) 2016-2017, the cost to run the Laboratory was $682,503.69, and the fees collected totaled $292,421.85, resulting in a shortfall of $390,081.84. In FY 2017-2018, the cost to run the Laboratory was $701,509.06, and the fees collected totaled $247,403.86, resulting in a shortfall of $454,105.20. In FY 2018-2019, the cost to run the Laboratory was $735.898.19, and the fees collected totaled $265,586.10 resulting in a shortfall of $470,312.09. In FY 2019-2020, the cost to run the Laboratory was $728,769.70, and the fees collected totaled $244,846.55, resulting in a shortfall of $483,923.15. Over the past 4 years, the Metrology Laboratory has had a total shortfall of $1,798,422.28. This $1,798,422.28 has not been borne by the primarily commercial customers of the laboratory who have benefited from the low fees charged by the Laboratory for the past 10 years. Instead, it has been borne by the taxpayers, and will continue to be borne by the taxpayers unless the fees are increased to cover this shortfall.
This final-form rulemaking updates the description fields to accurately reflect the parameters and ranges covered under the NIST Office of Weights and Measures Certificate of Metrological Traceability and the NIST National Voluntary Laboratory Accreditation Program Scope of Accreditation used by the State Metrology Laboratory.
In summary, the Department is satisfied there is a need for the final regulation, and that it is otherwise consistent with Executive Order 1996-1, Regulatory Review and Promulgation.
Summary of the Final Regulation
This final-form rulemaking increases the fees charged for metrology laboratory calibration, type evaluation and other services performed by the Laboratory to cover the costs for the testing services rendered by the Laboratory. The Department calculated each fee by averaging the fees reported from a 2013 survey the Department conducted of seven State-operated laboratories and one county-operated laboratory, then updating those averages by 16.71% which is the historical average fee increase calculated from data in the National Conference of Standards Laboratories (NCSL) State Laboratory Program Workload Surveys. The Department then rounded those fees to the nearest $5. The Department benchmarked these fees against fees charged by other jurisdictions and commercial companies. While the proposed fees will be higher than the fees charged by some states in some instances, many other states' fees have also not been increased in many years. In addition, the fees charged by commercial companies are generally higher than the proposed fees.
This final-form rulemaking updates description fields to accurately reflect the parameters and ranges used by the State Metrology Laboratory.
Persons Likely to be Affected
Persons engaged in the business of selling, installing, servicing and repairing various types of commercial weighing and measuring devices will be charged fees according to the proposed fee schedule. State Metrology Laboratory customers, including small businesses, have benefitted from the fees that have not increased since 2010 despite increasing personnel costs for State Metrology Laboratory employees and increasing costs to maintain or replace Laboratory equipment.
Updates to the description fields will accurately reflect the parameters and ranges used by the State Metrology Laboratory and should not affect any group or entity.
Fiscal Impact
Commonwealth
The estimated annual revenue to the Commonwealth (the Department) from this final-form rulemaking is approximately $645,094. This final-form rulemaking should not result in additional costs to the Commonwealth.
Political Subdivisions
No other government entity will incur any costs or realize any savings.
General public
This final-form rulemaking will impose no costs and have no fiscal impact on the general public. However, the fee increase will ensure that the cost of performing State Metrology Lab testing services is borne by the parties who are receiving the services and not by the taxpayers.
Private sector
Persons engaged in the business of selling, installing, servicing and repairing various types of commercial weighting and measuring devices will be charged fees according to the proposed fee schedule. The anticipated fee per user is estimated to be $1,233, which is a $736 increase from the current $497 average fee per user. All State Metrology Laboratory customers, including small businesses, have benefitted from the fees that have not increased since 2010 despite increasing personnel costs for State Metrology Laboratory employees and increasing costs to maintain or replace Laboratory equipment.
Paperwork Requirements
This final-form rulemaking will not result in an increase in paperwork for the Laboratory, which already is required to issue invoices, collect payments and transmit payments to the State Treasury. Similarly, under 3 Pa. C.S. 4193(c) (relating to disposition of funds), the Treasury Department will have no increase in paperwork. There will be no increase in paperwork for the regulated community.
Effective Date
This final-form rulemaking will be effective upon publication in the Pennsylvania Bulletin.
Sunset Date
There is no sunset date for this final-form rulemaking. The Department will review the efficacy of this regulation on an ongoing basis.
Public Comment Period
During the public comment period, the Department received one comment from the former House State Government Committee Chairman, the Honorable Representative Garth Everett, who raised concerns regarding the magnitude of the proposed fees and their impact on small businesses. In an effort to alleviate House State Government Chairman, the Honorable Garth Everett's concerns, the Department invited Chairman Everett to the Laboratory and gave him a tour of its operations, explained its functions, and demonstrated its cost drivers. The Department believes that Metrology is not a field that many people understand, and many likely do not even know such a field exists. The Department hopes that the meeting with the Honorable Chairman Garth Everett alleviated his concerns regarding the fee increase and helped him to understand why the fee increase is necessary. Notwithstanding the Honorable Chairman Garth Everett's concerns, this fee increase is necessary to ensure that the increasing costs to run the Metrology Laboratory are no longer borne by the taxpayers but are instead borne by those entities that directly benefit from the Metrology Lab's services and who have benefitted from 10 years of low fees.
Independent Regulatory Review Commission (IRRC) Comment/Response
The Department states in response to RAF # 10 that the regulation will allow the Commonwealth to charge an appropriate fee for the services provided, this ensuring that the cost of performing these testing services is borne by the parties who are receiving the services and not by taxpayers. The Preamble states that over the past four years, the State Metrology Laboratory (Laboratory) has had a total shortfall of approximately $1.6 million. Based on the Department's response to RAF # 15, we note that the fees appear to be increasing on average by 160 percent. While we recognize that the Department is statutorily required by Section 4178 of the Consolidated Weights and Measures Act to charge and collect fees for actual metrology laboratory calibration, type evaluation and any other testing services which may be rendered (3 Pa.C.S. § 4178), this increase is significant. House State Government Chairman Garth Everett comments that Pennsylvania's fees would be among the highest in the cost comparison study submitted by the Department. We ask the Department to explain how the economic impact of the fees and the percentage increase of fees are reasonable and in the public interest.
DGS recognizes that these fee increases are substantial. However, the regulation will simply allow the Commonwealth to charge an appropriate fee for the services provided, thus ensuring that the cost of performing these testing services is borne by the parties who are receiving the services and not by the taxpayers. DGS is not seeking to profit from this fee increase; they are simply looking to shift the cost burden of running the Laboratory from the taxpayers (who do not receive the direct benefit of the Laboratory's services) to those entities that are commercially benefiting from its use. This increase should not be seen as a financial burden to those entities; rather it is ''righting the ship'' to place the burden on those who receive the benefit, which is clearly in the public interest.
Also, while the percentage of the increase is large, it is a reasonable increase for two reasons. First, the increase is necessary to cover the costs of running the Laboratory. Second, the parties that use the services provided by the Laboratory have benefitted from ten years of fees that were significantly lower than the actual costs to provide the services. Although the fees would be among the highest charged per our cost comparison study, those other jurisdictions that DGS used as a benchmark for their comparisons have not raised their fees since 2012 or 2013, suggesting that their fees may now be outdated based upon the continually increasing costs to run these types of laboratories.
In an effort to alleviate House State Government Chairman Garth Everett's concerns, DGS invited Chairman Everett to the Laboratory and gave him a tour of its operations, explained its functions, and demonstrated its cost drivers. We believe that Metrology is not a field that many people understand, and many likely do not even know such a field exists. We hope that our meeting with Chairman Everett alleviated his concerns regarding the fee increase and helped him to understand why the fee increase is necessary.
DGS also recognizes that the need for such a significant increase is due in a large part to DGS not seeking more incremental fee increases over the past ten years. To avoid the need for such a substantial increase in the future, DGS commits to conducting an analysis at the end of each fiscal year to ensure that the fee increase was sufficient to cover the costs of the State Metrology Laboratory for that fiscal year. DGS will also make the commitment to closely monitor the fees and take steps to do fee adjustments in the future that are more incremental.
In response to RAF # 28, the Department explains that in October 2013, the Department calculated the average of the fees charged by seven state laboratories (California, Hawaii, Missouri, Oklahoma, South Carolina, Virginia and Vermont) and one county laboratory (Los Angeles County, California) over a twelve-year period for each parameter and used that as the baseline fee. The Department then updated those average baseline fees by a calculated historical average fee increase of 16.71 percent (using data from 2000 to 2012 biennial NCSL State Laboratory Program Workload Surveys) to determine the fees in the proposed regulation. It has been six years since the Department's last fee increase; why is the Department using a 12-year average rather than a six-year average? We ask the Department to provide the specific fees charged by the labs in the seven states and one county, and to show how each fee in the final-form regulation is calculated and that each fee is in line with the other states. Additionally, we ask the Department to explain why the method used for calculating fees in the final-form regulation is reasonable and in the public interest.
In October 2013 DGS conducted a survey of fees charged by reporting laboratories in the NCSL State Laboratory Program Workload Survey. There were seven state operated laboratories (California, Hawaii, Missouri, Oklahoma, South Carolina, Virginia and Vermont) and one county laboratory (Los Angeles County, California) that raised their fees in 2012 or 2013 due to increasing costs. DGS averaged the fees reported from these laboratories for each parameter as the baseline fee. DGS then updated those average baseline fees by the calculated historical average fee increase of 16.71% using data from 2000 to 2012 biennial NCSL State Laboratory Program Workload Surveys. DGS then rounded those fees to the nearest $5. DGS used the twelve years in calculating the historical average fee increase because that was all the published data available at that time. DGS's methodology in calculating the increase in this way was completed in good faith. In addition, the increased fees calculated based upon this methodology were sufficient to cover the Laboratory's anticipated costs starting in Fiscal Year 2021/22.
The specific fees charged by the labs in the seven states and one county, and the methodology showing how each fee in the final-form regulation is calculated and is in line with the other states, are set forth in the Fee Proposal and Justification for Cost Increase workbook. The tabs in this workbook provide calculations outlining both the historical and projected shortages by fiscal year if the current fees were to remain in place, a projected calculation of the amounts in which the proposed fees would cover the Laboratory's costs, national fee comparisons for 2016 and 2018, an analysis of the difference between the current and proposed fees, a description of how the baseline fees were calculated, a historical change table showing the average fee increases over a 10 year period for laboratories participating in the state laboratory program workload survey, and a survey of fees charged by laboratories in neighboring states.
DGS's methodology for calculating fees in this way is reasonable and in the public interest for the following reasons. First and most importantly, the fee increase would help to cover increasing costs (in the form of salary and benefit increases, purchases to maintain metrological traceability for laboratory standards, training required to maintain laboratory accreditation and necessary equipment replacement) associated with Pennsylvania's State Metrology Laboratory's services. This is important because the cost burden of running the Laboratory has, for the past 10 years, been borne by taxpayers who do not receive the direct benefit of the Laboratory's services. This fee increase would shift that burden to those entities that are commercially benefiting from its use (and who have benefitted from the low fees for the past 10 years). Finally, the fees are in line with fees charged by other jurisdictions as further outlined in Fee Proposal and Justification for Cost Increase, Baseline Fee Calculation tab.
In response to RAF # 12, the Department states that the proposed fees are in line with fees charged by the labs in the seven states and one county referenced above. Why did the Department choose those states rather than states surrounding Pennsylvania? Did the Department consider using Pennsylvania-based data? The Department states in the Preamble that the 2010 fee increases were based on data from other states, as well, and, as indicated by the approximately $1.6 million deficit, were inadequate to meet the cost to run the Laboratory. We ask the Department to evaluate the use of data specific to Pennsylvania in determining the fees in the final-form regulation, and to explain why the data used for calculating fees in the final regulation is reasonable and in the public interest.
When DGS first considered pursuing a fee increase in 2013, we conducted a survey of all state labs and decided to use the labs that raised their fees in 2012 and 2013 as the baseline for our survey, which is the reason for choosing the seven states and one county laboratory to use as a comparison benchmark. Since those fees had been recently evaluated at the time, we were hopeful they would be reflective of the amounts required to cover those state laboratories' costs.
In September 2019, DGS also conducted a metrology fee survey of our neighboring state labs (Maryland, Ohio, New York, New Jersey and West Virginia). See, Fee Proposal and Justification for Cost Increase, Neighbor Labs Fee Survey 2019 tab. Below are the key points from our survey which demonstrate why our neighboring states' fees should only be used as a benchmark for the reasonableness of our Laboratory fees and should not be looked at as a direct comparison:
1. On average, our neighboring states' lab fees were last updated in 2008;
2. The New York state lab fee structure has not been updated since the fees were put in place in 1998;
3. The laboratory scopes and ranges of the fees charged by other states do not necessarily align with our scopes and ranges. For example, New Jersey can't calibrate above 1,000 lbs. and Maryland doesn't calibrate above 50 lbs. However, Pennsylvania has no limits on the calibration weights. The additional range requires more standards and greater material handling capability, resulting in a greater cost; and
4. The calibration intervals in different states' Weights and Measures laws do not align. For example, New York requires calibration on Class F Weight Sets every five years, and West Virginia requires calibration on provers (liquid flow calibration device) over 400 gallons every five years, but Pennsylvania requires annual calibration for all items. Therefore, New York and West Virginia only suffer the loss every five years, while Pennsylvania suffers the loss every year.
DGS has not considered using Pennsylvania-based data for a number of reasons. We are the only state-run laboratory in Pennsylvania. The other metrology laboratories in Pennsylvania that DGS is aware of are typically lower-level labs that rely on the Pennsylvania laboratory for their own calibration. In addition, the scopes of accreditation for the Pennsylvania laboratory do not align with services provided by other Pennsylvania-based laboratories. For example, DGS is unaware of any Pennsylvania-based laboratories that conduct volume calibrations in Pennsylvania.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P.S. § 745.5(a)), on June 18, 2019, the Department submitted a copy of the notice of proposed rulemaking, published at 49 Pa.B. 3313 (June 29, 2019), to IRRC and the Chairpersons of the House State Government Committee and Senate State Government Committee on June 18, 2019, for review and comment.
Under section 5(c) of the Regulatory Review Act, the Department is required to submit to IRRC and the House State Government Committee and Senate State Government Committee copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Department has considered all comments from IRRC and the House State Government Committee and Senate State Government Committee. The Department did not receive any comment from the public.
Under section 5.1(j.2) of the Regulatory Review Act (71 P.S. § 745.5a(j.2)), on July 14, 2021, the final-form rulemaking was deemed approved by the House State Government Committee and the Senate State Government Committee. Under section 5.1(e) of the Regulatory Review Act, IRRC met on July 15, 2021, and approved the final-form rulemaking.
Contact Person
Additional information may be obtained by contacting Mary Fox, Assistant Chief Counsel, Department of General Services, North Office Building, 401 North Street, Room 603, Harrisburg, PA 17120 or by e-mail at maryfo@pa.gov.
Findings
The Department of General Services finds that:
(1) Public notice of the proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1969 (P.L. 769, No. 240) (45 P.S. §§ 1201 and 1202), known as the Commonwealth Documents Law, and the regulations promulgated under those sections at 1 Pa. Code §§ 7.1 and 7.2 (relating to notice of proposed rulemaking required; and adoption of regulations).
(2) A public comment period was provided as required by law and all comments were considered in drafting this final-form rulemaking.
(3) The increases to the existing State Metrology Laboratory fees and updates description fields to accurately reflect the parameters and ranges covered under the NIST Office of Weights and Measures Certificate of Metrological Traceability and the NIST National Voluntary Laboratory Accreditation Program Scope of Accreditation used by the State Metrology Laboratory are necessary and appropriate for administering and enforcing the authorizing act identified in this Preamble.
Order
The Department acting under the authorizing statues orders that:
(a) The regulations of the Department of General Services, 70 Pa. Code Chapter 110, are amended by amending § 110.2, to read as set forth in Annex A.
(b) The Department of General Services shall submit this order and Annex A to the Office of Attorney General and Office of General Counsel for approval as required by law.
(c) The Department of General Services shall submit this final-form regulation to IRRC and the Legislative Standing Committees as required by law.
(d) The Department of General Services shall certify this final-form regulation, as approved for form and legality, and shall deposit it with the Legislative Reference Bureau as required by law.
(e) The regulations shall take effect immediately upon publication in the Pennsylvania Bulletin.
CURTIS M. TOPPER,
Secretary(Editor's Note: See 51 Pa.B. 4174 (July 31, 2021) for IRRC's approval order.)
Fiscal Note: Fiscal Note 8-27 remains valid for the final adoption of the subject regulation.
Annex A
TITLE 70. WEIGHTS, MEASURES AND STANDARDS
PART V. STATE METROLOGY LABORATORY
CHAPTER 110. GENERAL PROVISIONS § 110.2. State Metrology Laboratory fee schedule.
* * * * * (c) Schedule of fees. The State Metrology Laboratory shall charge the following fees for the indicated calibration services:
General type of test Description Fee Precision mass ASTM or OIML Class weights calibrated by use of the Mass Code
50 lb to 0.001 lb, 30 kg to 1 mg$75 per man-hour Precision mass ASTM Class 1, 2, 3, 4
OIML Class E2, F1, F2 or best calibration not to a specific class
1000 lb to 0.001 lb
30 kg to 1 mg$65 per weight Ordinary mass, Small NIST Class F
ASTM 5, 6, 7
OIML M1, M1-2, M2, M2-3, M3
10 lb to 0.001 lb
5 kg to 1 mg$20 per weight (without adjustment)
$40 per weight (with adjustment)Ordinary mass, Medium NIST Class F
ASTM 5, 6, 7
OIML M1, M1-2, M2, M2-3, M3
100 lb to >10 lb
50 kg to >5 kg
$20 per weight (without adjustment)
$40 per weight (with adjustment)
Ordinary mass, Large NIST Class F
ASTM 5, 6, 7
OIML M1, M1-2, M2, M2-3, M3
6,000 lb to >100 lb
2,500 kg to >50 kg
$45 per weight (without adjustment)
$70 per weight (with adjustment)
Ordinary mass Weight Carts
2,000 lb to 6,000 lb
$315 per cart Volume transfer Test Measures
5 gallon
5 liter to 20 liter
$120 per measure (includes adjustment) Volume transfer Provers
10 gallon to 100 gallon
40 liter to 378 liter
$440 per prover (includes adjustment) Volume transfer Provers
101 gallon to 1,500 gallon
379 liter to 5,000 liter
$440 plus $1 per each additional gallon over 100 gallon (includes adjustment) Gravimetric Calibrations Test Measures
1 gallon to 10 gallon
5 liter to 20 liter
$825 per item Gravimetric Calibrations Provers
11 gallon to 130 gallon
21 liter to 500 liter
$1,640 per item Length Calibrations Metal Tapes to 200 feet $40 per point tested Timing Devices Stopwatches to 24 hours $70 per item Wheel Load Weighers NIST Handbook 44
Class IIII Scales to 20,000 lb$70 per scale Force Gauges to 50 lbf $180 per gauge Special Tests $75 per man-hour (d) Payment of fees. A nonrefundable deposit for the estimated fee shall be submitted when the calibration request is made. Fees are payable at the time the metrology service is provided, regardless of whether the item calibrated is certified or approved.
[Pa.B. Doc. No. 21-1314. Filed for public inspection August 20, 2021, 9:00 a.m.]
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