[Federal Register: January 9, 2009 (Volume 74, Number 6)]
[Notices]               
[Page 923-927]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09ja09-61]                         

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

[Docket No. OSHA-2007-0053]

 
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.

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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 (202) 693-2110.

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 notice ("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.
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    \1\ The NRTL Directive contains information about each of these 
programs.
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    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.
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    \2\ The NRTL Directive contains information about each of these 
programs.
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    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.
 [FR Doc. E9-163 Filed 1-8-09; 8:45 am]

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