E9-163. Nationally Recognized Testing Laboratories; Satellite Notification and Acceptance Program

AGENCY:

Occupational Safety and Health Administration (OSHA), Labor.

ACTION:

Implementation of the Satellite Notification and Acceptance Program.

SUMMARY:

This notice announces OSHA's implementation of the ninth supplemental program under its Nationally Recognized Testing Laboratory (NRTL) Program. This supplemental program is the Satellite Notification and Acceptance Program (SNAP), and participation by NRTLs in the SNAP is voluntary. The SNAP Description for this program specifies the conditions under which NRTLs may use SNAP sites to perform equipment testing and certification functions.

DATES:

The SNAP will become effective on May 11, 2009.

FOR FURTHER INFORMATION CONTACT:

MaryAnn Garrahan, Director, Office of Technical Programs and Coordination Activities, NRTL Program, Occupational Safety and Health Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-3655, Washington, DC 20210, or phone [phone].

SUPPLEMENTARY INFORMATION:

I. Background

On April 21, 2008, OSHA published in the Federal Register a notice proposing the SNAP, and requested public comment on the proposal (73 FR 21378). OSHA made the proposed SNAP Description available on its Web site at http://www.osha-slc.gov/​dts/​otpca/​nrtl/​index.html,, but did not provide this document in the published proposal. OSHA received seven comments to the proposal, and has made a number of revisions to the proposed SNAP based on these comments.

The SNAP will become the ninth supplemental program available to NRTLs under the NRTL Program. In general, supplemental programs permit an NRTL to use the services of other facilities to test and certify products used in the workplace. OSHA formally established the initial eight supplemental programs after publishing a description of these programs in the Federal Register (60 FR 12980, March 9, 1995). The current notice sets forth the criteria and conditions that an NRTL must meet to use the SNAP.

To use a supplemental program, an NRTL must receive approval from OSHA and, once approved, the supplemental program becomes a part of the NRTL's scope of recognition. In general, each NRTL is approved by OSHA for a scope of recognition that identifies the following three elements: (1) The types of products the NRTL may approve, (2) the NRTL's “recognized sites,” that are the NRTL's wholly owned sites that can perform the full range of product-testing and -certification activities necessary in approving those products, and (3) “supplemental programs,” that, unlike the other two elements, are optional. Through these programs, an NRTL can use other resources in performing activities necessary for product testing and certification. OSHA maintains a Web page for each NRTL describing its scope of recognition.

For more information about supplemental programs and the NRTL Program in general, see the 1995 Federal Register notice cited above, and Chapters 1 and 2 of the NRTL Program Directive (hereafter, “the NRTL Directive”; CPL 01-00-003—CPL 1-0.3 (“NRTL Program Policies, Procedures, and Guidelines”)), which is available on OSHA's Web site at http://www.osha.gov/​dts/​otpca/​nrtl/​index.html. This site also provides a listing of the types of products that OSHA requires to be approved by NRTLs and the regulations of the NRTL Program (29 CFR 1910.7)

II. Summary and Analysis of Comments

OSHA provided 30 days for the public to submit comments on the proposed SNAP, with the comment period ending on May 21, 2008 (73 FR 21378, April 21, 2008). We received seven comments—six from currently recognized NRTLs, and one from an independent consultant who is a former staff member of OSHA's NRTL Program. In the remainder of this section, we discuss the comments made on the key conditions described for the proposed SNAP.

A. Limiting use of an NRTL's mark to wholly owned SNAP sites. In the notice proposing the SNAP, OSHA stated that it “would allow SNAP sites that are wholly owned by the NRTL to authorize the use of the NRTL's mark.” (Ex. OSHA-2007-0053-0001, p. 21380.) OSHA proposed this condition because it believes that NRTLs must retain control of this final step of their product-approval process. This step identifies them as the entity that tested and approved a product for use in the workplace. However, several commenters opposed this condition. For example, the Canadian Standards Association (CSA) stated that this condition was “overly restrictive and could prevent expansion of SNAP internationally.” (Ex. OSHA-2007-0053-0007.) Underwriters Laboratories (UL) noted that this condition could weaken the approval process because a majority-owned SNAP site would lack “authority to grant or withdraw use of the NRTL['s] mark.” In addition, UL noted that the “[a]uthorization to use the mark is an administrative, not technical, task that follows the critical technical review and decision on certification.” Thus, if maintained as a final and administrative step, allowing a majority-owned site to grant the mark would not compromise the testing and certification process. UL also commented that this condition would make auditing the entire process impractical because “OSHA must audit 2 separate sites to review the complete certification process.” (Ex. OSHA-2007-0053-0006.) These comments made clear that OSHA does not have to limit the authorization function to SNAP sites owned solely by an NRTL, especially when the decision on certification can occur at a majority-owned site. Thus, OSHA removed this condition from the SNAP.

B. Definition of SNAP sites. OSHA proposed that NRTLs, or organizations in which NRTLs have a majority interest, own or lease SNAP sites. Several NRTLs stated that this condition eliminated the option of using sites owned or leased by their parent company. (See Exs. OSHA-2007-0053-0002 and -0003.) Intertek Testing Services NA (ITSNA) also noted that current NRTL Program policy (paragraph X, Appendix C, NRTL Directive) allows NRTLs to either wholly own or “organizationally encompass” their recognized sites. Thus, the policy does not require the NRTL to demonstrate ownership of sites that are organizationally encompassed. (Ex. OSHA-2007-0053-0003.) This comment indicated that OSHA should allow NRTLs to similarly encompass their SNAP sites or allow SNAP sites that are not majority-owned by the NRTL. NSF International (NSF) pointed out that the majority-ownership condition makes it impossible to have SNAP sites in foreign countries that do not permit majority ownership by outside entities. (OSHA-2007-0053-0009.)

OSHA proposed the majority-ownership condition to ensure that NRTLs would have administrative and operational control over the SNAP site. OSHA believes that this condition would maintain the same degree of control that NRTLs must now exercise over their recognized sites. This policy specifies that the NRTL must wholly own or “organizationally encompass” its recognized sites, and “have administrative and operational control over these sites.” (As explained below, the term “organizationally encompass,” when used in this context, is equivalent to the NRTL completely owning the site's legal entity.) The policy also states that “the NRTL must clearly demonstrate control in its operating policies and procedures and quality assurance program documentation.”

OSHA requires this policy largely to ensure that a site that it recognizes as part of the NRTL (i.e., a recognized site) constitutes the NRTL's technical capabilities, which is necessary to determine that the NRTL meets the capability requirements under 29 CFR 1910.7. However, as explained in the notice proposing the SNAP, a SNAP site's technical capabilities are not considered in making this determination. Thus, majority-ownership ensures that NRTLs maintain administrative and operational control over their SNAP sites, thereby providing NRTLs the flexibility under SNAP to conduct their certification activities at more locations than had been previously possible.

As used in OSHA's policy on Sites, the term “organizationally encompass” means that a site is within the NRTL's organizational structure and subject to the NRTL's control. This term covers situations in which a state or region of a country issues a license to the NRTL that identifies its legal name, and allows it to establish an office or facility in this state or region to conduct business without requiring the NRTL to establish the office or facility as a subsidiary with a headquarters located outside the country. Because the site's legal entity is the NRTL, the entity is in effect wholly owned by the NRTL. Thus, the NRTL's control over a SNAP site would not diminish if OSHA permits an NRTL to establish a SNAP site that is organizationally encompassed by the NRTL. Therefore, the definition of a SNAP site in the final SNAP Description will provide for this option.

With respect to the comments suggesting that OSHA allow SNAP sites that are owned by the NRTL's parent company, ITSNA stated that it has “significant experience” that demonstrates ownership by “a common parent” of both the site and the NRTL “can provide the same level of control” as direct ownership of this site by the NRTL. (Ex. OSHA-2007-0053-0003, p. 2.) In reviewing this condition, OSHA agrees that the requisite control would exist provided that the NRTL's parent company wholly owns or organizationally encompasses the site, and delegates or otherwise assigns responsibility for the site's SNAP functions to the NRTL. This control must be demonstrated in the parent's and the NRTL's policies or procedures, as appropriate. Under these circumstances, OSHA would be assured that NRTLs exercise the same degree of control that OSHA now requires by NRTLs over their recognized sites. Accordingly, OSHA concludes that the NRTL has control of a SNAP site wholly owned or organizationally encompassed by the NRTL's parent company when the parent company delegates to the NRTL operational and administrative control over the SNAP site or the functions performed on behalf of the NRTL at the site.

C. Frequency of SNAP-site audits. OSHA specified in the proposal that NRTLs must perform an initial audit to qualify a site for the SNAP, and then perform two program audits and one technical audit at the site each year. OSHA proposed these conditions to ensure that NRTLs timely identified nonconforming situations at SNAP sites. OSHA plans to audit each SNAP site every two years and, therefore, is relying on adequate oversight by NRTLs to compensate for the reduced frequency of OSHA audits. This proposed condition seemed to be a reasonable safeguard for assuring the NRTLs could resolve problems before serious consequences arose. Several commenters opposed this condition as excessive, and unnecessary for proper oversight. (See Exs. OSHA-2007-0053-0003, -0004, -0009.) In reviewing this condition, OSHA concludes that the distinction drawn between program and technical audits is somewhat artificial, and that some of those audits may overlap. Thus, OSHA believes that it would be adequate for NRTLs to perform a minimum of two audits of each SNAP site on a yearly (12-month) cycle, provided that each audit reviews all of the site's SNAP operations, both technical (e.g., staff competence, equipment, facilities) and programmatic (e.g., quality-control procedures, internal audits, control of the certification mark). However, if the site only performs SNAP product testing and no “SNAP function” (both described later in this notice), then the NRTL must perform a minimum of one audit of the SNAP site, provided that the audit reviews all of a SNAP sites testing activities. This frequency is consistent with the current practice specified by OSHA for regular internal audits by NRTLs of their testing processes.

D. Location of auditors. OSHA proposed that the program auditor for SNAP sites be located at the SNAP headquarters of the NRTL, which would need to be located at a recognized site. OSHA proposed this condition because it believed that the headquarters would have experienced and well qualified auditors available, and using a centralized pool of auditors would maintain the continuity and reliability of audits. In addition, locating the NRTL's auditors at a central location would facilitate access to the NRTL auditors and their reports by OSHA auditors, especially when OSHA auditors conduct annual audits at the NRTL's SNAP headquarters. NSF believed that staff located at other sites are as qualified to conduct audits as auditors from the SNAP headquarters of the NRTL. (Ex. OSHA-2007-0053-0009.) Several commenters raised concerns about the burden imposed on auditors having to travel to many distant SNAP sites from an NRTL's headquarters. (Exs. OSHA-2007-0053-0003 and -0009.) Based on this travel burden, ITSNA recommended that auditors be located at the NRTLs' regional headquarters.

After reviewing these comments, OSHA believes that locating auditors at a recognized site, as well as at the NRTL's SNAP headquarters, will not compromise the effectiveness of the audits. Accordingly, OSHA finds that an NRTL can exercise adequate oversight over its SNAP sites when the auditors of these sites report their findings to the NRTL's SNAP headquarters, and when OSHA annually audits any of these locations annually. OSHA also is assuring the effectiveness of the audits by requiring that auditors be located at any recognized site, and by requiring the auditors at these sites to forward audit records to the SNAP headquarters of the NRTL and to keep a copy of the audit report at the auditor's location.

E. Independence of NRTL's SNAP auditors. OSHA proposed that an NRTL's SNAP auditors must be in an organizational unit that is separate from the NRTL's operations, and that the unit must report directly to a senior executive of the NRTL. OSHA proposed this condition to ensure that SNAP auditors were independent of an NRTL's operational units, and that auditing units had authority to compel operational units to conform with the prescribed SNAP conditions. Two commenters opposed this condition. (Exs. OSHA-2007-0053-0007 and -0008.). The first commenter believed this condition was inappropriate because auditing units may report to a team of executives instead of one executive, while the second commenter noted that the executive structure envisioned in the proposal may not exist in many NRTL organizations. OSHA agrees with these comments, and revised the condition to specify that SNAP auditors cannot be under the control or direction of any SNAP site, and that auditors must report audit results from a SNAP site to the SNAP headquarters of the NRTL.

F. Policies and procedures for SNAP operations. Footnote 4 in the proposed SNAP Description states:

For purposes of participating in SNAP and complying with the criteria in II.C and II.D of this description, any [NRTL may] use policies and procedures applicable to other aspects of its operations provided they meet or are tailored to meet the relevant criteria. Under such conditions, the NRTL would not need to develop separate policies and procedures for its participation in SNAP.

Thus, OSHA was trying to facilitate NRTLs' participation in the SNAP by permitting the NRTLs to adopt already-developed policies and procedures. In its comment, UL recommended revising this footnote to allow NRTLs to use “alternate policies and procedures (e.g., those applicable to other aspects of its operations) provided they meet or are tailored to meet or exceed (in an alternate way) the relevant criteria.” (Ex. OSHA-2007-0053-0007; emphasis in original noting revised language.) UL explained that the revisions would allow NRTLs to use “individual level qualification” for SNAP sites instead of site-level qualification. However, OSHA requires individual qualification under the proposed SNAP as a condition for qualifying a site. For example, paragraph II.C.2 of the proposed SNAP Description requires, “Detailed criteria to grant a site's qualification, addressing both its capability to evaluate a product with respect to the requirements in a standard (i.e., technical capability) and its capability to perform any of the proposed SNAP functions (i.e., program capability).” Such qualification must ensure that a site has properly qualified staff, equipment, and procedures to perform technical and program functions. OSHA is revising the proposed SNAP Description to clarify this point, while leaving the footnote in its proposed form.

G. Other topics and issues. CSA (Ex. OSHA-2007-0053-0007) noted that the proposed SNAP Description did not provide sufficient detail regarding the qualification and requalification requirements to ensure consistent application of the requirements. In response to this comment, OSHA will update the application format applicable for SNAP to specify the minimum documentation needed to apply, and the criteria OSHA will use to determine if the application is satisfactory.

ITSNA expressed concern that use of the term “leased” in the definition of SNAP in the proposed SNAP Description could be interpreted to exclude subleasing. (Ex. OSHA-2007-0053-0003.) To avoid confusion, OSHA is clarifying the definition to include subleasing and renting.

UL took exception to a statement in the preamble of the proposal that appeared to require NRTLs to issue the authorization of its mark “simultaneously or concurrently with the final decision on certification.” (Ex. OSHA-2007-0053-0007.) In taking exception to this statement, UL noted that “there is no realistic way to concurrently or simultaneously decide and authorize.” OSHA believes the preamble statement is ambiguous, and agrees with UL that authorization must follow the decision to certify a product, even if, as UL noted, authorization occurs immediately after the decision.

UL also opposed the condition in the proposed SNAP Description requiring NRTLs to post SNAP-site locations on the NRTLs' Web sites. (Ex. OSHA-2007-0053-0007.) In this regard, UL stated that the public will have difficulty understanding the differences between a SNAP site and an NRTL site, and that “competitive issues between NRTLs using SNAP may arise regarding how their SNAP sites are referenced on their respective Internet sites.” OSHA agrees that the public may not readily understand the differences between NRTL sites and SNAP sites, and that inconsistencies could arise among NRTLs in describing SNAP sites on their Web sites. Therefore, OSHA will remove this condition from the final SNAP Description, and will maintain on its Web site a list of NRTLs and their associated SNAP sites, as well as an explanation of how NRTLs and their recognized sites differ from SNAP sites.

Finally, UL noted that the proposed SNAP Description allowed SNAP sites to perform testing, which UL stated was not a SNAP function. (Ex. OSHA-2007-0053-0007.) However, OSHA proposed the SNAP to allow NRTLs to perform testing and certification functions at sites in countries that do not permit foreign entities to wholly own local businesses, provided the NRTL has qualified the sites as capable of performing specific product testing. OSHA revised the proposed SNAP Description to make clear that SNAP sites can perform testing when qualified by an NRTL to do so.

III. Key Elements of SNAP

With this Federal Register notice, OSHA announces implementation of the SNAP. Implementation of the SNAP will not change any of the requirements for NRTLs found under 29 CFR 1910.7, or any of OSHA's requirements governing product approval by NRTLs. OSHA will implement the SNAP through the NRTL Directive as part of its NRTL Program policy.

The SNAP will allow NRTLs to use SNAP sites to perform functions necessary for the NRTLs' testing and certification operations. To receive approval to participate in the SNAP, NRTLs must ensure that the SNAP sites meet the conditions specified in the SNAP Description. These conditions consist of controls and safeguards for ensuring the efficacy of the functions performed at SNAP sites. Accordingly, an NRTL must qualify a prospective SNAP site to ensure that the site can perform one or more functions or activities permitted under the SNAP Description. Also, OSHA will audit each SNAP site, as well as the NRTL's recognized site that centrally manages the NRTL's SNAP operations. If OSHA finds that an NRTL or a SNAP site is not in compliance with any condition specified in the SNAP Description, it may remove the NRTL or the SNAP site from the SNAP.

After reviewing the entire record, including the comments described above in section II of this not ice (“Summary and Analysis of Comments”), OSHA determined that SNAP sites will be able to perform the following SNAP functions (paragraphs A to E) and product-testing activity (paragraph F):

A. Qualify under Programs 2 through 7 and 9.^[1] Programs 2 through 7 address NRTLs' acceptance and use of testing data and product evaluations from other facilities that are not part of their corporate structure, specifically independent laboratories and product manufacturers. Under these programs, NRTLs must qualify each location (or site) that generates testing data or product evaluations. In qualifying such a facility, an NRTL must ensure that the facility meets the NRTL's internal criteria for conducting the tasks necessary to collect testing data and perform product evaluations.

Program 9 describes the procedures followed by NRTLs when using other facilities to perform specified services such as equipment calibration and follow-up inspections. NRTLs qualify each of these facilities to ensure that the facilities meet the NRTL's internal criteria for providing the specified services. Implementation of the SNAP will permit SNAP sites to qualify to perform functions described under Programs 2 through 7 and 9.

B. Accept data under Programs 2 through 8.^[2] In accepting testing data or product evaluations under Programs 2 through 8, NRTLs must have appropriate technical personnel to review the adequacy and accuracy of the data and evaluations, as well as clear procedures for conducting these reviews. The SNAP will expand this capability from recognized sites to SNAP sites.

C. Provide OSHA with access to original product-testing and -evaluation records. AN NRTL must maintain, and make available to OSHA on request, the original records resulting from its product testing and evaluation functions. These critical documents allow NRTLs to exercise quality control over product testing and evaluation functions, and permit OSHA to perform an accurate audit of these NRTL functions. SNAP sites must have the capability to maintain, and provide OSHA with access to, records of functions performed on behalf of NRTLs.

D. Perform final technical reviews and make decisions on product certification. Final technical reviews and subsequent decisions regarding product certification are the last functions performed in the technical process for product certification. To provide assurance that a product meets the relevant test standard(s), only a well qualified technical staff can perform these functions. As with recognized sites, SNAP sites can perform these functions only if they have demonstrated the capability of doing so.

E. Authorize use of an NRTL's mark. An NRTL's mark symbolizes the final decision to certify a product, and clearly identifies the NRTL as the source responsible for testing and certifying the product. While the SNAP will permit a SNAP site to authorize the mark of the NRTL for which it performs product-testing and -certification functions, the NRTLs must control the use of their marks and ensure that SNAP sites authorize this use only after the decision to certify a product.

F. SNAP product-testing activity. SNAP sites may perform product testing within the scope of recognition of the NRTL, provided that the NRTL qualifies the site as having the capability for this testing. This activity may be the only activity performed by a SNAP site, or supplement one or more SNAP functions.

IV. Submitting SNAP Applications

OSHA will begin accepting applications from NRTLs for the SNAP after its effective date of May 11, 2009. At that time, OSHA will invite NRTLs and NRTL applicants to apply for approval to participate in SNAP and establish SNAP sites. Prior to submitting a SNAP application, applicants should review the SNAP Description, which OSHA will make available on its Web site for the NRTL Program at http://www.osha-slc.gov/​dts/​otpca/​nrtl/​index.html. This Web site will contain instructions describing the information to submit in a SNAP application and will provide an application format that may be used for this purpose.

V. Authority and Signature

Thomas M. Stohler, Acting Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210, directed the preparation of this notice. Accordingly, the Agency is issuing this notice pursuant to sections 6(b) and 8(g) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 655 and 657), Secretary of Labor's Order 5-2007 (72 FR 31160), and 29 CFR 1911.

Signed at Washington, DC, on January 5th, 2009.

Thomas M. Stohler,

Acting Assistant Secretary of Labor for Occupational Safety and Health.

Footnotes

1.  The NRTL Directive contains information about each of these programs.

2.  The NRTL Directive contains information about each of these programs.