[Code of Federal Regulations]
[Title 29, Volume 5]
[Revised as of January 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR1910.7]
[Page 100-105]
TITLE 29--LABOR
CHAPTER XVII--OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, DEPARTMENT
OF LABOR
PART 1910_OCCUPATIONAL SAFETY AND HEALTH STANDARDS--Table of Contents
Subpart A_General
Sec. 1910.7 Definition and requirements for a nationally
recognized testing laboratory.
(a) Application. This section shall apply only when the term
nationally recognized testing laboratory is used in other sections of
this part.
(b) Laboratory requirements. The term nationally recognized testing
laboratory (NRTL) means an organization which is recognized by OSHA in
accordance with appendix A of this section and which tests for safety,
and lists or labels or accepts, equipment or materials and which meets
all of the following criteria:
(1) For each specified item of equipment or material to be listed,
labeled or accepted, the NRTL has the capability (including proper
testing equipment and facilities, trained staff, written testing
procedures, and calibration and quality control programs) to perform:
(i) Testing and examining of equipment and materials for workplace
safety purposes to determine conformance with appropriate test
standards; or
(ii) Experimental testing and examining of equipment and materials
for workplace safety purposes to determine conformance with appropriate
test standards or performance in a specified manner.
(2) The NRTL shall provide, to the extent needed for the particular
equipment or materials listed, labeled, or accepted, the following
controls or services:
(i) Implements control procedures for identifying the listed and
labeled equipment or materials;
(ii) Inspects the run of production of such items at factories for
product evaluation purposes to assure conformance with the test
standards; and
(iii) Conducts field inspections to monitor and to assure the proper
use of its identifying mark or labels on products;
(3) The NRTL is 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; and,
(4) The NRTL maintains effective procedures for:
(i) Producing creditable findings or reports that are objective and
without bias; and
(ii) Handling complaints and disputes under a fair and reasonable
system.
(c) Test standards. An appropriate test standard referred to in
Sec. 1910.7(b)(1) (i) and (ii) is a document which specifies the safety
requirements for specific equipment or class of equipment and is:
(1) Recognized in the United States as a safety standard providing
an adequate level of safety, and
(2) Compatible with and maintained current with periodic revisions
of applicable national codes and installation standards, and
(3) Developed by a standards developing organization under a method
providing for input and consideration of views of industry groups,
experts, users, consumers, governmental authorities, and others having
broad experience in the safety field involved, or
(4) In lieu of paragraphs (c) (1), (2), and (3), the standard is
currently designated as an American National Standards Institute (ANSI)
safety-designated product standard or an American Society for Testing
and Materials (ASTM) test standard used for evaluation of products or
materials.
(d) Alternative test standard. If a testing laboratory desires to
use a test standard other than one allowed under paragraph (c) of this
section, then the Assistant Secretary of Labor shall
[[Page 101]]
evaluate the proposed standard to determine that it provides an adequate
level of safety before it is used.
(e) Implementation. A testing organization desiring recognition by
OSHA as an NRTL shall request that OSHA evaluate its testing and control
programs against the requirements in this section for any equipment or
material it may specify. The recognition procedure shall be conducted in
accordance with appendix A to this section.
(f) Fees. (1) Each applicant for NRTL recognition and each NRTL must
pay fees for services provided by OSHA. OSHA will assess fees for the
following services:
(i) Processing of applications for initial recognition, expansion of
recognition, or renewal of recognition, including on-site reviews;
review and evaluation of the applications; and preparation of reports,
evaluations and Federal Register notices; and
(ii) Audits of sites.
(2) The fee schedule established by OSHA reflects the cost of
performing the activities for each service listed in paragraph (f)(1) of
this section. OSHA calculates the fees based on either the average or
actual time required to perform the work necessary; the staff costs per
hour (which include wages, fringe benefits, and expenses other than
travel for personnel that perform or administer the activities covered
by the fees); and the average or actual costs for travel when on-site
reviews are involved. The formula for the fee calculation is as follows:
Activity Fee = [Average (or Actual) Hours to Complete the Activity x
Staff Costs per Hour] + Average (or Actual) Travel Costs
(3) (i) OSHA will review costs annually and will propose a revised
fee schedule, if warranted. In its review, OSHA will apply the formula
established in paragraph (f)(2) of this section to the current estimated
costs for the NRTL Program. If a change is warranted, OSHA will follow
the implementation table in paragraph (f)(4) of this section.
(ii) OSHA will publish all fee schedules in the Federal Register.
Once published, a fee schedule remains in effect until it is superseded
by a new fee schedule. Any member of the public may request a change to
the fees included in the current fee schedule. Such a request must
include appropriate documentation in support of the suggested change.
OSHA will consider such requests during its annual review of the fee
schedule.
(4) OSHA will implement fee assessment, collection, and payment as
follows:
------------------------------------------------------------------------
Approximate dates Action required
------------------------------------------------------------------------
I. Annual Review of Fee Schedule
------------------------------------------------------------------------
November 1........................ OSHA will publish any proposed new
Fee Schedule in the Federal
Register, if OSHA determines
changes in the schedule are
warranted.
November 16....................... Comments due on the proposed new Fee
Schedule.
December 15....................... OSHA will publish the final Fee
Schedule in the Federal Register,
making it effective.
------------------------------------------------------------------------
II. Application Processing Fees
------------------------------------------------------------------------
Time of application............... Applicant must pay the applicable
fees shown in the Fee Schedule when
submitting the application; OSHA
will not begin processing until
fees are received.
Publication of preliminary notice. Applicant must pay remainder of
fees; OSHA cancels application if
fees are not paid when due.
------------------------------------------------------------------------
III. Audit Fees
After audit performed............. OSHA will bill each existing NRTL
for the audit fees in effect at the
time of audit, but will reflect
actual travel costs and staff time
in the bill.
30 days after bill date........... NRTLs must pay audit fees; OSHA will
assess late fee if audit fees are
not paid.
45 days after bill date........... OSHA will send a letter to the NRTL
requesting immediate payment of the
audit fees and late fee
60 days after bill date........... OSHA will publish a notice in the
Federal Register announcing its
intent to revoke recognition for
NRTLs that have not paid these
audit fees.
------------------------------------------------------------------------
(5) OSHA will provide details about how to pay the fees through
appropriate OSHA Program Directives,
[[Page 102]]
which will be available on the OSHA web site.
Appendix A to Sec. 1910.7--OSHA Recognition Process for Nationally
Recognized Testing Laboratories
Introduction
This appendix provides requirements and criteria which OSHA will use
to evaluate and recognize a Nationally Recognized Testing Laboratory
(NRTL). This process will include the evaluation of the product
evaluation and control programs being operated by the NRTL, as well as
the NRTL's testing facilities being used in its program. In the
evaluation of the NRTLs, OSHA will use either consensus-based standards
currently in use nationally, or other standards or criteria which may be
considered appropriate. This appendix implements the definition of NRTL
in 29 CFR 1910.7 which sets out the criteria that a laboratory must meet
to be recognized by OSHA (initially and on a continuing basis). The
appendix is broader in scope, providing procedures for renewal,
expansion and revocation of OSHA recognition. Except as otherwise
provided, the burden is on the applicant to establish by a preponderance
of the evidence that it is entitled to recognition as an NRTL. If
further detailing of these requirements and criteria will assist the
NRTLs or OSHA in this activity, this detailing will be done through
appropriate OSHA Program Directives.
I. Procedures for Initial OSHA Recognition
A. Applications.
1. Eligibility. a. Any testing agency or organization considering
itself to meet the definition of nationally recognized testing
laboratory as specified in Sec. 1910.7 may apply for OSHA recognition
as an NRTL.
b. However, in determining eligibility for a foreign-based testing
agency or organization, OSHA shall take into consideration the policy of
the foreign government regarding both the acceptance in that country of
testing data, equipment acceptances, and listings, and labeling, which
are provided through nationally recognized testing laboratories
recognized by the Assistant Secretary, and the accessibility to
government recognition or a similar system in that country by U.S.-based
safety-related testing agencies, whether recognized by the Assistant
Secretary or not, if such recognition or a similar system is required by
that country.
2. Content of application. a. The applicant shall provide sufficient
information and detail demonstrating that it meets the requirements set
forth in Sec. 1910.7, in order for an informed decision concerning
recognition to be made by the Assistant Secretary.
b. The applicant also shall identify the scope of the NRTL-related
activity for which the applicant wishes to be recognized. This will
include identifying the testing methods it will use to test or judge the
specific equipment and materials for which recognition is being
requested, unless such test methods are already specified in the test
standard. If requested to do so by OSHA, the applicant shall provide
documentation of the efficacy of these testing methods.
c. The applicant may include whatever enclosures, attachments, or
exhibits the applicant deems appropriate. The application need not be
submitted on a Federal form.
3. Filing office location. The application shall be filed with: NRTL
Recognition Program, Occupational Safety and Health Administration, U.S.
Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210.
4. Amendments and withdrawals. a. An application may be revised by
an applicant at any time prior to the completion of activity under
paragraph I.B.4. of this appendix.
b. An application may be withdrawn by an applicant, without
prejudice, at any time prior to the final decision by the Assistant
Secretary in paragraph I.B.7.c. of this appendix.
B. Review and Decision Process; Issuance or Renewal.
1. Acceptance and on-site review. a. Applications submitted by
eligible testing agencies will be accepted by OSHA, and their receipt
acknowledged in writing. After receipt of an application, OSHA may
request additional information if it believes information relevant to
the requirements for recognition has been omitted.
b. 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, and, if necessary, review any
additional documentation underlying the application.
c. These on-site reviews will be conducted by qualified individuals
technically expert in these matters, including, as appropriate, non-
Federal consultants/contractors acceptable to OSHA. The protocol for
each review will be based on appropriate national consensus standards or
international guides, with such additions, changes, or deletions as may
be considered necessary and appropriate in each case by OSHA. A written
report shall be made of each on-site review and a copy shall be provided
to the applicant.
2. Positive finding by staff. If, after review of the application,
and additional information, and the on-site review report, the applicant
appears to have met the requirements for recognition, a written
recommendation shall be submitted by the responsible OSHA personnel to
the Assistant Secretary that the application be approved, accompanied by
a supporting explanation.
[[Page 103]]
3. Negative finding by staff.--a. Notification to applicant. If,
after review of the application, any additional information and the on-
site review report, the applicant does not appear to have met the
requirements for recognition, the responsible OSHA personnel shall
notify the applicant in writing, listing the specific requirements of
Sec. 1910.7 and this appendix which the applicant has not met, and
allow a reasonable period for response.
b. Revision of application. (i) After receipt of a notification of
negative finding (i.e., for intended disapproval of the application),
and within the response period provided, the applicant may:
(a) Submit a revised application for further review, which could
result in a positive finding by the responsible OSHA personnel pursuant
to subsection I.B.2. of this appendix; or
(b) Request that the original application be submitted to the
Assistant Secretary with an attached statement of reasons, supplied by
the applicant of why the application should be approved.
(ii) This procedure for applicant notification and potential
revision shall be used only once during each recognition process.
4. Preliminary finding by Assistant Secretary. a. The Assistant
Secretary, or a special designee for this purpose, will make a
preliminary finding as to whether the applicant has or has not met the
requirements for recognition, based on the completed application file,
the written staff recommendation, and the statement of reasons supplied
by the applicant if there remains a staff recommendation of disapproval.
b. Notification of this preliminary finding will be sent to the
applicant and subsequently published in the Federal Register.
c. This preliminary finding shall not be considered an official
decision by the Assistant Secretary or OSHA, and does not confer any
change in status or any interim or temporary recognition for the
applicant.
5. Public review and comment period--a. The Federal Register notice
of preliminary finding will provide a period of not less than 30
calendar days for written comments on the applicant's fulfillment of the
requirements for recognition. The application, supporting documents,
staff recommendation, statement of applicant's reasons, and any comments
received, will be available for public inspection in the OSHA Docket
Office.
b. Any member of the public, including the applicant, may supply
detailed reasons and evidence supporting or challenging the sufficiency
of the applicant's having met the requirements of the definition in 29
CFR Sec. 1910.7 and this appendix. Submission of pertinent documents
and exhibits shall be made in writing by the close of the comment
period.
6. Action after public comment--a. Final decision by Assistant
Secretary. Where the public review and comment record supports the
Assistant Secretary's preliminary finding concerning the application,
i.e., absent any serious objections or substantive claims contrary to
the preliminary finding having been received in writing from the public
during the comment period, the Assistant Secretary will proceed to final
written decision on the application. The reasons supporting this
decision shall be derived from the evidence available as a result of the
full application, the supporting documentation, the staff finding, and
the written comments and evidence presented during the public review and
comment period.
b. Public announcement. A copy of the Assistant Secretary's final
decision will be provided to the applicant. Subsequently, a notification
of the final decision shall be published in the Federal Register. The
publication date will be the effective date of the recognition.
c. Review of final decision. There will be no further review
activity available within the Department of Labor from the final
decision of the Assistant Secretary.
7. Action after public objection--a. Review of negative information.
At the discretion of the Assistant Secretary or his designee, OSHA may
authorize Federal or contract personnel to initiate a special review of
any information provided in the public comment record which appears to
require resolution, before a final decision can be made.
b. Supplementation of record. The contents and results of special
reviews will be made part of this record by the Assistant Secretary by
either:
(i) Reopening the written comment period for public comments on
these reviews; or
(ii) Convening an informal hearing to accept public comments on
these reviews, conducted under applicable OSHA procedures for similar
hearings.
c. Final decision by the Assistant Secretary. The Assistant
Secretary shall issue a decision as to whether it has been demonstrated,
based on a preponderance of the evidence, that the applicant meets the
requirements for recognition. The reasons supporting this decision shall
be derived from the evidence available as a result of the full
application, the supporting documentation, the staff finding, the
comments and evidence presented during the public review and comment
period, and written to transcribed evidence received during any
subsequent reopening of the written comment period or informal public
hearing held.
d. Public announcement. A copy of the Assistant Secretary's final
decision will be provided to the applicant, and a notification will be
published in the Federal Register subsequently announcing the decision.
e. Review of final decision. There will be no further review
activity available within the Department of Labor from the final
decision of the Assistant Secretary.
[[Page 104]]
c. Terms and conditions of recognition. The following terms and
conditions shall be part of every recognition:
1. Letter of recognition. The recognition by OSHA of any NRTL will
be evidenced by a letter of recognition from OSHA. The letter will
provide the specific details of the scope of the OSHA recognition,
including the specific equipment or materials for which OSHA recognition
has been granted, as well as any specific conditions imposed by OSHA.
2. Period of recognition. The recognition by OSHA of each NRTL will
be valid for five years, unless terminated before the expiration of the
period. The dates of the period of recognition will be stated in the
recognition letter.
3. Constancy in operations. The recognized NRTL shall continue to
satisfy all the requirements or limitations in the letter of recognition
during the period of recognition.
4. Accurate publicity. The OSHA-recognized NRTL shall not engage in
or permit others to engage in misrepresentation of the scope or
conditions of its recognition.
5. Temporary Recognition of Certain NRTLs. a. Notwithstanding all
other requirements and provisions of Sec. 1910.7 and this appendix, the
following two organizations are recognized temporarily as nationally
recognized testing laboratories by the Assistant Secretary for a period
of five years beginning June 13, 1988 and ending on July 13, 1993:
(i) Underwriters Laboratories, Inc., 333 Pfingsten Road, Northbrook,
Illinois 60062.
(ii) Factory Mutual Research Corporation, 1151 Boston-Providence
Turnpike, Norwood, Massachusetts 02062.
b. At the end of the five-year period, the two temporarily
recognized laboratories shall apply for renewal of OSHA recognition
utilizing the following procedures established for renewal of OSHA
recognition.
II. Supplementary Procedures.
A. Test standard changes.
A recognized NRTL may change a testing standard or elements
incorporated in the standard such as testing methods or pass-fail
criteria by notifying the Assistant Secretary of the change, certifying
that the revised standard will be at least as effective as the prior
standard, and providing the supporting data upon which its conclusions
are based. The NRTL need not inform the Assistant Secretary of minor
deviations from a test standard such as the use of new instrumentation
that is more accurate or sensitive than originally called for in the
standard. The NRTL also need not inform the Assistant Secretary of its
adoption of revisions to third-party testing standards meeting the
requirements of Sec. 1910.7(c)(4), if such revisions have been
developed by the standards developing organization, or of its adoption
of revisions to other third-party test standards which the developing
organization has submitted to OSHA. If, upon review, the Assistant
Secretary or his designee determines that the proposed revised standard
is not ``substantially equivalent'' to the previous version with regard
to the level of safety obtained, OSHA will not accept the proposed
testing standard by the recognized NRTL, and will initiate
discontinuance of that aspect of OSHA-recognized activity by the NRTL by
modification of the official letter of recognition. OSHA will publicly
announce this action and the NRTL will be required to communicate this
OSHA decision directly to affected manufacturers.
B. Expansion of current recognition
1. Eligibility. A recognized NRTL may apply to OSHA for an expansion
of its current recognition to cover other categories of NRTL testing in
addition to those included in the current recognition.
2. Procedure. a. OSHA will act upon and process the application for
expansion in accordance with subsection I.B. of this appendix, except
that the period for written comments, specified in paragraph 5.a of
subsection I.B. of this appendix, will be not less than 15 calendar
days.
b. In that process, OSHA 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.
c. The expiration date for each expansion of recognition shall
coincide with the expiration date of the current basic recognition
period.
C. Renewal of OSHA recognition
1. Eligibility. A recognized NRTL may renew its recognition by
filing a renewal request at the address in paragraph I.A.3. of this
appendix not less than nine months, nor more than one year, before the
expiration date of its current recognition.
2. Procedure. a. OSHA will process the renewal request in accordance
with subsection I.B. of this appendix, except that the period for
written comments, specified in paragraph 5.a of subsection I.B. of this
appendix, will be not less than 15 calendar days.
b. In that process, OSHA may determine not to conduct the on-site
reviews in I.B.1.a. where appropriate.
c. When a recognized NRTL has filed a timely and sufficient renewal
request, its current recognition will not expire until a final decision
has been made by OSHA on the request.
d. After the first renewal has been granted to the NRTL, the NRTL
shall apply for a continuation of its recognition status every five
years by submitting a renewal request. In lieu of submitting a renewal
request after the initial renewal, the NRTL may certify
[[Page 105]]
its continuing compliance with the terms of its letter of recognition
and 29 CFR 1910.7.
3. Alternative procedure. After the initial recognition and before
the expiration thereof, OSHA may (for good cause) determine that there
is a sufficient basis to dispense with the renewal requirement for a
given laboratory and will so notify the laboratory of such a
determination in writing. In lieu of submitting a renewal request, any
laboratory so notified shall certify its continuing compliance with the
terms of its letter of recognition and 29 CFR 1910.7.
D. Voluntary termination of recognition.
At any time, a recognized NRTL may voluntarily terminate its
recognition, either in its entirety or with respect to any area covered
in its recognition, by giving written notice to OSHA. The written notice
shall state the date as of which the termination is to take effect. The
Assistant Secretary shall inform the public of any voluntary termination
by Federal Register notice.
E. Revocation of recognition by OSHA.
1. Potential causes. If an NRTL either has failed to continue to
substantially satisfy the requirements of Sec. 1910.7 or this appendix,
or has not been reasonably performing the NRTL testing requirements
encompassed within its letter of recognition, or has materially
misrepresented itself in its applications or misrepresented the scope or
conditions of its recognition, the Assistant Secretary may revoke the
recognition of a recognized NRTL, in whole or in part. OSHA may initiate
revocation procedures on the basis of information provided by any
interested person.
2. Procedure. a. Before proposing to revoke recognition, the Agency
will notify the recognized NRTL in writing, giving it the opportunity to
rebut or correct the alleged deficiencies which would form the basis of
the proposed revocation, within a reasonable period.
b. If the alleged deficiencies are not corrected or reconciled
within a reasonable period, OSHA will propose, in writing to the
recognized NRTL, to revoke recognition. If deemed appropriate, no other
announcement need be made by OSHA.
c. The revocation shall be effective in 60 days unless within that
period the recognized NRTL corrects the deficiencies or requests a
hearing in writing.
d. If a hearing is requested, it shall be held before an
administrative law judge of the Department of Labor pursuant to the
rules specified in 29 CFR part 1905, subpart C.
e. The parties shall be OSHA and the recognized NRTL. The Assistant
Secretary may allow other interested persons to participate in these
hearings if such participation would contribute to the resolution of
issues germane to the proceeding and not cause undue delay.
f. The burden of proof shall be on OSHA to demonstrate by a
preponderance of the evidence that the recognition should be revoked
because the NRTL is not meeting the requirements for recognition, has
not been reasonably performing the product testing functions as required
by Sec. 1910.7, this appendix A, or the letter of recognition, or has
materially misrepresented itself in its applications or publicity.
3. Final decision. a. After the hearing, the Administrative Law
Judge shall issue a decision stating the reasons based on the record as
to whether it has been demonstrated, based on a preponderance of
evidence, that the applicant does not continue to meet the requirements
for its current recognition.
b. Upon issuance of the decision, any party to the hearing may file
exceptions within 20 days pursuant to 29 CFR 1905.28. If no exceptions
are filed, this decision is the final decision of the Assistant
Secretary. If objections are filed, the Administrative Law Judge shall
forward the decision, exceptions and record to the Assistant Secretary
for the final decision on the proposed revocation.
c. The Assistant Secretary will review the record, the decision by
the Administrative Law Judge, and the exceptions filed. Based on this,
the Assistant Secretary shall issue the final decision as to whether it
has been demonstrated, by a preponderance of evidence, that the
recognized NRTL has not continued to meet the requirements for OSHA
recognition. If the Assistant Secretary finds that the NRTL does not
meet the NRTL recognition requirements, the recognition will be revoked.
4. Public announcement. A copy of the Assistant Secretary's final
decision will be provided to the applicant, and a notification will be
published in the Federal Register announcing the decision, and the
availability of the complete record of this proceeding at OSHA. The
effective date of any revocation will be the date the final decision
copy is sent to the NRTL.
5. Review of final decision. There will be no further review
activity available within the Department of Labor from the final
decision of the Assistant Secretary.
[53 FR 12120, Apr. 12, 1988; 53 FR 16838, May 11, 1988, as amended at 54
FR 24333, June 7, 1989; 65 FR 46818, 46819, July 31, 2000]