[Federal Register Volume 63, Number 167 (Friday, August 28, 1998)]
[Notices]
[Pages 46079-46082]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-23250]



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DEPARTMENT OF LABOR

Occupational Safety and Health Administration
[Docket No. NRTL-1-98]


National Technical Systems, Application for Recognition

AGENCY: Occupational Safety and Health Administration, Labor.

ACTION: Notice.

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SUMMARY: This notice announces the application of National Technical 
Systems for recognition as an NRTL under 29 CFR 1910.7, and presents 
the Agency's preliminary finding.

DATES: Comments submitted by interested parties must be received no 
later than October 27, 1998.

ADDRESS: Send comments concerning this notice to: Office of Technical 
Programs and Coordination Activities, NRTL Program, Occupational Safety 
and Health Administration, U.S. Department of Labor, 200 Constitution 
Avenue, NW, Room N3653, Washington, D.C. 20210.

FOR FURTHER INFORMATION CONTACT: Bernard Pasquet, Office of Technical 
Programs and Coordination Activities, NRTL Program at the above 
address, or phone (202) 219-7056.

SUPPLEMENTARY INFORMATION:

Notice of Application

    Notice is hereby given that National Technical Systems (NTS) has 
applied to the Occupational Safety and Health Administration (OSHA), 
pursuant to 29 CFR 1910.7, for recognition as a Nationally Recognized 
Testing Laboratory (NRTL) for testing and certification of the 
equipment or materials, and use of the programs and procedures, listed 
below.
    The address of the laboratory covered by this application is: 
National Technical Systems, 533 Main Street, Acton, Massachusetts 
01720.

Background

    According to the applicant, National Technical Systems (NTS) is 
headquartered in Calabasas, California, and was established in 1963. It 
became a public company in 1968, and it is listed in the NASDAQ 
exchange. Furthermore, the applicant states it is an independent 
testing, engineering, research, and support services organization, with 
more than 30 years of product testing experience. NTS also states it 
has provided testing services to the military/aerospace, commercial, 
and power industry, and has conducted qualification testing for the 
nuclear power industry for more than 20 years. The engineering services 
that NTS provides include design of instrumentation and specialized 
hardware, and electrical and mechanical engineering.
    NTS submitted an application for recognition, dated September 30, 
1994 (see Exhibit 2A). It separately submitted a Quality Manual (QM), 
dated June 24, 1997, and Quality Assurance Procedures (QAPs), dated 
December 22, 1997, specifically for the activities it plans to 
undertake as an NRTL (see Exhibits 2C and 2E). These two documents are 
hereinafter referred to as ``NRTL QM'' and ``NRTL QAPs,'' respectively. 
The NRTL QM replaced the Quality Manual submitted by NTS in the 
original application. The QAPs were marked confidential by the 
applicant. The applicant originally requested recognition for a 
facility in Acton and for another facility in Boxborough, both in 
Massachusetts. The applicant also originally requested recognition to 
test and certify to more than 90 test standards.
    OSHA performed an on-site assessment (review) of the Acton and 
Boxborough facilities, on January 23-26, 1995. The review determined 
that NTS did not meet all the requirements necessary for recognition 
under 29 CFR 1910.7, and the applicant was so informed. After OSHA 
completed the review, NTS eliminated the Boxborough facility from 
consideration. In response to the findings of the review, the applicant 
also submitted amendments to OSHA, dated April 10, and September 22, 
1997 (see Exhibits 2B and 2D), to revise and reduce the number of test 
standards it sought to include in its scope of recognition to 13. Also, 
NTS developed and submitted the previously mentioned NRTL QM and NRTL 
QAPs. In the submittal covering the NRTL QM, NTS also applied to OSHA 
for recognition to use the supplemental programs and procedures 
permitted under the March 9, 1995 Federal Register notice (60 FR 
12980). During the preparation of this notice, NTS deleted one test 
standard since the standards organization had withdrawn it. As a 
result, the recognition request covers 12 test standards. Finally, in 
response to OSHA's request for clarification, dated March 18, 1998 (see 
Exhibit 2F), NTS submitted amendments to its NRTL QAPs and to its NRTL 
QM, dated April 8, 1998 (see Exhibit 2G).
    Regarding the merits of the application, the applicant states that 
the NRTL QM is the first tier document that will direct its NRTL 
activities. The NRTL QAPs provide more detailed policies, processes, 
and steps for those activities. In addition, the on-site review report 
references other procedures and practices that NTS uses for the parts 
of its operations that can be designated ``non-NRTL'' activities. 
However, the recognition will not apply to any aspect of the non-NRTL 
activities, except to those product testing or certification procedures 
and practices that are incorporated in the NRTL QM and NRTL QAPs, and 
are in conformance with the requirements of 29 CFR 1910.7.
    In summary, NTS represents that it maintains the experience, 
expertise, personnel, organization, equipment, and facilities suitable 
for accreditation as an OSHA Nationally Recognized Testing Laboratory. 
It also contends that it meets or will meet the criteria of recognition 
defined in 29 CFR 1910.7.
    The four primary criteria for recognition are presented below, 
along with examples that illustrate how NTS has met each of these 
criteria.

Capability

    Section 1910.7(b)(1) states that for each specified item of 
equipment or material to be listed, labeled or accepted, the laboratory 
must have the capability (including proper testing equipment and 
facilities, trained staff, written testing procedures, and calibration 
and quality control programs) to perform appropriate testing.
    The on-site review report indicates that NTS has adequate space and 
utilities to perform the testing required. Security measures are in 
place to restrict or control access to their facility. The report also 
indicates that all general test equipment required to perform testing 
to the test standards requested are available in the laboratory, and 
that NTS maintains records of repair, routine maintenance, and 
calibrations. The NRTL QAPs cover the general processes and practices 
NTS will use for its equipment calibrations, and NTS has detailed 
procedures for the calibration of specific items of equipment. The 
application and revisions address personnel qualifications and 
training, and identify NTS staff involved with product testing, along 
with a summary of their education and experience. Also, the on-site 
review report indicates that NTS personnel have the necessary 
education, training, technical knowledge, and experience specified by 
their position descriptions. In addition, the review report indicates 
that the NRTL QM and NRTL QAPs, and NTS' Internal Audit Program are the 
primary means of quality assurance. The review report also indicates 
that other aspects of quality assurance will be the individual test 
procedures and standard

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operating procedures. The report further indicates that the engineer 
assigned to handle the testing for a customer writes a unique procedure 
for each product that NTS tests in its ``non-NRTL'' activities, and 
that this approach may be used for NTS's operations as an NRTL. 
However, such an approach would not meet the requirement in 29 CFR 
1910.7 (b)(1) that the NRTL's capability includes ``written test 
procedures.'' These procedures, like any other procedure, are intended 
to be a general set of instructions that can be applied to each test, 
and in this case, steps and methods that recur in examining and testing 
products. The applicant submitted samples of written test procedures in 
its original application which illustrate how some requirements of the 
standard will be verified, but did not address all the requirements of 
the standard in all cases. NTS will need to develop and/or identify 
test procedures that will be applicable over the broad range of 
products that it plans to test and certify as an NRTL. These procedures 
will need to be in place when OSHA performs its first review of NTS 
after it has been recognized. The report further indicates NTS has done 
only partial testing to portions of the test standards, as required for 
compliance of nuclear facility products and other testing programs. 
Therefore, OSHA has not yet evaluated the testing and reporting 
procedures that NTS will utilize for purposes of certifying to a 
complete test standard, and OSHA needs to investigate this aspect of 
NTS operations when these procedures are in use.

Control Procedures

    Section 1910.7(b)(2) requires that the NRTL provide certain 
controls and services, to the extent necessary, for the particular 
equipment or material to be listed, labeled, or accepted. They include 
control procedures for identifying the listed or labeled equipment or 
materials, inspections of production runs at factories to assure 
conformance with test standards, and field inspections to monitor and 
assure the proper use of identifying marks or labels.
    The onsite review report indicates that NTS currently applies a 
mark to components used in the nuclear power industry. The report also 
mentions that NTS has applied for a registered certification mark that 
it will use in its operations as an NRTL. NTS will need to obtain 
approval from the U.S. Patent and Trademark Office for this mark before 
it can issue any certifications in its capacity as an NRTL. NTS has not 
listed or labeled any products under the NRTL Program. Therefore, OSHA 
has not evaluated the actual listing and labeling procedures NTS will 
use as an NRTL.
    The NRTL QM and NRTL QAPs contain general descriptions of the 
certification processes that NTS will utilize, along with requirements 
for the contents of the legal agreements and for processes that will 
define and control the way NTS implements its certification schemes. 
They also describe the process for selecting products for evaluation, 
which may include their purchasing a commercial sample. NTS also 
submitted a draft of a sample certification agreement. For the 
certification schemes that NTS proposes to use, it will conduct follow-
up inspections of products at least once every three months. The NRTL 
QAPs also contain more detailed descriptions of the processes to 
qualify and then audit a manufacturer. According to the on-site review 
report, NTS plans to utilize the approach it currently uses for its 
vendor surveillance and audits to perform manufacturer site 
inspections. The report further indicates that while the programs 
reviewed during the onsite review were similar to an NRTL follow-up 
program, NTS has just developed the NRTL follow-up program and OSHA 
needs to investigate this new program when it is in use. Therefore, 
OSHA has been unable to evaluate the actual use of the follow-up 
program.

Independence

    Section 1910.7(b)(3) requires that the NRTL be completely 
independent of employers subject to the tested equipment requirements, 
and of any manufacturers or vendors of equipment or materials being 
tested for these purposes.
    In its original application, NTS states that it performs all 
testing and certification activities independently of all NTS clients, 
and that no clients have any significant ownership position in NTS, or 
any influence on NTS activities. The application further states that 
NTS employees are not under the influence or control of manufacturers 
or suppliers, and that NTS is not under the influence of any 
manufacturer or producer of hardware items. NTS also submitted a 
detailed listing of ``beneficial owners'' of 5% or more of NTS common 
stock.
    NTS could conceivably perform the design and engineering services 
previously mentioned for manufacturers or vendors of the products 
covered within the scope of the test standards for which OSHA has 
recognized NTS. Financial considerations could give these outside 
parties significant influence on the results of the NTS testing and 
certification activities. For example, assume that NTS sells design 
services for products to a manufacturer, and certifies the same or 
different products for that manufacturer. Such a relationship would 
violate the requirement for complete independence of an NRTL.
    Since NTS is a public company, it is also conceivable that 
manufacturers or vendors could acquire ownership of NTS. If such an 
acquisition were to control or influence NTS in its testing and 
certification activities, it would no longer be ``completely 
independent'' with respect to those manufacturers or vendors of the 
products covered within the recognized scope of NTS.

Creditable Reports/Complaint Handling

    Section 1910.7(b)(4) provides that an NRTL must maintain effective 
procedures for producing credible findings and reports that are 
objective and without bias, as well as for handling complaints and 
disputes under a fair and reasonable system.
    The NRTL QAPs contain the steps that the laboratory will use to set 
up and inspect test apparatus, and record test data. Regarding the 
handling of complaints and disputes, the NRTL QAPs describes some of 
the process steps to handle a complaint either from a manufacturer or 
user of the products NTS certifies.

Standards

    NTS seeks recognition for testing and certification of products to 
determine compliance with the following twelve (12) test standards, and 
OSHA has determined the standards are ``appropriate,'' within the 
meaning of 29 CFR 1910.7(c):

ANSI/UL 465 Central Cooling Air Conditioners
ANSI/UL 484 Room Air Conditioners
ANSI/UL 489 Molded-Case Circuit Breakers and Circuit-Breaker 
Enclosures
ANSI/UL 499 Electric Heating Appliances
ANSI/UL 1012 Power Supplies
ANSI/UL 1459 Telephone Equipment
ANSI/UL 1778 Uninterruptible Power Supply
UL 1863 Communication Circuit Accessories
ANSI/UL 1950 Information Technology Equipment Including Electrical 
Business Equipment
UL 2601-1 Medical Electrical Equipment, Part 1: General Requirements 
for Safety
UL 3101-1 Electrical Equipment for Laboratory Use; Part 1: General 
Requirements
UL 3111-1 Electrical Measuring and Test Equipment, Part 1: General

Programs and Procedures

    As previously mentioned, National Technical Systems has applied for 
all nine programs and procedures, based

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upon the criteria detailed in OSHA's March 9, 1995 Federal Register 
notice (60 FR 12980, 3/9/95). These programs and procedures 
(collectively, programs) may be used by an NRTL to control and audit, 
but not actually to generate, the data relied upon for product 
certification. An applicant, when recognized as an NRTL, is 
automatically accredited for the first, or basic, program, which 
requires that all product testing and evaluation be performed in-house 
by the NRTL that will certify the product.
    Based on the recommendation of the staff of the NRTL Program, the 
programs that OSHA proposes to recognize for NTS are limited to the 
following:
    1. Program 4: Acceptance of witnessed testing data.
    2. Program 8: Acceptance of product evaluations from organizations 
that function as part of the International Electrotechnical Commission 
Certification Body (IEC-CB) Scheme.
    3. Program 9: Acceptance of services other than testing or 
evaluation performed by subcontractors or agents.
    The on-site review report indicates that NTS appears to meet the 
requirements for use of the above programs and procedures. At this 
time, OSHA does not intend to approve the other programs that NTS 
requested. NTS must have documented procedures and practices in place 
providing much greater detail, before OSHA can approve the use of the 
remaining programs. The NRTL QAPs that are applicable to these programs 
are, in many cases, minimal in nature, some of which just restate the 
criteria in the March 9, 1995 notice that must be met. As such, they 
constitute more policies than procedures. In addition, NTS needs to 
develop certain experience to obtain approval of the programs involving 
use of manufacturers to perform tests or evaluations (Programs 5, 6, 
and 7).
    The March 9 notice specifies the need for a confidence-building 
period with the manufacturer that can only result after NTS has gained 
experience as an NRTL in certifying products for those manufacturers. 
An additional consideration is that NTS does not have experience in 
testing and certification to a complete standard, and may have less 
opportunity to develop the required experience if it uses others to do 
these activities. This experience is essential for its continued 
recognition as an NRTL. Finally, OSHA will need to review the actual 
implementation of certain key aspects of NTS' operations as an NRTL, 
which, as already noted, were not formally evaluated since they were 
not yet in place at the time OSHA performed its on-site review of NTS.

Conditions

    As described above, OSHA has concerns about NTS because it has not 
had the opportunity to evaluate the actual testing and reporting 
procedures, and use of the follow-up program, since these have not yet 
been implemented. OSHA has also identified issues related to the 
ownership and commercial relationships that could affect the 
independence of NTS. Unless NTS meets certain conditions imposed by 
OSHA, it could not be recognized as an NRTL under 29 CFR 1910.7. Also, 
the proposed NTS approach of developing a unique test procedure for 
each test makes it difficult for OSHA to evaluate its testing 
capabilities. OSHA will therefore need to evaluate NTS when it 
implements the detailed procedures and practices it plans to use to 
test and certify products as an NRTL, and will conditionally recognize 
NTS subject to a later assessment of the process once it is in place.
    Many of these procedures and practices will be new to NTS. Those 
that exist or are incorporated in the NRTL QAPs may need to be 
supplemented by more detailed specific instructions on the many 
activities involved in testing and certifying products to a complete 
test standard.
    This approach is consistent with OSHA's past recognition of other 
organizations as NRTLs who, like NTS, were mainly experienced in 
testing products to specific customer or partial test standard 
requirements. OSHA indicated in the Federal Register notice for those 
recognitions that the procedures to be used were new to the 
organization (for example, see 56 FR 28581, 6/21/91; and 58 FR 15511, 
3/23/93). OSHA will require NTS to take steps to correct any 
deficiencies that OSHA may find during its initial follow-up review. If 
deficiencies are not corrected, then OSHA will commence its process to 
revoke the recognition of the NRTL.
    Regarding independence, NTS has or could potentially have 
relationships that eliminate its complete independence, and OSHA 
intends to impose conditions to assure this will not occur. Such 
relationships may be the normal result of the NTS ownership structure, 
and its financial and commercial transactions. However, as an NRTL, 
those relationships could adversely influence the results of its 
testing and certification processes, such that NTS may no longer be, 
intentionally or not, impartial and objective. As a result, NTS would 
no longer be completely independent, which is a requirement fundamental 
to assuring that the products tested and certified are safe for use by 
workers and employers.
    Therefore, OSHA intends to impose the following conditions in the 
final notice to officially recognize NTS as an NRTL. These conditions 
apply solely to its operations as an NRTL, and will be in addition to 
all other conditions that OSHA normally imposes in its recognition of 
an organization as an NRTL.
    1. Within 30 days of certifying its first products under the NRTL 
Program, NTS will notify the OSHA NRTL Program Director so that OSHA 
may review NTS' adoption and implementation of its NRTL Quality Manual, 
NRTL Quality Assurance Procedures, and other procedures from other NTS 
Program areas for use in the NRTL Program.
    2. NTS shall not test and certify products for a client to whom it 
primarily sells design or similar services.
    3. NTS shall not test and certify products for a client if an owner 
of NTS also owns more than two percent of that client's stock.

Preliminary Finding

    National Technical Systems has addressed the criteria that must be 
met for recognition as an NRTL, as summarized above. In addition, the 
OSHA staff has performed an on-site review of NTS' Acton facility and 
investigated the processes, procedures, practices, and general 
operations used by the laboratory. Discrepancies noted by the review 
team during the on-site review were addressed by NTS following the on-
site evaluation, as detailed above, and are included in the on-site 
review report (see Exhibit 3).
    Following a review of the application file and the on-site review 
report, the NRTL Program staff has concluded that the applicant be 
granted recognition as a Nationally Recognized Testing Laboratory for 
the Acton, Massachusetts facility, subject to the conditions described 
above. The staff therefore recommended to the Assistant Secretary that 
the application be preliminarily approved.
    Based upon the recommendation of the staff, the Assistant Secretary 
hereby makes a preliminary finding that National Technical Systems' 
Acton, Massachusetts facility can meet the recognition requirements, as 
prescribed by 29 CFR 1910.7, for the 12 standards and the 3 programs 
noted above with the conditions to be applied as noted.
    All interested members of the public are invited to supply detailed 
reasons and evidence as to whether National Technical Systems has met 
the requirements of 29 CFR 1910.7 for

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recognition as a Nationally Recognized Testing Laboratory. Pertinent 
written documents and exhibits must be received no later than the last 
date for comments (see DATES above), and submitted to the address 
provided above (see ADDRESS). Copies of the NTS application, amendments 
and supplements to the application, the on-site review report, and all 
submitted comments, as received, are available for inspection and 
duplication (under Docket No. NRTL-1-98) at the Docket Office, Room 
N2625, Occupational Safety and Health Administration, U.S. Department 
of Labor, at the above address.
    The Assistant Secretary's final decision on whether the applicant 
(NTS) satisfies the requirements for recognition as an NRTL will be 
made on the basis of the entire record including the public submissions 
and any further proceedings that the Assistant Secretary may consider 
appropriate in accordance with 29 CFR Section 1910.7, and Appendix A to 
that section.

    Signed at Washington, D.C. this 18th day of August, 1998.
Charles N. Jeffress,
Assistant Secretary.
[FR Doc. 98-23250 Filed 8-27-98; 8:45 am]
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