E8-8430. Nationally Recognized Testing Laboratories; Proposed Satellite Notification and Acceptance Program

AGENCY:

Occupational Safety and Health Administration (OSHA), Labor.

ACTION:

Notice.

SUMMARY:

The Occupational Safety and Health Administration (OSHA) requests comment on a new segment being proposed under its Nationally Recognized Testing Laboratory (NRTL) Program. This segment is called the Satellite Notification and Acceptance Program, and participation by NRTLs in the program is voluntary. The description for this program specifies the criteria and conditions under which any NRTL may control and audit certain facilities in order to perform particular functions at those facilities.

DATES:

You must submit information or comments by the following dates:

• Hard copy: postmarked or sent by May 21, 2008.
• Electronic transmission or facsimile: sent by May 21, 2008.

ADDRESSES:

You may submit comments by any of the following methods:

Electronically: You may submit comments electronically at http://www.regulations.gov, which is the Federal eRulemaking Portal. Follow the instructions online for making electronic submissions.

Fax: If your submissions, including attachments, are not longer than 10 pages, you may fax them to the OSHA Docket Office at [phone].

Mail, hand delivery, express mail, messenger or courier service: You must submit three copies of your comments to the OSHA Docket Office, Docket No. OSHA-2007-0053, U.S. Department of Labor, Room N-2625, 200 Constitution Avenue, NW., Washington, DC 20210. Deliveries (hand, express mail, messenger and courier service) are accepted during the Department of Labor's and Docket Office's normal business hours, 8:15 a.m.-4:45 p.m., e.t.

Instructions: All submissions must include the Agency name and the OSHA docket number (OSHA Docket No. OSHA-2007-0053). Submissions, including any personal information you provide, are placed in the public docket without change and may be made available online at http://www.regulations.gov.

Docket: To read or download submissions or other material in the docket, go to http://www.regulations.gov or the OSHA Docket Office at the address above. All documents in the docket are listed in the http://www.regulations.gov index, however, some information (e.g., copyrighted material) is not publicly available to read or download through the Web site. All submissions, including copyrighted material, are available for inspection and copying at the OSHA Docket Office.

Extension of Comment Period: Submit requests for extensions concerning this notice to the 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, fax to [phone].

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]. Our Web page includes information about the NRTL Program (see http://www.osha.gov and select “N” in the site index).

SUPPLEMENTARY INFORMATION:

Introduction

The Occupational Safety and Health Administration (OSHA) is proposing a new operational segment under its Nationally Recognized Testing Laboratory (NRTL) Program; it will be called the Satellite Notification and Acceptance Program (SNAP). This new segment would allow NRTLs to use facilities referred to as “SNAP sites,” which they control and audit, in order to perform particular functions necessary in the NRTL's testing and certification operations. These functions are called “certification functions” in this notice. NRTLs would need to meet certain criteria and conditions to be approved by OSHA for SNAP.

SNAP would become the NRTL Program's ninth “supplemental program”; the supplemental programs are one of the three elements of the NRTL scope of recognition. In general, these supplemental programs permit a qualified NRTL to use the services or activities of other parties or facilities for purposes of testing and certifying products. The initial eight programs were formally established by OSHA for the NRTL Program through publication of their description in the Federal Register (see 60 FR 12980, March 9, 1995). That notice set forth the criteria and conditions that an NRTL must meet to use a particular program. More information about supplemental programs is given later in this notice and is also available under Chapter 2 of the NRTL Program Policies, Procedures, and Guidelines (referred to as NRTL Program Directive or NRTL Directive, for short), which may be found at http://www.osha.gov/​dts/​otpca/​nrtl/​index.html. Use of any of these supplemental programs by any NRTL is voluntary.

In this notice, we provide background about the NRTL Program, for those unfamiliar with the program, and then follow with the description of SNAP. The detailed program description of SNAP is available for viewing or downloading at the above Web page link.

This notice is published to provide the public with an opportunity to comment on OSHA's pending action. This action does not change any of the requirements for NRTLs, found under 29 CFR 1910.7, or any of the OSHA requirements for approval of particular products by NRTLs. SNAP is an internal policy, which would be made part of the NRTL Directive and thus become an NRTL Program policy. The Agency is requesting public comment on this action in the interest of providing a formal opportunity for input by NRTLs and the public. OSHA obtained informal comments from NRTLs on a draft version of SNAP prior to publication of this notice.

Background on NRTLs

Many of OSHA's standards require that certain types of workplace equipment be approved (i.e., tested and certified) by an NRTL. For example, 29 CFR 1910.303(a) (read together with the definitions of “approved” and “acceptable” in 29 CFR 1910.399) generally requires such approval for electrical equipment or products. OSHA's requirement for approval helps to ensure that products are safe for use in the workplace.

NRTLs are qualified organizations that are recognized under the Agency's NRTL Program as meeting the requirements in 29 CFR 1910.7 to perform independent (i.e., third-party) product safety testing and certification. To be recognized by OSHA as an NRTL, an organization must: (1) Have the appropriate capability to test and evaluate products for workplace safety purposes; (2) be completely independent of the manufacturers, vendors, and major users of the products for which OSHA requires certification; (3) have internal programs that ensure proper control of the testing and certification process; and (4) establish effective reporting and complaint handling procedures (29 CFR 1910.7(b)).

OSHA's NRTL recognition process involves a thorough analysis of an organization's policies and procedures to ensure that it meets all of the requirements of 29 CFR 1910.7. OSHA also performs a comprehensive on-site review of the applicant's testing and certification facilities. After initial recognition, the Program staff also conduct annual on-site audits to ensure that the NRTLs adequately perform their testing and certification activities and maintain the quality of those operations.

The recognition process is described in Appendix A to 29 CFR 1910.7, which is further explained in Chapters 2 through 6 of the NRTL Program Directive (CPL 01-00-003—CPL 1-0.3). All of these documents are available through the Program's Web site (see http://www.osha.gov/​dts/​otpca/​nrtl/​index.html).

Each NRTL is approved for a scope of recognition which identifies: (1) The types of products the NRTL may approve, (2) the NRTL's “recognized sites” which 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” through which the NRTL can use other resources in performing activities necessary for product testing and certification. To date, the “supplemental programs” mainly have allowed the NRTL's recognized sites to accept (i.e., use) other-party product testing, specifically testing performed by non-NRTL independent testing labs and by product manufacturers.

As indicated above, to be recognized, the NRTL must be capable of performing two key operations in approving products: testing and certification or, more broadly, operating a product safety-testing program and a product-certification program. The latter program, for purposes of OSHA requirements, consists of listing/labeling and follow-up inspection programs. While both operations are necessary for approval, the NRTL's certification program is fundamentally important to the control of the approval process. Not only does this program involve the issuance of the initial certification, but through it the NRTL also gains assurance that all manufactured units of the product have the same safety features as the unit initially tested and certified.

Although OSHA does not require NRTLs to perform all testing themselves, our policy has restricted them to perform certain “certification functions” only at their recognized sites. The rationale for such a limitation was that OSHA initially evaluated the NRTL's resources and capabilities to perform these functions at those specific sites and then monitored the NRTL's performance of these critical functions during its audits of those sites. However, responding to industry needs to perform these functions at other locations, OSHA would adopt a new NRTL Program policy allowing NRTLs to use special unrecognized sites to perform certification functions and, if qualified, product testing too. We would allow this use by implementing a new supplemental program, called the Satellite Notification and Acceptance Program (SNAP). Before describing the new program, and the functions allowed under it, we further explain what we mean by “supplemental programs.”

As noted above, these supplemental programs allow the NRTLs to use other qualified parties to perform a particular activity, and to date most of these programs have allowed NRTLs to accept (i.e., use) other-party product testing. To be approved to use a program, NRTLs must apply to OSHA which determines if they meet the applicable criteria or conditions for the program. Approval to use any program is unrelated to OSHA's determination of whether an NRTL meets the requirements for recognition under 29 CFR 1910.7. The supplemental programs merely serve as a means for OSHA to ensure that NRTLs engage in certain activities only if they have met certain criteria or conditions. Use of supplemental programs by any NRTL is voluntary.

Background on Relevant NRTL Program Policy and New Program Segment

When OSHA first implemented these supplemental programs, it allowed long-standing practices of the product testing and certification industry but defined the necessary minimum elements for their use. By doing this, OSHA improved the effectiveness and uniform application of these practices by all NRTLs and assured that they would, in testing and certifying products, properly utilize the resources provided by other parties. Use of a supplemental program often reduces the time and cost necessary for product approval, but the NRTL must still exercise adequate control to ensure that other parties are performing their testing or other activities appropriately.

OSHA has for many years allowed NRTLs to use testing performed by other NRTLs or by non-recognized facilities (i.e., satellites) of the NRTL, again a practice that was common in the industry. The new supplemental program being proposed today basically expands the role that satellites perform in the NRTL's approval process.

In adopting this new program, OSHA would allow NRTLs to engage in activities that address challenges they face in testing and certifying products but, similar to other programs, defining minimum criteria and conditions for these activities. The proposed program would permit a qualified NRTL to perform certification activities at many more locations than OSHA currently allows. These additional locations could also qualify testing locations and accept test and evaluation data, activities that OSHA had to date restricted to recognized sites. This program also could potentially expedite any NRTL's approval activities. Allowing the program is a measured approach since we do so with the clear objectives of maintaining the effectiveness of our NRTL monitoring and assuring that the safety of NRTL approved products is not compromised.

Like all supplemental programs, the SNAP is yet another segment within the NRTL Program. Similar to these programs, the NRTL must apply to OSHA and meet very specific criteria before receiving approval to use SNAP. The SNAP Program Description describes these criteria, which specify a series of controls and safeguards for both the NRTL and OSHA. As another similarity, to use any particular site as a satellite under SNAP (which we call a SNAP site), the NRTL must qualify it to ensure that the site can perform one or more of the allowable functions covered under SNAP. However, these SNAP sites would not be recognized sites under the OSHA NRTL Program, and thus would not be considered in any determination regarding recognition of the NRTL.

In contrast to those other programs, OSHA would audit the SNAP sites and the NRTL site that centrally manages its SNAP operations; the Agency does not audit facilities which the NRTL qualifies under one of the existing programs, and would not audit those qualified by SNAP sites, either. In addition, OSHA could drop any NRTL or satellite from SNAP if warranted due to noncompliance with any conditions. Any NRTL not approved to use SNAP must perform the functions below only at its recognized site(s).

NRTLs can always apply to OSHA to “convert” any of their satellites or SNAP sites to a recognized site. We would process this application as a regular scope expansion, and thus grant it if the site met the necessary requirements.

The functions that could be performed at a qualified SNAP site, each briefly explained, are:

1. Qualify sites under Programs 2 through 7, or parties under Program 9, which are all described in a March 9, 1995, FR notice (60 FR 12980).

Programs 2 through 7 involve the NRTL's acceptance or use of testing data or product evaluations from other parties, specifically independent labs and product manufacturers. Under these programs, NRTLs must “qualify” each location (or site) generating the data or evaluation. In qualifying it, NRTLs ensure that a site meets the NRTL's internal criteria for the capability to perform the work to be accepted or used. Program 9 involves the NRTL using other parties to perform services, such as calibration of equipment or follow-up inspections. NRTLs qualify each supplier to ensure that it meets the NRTL's internal criteria for providing the specific service. To date, only recognized sites have performed such activities, but SNAP sites could too.

2. Accept data under Programs 2 through 8 which are described in the March 9, 1995, FR notice (60 FR 12980).

In accepting testing data or product evaluations under Programs 2 through 8 (see above), the NRTL must have the appropriate technical personnel for review of the adequacy and accuracy of the data. The NRTL must have clear procedures on how to conduct the review. Only recognized sites and SNAP sites having these elements could perform the acceptance.

3. Maintain or provide the only access to primary product test and evaluation files or records for any of the Programs.

The NRTL must have and make available to OSHA the primary product test and evaluation files or records for its activities. Such documents are essential to proper performance and review by the NRTL of its activities and are fundamental to OSHA's audit of NRTLs. Current technology allows many of these records to be converted to electronic medium and made available remotely. In addition, some records can be stored by others or at locations remote from the site where they were originally generated. In short, a recognized or SNAP site must either maintain or provide access to these records or files.

4. Perform the final technical review or make the final decision on certification of a product.

Performing the final technical review or making the final decision on certification of a product is the culmination of the technical process for product certification. This review or decision must be made by well-qualified technical staff and represents the assurance that the product meets the applicable provisions of the relevant test standard. Such review is necessary before the final decision can be made. Only recognized sites and SNAP sites having this capability could perform this function.

5. Finally, under SNAP, OSHA would allow SNAP sites that are wholly owned by the NRTL to authorize the use of the NRTL's mark.

OSHA has long considered the authorization by the NRTL to use its mark as equivalent to the final decision on certification and thus believes it is appropriate to limit this activity to SNAP sites that are wholly owned by the NRTL. The NRTL should adequately control this function since it should only occur simultaneously or concurrently with the final decision on certification.

Acceptance of Applications and Final Notice for SNAP

OSHA would begin accepting applications from NRTLs for using SNAP beginning 60 days from the date of publication of the Federal Register notice announcing the Agency's formal implementation of SNAP. Following publication, we will invite Nationally Recognized Testing Laboratories and applicants for recognition to apply for approval to use the SNAP. The program description, and a letter sent to NRTLs concurrently with publication of this notice, is available through http://www.osha-slc.gov/​dts/​otpca/​nrtl/​index.html, the main Web site for the NRTL Program.

OSHA welcomes public comments on its proposal to adopt SNAP, including any suggested changes to SNAP or any alternative that is equivalent to it. Your comments should consist of pertinent written documents and exhibits. Should you need more time to comment, you must request it in writing, including reasons for the request. OSHA must receive your written request for extension at the address provided above no later than the last date for comments. OSHA will limit any extension to 30 days, unless the requester justifies a longer period. You may obtain or review documents related to this notice, as received, by contacting OSHA's Docket Office (see ADDRESSES section above). Docket No. OSHA-2007-0053 contains all materials in the record concerning OSHA's NRTL SNAP Program.

OSHA will review all timely comments and determine whether any of them merit modification of the elements of SNAP or delay in its implementation.

Signed at Washington, DC, this 15th day of April, 2008.

Edwin G. Foulke, Jr.,

Assistant Secretary of Labor for Occupational Safety and Health.