[Federal Register Volume 85, Number 27 (Monday, February 10, 2020)]
[Notices]
[Pages 7606-7610]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-02564]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
[Docket No. OSHA-2007-0053]
Nationally Recognized Testing Laboratories; Proposed Policy for
Transitioning to Satellite Notification and Acceptance Program (SNAP)
Termination
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Notice.
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SUMMARY: In this notice, OSHA proposes a policy for transitioning to
the termination of the Satellite Notification and Acceptance Program
(SNAP).
DATES: Submit comments, information, and documents in response to this
notice, on or before March 11, 2020. All submissions must bear a
postmark or provide other evidence of the submission date.
ADDRESSES:
Electronically: You may submit comments and attachments
electronically at: http://www.regulations.gov, which is the Federal
eRulemaking Portal. Follow the instructions online for submitting
comments.
Facsimile: If your comments, including attachments, are not longer
than 10 pages, you may fax them to the OSHA Docket Office at (202) 693-
1648.
Mail, hand delivery, express mail, messenger, or courier service:
When using this method, you must submit a copy of your comments and
attachments to the OSHA Docket Office, Docket No. OSHA-2007-0053,
Occupational Safety and Health Administration, U.S. Department of
Labor, Room N-3653, 200 Constitution Avenue NW, Washington, DC 20210.
Deliveries (hand, express mail, messenger, and courier service) are
accepted during the Docket Office's normal business hours, 10:00 a.m.
to 3:00 p.m., ET. Note that security procedures may result in
significant delays in receiving comments and other written materials by
regular mail.
Docket: To read or download comments or other material in the
docket, go to http://www.regulations.gov or the OSHA Docket Office at
the above address. All documents in the docket (including this Federal
Register notice) are listed in the http://www.regulations.gov index
under Docket number OSHA-2007-0053; however, some information (e.g.,
copyrighted material) is not publicly available to read or download
through
the website. All submissions, including copyrighted material, are
available for inspection and copying at the OSHA Docket Office.
Instructions: All submissions must include the agency name and OSHA
docket number (OSHA-2007-0053). All comments, 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.
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 by phone: (202) 693-1999;
email: meilinger.francis2@dol.gov.
General and technical information: Contact Mr. Kevin Robinson,
Director, Office of Technical Programs and Coordination Activities,
Directorate of Technical Support and Emergency Management, Occupational
Safety and Health Administration, phone: (202) 693-2110 or email:
robinson.kevin@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
A. Nationally Recognized Testing Laboratories (NRTL) Program
Many of OSHA's safety standards require employers to use products
tested and certified as safe (e.g., 29 CFR 1910, subpart S). In
general, testing laboratories, and not employers, perform the required
testing and certification. To ensure that the testing and certification
performed on products is appropriate, OSHA implemented the NRTL
Program. This program establishes the criteria that a testing
laboratory must meet to achieve, and retain, NRTL recognition.
OSHA recognition of a NRTL signifies that the organization meets
the legal requirements specified in 29 CFR 1910.7, the regulatory
provision containing the requirements an organization must meet to
become a NRTL and retain NRTL status. Recognition is an acknowledgment
by OSHA that the organization can perform independent safety testing
and certification of the specific products covered within the
organization's scope of recognition, and is not a delegation or grant
of government authority. Recognition under the NRTL Program, therefore,
enables employers to use products approved by NRTLs to meet OSHA
standards that require product testing and certification.
Each NRTL is approved for a scope of recognition, which identifies:
(a) The type of products the NRTL may approve; and (b) the NRTL's
``recognized sites.'' The requirements for NRTL recognition are
outlined in the NRTL Program Regulation at 29 CFR 1910.7 and Appendix A
to that regulation.
B. NRTL Program Directive
The NRTL Program Directive sets forth OSHA policies, procedures,
and interpretations that supplement and clarify the NRTL Program
regulation, 29 CFR 1910.7 and Appendix A (NRTL Program Policies,
Procedures and Guidelines, CPL 01-00-004, available at https://www.osha.gov/sites/default/files/enforcement/directives/CPL_01-00-004.pdf). OSHA recently revised the NRTL Program Directive, on October
1, 2019.
The revised NRTL Program Directive contains a revised definition of
``recognized site.'' To be recognized, ``a site must be
administratively and operationally controlled by the NRTL and must
perform at least one of the following functions: Testing and inspection
(and/or accepting test data or inspections), performing reviews, or
making certification decisions with the NRTL management system'' (NRTL
Program Directive, Annex C). In revising the definition, OSHA
eliminated ownership requirements contained in the prior definition of
recognized site (Id., Ch. 1.IX.D). Thus, to be a recognized site, the
site no longer has to be owned by the NRTL.
Prior to issuing the revised NRTL Program Directive (CPL-01-004),
OSHA permitted NRTLs use a number of different supplemental programs in
order to use the services of other facilities to test and certify
products used in the workplace (60 FR 12980, 74 FR 923). One of these
supplemental programs was Supplemental Program 10, SNAP, that was
implemented on May 11, 2009 (74 FR 923) and permitted NRTLs to perform
certain functions to support testing and certification operations at
``SNAP sites.'' Under SNAP, a NRTL had to have administrative and
operational control over the NRTL's SNAP sites. However, the majority
of SNAP sites could not be ``recognized sites'' because of the
ownership requirements that were then contained in the definition of
recognized sites in the old NRTL Directive (i.e., a majority of the
sites could not be ``recognized sites'' because they were not owned by
the NTRLs).
OSHA terminated all the supplemental programs, including SNAP, in
the revised NRTL Program Directive (Ch. 1.IX.B, D). SNAP is no longer
necessary because the revised definition of ``recognized site'' permits
OSHA to recognize sites that are administratively and operationally
controlled by the NRTL but not necessarily owned by the NRTL. As OSHA
noted in the revised Directive, NRTLs will now be able to apply to OSHA
to make existing SNAP sites recognized sites (Id.).
C. Revised NRTL Program Directive Implementation Memorandum
After issuing the revised NRTL Program Directive, OSHA issued a
policy memorandum on the transition from the prior version to the
current version of the NRTL Program Directive (available at https://www.osha.gov/dts/otpca/nrtl/NRTLDirectiveTransitionMemo.html). A
portion of that policy memorandum pertains to existing NRTLs applying
for expansion of recognition and provides:
Existing NRTLs (each organization OSHA recognized as a
NRTL on October 1, 2019) must comply with the requirements of the
revised NRTL Program Directive no later than October 1, 2020. Existing
NRTLs may comply with the requirements of the prior NRTL Directive
(CPL-01-00-003) until September 30, 2020.
OSHA will evaluate pending expansion applications for
existing NRTLs under the prior NRTL Program Directive to the extent
final decisions on those applications are published in the Federal
Register prior to October 1, 2020. Assuming OSHA grants the expansion
application, the NRTL will need to be in full compliance with the
revised NRTL Program Directive, with respect to the NRTL's entire scope
of recognition, no later than October 1, 2020. For example, if OSHA
publishes a final decision on an expansion application in the Federal
Register on September 30, 2020, then the NRTL will have to be in full
compliance with the revised NRTL Program Directive, with respect to the
NRTL's entire scope of recognition, no later than October 1, 2020.
OSHA will evaluate pending expansion applications for
existing NRTLs under the revised NRTL Program Directive to the extent
final decisions on those applications are published in the Federal
Register on or after October 1, 2020. Depending on the status of the
application, OSHA may, in the discretion of the agency, waive certain
fees associated with the application to the extent accrual of those
fees are due solely to OSHA's transition to the revised NRTL Program
Directive. Assuming OSHA grants the expansion application, the NRTL
will need to be in compliance with the revised NRTL Program Directive
with respect to the NRTL's expanded scope immediately (i.e., on the
date the final decision on the expansion application is published in
the Federal Register).
Audits and assessments of existing NRTLs conducted on or
after October 1, 2019, will be conducted under the revised NRTL Program
Directive. However, until October 1, 2020, items that OSHA would
normally note as nonconformances with the revised NRTL Program
Directive requiring timely response and correction will be noted as
observations or long term corrective actions. While such observations
and long term corrective actions will not require a response and
correction in connection with the relevant audit or assessment,
existing NRTLs will need to comply with the revised NRTL Program
Directive no later than October 1, 2020.
II. OSHA's Proposed Transition Policy
OSHA recognizes that immediate termination of the SNAP may cause an
undue burden on some NRTLs with existing SNAP sites. OSHA therefore
proposes the following policy to permit a smooth transition to SNAP
termination for NRTLs with existing SNAP sites. Although OSHA is not
required by the Administrative Procedures Act, 5 U.S.C. 551, et seq.,
to engage in notice and comment rulemaking procedures prior to the
adoption and implementation of this proposed policy, OSHA is requesting
public comment regarding the proposed policy in order to gain input and
insight from interested parties.
OSHA notes that, as of October 1, 2019 (the date OSHA issued the
revised NRTL Program Directive), in accordance with current OSHA
policy, OSHA will reject any application submitted by a NRTL or NRTL
applicant-organization to be recognized for any of the previous
supplemental programs, including SNAP. Under the proposed policy, SNAP
would be entirely terminated one year after the date of publication of
the Federal Register notice announcing OSHA's final decision on this
proposed policy. Prior to that time, if a NRTL with existing SNAP sites
followed the proposed procedures described in this Notice, that NRTL
could continue to perform SNAP activities at the NRTL's existing SNAP
sites (for a period, or periods, that would be established by this
proposed policy, and ending no later than one year after the date of
publication of the Federal Register notice announcing OSHA's final
decision on this proposed policy). OSHA notes that the policies
proposed in this Notice would supersede the policies contained in the
Revised NRTL Program Directive Implementation Memorandum (discussed
above), to the extent there is a conflict.
Proposed Procedures for the Conversion of Existing SNAP Sites to
Recognized Sites and the Interim Performance of SNAP Activities at SNAP
Sites. OSHA proposes the following procedures to allow for the
conversion of existing SNAP sites to NRTL-recognized sites under 29 CFR
1910.7 and the interim performance of SNAP activities at SNAP sites:
1. Preconditions of Eligibility. To meet the preconditions of
eligibility, a NRTL would need to:
a. Submit to OSHA a list of the NRTL's existing SNAP sites no later
than the 30th day after the date of publication of the Federal Register
notice announcing OSHA's final decision on this proposed policy. For
each SNAP site listed, a NRTL would need to include the date the SNAP
site was approved by the NRTL.
b. Not designate any new SNAP sites after submitting to OSHA the
list of existing SNAP sites.
c. Submit to OSHA an application for scope expansion (i.e., to
convert existing SNAP sites to recognized sites) no later than the 60th
day after the date of publication of the Federal Register notice
announcing OSHA's final decision on this proposed policy.
d. Include in the scope expansion application a list of the SNAP
sites the NRTL wants converted to recognized sites. The NRTL would be
permitted to include in the scope expansion application list only those
SNAP sites the NRTL also included in the list of SNAP sites it
submitted to OSHA by the 30th day after the date of publication of the
Federal Register notice announcing OSHA's final decision on this
proposed policy.
e. Specify that it wants the scope expansion application processed
under the proposed procedures described here.
f. Submit to OSHA all required application fees as outlined in the
Revised NRTL Schedule of Fees. See https://www.osha.gov/dts/otpca/nrtl/nrtlfees.html. The following fees would need to accompany the scope
expansion application: $2,490 for the Expansion application--Limited
review; and $2,490 for each site for which the NRTL seeks recognition.
(Other fees would be invoiced as necessary (for example the $3,180 fee
for a Federal Register notice application, and fees for onsite
assessments, if conducted)).
g. At a minimum, submit to OSHA, for each SNAP site listed in the
application, the following historical assessment records and supporting
documentation:
i. The NRTL functions performed at the SNAP site (testing,
certification--audits of testing laboratories);
ii. Copies of any audit or other reports of, or about, the SNAP
site generated (either internally (e.g., by the NRTL) or externally
(e.g., by OSHA or other accreditor)) in connection with any audits,
assessments, or other investigations conducted (a) by OSHA, the NRTL,
any other entity, and (b) within the 30 months preceding the date of
publication of the Federal Register notice announcing OSHA's final
decision on this proposed policy;
iii. Supporting Documentation that shows (a) what was reviewed
during any audits, assessments, or other investigations of the SNAP
site conducted by OSHA, the NRTL, any other entity within the NRTL's
organizational structure, or any other investigative body, and within
the 30 months preceding the date of publication of the Federal Register
notice announcing OSHA's final decision on this proposed policy, (b)
any nonconformances identified during these audits, assessments, or
investigations, and (c) a root cause analysis of these nonconformances;
and
iv. An organizational chart for the SNAP site identifying
leadership and employees involved with NRTL-related work activities.
2. Continued Performance of SNAP Activities at Existing SNAP Sites
Contingent on Timely Submission of Documents.
a. If a NRTL fails to timely submit to OSHA a list of the NRTL's
existing SNAP sites (by the 30th day after the date of publication of
the Federal Register notice announcing OSHA's final decision on this
proposed policy), the NRTL would be required to cease performing SNAP
activities at all of the NRTL's existing SNAP sites on the 31st day
after the date of publication of the Federal Register notice announcing
OSHA's final decision on this proposed policy.
b. If a NRTL timely submits to OSHA a list of the NRTL's existing
SNAP sites (by the 30th day after the date of publication of the
Federal Register notice announcing OSHA's final decision on this
proposed policy), but that list does not contain all of the NRTL's
existing SNAP sites, the NRTL would be required to cease performing
SNAP activities at existing SNAP sites not contained in the list on the
31st day after the date of publication of the Federal Register notice
announcing OSHA's final decision on this proposed policy.
c. If a NRTL timely submits to OSHA a list of the NRTL's existing
SNAP sites (by the 30th day after the date of publication of the
Federal Register notice announcing OSHA's final decision on this
proposed policy), but does not submit to OSHA a timely application to
convert the existing SNAP sites in the list to recognized sites (by the
60th day after the date of publication of the Federal Register notice
announcing OSHA's final decision on this proposed policy), then the
NRTL would be required to cease performing SNAP activities at all of
the NRTL's existing SNAP sites no later than the 61st day after the
date of publication of the Federal Register notice announcing OSHA's
final decision on this proposed policy.
d. If a NRTL timely submits to OSHA a list of the NRTL's existing
SNAP sites (by the 30th day after the date of publication of the
Federal Register notice announcing OSHA's final decision on this
proposed policy), and then submits to OSHA a timely application to
convert only some of the existing SNAP sites in the list to recognized
sites (by the 60th day after the date of publication of the Federal
Register notice announcing OSHA's final decision on this proposed
policy), then the NRTL would be required to cease performing SNAP
activities at SNAP sites that the NRTL did not list in the application
no later than the 61st day after the date of publication of the Federal
Register notice announcing OSHA's final decision on this proposed
policy.
e. OSHA might allow for short extensions of these time limits, at
the discretion of the agency, and if good cause is shown by the NRTL.
3. Effect of Meeting the Preconditions of Eligibility. If a NRTL
meets all the preconditions of eligibility for a SNAP site, it would be
entitled to the following:
a. Potential Streamlined Conversion. OSHA typically performs onsite
assessments in connection with site expansion requests. However, OSHA
might, at the discretion of the agency, opt not to do so with respect
to SNAP sites that meet the preconditions of eligibility. Appendix A to
the NRTL Program Regulation, 29 CFR 1910.7, provides that, in reviewing
expansion applications, OSHA shall, as necessary, conduct an on-site
review of the testing facilities of the applicant, and may decide not
to conduct an on-site review, where the substantive scope of the
request to expand recognition is closely related to the current area of
recognition. Consistent with Appendix A, OSHA would make determinations
as to whether on-site reviews are necessary on a case-by-case basis.
b. Interim Performance of SNAP Activities at SNAP Sites. NRTLs
would be permitted to continue performing SNAP functions, but only at
the SNAP sites that are listed in the NRTL's application and that meet
the preconditions of eligibility, and only for the time period(s)
permitted by these proposed procedures.
4. Review of Applications.
a. To the extent SNAP sites in an application meet the
preconditions of eligibility, OSHA would review that application, or
portion of application, in accordance with the NRTL Program regulation,
29 CFR 1910.7, Appendix A to that regulation, the Revised NRTL Program
Directive Implementation Memorandum, discussed above, and these
proposed SNAP conversion procedures, to determine the capability of the
SNAP site to operate as a NRTL-recognized site. OSHA would base this
determination on the documentation submitted with the application,
historical on-site assessments of the NRTL's SNAP Sites and SNAP
Headquarters, and any other factors it deems relevant, including, for
example, the conduct of an on-site assessment(s), if deemed necessary.
b. In reviewing applications, or portions of applications,
concerning SNAP sites that do not meet the preconditions of
eligibility, OSHA would follow normal site expansion procedures,
including the conduct of on-site assessments. NRTLs should consult the
NRTL Program regulation, 29 CFR 1910.7, Appendix A to that regulation,
and the Revised NRTL Program Directive Implementation Memorandum,
discussed above, for the procedures that OSHA would follow with respect
to these SNAP sites.
5. Opportunity to Respond (Discretionary) for NRTLs That Specify in
Their Scope Expansion Applications That They Want Their Applications
Processed Under the Proposed Procedures Described. Although a NRTL
timely submits to OSHA a list of the NRTL's existing SNAP sites (by the
30th day after the date of publication of the Federal Register notice
announcing OSHA's final decision on this proposed policy), and then
submits to OSHA a timely application to convert all or some of the
NRTL's existing SNAP sites in the list to recognized sites (by the 60th
day after the date of publication of the Federal Register notice
announcing OSHA's final decision on this proposed policy), the NRTL
might not meet one or more of the other preconditions of eligibility
for some or all of the SNAP sites listed in the application. For
example, a NRTL might fail to submit to OSHA the required historical
assessments or supporting documentation for one or more of the SNAP
sites listed in an application. In addition, to make a determination on
an application, OSHA might require further information or
clarification, in addition to the information that would be required by
the preconditions of eligibility. Therefore, after conducting a review
of a scope expansion application in which a NRTL specifies that it
wants the application processed under the proposed procedures described
here (Precondition of Eligibility (e)), OSHA might, at the discretion
of the agency, give the NRTL 15 days to provide clarification or
missing information.
a. If OSHA receives a timely response from the applicant (within 15
days), or a timely written request for an extension (within 15 days)
and subsequent response within the time permitted for extension (if the
request for extension is granted), OSHA would recommend a positive or
negative finding on the application.
b. Alternatively, OSHA would treat the application as a normal site
expansion application, outside of these proposed procedures, if the
NRTL requested in a timely-filed response that the application be
treated as such. At this point (when the NRTL made the request), the
NRTL would be required to immediately cease performing SNAP activities
at the SNAP sites listed in the application.
c. If OSHA does not receive a timely response, or a timely request
for an extension and subsequent response within the time permitted for
extension (if granted), it would consider the application withdrawn.
6. Effect of a Negative Finding on an Application. If a negative
finding is issued, the NRTL would have an opportunity (a) to withdraw
the application, (b) revise the application (for example, to remove
from the application those sites OSHA staff considers non-compliant, or
to indicate that OSHA should process the application as a traditional
application for site expansion rather than under these proposed
procedures), or (c) request that the original application be forwarded
to the Assistant Secretary for Occupational Safety and Health, as
outlined in Appendix A to the NRTL Program regulation, 29 CFR 1910.7.
7. Effect of Withdrawal of an Application Meeting the Preconditions
of Eligibility. If the application is withdrawn by the applicant or
considered withdrawn by OSHA, the NRTL would be required to immediately
cease performing SNAP activities at the SNAP sites that were listed in
the withdrawn application and met the preconditions of eligibility.
While the NRTL could still apply to have these sites included in the
NRTL's scope of recognition, OSHA would follow normal site expansion
procedures, including the conduct of on-site assessments, for any such
applications.
8. Effect of the Revision of an Application Meeting the
Preconditions of Eligibility. If the applicant revises the application
to remove from the application individual SNAP sites listed in the
application, the NRTL would be permitted to continue to perform SNAP
activities only at those SNAP sites that remain in the application and
meet the preconditions of eligibility. The applicant would be required
to immediately cease performing SNAP activities at SNAP sites no longer
in the application. While the NRTL could still apply for recognition of
any sites removed from the application, OSHA would follow normal site
expansion procedures, including the conduct of on-site assessments, for
any such applications.
9. Effect of Final Decision on Application Meeting the
Preconditions of Eligibility. Once a final decision is made regarding
the capability of a SNAP site to operate as a NRTL-recognized site,
this decision would be published in the Federal Register, upon which
time the NRTL would be required to immediately cease performing SNAP
activities at the SNAP sites that were listed in the application and
met the preconditions of eligibility.
10. Termination of the SNAP Entirely. A NRTL would be required to
cease performing SNAP activities at existing SNAP sites that were
listed in the application and met the preconditions of eligibility one
year after the date of publication of the Federal Register notice
announcing OSHA's final decision on this proposed policy. This would be
the case even if OSHA does not issue a final decision on the NRTL's
application by that date. The SNAP would be entirely terminated one
year after the date of publication of the Federal Register notice
announcing OSHA's final decision on this proposed policy.
11. Potential Extension of SNAP Termination Date. OSHA might, at
the discretion of the agency, extend the SNAP termination date. OSHA
notes that it would not extend the termination date because final
decisions on some applications could not be issued on a streamlined
basis. OSHA would not be able to issue a final decision on a
streamlined basis, for example, if it determines that it needs to
conduct an on-site assessment or a negative finding is issued in
connection with an application. An extension of the SNAP termination
date based on these time-intensive issues would not be justified.
OSHA requests comment on this proposed policy. Comments should
consist of pertinent written documents and exhibits. OSHA will review
all comments submitted to the docket in a timely manner, and, after
considering the issues raised by these comments, will make a
recommendation to the Assistant Secretary for Occupational Safety and
Health regarding this proposed policy for transitioning to the
termination of SNAP, who will then make a final decision.
OSHA will publish a public notice of this final decision in the
Federal Register.
IV. Authority and Signature
Loren Sweatt, Principal Deputy Assistant Secretary of Labor for
Occupational Safety and Health, 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.
Signed at Washington, DC, on February 4, 2020.
Loren Sweatt,
Principal Deputy Assistant Secretary of Labor for Occupational Safety
and Health.
[FR Doc. 2020-02564 Filed 2-7-20; 8:45 am]
BILLING CODE 4510-26-P
