National Technical Systems, Recognition as an NRTL

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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