OSHA Instruction STP 2-1.147A August 7, 1989 Office of State Programs

Subject: Safety Testing or Certification of Certain Workplace Equipment and Materials, 29 CFR 1910.7 et al

A. Purpose. This instruction describes a Federal program change to the Regions and State designees.

B. Scope. This instruction applies OSHA-wide.

C. Reference. OSHA Instruction STP 2-1.117, State Standards.

D. Cancellation. OSHA Instruction STP 2-1.147, July 13, 1988, Safety Testing or Certification of Certain Workplace Equipment and Materials, is canceled.

E. Federal Program Change. This instruction describes a Federal program change which affects State programs. Each Regional Administrator shall:

1. Ensure that this instruction is forwarded to each State designee.

2. Provide a copy of the Federal Register notice to the State designee upon request.

3. Explain the technical content of the Federal Register notice at 53 FR 12102, April 12, 1988, as amended at 53 FR 16838, May 11, 1988, Safety Testing or Certification of Certain Workplace Equipment and Materials; Final Rule, to the State designee upon request. This final rule amends 23 standards provisions in 29 CFR 1910 requiring employers to use materials or equipment listed or approved by Underwriters Laboratories (UL) or Factory Mutual Research Corporation (FMRC), and replaces this requirement with an obligation to use equipment or materials listed or approved by a "nationally recognized testing laboratory" (NRTL). The standard at 29 CFR 1910.7 also defines NRTL and provides procedures whereby testing laboratories may obtain OSHA recognition as NRTLs.

4. Ensure that each State designee acknowledges receipt of this instruction in writing, within 30 days of notification, to the Regional Administrator.

OSHA Instruction STP 2-1.147A August 7, 1989 Office of State Programs

The acknowledgment should include (a) the State's plan to adopt and implement identical standards amendments, modified to clearly explain that the State will not establish its own program for laboratory accreditation but will instead use the Federal program; (b) the State's plan to adopt alternative standards amendments which are as effective, including establishing an independent State testing laboratory accreditation program, or (c) the reasons why no change is necessary to maintain a program which is as effective.

5. Explain that, because of the technical complexity involved in the recognition process for testing laboratories and because one approval program with nationwide applicability allows a more efficient use of resources, the States are encouraged to adopt standards that rely on Nationally Recognized Testing Laboratories accredited by Federal OSHA; i.e., where workplace equipment and materials require safety certification or testing, the testing laboratory must have received Federal OSHA recognition as an NRTL for that equipment or material. States choosing to establish their own program for accrediting testing laboratories may do so but must (1) accept accreditation by NRTL's recognized by OSHA for testing of equipment and materials where State safety requirements are the same as the Federal; (2) assure that organizations receiving State accreditation understand that State recognition applies only within that State; and (3) establish an at least as effective program, including site inspections of the facilities of the testing laboratory, etc. No 23(g) or State matching funds may be used for the establishment or operation of State testing laboratory accreditation programs.

6. Inform each State designee that the State must amend its standards to ensure that they remain at least as effective as the Federal standards actions modifying the 23 Federal standards in 29 CFR 1910 by requiring safety certification or testing by an OSHA-approved NRTL. Where a State decides to establish an independent State testing

OSHA Instruction STP 2-1.147A August 7, 1983 Office of State Programs

laboratory accreditation program for different State equipment and materials requirements with in-State applicability and enforcement, the State must adopt a standard at least as effective as the Federal 1910.7. Appropriate plan supplements must be submitted within 6 months of the date of Federal publication.

7. Inform each State designee that States which have adopted a standard prior to the issuance of this amended instruction should review and revise their standard as appropriate or issue necessary clarifying policy documents to assure that State requirements for certification of certain equipment and materials and recognition of testing laboratories reflect the State's intent to either accept only Nationally Recognized Testing Laboratories approved by Federal OSHA or establish an independent State program. Such amendments/clarifications must be submitted as part of the plan supplement.

F. Effective date. The effective date of these standards amendments is June 13, 1988.

G. Interim Enforcement. Under 29 CFR 1953.23(a) and (b), State plan States are provided up to 6 months from publication of the Federal standard in the Federal Register to promulgate an identical or at least as effective standard. If a State, for whatever reason, is unable to promulgate a standard in a timely manner (6 months for a permanent standard, 30 days for an emergency temporary standard) the State shall be expected to provide assurance that it will enforce the substantive provisions of the new or revised Federal standard through such means as use of its general duty clause or equivalent, temporary adoption of an identical standard, or an alternative, specified enforcement mechanism.

H. Different State Standards. Section 18(c) (2) of the OSH Act requires that State standards be at least as effective as the Federal and, when applicable to products used or distributed in interstate commerce, be required by compelling local conditions and not unduly burden interstate commerce. In addition to the at least as

OSHA Instruction STP 2-1.147A August 7, 1983 Office of State Programs

effective criterion, this "product clause test" will be applied to State standards with substantively different requirements from the comparable Federal standards, as discussed in OSHA Instruction STP 2-1.117.

I. Explanation. 1. The Occupational Safety and Health Administration (OSHA) deleted the names of Underwriters Laboratories, Inc. (UL) and Factory Mutual Research Corporation (FMRC) from 23 testing-related standards provisions in 29 CFR Part 1910.

2. Under these standards, third-party (or independent) testing for safety is necessary in order that certain equipment and materials be acceptable for workplace use. The safety standards being revised either had explicitly required or had implied that this safety testing be performed only by UL or FMRC. For a period of five years beginning June 13, 1988 and ending on June 13, 1993, UL and FMRC are recognized testing laboratories though their recognition by OSHA is subject to revocation at any time. At the end of the five year period, the UL and FMRC must apply for renewal of OSHA recognition utilizing the procedures established in the standard

3. As a result of this UL/FMRC name deletion, the 23 identified OSHA safety standards now will provide that certain types of workplace equipment and materials be third-party tested for safety by "nationally recognized testing laboratories (NRTL)."

4. The final rule includes a requirement that testing laboratories listing or approving products or equipment required to be approved, listed or labeled under Part 1910 be recognized as Nationally Recognized Testing Laboratories by OSHA. Under the section 1910.7 rule OSHA will evaluate applicant testing and control programs against the NRTL requirements, and issue a written "recognition" letter. This will be done in accordance with a new Appendix A which is part of this rule

OSHA Instruction STP 2-1.147A August 7, 1989 Office of State Programs

and provides for Federal Register notice and comment. OSHA contemplates continuing surveillance over OSHA-recognized NRTLs to assure conformance with requirements of the rule.

5. Several testing laboratories have applied to OSHA for accredition as NRTL's. States are encouraged to participate in the accreditation process by responding to Federal Register notices concerning these applicants with comments.

6. Some States have existing testing laboratory programs that are not necessarily part of their occupational safety and health program. If, in response to OSHA's new laboratory accreditation program, these States choose to incorporate their testing laboratory programs into their State plan, or if States establish new testing laboratory accreditation programs, no 23(g) or State matching funds may be used for the development or operation of these programs as they would duplicate a complex technical process already available Federally.

7. Under 29 CFR 1953.23(a) and (b), States are provided up to 6 months from publication in the Federal Register for adoption of parallel State standards and amendments.

Alan C. McMillan Acting Assistant Secretary

DISTRIBUTION: National and Regional Offices 18(b) State Monitors State Designees

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