[Federal Register Volume 63, Number 237 (Thursday, December 10, 1998)]
[Notices]
[Pages 68306-68309]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-32879]


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DEPARTMENT OF LABOR

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


National Technical Systems, Recognition as an NRTL

AGENCY: Occupational Safety and Health Administration; Labor.

ACTION: Notice.

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SUMMARY: This notice announces the Agency's final decision on the 
application of National Technical Systems for recognition as a 
Nationally Recognized Testing Laboratory (NRTL) under 29 CFR 1910.7.

EFFECTIVE DATE: This recognition becomes effective on December 10, 1998 
and will be valid until December 10, 2003, unless terminated or 
modified prior to that date, in accordance with 29 CFR 1910.7.

FOR FURTHER INFORMATION CONTACT: Bernard Pasquet, 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, DC 20210, or phone (202) 693-2110.

SUPPLEMENTARY INFORMATION:

Notice of Application

    The Occupational Safety and Health Administration (OSHA) hereby 
gives notice of its recognition of National Technical Systems (NTS) as 
a Nationally Recognized Testing Laboratory, for testing and 
certification of the equipment or materials, and use of the site and 
the supplemental programs, listed below. OSHA recognizes an 
organization as an NRTL, and processes applications related to such 
recognitions, following requirements in Section 1910.7 of Title 29, 
Code of Federal Regulations (29 CFR 1910.7). Appendix A to this section 
requires that OSHA publish this public notice of its final decision on 
an application.
    NTS applied for recognition as an NRTL, pursuant to 29 CFR 1910.7, 
and OSHA published the required notice in the Federal Register (63 FR 
46079, 8/28/98) to announce the application. The notice included a 
preliminary finding that NTS could meet the requirements for 
recognition detailed in 29 CFR 1910.7, and invited public comment on 
the application by October 27, 1998. OSHA received no comments 
concerning this application for recognition.
    You may obtain or review copies of all public documents pertaining 
to the application by contacting the Docket Office, Occupational Safety 
and Health Administration, U.S. Department of Labor, 200 Constitution 
Avenue, NW, Room N2625, Washington, DC 20210. You should refer to 
Docket No. NRTL-1-98, the permanent record of public information on the 
NTS recognition.
    The address of the testing facility (site) that OSHA recognizes for 
NTS is: National Technical Systems, 533 Main Street, Acton, 
Massachusetts 01720.

Background on the Applicant and the Application

    National Technical Systems, according to its application, is 
headquartered in Calabasas, California, and became established in 1963. 
Also, NTS became a public company in 1968 and is listed in the NASDAQ 
exchange. The applicant asserts it is an independent testing, 
engineering, research, and support services organization, with more 
than 30 years of product testing experience. NTS also states that 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

[[Page 68307]]

(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). In this notice, these two documents are 
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 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). Through these amendments, NTS reduced the number 
of test standards it requested for recognition to 13. Also, it 
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, under which an NRTL may 
use outside parties to perform some of the activities involved in 
testing and certification of products. OSHA's approval to use any of 
these programs is based on criteria first detailed in a March 9, 1995 
Federal Register notice (60 FR 12980). 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). It also eliminated one test standard since 
the standards organization had withdrawn it. As a result, the 
recognition covers 12 test standards.
    According to the applicant, 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.
    The requirements for recognition are presented below, along with 
examples that illustrate how NTS has met each of these requirements.

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.
    According to the on-site review report, NTS has adequate space and 
utilities to perform the testing required. It has security measures in 
place to restrict or control access to its facility. The report also 
indicates that NTS has, available in the laboratory, all general test 
equipment required to perform testing to the test standards requested, 
and that it 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.
    According to the review report, the NRTL QM and NRTL QAPs, and NTS' 
Internal Audit Program are the primary means of quality assurance. 
Other aspects of quality assurance will be the individual testing 
procedures and standard operating procedures. Also, the report 
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 the 
NTS operations as an NRTL. Such an approach would not meet the 
requirement in 29 CFR 1910.7 (b)(1) for ``written testing procedures,'' 
which, like any other procedure, are intended to be a general set of 
instructions that are applicable to each test. These procedures must 
cover the steps and methods that recur in examining and testing 
products.
    The review report indicates that NTS has done only partial testing 
to portions of the test standards, as required for compliance of 
nuclear facility products and other testing programs. The applicant 
submitted samples of written testing procedures in its original 
application. These procedures 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 
written testing 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. 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 Programs

    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.
    According to the onsite review report, 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 must 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. They also contain 
policies for the contents of the legal agreements, and outline the 
processes that will define and control the way NTS implements its 
certification schemes. These documents also include a description of 
the process for selecting products for evaluation,

[[Page 68308]]

which may include NTS 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 the manufacturing 
facilities 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 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 the process reviewed during the onsite review was similar to an 
NRTL follow-up program. However, NTS has just developed its 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 NTS 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 its design and engineering services, 
previously mentioned, for manufacturers or vendors of the products it 
may test and certify as an NRTL. 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 NRTL testing and 
certification activities, it would no longer be ``completely 
independent'' with respect to those manufacturers or vendors.

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.

Supplemental Programs

    As previously mentioned, National Technical Systems applied for 
recognition to use the supplemental programs, based upon the criteria 
first detailed in a March 9, 1995 Federal Register notice (60 FR 
12980). This notice lists nine (9) programs and procedures 
(collectively, programs), eight of which an NRTL may use to control and 
audit, but not actually to generate, the data relied upon for product 
certification. An NRTL's initial recognition automatically includes 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 recognizes for NTS are limited to the three listed 
under Final Decision and Order.
    The on-site review report and the application indicate that NTS 
meet the criteria for use of three supplemental programs. At this time, 
OSHA does not intend to recognize NTS for the other programs it 
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 recognition to use 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 
reviews of NTS.

Additional 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 cannot retain its recognition as an NRTL under 29 CFR 1910.7.
    OSHA's approach in imposing conditions is consistent with 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 audit of the NRTL. 
If deficiencies are not corrected, then OSHA will commence its process 
to revoke the recognition of the NRTL.
    Many procedures and practices for its NRTL testing and 
certification processes 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. 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

[[Page 68309]]

assessment of the process once it is in place.
    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 has included appropriate conditions below to 
address its concerns. These conditions apply solely to the NTS 
operations as an NRTL, and are in addition to the other conditions 
listed below, which OSHA normally imposes in its recognition of an 
organization as an NRTL.

Final Decision and Order

    The NRTL Program staff has examined the complete application, the 
amendments to the application, the supporting documentation, and the 
OSHA staff finding including the on-site review report, dated December 
22, 1997 (see Exhibit 3). Based upon this examination, OSHA finds that 
National Technical System has met the requirements of 29 CFR 1910.7 to 
be recognized as a Nationally Recognized Testing Laboratory to test and 
certify certain equipment or materials, subject to the limitations and 
conditions listed below. Pursuant to the authority in 29 CFR 1910.7, 
National Technical System is hereby recognized as a Nationally 
Recognized Testing Laboratory, subject to the limitations and 
conditions listed below.

Limitations

    This recognition is limited to equipment or materials (products) 
for which OSHA standards require third party testing and certification 
before use in the workplace. OSHA's recognition is further limited to 
the site listed above, and to the use of the following 12 test 
standards for the testing and certification of products included within 
the scope of these standards. OSHA has determined these 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

    The designations and titles of the above standards were current at 
the time of the preparation of the notice of the preliminary finding.
    This recognition is also limited to the use of the following 3 
supplemental programs. Recognition of these programs is contingent on 
continued adherence to the criteria for their use.

Program 4: Acceptance of witnessed testing data
Program 8: Acceptance of product evaluations from organizations that 
function as part of the International Electrotechnical Commission 
Certification Body (IEC-CB) Scheme
Program 9: Acceptance of services other than testing or evaluation 
performed by subcontractors or agents.

Conditions

    National Technical Systems must also abide by the following 
conditions of the recognition, in addition to those already required by 
29 CFR 1910.7:
    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;
    NTS must not test and certify products for a client to whom it 
primarily sells design or similar services;
    NTS must not test and certify products for a client if an owner of 
NTS also owns more than two percent (2%) of that client's stock;
    OSHA must be allowed access to NTS' facility and records for 
purposes of ascertaining continuing compliance with the terms of its 
recognition and to investigate as OSHA deems necessary;
    If NTS has reason to doubt the efficacy of any test standard it is 
using under this program, it must promptly inform the test standard 
developing organization of this fact and provide that organization with 
appropriate relevant information upon which its concerns are based;
    NTS must not engage in or permit others to engage in any 
misrepresentation of the scope or conditions of its recognition. As 
part of this condition, NTS agrees that it will allow no representation 
that it is either a recognized or an accredited Nationally Recognized 
Testing Laboratory (NRTL) without clearly indicating the specific 
equipment or material to which this recognition is tied, or that its 
recognition is limited to certain products;
    NTS must inform OSHA as soon as possible, in writing, of any change 
of ownership or key personnel, including details;
    NTS will meet all the terms of its recognition and will always 
comply with all OSHA policies pertaining to this recognition;
    NTS will continue to meet the requirements for recognition in all 
areas where it has been recognized; and
    NTS will always cooperate with OSHA to assure compliance with the 
spirit as well as the letter of its recognition and 29 CFR 1910.7.

    Signed at Washington, DC, this 2d day of December 1998.
Charles N. Jeffress,
Assistant Secretary.
[FR Doc. 98-32879 Filed 12-9-98; 8:45 am]
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