[Federal Register Volume 85, Number 227 (Tuesday, November 24, 2020)]
[Notices]
[Pages 75042-75049]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25770]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
[Docket No. OSHA-2007-0053]
Nationally Recognized Testing Laboratories; 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 issues a final policy for transitioning
to the termination of the Satellite Notification and Acceptance
Program.
DATES: The policy OSHA finalizes in this notice is issued on November
24, 2020.
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; telephone: (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; telephone: (202) 693-2110; email:
robinson.kevin@dol.gov. OSHA's web page includes information about the
NRTL Program (see http://www.osha.gov/dts/otpca/nrtl/index.html).
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 (NRTL Program Directive 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 to 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, Satellite Notification Acceptance Program (SNAP). SNAP 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 but ownership by the
NRTL was not necessary. Thus, 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.).
OSHA Policies on Transition to the Revised NRTL Program Directive
After issuing the revised NRTL Program Directive, on October 19,
2019, OSHA issued a policy memorandum, Revision to Policy Impacting the
Revised Nationally Recognized Testing Laboratory (NRTL) Program,
Policies, Procedures and Guidelines Directive (the October 19, 2019
memorandum), which, among other things, provided that existing NRTLs
could comply with the prior NRTL Program Directive, rather than the
revised NRTL Program Directive, until September 30, 2020 (available at
https://www.osha.gov/dts/otpca/nrtl/NRTLDirectiveTransitionMemo.html).
Then, on July 2, 2020, OSHA issued another policy memorandum, Extension
of Some Deadlines to Comply with Revised Nationally Recognized Testing
Laboratory (NRTL) Program Policies, Procedures and Guidelines Directive
(the July 2, 2020 memorandum), which, among other things, rescinded and
replaced the October 19, 2019 memorandum, and extended by a year some
of the dates by which existing NRTLs would need to comply with the
revised NRTL Program Directive (available at https://www.osha.gov/memos/2020-07-02/nationally-recognized-testing-laboratory-program/directive-compliance-extension). The July 2, 2020 memorandum, provides
in relevant part that:
Existing NRTLs (each organization OSHA recognize[d] as a
NRTL on October 1, 2019) must comply with the requirements of the
revised NRTL Program Directive no later than October 1, 2021. Existing
NRTLs may comply with the requirements of the prior NRTL Directive
(CPL-01-00-003) until September 30, 2021.
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, 2021. 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, 2021. For example, if OSHA
publishes a final decision on an expansion application in the Federal
Register on September 30, 2021, 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, 2021.
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, 2021. 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, 2021, 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, 2021.
As OSHA stated in the July 2, 2020 memorandum, other than extending
some of the dates by which existing NRTLs would need to comply with the
revised NRTL Program Directive, ``the policies in [the July 2, 2020]
memorandum are otherwise the same as those contained in the rescinded
[October 19, 2019] memorandum.'' As OSHA also stated, ``any Federal
Register Notice establishing OSHA policies for transition to the
termination of the Satellite Notification and Acceptance Program (SNAP)
will supersede the policies contained in [the July 2, 2020] memorandum,
to the extent that there is a conflict.''
C. OSHA's Proposed Policy for Transitioning to the Termination of SNAP
In a February 10, 2020 Federal Register Notice, OSHA proposed a
policy for transitioning to SNAP termination (85 FR 7606 (available at
https://www.osha.gov/sites/default/files/laws-regs/federalregister/2020-02-10_0.pdf)). OSHA proposed this policy based on the recognition
that immediate termination of SNAP might cause an undue burden on some
NRTLs with existing SNAP sites, as well as on its goal of permitting a
smooth transition to SNAP termination for NRTLs with existing SNAP
sites (85 FR at 7608).
As stated in the February 10, 2020 Federal Register Notice, while
OSHA was 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 the proposed policy, OSHA
requested public comment regarding the proposed policy in order to gain
input and insight from interested parties. Comments were due to be
submitted by March 11, 2020.
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 the 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 the 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).
Finally, OSHA stated in the February 10, 2020 Federal Register
Notice, that the policies proposed in the Notice
would supersede the policies contained in the October 19, 2019
memorandum (discussed above), to the extent there was a conflict. OSHA
also stated that, as of October 1, 2019 (the date OSHA issued the
revised NRTL Program Directive), in accordance with current OSHA
policy, OSHA would reject any application submitted by a NRTL or NRTL
applicant-organization to be recognized for any of the previous
supplemental programs, including SNAP.
II. Final Decision Issuing Policy for Transitioning to the Termination
of SNAP
In this notice, OSHA issues a final policy for transitioning to the
termination of SNAP. The final policy is nearly identical to the policy
proposed in the February 10, 2020 Federal Register Notice, with certain
exceptions discussed below.
In proposing its policy, OSHA recognized that NRTLs might need more
time to transition their existing SNAP sites to recognized sites than
the year-long transition period (from October 1, 2019 to October 1,
2020) permitted by the October 19, 2019 memorandum, for complying with
the revised Directive. Therefore, under the proposed policy, NRTLs that
timely applied for scope expansion (i.e., to convert their existing
SNAP sites to recognized sites) and met other conditions stipulated in
the policy, would be permitted to continue performing SNAP activities
at existing SNAP sites listed in their applications up to a full year
after the date of publication of the Federal Register notice finalizing
the policy (see sections 3.b and 10 of the proposed policy).
OSHA has decided to retain this time limit in the final policy.
Therefore, under the final policy, NRTLs that timely apply for scope
expansion and meet other conditions stipulated in the final policy will
be permitted to continue performing SNAP activities at existing SNAP
sites listed in their applications up to November 24, 2021 (see
paragraphs 3.b and 11 of the final policy). This time limit slightly
extends the extra time OSHA originally anticipated (up until October 1,
2021) when it published the proposed policy that existing NRTLs would
need for a smooth transition of their SNAP sites to recognized sites.
However, OSHA concludes the extra transition time permitted by the
final policy is negligible.
Some of the other time limits in the proposed policy, if finalized,
would have raised questions of fairness and consistency because OSHA
rescinded the October 19, 2019 memorandum, and replaced it with the
July 2, 2020 memorandum. When OSHA issued the proposed policy in
February 2020, it envisioned all time limits in the proposed policy
occurring after October 1, 2020, the date by which existing NRTLs
needed to comply with the revised NRTL Program Directive pursuant to
the October 19, 2019 memorandum. Therefore, when OSHA issued the
proposed policy, it believed all time limits in the proposed policy
would give NRTLs with existing SNAP sites extra transition time on top
of the transition year already permitted by the October 19, 2019
policy. However, because OSHA extended the October 1, 2020 deadline by
a year in the July 2, 2020 memorandum, certain time limits in the
proposed policy, if finalized, would require existing NRTLs to cease
performing SNAP activities at existing SNAP sites well before the new
October 1, 2021 deadline. This would occur for some NRTLs even though
they timely submitted all documents to OSHA (see sections 1.a, 1.c, and
2 of the proposed policy) and were actively seeking to convert their
SNAP sites to recognized sites. Thus, for example, under the proposed
policy, if a NRTL that timely submitted documents to OSHA did not meet
one or more of the other preconditions of eligibility for the SNAP
sites listed in its application for scope expansion, the NRTL would be
required to immediately cease performing SNAP activities at the SNAP
sites listed in the application (see sections 2 and 5.b of the proposed
policy).
OSHA concludes that it would be unfair to require a NRTL that
timely submitted its documents to OSHA and is actively seeking to
convert its SNAP sites to recognized sites to cease performing SNAP
activities at the SNAP sites listed in its expansion application prior
to September 30, 2021 (the last date existing NRTLs may comply with the
requirements of the prior NRTL Directive pursuant to the July 2, 2020
memorandum). Therefore, the final policy permits such NRTLs to continue
performing SNAP activities at existing SNAP sites listed in their
applications until September 30, 2021.
There are different factors at play for NRTLs that do not timely
submit their documents to OSHA and/or are not actively seeking to
convert their SNAP sites to recognized sites, for example, because they
withdrew an application for scope expansion or because OSHA denies an
application for scope expansion (see sections 2, 5.c, 6, 7, 8, and 9 of
the proposed policy). OSHA adopted the transition periods for existing
NRTLs in the October 19, 2019 and July 2, 2020 memoranda, to permit
NRTLs adequate time to transition from the prior NRTL Directive to the
revised NRTL Directive. A NRTL that does not submit timely documents to
OSHA or makes an affirmative decision to withdraw an application for
scope expansion has signaled that it does not want to transition its
SNAP sites to recognized sites. Furthermore, if OSHA denies an
application for scope expansion, it will have concluded that the SNAP
sites listed in the application do not have the capability to operate
as NRTL-recognized sites, and there will be no further need for the
NRTL to transition those sites to recognized sites. Permitting such
NRTLs to continue performing SNAP activities at existing SNAP sites
until September 30, 2021, would be contrary to the purpose of the
October 19, 2019 and July 2, 2020 memoranda, and the final policy
therefore retains proposed time limits for NRTLs that do not timely
submit their documents to OSHA and/or are not actively seeking to
convert their SNAP sites to recognized sites.
OSHA received three timely-filed comments in response to the
February 10, 2020 Federal Register Notice. SGS North America (SGS)
asserts that the proposed policy is contrary to the procedures in
Appendix A to the NRTL Program Regulation because the Appendix requires
OSHA to conduct an on-site assessment in connection with each
application for conversion from a SNAP site to a recognized site. This
is so, according to SGS, because ``SNAP sites are largely monitored by
the NRTL with limited oversight from OSHA,'' and OSHA would therefore
``award recognized site status based solely on administrative
information submitted by the NRTL, without evaluating whether the SNAP
site effectively and safely implements the operations, procedures,
testing, and control programs included within these administrative
materials'' (OSHA-2007-0053-0012).\1\
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\1\ Comments are available on http://www.regulations.gov under docket
number OSHA-2007-0053. OSHA cites comments according to the document
number they are given on http://www.regulations.gov.
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OSHA disagrees with SGS's comment for several reasons. First, SGS
ignores a key aspect of the proposed policy that clarifies that the
policy is a simple restatement, and not a revision, of what is already
required by Appendix A.\2\
According to paragraph 3.a of the proposed policy, if a NRTL met all
the preconditions of eligibility for a SNAP site, it would be entitled
to ``Potential Streamlined Conversion.'' As OSHA stated in the policy,
this means simply that ``[c]onsistent with Appendix A, OSHA would make
determinations as to whether on-site reviews are necessary on a case-
by-case basis.'' Thus, SGS is wrong that on-site reviews would not be
``an expected part of the process'' under the proposed policy. In
individual cases, on-site reviews might very much be incorporated into
OSHA's decision on an application.\3\
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\2\ Because the proposed policy is merely a restatement of the
procedures in Appendix A, SGS is wrong that the proposed policy, if
finalized, would represent a substantive revision to Appendix A and
that OSHA must therefore ``engage in formal notice and comment
rulemaking'' under the Administrative Procedures Act, 5 U.S.C. 553,
in connection with the proposed policy. For the same reason, SGS is
also wrong that the proposed policy is inequitable and provides an
unfair competitive advantage because it permits NRTLs to avoid the
Appendix A requirements through ``truncated'' procedures. OSHA
notes, moreover, that OSHA provided the public with notice in the
Federal Register of, and an opportunity to comment on, the proposed
policy. Therefore, even if the proposed policy were a substantive
rule, as SGS asserts, OSHA would have met applicable requirements
for notice and comment in 5 U.S.C. 553.
\3\ OSHA has replaced the term ``Potential Streamlined
Conversion'' with the term ``Conduct of Onsite Assessments'' in
paragraph 3.a of the final policy to clarify the purpose of the
paragraph.
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Second, SGS's claims are not ripe because, again, OSHA will be
making determinations on whether it will conduct on-site reviews on a
case-by-case basis. SGS will have a full and fair opportunity to submit
comments in response to OSHA's preliminary determinations on other
NRTLs' applications to convert SNAP sites to recognized sites according
to the procedures in Appendix A to the NRTL Program regulation. If SGS
believes that there is insufficient evidence to support another NRTL's
application to convert a SNAP site to a recognized site, or that an on-
site review is required for a particular application, it can raise
those concerns at the appropriate time provided for by Appendix A.\4\
However, at the current time, SGS's claims are entirely speculative.
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\4\ When NRTLs apply to convert SNAP sites to recognized sites,
the public will be made aware of which SNAP sites will potentially
become recognized sites. SGS's concern about disclosure of this
information is therefore misplaced.
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Third, SGS misunderstands Appendix A to the NRTL Program
Regulation. Appendix A provides that OSHA ``will act upon and process
[an] application for expansion in accordance with subsection I.B. of
th[e] appendix'' (29 CFR 1910.7 App. A.II.B.2.a). Subsection I.B
provides in relevant part that, in processing applications, ``OSHA
shall, as necessary, conduct an on-site review of the testing
facilities of the applicant, as well as the applicant's administrative
and technical practices'' (29 CFR 1910.7 App. A.I.B.1.b). Thus,
according to the Appendix, OSHA must, first and foremost, determine
whether an on-site review is necessary in connection with a particular
expansion application.
Contrary to SGS's assertion, OSHA will take into consideration the
results of the prior audits it conducted of a SNAP site in determining
whether an on-site review is necessary for that SNAP site. When OSHA
implemented SNAP in 2009, it determined that OSHA audits of SNAP sites
were necessary to maintain the integrity of the NRTL program (74 FR
923, 926 (Jan. 9, 2009)). While OSHA might not audit SNAP sites as
often as recognized sites, OSHA's concludes that its history of
directly auditing SNAP sites might render on-site review unnecessary in
individual cases. And, again, as OSHA stated in the proposed policy
(and states in the final policy), it will make such determinations on a
case-by-case basis, and OSHA will simply not be ``relying on the
goodwill associated with a prior NRTL site to transfer those
credentials to a new facility,'' as SGS maintains.\5\
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\5\ Therefore, SGS is wrong when it asserts that the proposed
policy is contrary to an April 21, 1993 OSHA letter of
interpretation (available at https://www.osha.gov/laws-regs/standardinterpretations/1993-04-21).
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It should also be noted that, when it implemented SNAP, OSHA took
steps to ensure the independence of the NRTL's SNAP auditors from the
SNAP sites themselves. As OSHA stated:
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.
74 FR at 925. OSHA concluded at the time it implemented SNAP, and it
reaffirms here, that such controls ensured the independence and
integrity of internal SNAP audits. It is therefore entirely appropriate
for OSHA to rely on prior audits of a SNAP site conducted by a NRTL (in
addition to those conducted by OSHA) in determining whether on-site
review is necessary in a given case. OSHA will, of course, review
whether a NRTL implemented required controls for internal audits of
SNAP sites as part of its determination whether on-site review is
necessary in a particular case.
In addition, the proposed policy makes clear that OSHA will
incorporate its own prior audits, a NRTL's prior audits, and other
relevant evidence into its determinations of whether on-site review is
necessary. As OSHA stated in paragraphs 1.g.ii and 1.g.iii of the
proposed policy, to meet the preconditions of eligibility (and
therefore be entitled to a special review by OSHA as to whether on-site
review is necessary), a NRTL would need to submit to OSHA:
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; [and]
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.
OSHA adopts these paragraphs as proposed and notes, moreover, that it
maintains records of its prior audits of SNAP sites (including those
that were conducted beyond the 30 months preceding the date of
publication of this final policy) and will also take these records into
account in making its determinations. As such, OSHA will base its case-
by-case determinations of whether on-site reviews are necessary on
relevant evidence that will enable it to make informed decisions.
Finally, SGS is wrong when it states that the proposed policy runs
afoul of Appendix A because the Appendix provides that ``OSHA may
decide not to conduct an on-site review'' in connection with an
expansion application ``where the substantive scope of the request to
expand recognition is closely related to the current area of
recognition'' (29 CFR 1910.7 App. A.II.B.2.b). Contrary to SGS's
assertion, the cited provision
should not be read in isolation. Again, the Appendix also provides that
OSHA need only conduct on-site reviews ``as necessary'' to permit OSHA
to make an informed decision on an application. In the context of an
expansion application to convert SNAP sites to recognized sites, on-
site reviews may not be necessary because, under the prior Directive,
OSHA recognized NRTLs for SNAP. That such an application is closely
related to the NRTL's current area of recognition is evident from
OSHA's own audits, and the controls OSHA implemented to ensure the
integrity of internal audits, of the NRTL's SNAP sites. If the
application were not ``closely related to the current area of
recognition,'' there would have been no need for OSHA to conduct these
audits or implement these controls.\6\
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\6\ Therefore, SGS is also wrong that ``the substantive scope''
of an application to convert a SNAP site to a recognized site cannot
be ``closely related to the current area of recognition'' because
SNAP sites are not recognized sites.
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Underwriters Laboratories LLC (UL) asserts that ``there is no
justification for a disruptively abrupt cessation of SNAP activities
for any of the reasons in the Federal Register notice,'' and that OSHA
should instead require cessation of SNAP activities for all SNAP sites
on a date certain and delete proposed time limits to the extent they
would require immediate cessation of SNAP activities (OSHA-2007-0053-
0014).
OSHA concludes UL's concerns about the proposed policy's time
limits are, for the most part, addressed by the revisions to the
proposed time limits in the final policy, as discussed above. Again,
under the final policy, a NRTL that timely submits their SNAP
conversion documents to OSHA, and is actively seeking to convert their
SNAP sites to recognized sites, but does not meet one or more of the
other preconditions of eligibility for the SNAP sites listed in the
application for scope expansion, may continue performing SNAP
activities at the SNAP sites listed in its expansion application until
September 30, 2021.\7\
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\7\ UL suggests that, under current OSHA policy, ``after the
SNAP is fully terminated, . . . activities that are required to be
performed by staff assigned to a Recognized site [ ] can be
performed'' at a site that is the subject of a site expansion
application before OSHA rules on the application. OSHA emphasizes
that UL is incorrect and this is not current OSHA policy.
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As also discussed above, there are different factors at play for
NRTLs that do not timely submit their documents to OSHA and/or are not
actively seeking to convert their SNAP sites to recognized sites. OSHA
therefore disagrees with UL's comment to the extent UL asserts that the
final policy should allow these NRTLs to continue performing SNAP
activities at SNAP sites beyond the time limits described in the
proposed policy.
UL also objects to paragraph 9 of the proposed policy, which
addressed the effect of a final decision by OSHA on an application
meeting the preconditions of eligibility. UL suggests that the
paragraph be revised to require that a NRTL immediately cease
performing SNAP activities at the SNAP sites listed in the application
that were not approved to become recognized sites, and not merely those
SNAP sites that met the preconditions of eligibility.
As discussed above, OSHA revised the proposed time limits in the
final policy. It is therefore modifying the final policy accordingly
(including the provision about which UL had concern).
UL objects to the precondition of eligibility that a NRTL include
with its list of existing SNAP sites the date each SNAP site was
approved by the NRTL. According to UL, the exact date is difficult to
determine for older SNAP sites and this difficulty renders the 30 day
timeframe to submit the list of existing SNAP sites unrealistic.
Moreover, according to UL, there is ``no need or value to know the
specific date of approval.'' Therefore, UL asserts the precondition
should instead provide that NRTLs indicate ``what SNAP sites have been
approved for 5 or more years and the date of approval only for sites
approved for less than 5 years.''
OSHA agrees with UL that NRTLs may have difficulty determining the
exact dates they approved older SNAP sites. Therefore, the final policy
provides that for each SNAP site listed, a NRTL must list the date the
SNAP site was approved by the NRTL EXCEPT that, where a SNAP site has
been approved for 30 months or more preceding November 24, 2020, the
NRTL may state that that the SNAP site has been approved for 30 or more
months, without listing the exact date of approval. The NRTL may meet
this precondition of eligibility in its application for scope expansion
(see paragraph 1.c) to the extent the precondition is not met in the
NRTL's list of existing SNAP sites.
UL asserts that OSHA should revise paragraphs 1.g.ii and 1.g.iii of
the proposed policy, quoted above, to indicate that the ``audits and
information referenced in [these paragraphs] should only be audits and
information pertinent to the activities required to be performed by
staff assigned to Recognized sites.''
OSHA disagrees with this comment. The purpose of these paragraphs
is to ensure that NRTLs provide OSHA with historical information about
SNAP sites so that OSHA can make informed determinations on whether on-
site reviews are necessary in individual cases and, ultimately, whether
to grant NRTLs' applications for expansion of recognition. OSHA
concludes that the information proposed to be required by these
paragraphs is necessary for OSHA to make such informed determinations
and these paragraphs are included, as proposed, in the final policy.
UL objects to paragraph 10 of the proposed policy, which provided
that ``[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.'' According to UL, ``[t]he time period should be 24
months for OSHA to realistically process this one-time additional
workload.''
OSHA disagrees with this comment and believes that the one-year
time period will be sufficient to process the additional workload.
However, OSHA notes that paragraph 12 of the final policy (like the
proposed policy) provides for a potential extension of the SNAP
Termination Date in appropriate circumstances.
Finally, UL makes several ``general'' assertions that go well
beyond the scope of the proposed policy. First, UL asserts that OSHA
should ``abandon the location element of NRTL scopes'' because
``[e]xcept for laboratory testing, the idea that certification
activities are performed at discrete physical locations is now an
anachronism.'' Second, UL asserts that, ``[i]f OSHA continues to
utilize a location element to the scope of Recognition of NRTLs, a
self-qualification option for locations for NRTLs continues to be
needed'' because a ``NRTL that completes all certification work (except
laboratory testing) via internet can quickly rent space, arrange for
fast internet access at that space, and direct qualified staff to that
space as a possible work location in a matter of weeks.'' Third, UL
asserts that ``[i]f OSHA continues to utilize a location element in the
scope of Recognition of NRTLs,'' it should ``document explicitly what
NRTL activities are required to be performed by staff assigned to a
Recognized site,'' and not simply ``what activities are allowed to be
performed,'' so that ``NRTLs can know ``whether existing SNAP sites
need to be converted to Recognized sites or can, with needed changes to
the activities performed by staff assigned to the site, simply become
Unrecognized sites.''
The purpose of the proposed (and final) policy is to ensure a
smooth transition from SNAP, which OSHA eliminated when it revised the
NRTL Program Directive. UL's ``general'' assertions appear to object to
the revised Directive itself and not to the proposed policy. Therefore,
the substance of UL's ``general'' assertions are beyond the scope of
this Notice.
Reynaldo Figueredo (OSHA-2007-0053-0013) comments that:
The proposed revision to the NRTL program Directive definition
of a recognized site would removes the requirement that the site no
longer has to be owned by the NRTL. This simplifies the process and
eliminates the SNAP program. However, this change does not address
the fundamental competency or technical testing and inspection
capability at the site. With this change, the NRTL may select and
``qualify'' the site to perform testing and inspection functions. A
key question is whether or not the NRTL is capable of assessing the
site's personnel and equipment which is a different function from
its NRTL responsibilities. We recommend that all testing and/or
inspection sites be accredited by an accreditation body that is US
based and is a signatory to the ILAC MRA. This is a normal activity
that accreditation bodies perform on a daily basis.
Mr. Figueredo's comment, like UL's ``general'' assertions, appears to
object to the revised Directive itself and not to the proposed policy.
Therefore, the substance of this comment is beyond the scope of this
Notice.
III. OSHA's SNAP Transition Policy
With this Federal Register notice, OSHA issues this final policy
for transitioning to the termination of SNAP. Pursuant to this final
policy:
This policy supersedes the policies contained in the July
2, 2020 memorandum (discussed above), to the extent there is a
conflict.
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.
OSHA implements the following policies for the conversion
of existing SNAP Sites to Recognized Sites and the interim performance
of SNAP activities at SNAP Sites:
1. Preconditions of Eligibility. To meet the preconditions of
eligibility, a NRTL must do all of the following:
a. Submit to OSHA a list of the NRTL's existing SNAP sites no later
than December 24, 2020. For each SNAP site listed, a NRTL must list the
date the SNAP site was approved by the NRTL EXCEPT that, where a SNAP
site has been approved for 30 months or more preceding November 24,
2020, the NRTL may state that the SNAP site has been approved for 30 or
more months, without listing the exact date of approval. The NRTL may
meet this precondition of eligibility in its application for scope
expansion (see paragraph 1.c) to the extent the precondition is not met
in the NRTL's list of existing SNAP sites.
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 January
25, 2021.
d. Include in the scope expansion application a list of the SNAP
sites the NRTL wants converted to recognized sites. The NRTL is
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 December 24, 2020.
e. Specify that it wants the scope expansion application processed
under the 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 must 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 (e.g., testing,
certification, audits of testing laboratories);
ii. The date the SNAP site was approved by the NRTL EXCEPT that,
where a SNAP site has been approved for 30 months or more preceding
November 24, 2020, the NRTL may state that the SNAP site has been
approved for 30 or more months, without listing the exact date of
approval.
iii. 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,
or any other entity, and (b) within the 30 months preceding November
24, 2020;
iv. 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 November 24, 2020, (b) any nonconformances
identified during these audits, assessments, or investigations, and (c)
a root cause analysis of these nonconformances; and
v. 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 December 24, 2020, the NRTL must cease
performing SNAP activities at all of the NRTL's existing SNAP sites on
December 28, 2020.
b. If a NRTL timely submits to OSHA a list of the NRTL's existing
SNAP sites by December 24, 2020, but that list does not contain all of
the NRTL's existing SNAP sites, the NRTL must cease performing SNAP
activities at existing SNAP sites not contained in the list on December
28, 2020.
c. If a NRTL timely submits to OSHA a list of the NRTL's existing
SNAP sites by December 24, 2020, but does not submit to OSHA a timely
application to convert the existing SNAP sites in the list to
recognized sites by January 25, 2021, then the NRTL must cease
performing SNAP activities at all of the NRTL's existing SNAP sites no
later than January 25, 2021.
d. If a NRTL timely submits to OSHA a list of the NRTL's existing
SNAP sites by December 24, 2020, and then submits to OSHA a timely
application to convert only some of the existing SNAP sites in the list
to recognized sites by January 25, 2021, then the NRTL must cease
performing SNAP activities at SNAP sites that the NRTL did not list in
the application no later than January 25, 2021.
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 is
entitled to the following:
a. Conduct of On-site Assessments. OSHA typically performs on-site
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 will 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 may
continue performing SNAP functions at the SNAP sites that are listed in
the NRTL's application and that meet the preconditions of eligibility,
but only for the time period(s) permitted by these procedures.
4. Effect of Not Meeting the Preconditions of Eligibility. If a
NRTL timely submits to OSHA a list of the NRTL's existing SNAP sites by
December 24, 2020), 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 January 25, 2021, this NRTL may continue performing
SNAP functions at the SNAP sites that are listed in the NRTL's
application that do not meet all or some of the other preconditions of
eligibility, but only for the time period(s) permitted by these
procedures. This NRTL must cease performing SNAP functions at these
SNAP sites no later than September 30, 2021, to the extent these
procedures do not otherwise address when SNAP functions must cease for
the NRTL. This will be the case even if OSHA does not issue a final
decision on the NRTL's application by September 30, 2021.
5. Review of Applications.
a. To the extent SNAP sites in an application meet the
preconditions of eligibility, OSHA will review that application, or
portion of application, in accordance with the NRTL Program regulation,
29 CFR 1910.7, Appendix A to that regulation, the July 2, 2020
memorandum, discussed above, and these SNAP conversion procedures, to
determine the capability of the SNAP site to operate as a NRTL-
recognized site. OSHA will 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 will 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 July 2, 2020 memorandum, discussed above, for the procedures
that OSHA would follow with respect to these SNAP sites. It should be
noted that these NRTLs may be able to continue performing SNAP
functions at these SNAP sites, but only in accordance with these
procedures (see paragraphs 2 and 4 of these procedures).
6. Opportunity to Respond (Discretionary) for NRTLs That Specify in
Their Scope Expansion Applications That They Want Their Applications
Processed Under the Procedures Described. Although a NRTL timely
submits to OSHA a list of the NRTL's existing SNAP sites by December
24, 2020, 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 January 25, 2021, 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
procedures described (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 will recommend a positive or
negative finding on the application.
b. Alternatively, OSHA will treat the application as a normal site
expansion application, outside of these procedures, if the NRTL
requests in a timely-filed response that the application be treated as
such. However, the NRTL may continue performing SNAP functions for
those SNAP sites in accordance with these procedures (see paragraph 4
of these procedures).
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 will consider the application withdrawn and
the NRTL will be required to immediately cease performing SNAP
activities at the SNAP sites listed in the application.
7. Effect of a Negative Finding on an Application. If a negative
finding is issued, the NRTL will have an opportunity (a) to withdraw
the application, (b) revise the application (for example, to remove
from the application those sites OSHA staff consider non-compliant, or
to indicate that OSHA should process the application as a traditional
application for site expansion rather than under these 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.
8. Effect of Withdrawal of an Application. If the application is
withdrawn by the applicant or considered withdrawn by OSHA, the NRTL
must immediately cease performing SNAP activities at the SNAP sites
that were listed in the withdrawn application. While the NRTL could
still apply to have these sites included in the NRTL's scope of
recognition, OSHA will follow normal site expansion procedures,
including the conduct of on-site assessments, for any such
applications. The NRTL may not resume the conduct of SNAP activities at
these sites if it files a new application for scope expansion.
9. Effect of the Revision of an Application. If the applicant
revises the application to remove from the application individual SNAP
sites listed in the application, the NRTL will be permitted to continue
to perform SNAP activities only at those SNAP sites that remain in the
application. The applicant must 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 will follow normal site expansion procedures,
including the conduct of on-site assessments, for any such
applications. The NRTL may not resume the conduct of SNAP activities at
these sites if it files a new application for scope expansion.
10. Effect of Final Decision on Application. Once a final decision
is made regarding the capability of a SNAP site to operate as a NRTL-
recognized site, this decision will be published in the Federal
Register, upon which time the NRTL must immediately cease performing
SNAP activities at the SNAP sites listed in the application that were
not approved to become recognized sites.
11. Termination of the SNAP Entirely. A NRTL must cease performing
SNAP activities at existing SNAP sites that are listed in the
application and meet the preconditions of eligibility no later than
November 24, 2021. This will be the case even if OSHA does not issue a
final decision on the NRTL's application by that date. The SNAP will be
entirely terminated on November 24, 2021.
12. Potential Extension of SNAP Termination Date. OSHA might, at
the discretion of the agency, extend the SNAP termination date. OSHA
notes, however, that it will not extend the termination date because
final decisions on some applications cannot be issued on a streamlined
basis. OSHA is not 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 is not justified.
Disclaimer: This policy is not a standard, regulation, or any other
type of substantive rule. No statement in this policy should be
construed to require the regulated community to adopt any practices,
means, methods, operations, or processes beyond those which are already
required by the Occupational Safety and Health Act of 1970 (OSH Act)
(29 U.S.C. 668) or standards and regulations promulgated under the OSH
Act. This document does not have the force and effect of law and is not
meant to bind the public in any way. This document is intended only to
provide clarity to the public regarding existing requirements under the
law or agency policies.
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. 8-2020 (85 FR 58393,
Sept. 18, 2020), and 29 CFR 1910.7.
Signed at Washington, DC, on November 17, 2020.
Loren Sweatt,
Principal Deputy Assistant Secretary of Labor for Occupational Safety
and Health.
[FR Doc. 2020-25770 Filed 11-23-20; 8:45 am]
BILLING CODE 4510-26-P
