Revision of OSHA's Policy for Incorporating New Test Standards Into the List of Appropriate NRTL Program Test Standards

AGENCY:

Occupational Safety and Health Administration (OSHA), Labor.

ACTION:

Notice of final decision.

SUMMARY:

In this notice, OSHA revises its existing policies regarding the incorporation of new test standards into the Nationally Recognized Testing Laboratory (NRTL) Program's list of appropriate test standards and into NRTLs' scopes of recognition; and incorporates 72 test standards into the NRTL Program's list of appropriate test standards.

DATES:

The actions contained in this notice will become effective on March 27, 2014.

FOR FURTHER INFORMATION CONTACT:

Information regarding this notice is available from the following sources:

Press inquiries: Contact Mr. Frank Meilinger, Director, OSHA Office of Communications, U.S. Department of Labor, 200 Constitution Avenue NW., Room N-3647, Washington, DC 20210; telephone: (202) 693-1999; email: meilinger.francis2@dol.gov.

General and technical information: Contact Mr. David Johnson, Director, Office of Technical Programs and Coordination Activities, Directorate of Technical Support and Emergency Management, Occupational Safety and Health Administration, U.S. Department of Labor, 200 Constitution Avenue NW., Room N-3655, Washington, DC 20210; telephone (202) 693-2110; email: johnson.david.w@dol.gov.

Copies of this Federal Register notice: Electronic copies of this Federal Register notice are available at http://www.regulations.gov . This Federal Register notice, as well as other relevant information, is also available on OSHA's Web page at http://www.osha.gov .

SUPPLEMENTARY INFORMATION:

I. Background

OSHA recognizes organizations that provide product-safety testing and certification services to manufacturers. These organizations perform testing and certification, for purposes of the NRTL Program, to U.S. consensus-based product-safety test standards. OSHA does not develop or issue these test standards, but generally relies on U.S. standards-development organizations (SDOs) accredited by the American National Standards Institute (ANSI). The products covered by the NRTL Program consist of those items for which OSHA safety standards require “certification” by an NRTL. The requirements affect electrical products and 38 other types of products.

OSHA recognition of an organization as an NRTL signifies that the organization meets the legal requirements in OSHA regulations at 29 CFR 1910.7 and the NRTL Program policies in CPL 1-0.3, “NRTL Program Policies, Procedures, and Guidelines,” December 2, 1999 (“Directive”). Recognition is an acknowledgement by OSHA that the NRTL has the capabilities to perform independent safety testing and certification of the specific products covered within the NRTL's scope of recognition. Recognition of an NRTL by OSHA also allows employers to use products certified by that NRTL to meet those OSHA standards that require product testing and certification (29 CFR 1910.7(a)).

An NRTL's scope of recognition consists, in part, of specific test standard(s) approved by OSHA for use by the NRTL. Pursuant to OSHA regulations, the NRTL must first request to have a test standard included in its scope of recognition. OSHA will grant the NRTL's request only if the NRTL has the capability to test and examine equipment and materials for workplace safety purposes and to determine conformance with the test standard for each relevant item of equipment or material that it lists, labels, or accepts (29 CFR 1910.7(b)(1)). Capability includes proper testing equipment and facilities, trained staff, written testing procedures, calibration programs, and quality-control programs. An organization's recognition as an NRTL is, therefore, not for products, but for appropriate test standards covering a type of product(s) (29 CFR 1910.7(b)(1)).

For OSHA to consider a test standard appropriate, the test standard must be current and specify the safety requirements for a specific type of product(s) (29 CFR 1910.7(c)). A test standard withdrawn by an SDO is no longer considered an appropriate test standard (Directive, App. C.XIV.B). It is OSHA's policy to remove acceptance of withdrawn test standards by issuing a correction notice in the Federal Register for all NRTLs recognized for the withdrawn test standards. However, OSHA will recognize an NRTL for an appropriate replacement test standard if the NRTL has the requisite testing and evaluation capability for implementing the replacement test standard.

One method that NRTLs may use to show such capability involves an analysis to determine whether any testing and evaluation requirements of existing test standards in an NRTL's scope are comparable (i.e., are completely or substantially identical) to the requirements in the replacement test standard. If OSHA's analysis shows the replacement test standard does not require additional or different technical capability than an existing test standard, the replacement test standard is comparable to the existing test standard, and OSHA can add the replacement test standard to affected NRTLs' scopes of recognition.

If OSHA's analysis shows the replacement test standard requires an additional or different technical capability than any existing test standard, then the replacement test standard is not comparable to any existing test standard. In such cases (i.e., when test standards are not comparable), each affected NRTL that seeks to have OSHA add the replacement test standard to the NRTL's scope of recognition must provide information to OSHA that demonstrates its testing and evaluation capability to implement that standard.

In a November 25, 2013, Federal Register notice (78 FR 70349), OSHA proposed: (1) Revising its existing policies regarding the incorporation of new test standards into the NRTL Program's list of appropriate test standards and into NRTLs' scopes of recognition; and (2) incorporating new test standards into the NRTL Program's list of appropriate test standards. The comment period for the public to submit comments on these proposed actions ended on December 26, 2013.

OSHA received four comments filed in a timely manner (OSHA-2013-0012-0006, OSHA-2013-0012-0007, OSHA-2013-0012-0008, OSHA-2013-0012-0009), and one comment filed after the comment period closed (OSHA-2013-0012-0010), on its proposal. All comments are available for viewing at www.regulations.gov under docket number OSHA-2013-0012. In this final-decision notice, OSHA addresses these comments and adopts its proposal with limited revision that reflects some commenters' concerns. OSHA describes the proposal, comments, and its final decision in more detail below.

II. Final Decision Revising Existing OSHA Policy

A. Revision to Existing Policy for Incorporating New Test Standards Into the NRTL Program's List of Appropriate Test Standards

In the November 25, 2013 Federal Register notice, OSHA proposed revising its existing policy regarding the incorporation of new test standards into the NRTL Program's list of appropriate test standards. Pursuant to OSHA's existing policy, OSHA incorporates test standards into the list of appropriate test standards only when OSHA processes an NRTL's application for recognition (either initial or expansion), or when OSHA incorporates into an NRTL's scope of recognition a comparable replacement test standard for a withdrawn test standard (Directive, Chapter 2; App. C.XIV.B). OSHA believes that the existing policy delays the acceptance process for valid test standards, and proposed revising the existing policy to expedite incorporation of new test standards into the NRTL Program's list of appropriate test standards and into NRTLs' scopes of recognition.

OSHA becomes aware of new test standards through various avenues. For example, OSHA becomes aware of new test standards by: (1) Monitoring notifications issued by certain SDOs; (2) reviewing applications by NRTLs or applicants seeking recognition to include a new test standard in their scopes of recognition; and (3) obtaining notification from manufacturers, manufacturing organizations, other government agencies, or other parties that a new test standard may be appropriate to add to its list of appropriate standards. Accordingly, OSHA proposed to expand the existing process whereby it incorporates new test standards into the NRTL Program's list of appropriate test standards. Under the proposed policy, OSHA would not only include new test standards in its list of appropriate test standards under the conditions described by its existing policy, but would include new test standards in the list when OSHA determined that such test standards are appropriate to add to the list. OSHA may determine to include a new test standard in the list, for example, if the test standard is for a particular type of product that another test standard also covers, covers a type of product that no standard previously covered, or be otherwise new to the NRTL Program.

Under the proposed policy, OSHA first would make a preliminary determination that the new test standard is appropriate under the NRTL Program regulations (29 CFR 1910.7(c)). The Agency then would periodically issue a Federal Register notice proposing to include new test standards that it identifies as appropriate in its list of appropriate test standards. When an SDO withdraws test standards, OSHA also may propose in a Federal Register notice that new test standards replace withdrawn test standards in NRTLs' scopes of recognition. After OSHA publishes the preliminary determination in a Federal Register notice, it would give the public an opportunity to comment and, after reviewing these comments and other record evidence, would issue, in the Federal Register, a final determination.

No commenter objected to this proposed policy revision. The National Electrical Manufacturers Association (NEMA) and Underwriters Laboratories, Inc. (UL), expressed support for the proposed policy (OSHA-2013-0012-0008, OSHA-2013-0012-0009). Therefore, OSHA hereby revises the policy, as proposed.

NEMA asked that OSHA include the effective dates of test standards in its list of appropriate test standards (OSHA-2013-0012-0008). In explaining this comment, NEMA asserted that manufacturers and NRTLs use the time between the publication and effective dates of a test standard to become informed of the new requirements. While this might be the case, OSHA currently does not evaluate test standards with future effective dates for use in the NRTL Program. OSHA accepts a test standard as appropriate only after the effective date of the standard.

NEMA stated further that, in determining whether a test standard is appropriate, OSHA should “continue to rely primarily on U.S. standards developers accredited by the American National Standards Institute (ANSI),” which “provides reasonable assurance that the standard is a good standard and likely to have wide use;”. NEMA then stated that OSHA “should only consider standards developed by organizations considered to be primary sources that are known to produce universally acceptable standards representing good design.”

OSHA considers the appropriateness of test standards on a case-by-case basis. OSHA notes, however, that the NRTL Program regulation constrains its discretion in this area; this regulation requires that, for OSHA to accept a test standard, the test standard must, at a minimum, “provide an adequate level of safety” (29 CFR 1910.7(d)). Also pursuant to the regulation, OSHA generally accepts test standards developed by SDOs accredited by ANSI (29 CFR 1910.7(c)). ANSI accreditation ensures that the SDO meets the criteria required in the regulation for OSHA to consider a test standard appropriate.

B. Revision to Policy for Expanding NRTLs' Scopes of Recognition

Under existing OSHA policy, an NRTL must apply for an expansion of recognition, pursuant to the procedures in 29 CFR 1910.7, App. A, if the NRTL wants OSHA to incorporate into its scope of recognition a replacement test standard that is not comparable to a test standard that OSHA is removing from that NRTL's scope of recognition because, for example, an SDO withdrew the predecessor test standard. In the November 25, 2013, Federal Register notice, OSHA proposed modifying this policy to provide for an abbreviated recognition process that allows NRTLs currently recognized for the predecessor standard to submit to OSHA, in lieu of an application for expansion, only information that demonstrates that the NRTL has the capability to perform the testing and evaluation required in the areas of the replacement test standard that are not equivalent or comparable to the standard being replaced.

Therefore, under the new policy, when OSHA becomes aware of a replacement test standard that is not comparable to a test standard that OSHA is removing from an NRTL's scope of recognition, OSHA would invite that NRTL, via email or letter, to submit specified information that OSHA believes demonstrates the requisite testing and evaluation capability. OSHA would include, in the letter or email, a comparability table for the replacement test standard that details proposed substantive differences between the existing and replacement test standards that OSHA believes the NRTL must address for OSHA to recognize the NRTL for the replacement standard. OSHA would follow the procedures specified by 29 CFR 1910.7, App. A, in determining whether it should incorporate the replacement test standard into the affected NRTL's scope of recognition. OSHA then would issue a preliminary determination in the Federal Register, provide the public an opportunity to comment on the preliminary determination, and, after reviewing the comments and other record evidence, issue a final determination in the Federal Register on whether it will incorporate the replacement test standard into the affected NRTL's scope of recognition. In making a preliminary or final determination, OSHA also would follow other applicable procedures specified by 29 CFR 1910.7, App. A, such as requesting additional information, conducting appropriate on-site reviews, or initiating special reviews. OSHA believes the proposed policy would expedite the recognition process of replacement test standards issued by SDOs.

No commenter objected to the proposed policy revision. UL expressed support for the proposed revision (OSHA-2013-0012-0009). In its comments, UL asked that OSHA further revise its policy to allow the use of the proposed abbreviated recognition process for new test standards that have no relation to predecessor test standards currently in an NRTL's scope of recognition (as opposed to replacement test standards that would replace predecessor test standards that OSHA is removing from the NRTL's scope of recognition). UL revised the language in the proposed policy, in part, as follows:

[W]hen an NRTL seeks the addition of a new standard to its current scope of recognition, the NRTL may submit specified information that demonstrates it has the requisite testing and evaluation capability based on standards in its current scope of recognition. The specified information would include reference to existing standards in the NRTL's scope that require the capabilities needed for the new standard. If necessary, the NRTL would also identify substantive differences in needed capability between the new standard and existing test standards in its scope of recognition. The NRTL would provide information about its capabilities for those substantive differences based on the current OSHA NRTL application for scope expansion.

(Id.) According to UL, OSHA should require the application process specified by 29 CFR 1910.7, App. A, only “[f]or the rare situations where an NRTL wishes to expand into new standards where it has little or none of the needed capabilities” (id.).

OSHA is not adopting UL's revised language. Accordingly, the key aspects of OSHA's new policy are that OSHA can now initiate the recognition process when it becomes aware of a replacement test standard that is not comparable to a test standard that it is removing from an NRTL's scope of recognition, and OSHA will inform the NRTL, in the first instance, of substantive differences between the existing and replacement test standards that OSHA believes the NRTL must address for OSHA to recognize the NRTL for the replacement standard. Under UL's revised language, the NRTL, not OSHA, would initiate the recognition process, and the NRTL, not OSHA, would inform OSHA of its capability to perform the test standard.

UL's revised language would not, therefore, significantly expedite the recognition process for new test standards because UL's revised language is substantially similar to the existing application process. Neither OSHA's new policy, nor UL's revised language, would permit the NRTL to avoid key procedural requirements of the application process. Indeed, UL agrees, stating in its revised language that “OSHA would follow the procedures specified by 29 CFR 1910.7, App. A, in determining whether it should incorporate the new test standard into the NRTL's scope of recognition” (id.). UL stated further in its revised language, similar to what OSHA states in its new policy, that “OSHA would issue a preliminary determination in the Federal Register, provide the public an opportunity to comment on the preliminary determination, and, after reviewing the comments and other record evidence, issue a final determination in the Federal Register on whether it will incorporate the new test standard into the affected NRTL's scope of recognition,” and “in making a preliminary or final determination, OSHA also would follow other applicable procedures specified by 29 CFR 1910.7, App. A, such as requesting additional information, conducting appropriate on-site reviews, or initiating special reviews” (id.).

OSHA notes also that its new policy preserves an NRTL's rights, under existing procedures, to file an application for recognition of new or replacement test standards. Moreover, OSHA currently allows NRTLs, through the existing application process, to provide comparability assessments as an abbreviated method to demonstrate an NRTL's capability to meet the requirements of an appropriate test standard. Using this process, the NRTL provides a detailed explanation of comparability as part of its application for the test standard. Therefore, UL's revised language is unnecessary.

III. Final Decision Adding Test Standards to the NRTL Program's List of Appropriate Test Standards

Table 1, below, lists test standards that OSHA is adding to the NRTL Program under the new policy. OSHA preliminarily determined, as specified in the November 25, 2013, Federal Register notice (see 78 FR 70349), that these test standards are appropriate test standards and proposed to include these test standards in the NRTL Program's list of appropriate test standards.

No commenter objected to the proposal to include these test standards in the NRTL Program's list of appropriate test standards. UL and NEMA expressed support for the proposal (OSHA-2013-0012-0008, OSHA-2013-0012-0009). OSHA, therefore, with one minor revision discussed in the following paragraph, is making a final determination that these test standards are appropriate test standards, and, therefore, is adding these test standards to the NRTL Program's list of appropriate test standards.

In the proposal, OSHA described one test standard as AAMI ES 60601-1, “Medical Electrical Equipment—Part 1-2: General requirements for Basic Safety and Essential Performance-Collateral Standard: Electromagnetic Compatibility (third edition).” Several commenters stated that OSHA listed the incorrect designation and title for this test standard (OSHA-2013-0012-0006, OSHA-2013-0012-0007, OSHA-2013-0012-0009). OSHA concurs with these commenters and, in the final table, describes the test standard as “ANSI/AAMI ES60601-1:2005/(R)2012, Medical electrical equipment, Part 1: General requirements for basic safety and essential performance (with amendments).”

Mr. Dale Hallerberg stated that the list of appropriate standards should include, in addition to ANSI/AAMI ES60601-1:2005/(R)2012, standards that are collateral to ANSI/AAMI ES60601-1:2005/(R)2012, such as ANSI/AAMI ES60601-1-2 through ANSI/AAMI ES60601-1-12 (OSHA-2013-0012-0007). Moreover, UL asked that OSHA consider incorporating 13 additional test standards in the NRTL Program's list of appropriate test standards (OSHA-2013-0012-0009). Finally, the Crane Power Line Safety Organization (CPLSO), in a late-filed comment, asked OSHA to consider incorporating CPLSO 14, which addresses testing crane insulating-link devices, in the NRTL Program's list of appropriate test standards (OSHA-2013-0012-0010). These recommended additions are beyond the scope of the present action. OSHA will, however, consider whether these recommended additions are appropriate test standards when it proposes additions to the list of appropriate test standards in a future Federal Register notice.

VI. Authority and Signature

David Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and Health, 200 Constitution Avenue NW., Washington, DC 20210, authorized the preparation of this notice. Accordingly, the Agency is issuing this notice pursuant to 29 U.S.C. 657(g)(2)), Secretary of Labor's Order No. 1-2012 (77 FR 3912, Jan. 25, 2012), and 29 CFR 1910.7.