Nationally Recognized Testing Laboratories; Policy for Transitioning to Satellite Notification and Acceptance Program (SNAP) Termination, 75042-75049 [2020-25770]

Agencies

• DEPARTMENT OF LABOR
• Occupational Safety and Health Administration

[Federal Register Volume 85, Number 227 (Tuesday, November 24, 2020)]
[Notices]
[Pages 75042-75049]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25770]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

[Docket No. OSHA-2007-0053]


Nationally Recognized Testing Laboratories; Policy for 
Transitioning to Satellite Notification and Acceptance Program (SNAP) 
Termination

AGENCY: Occupational Safety and Health Administration (OSHA), Labor.

ACTION: Notice.

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SUMMARY: In this notice, OSHA issues a final policy for transitioning 
to the termination of the Satellite Notification and Acceptance 
Program.

DATES: The policy OSHA finalizes in this notice is issued on November 
24, 2020.

FOR FURTHER INFORMATION CONTACT: Information regarding this notice is 
available from the following sources:
    Press inquiries: Contact Mr. Frank Meilinger, Director, OSHA Office 
of Communications; telephone: (202) 693-1999; email: 
[email protected].
    General and technical information: Contact Mr. Kevin Robinson, 
Director, Office of Technical Programs and Coordination Activities, 
Directorate of Technical Support and Emergency Management, Occupational 
Safety and Health Administration; telephone: (202) 693-2110; email: 
[email protected]. OSHA's web page includes information about the 
NRTL Program (see https://www.osha.gov/dts/otpca/nrtl/).

SUPPLEMENTARY INFORMATION:

I. Background

A. Nationally Recognized Testing Laboratories (NRTL) Program

    Many of OSHA's safety standards require employers to use products 
tested and certified as safe (e.g., 29 CFR 1910, subpart S). In 
general, testing laboratories, and not employers, perform the required 
testing and certification. To ensure that the testing and certification 
performed on products is appropriate, OSHA implemented the NRTL 
Program. This program establishes the criteria that a testing 
laboratory must meet to achieve, and retain, NRTL recognition.
    OSHA recognition of a NRTL signifies that the organization meets 
the legal requirements specified in 29 CFR 1910.7, the regulatory 
provision containing the requirements an organization must meet to 
become a NRTL and retain NRTL status. Recognition is an acknowledgment 
by OSHA that the organization can perform independent safety testing 
and certification of the specific products covered within the 
organization's scope of recognition, and is not a delegation or grant 
of government authority. Recognition under the NRTL Program, therefore, 
enables employers to use products approved by NRTLs to meet OSHA 
standards that require product testing and certification.
    Each NRTL is approved for a scope of recognition, which identifies: 
(a) The type of products the NRTL may approve; and (b) the NRTL's 
``recognized sites.'' The requirements for NRTL recognition are 
outlined in the NRTL Program Regulation at 29 CFR 1910.7 and Appendix A 
to that regulation.

B. NRTL Program Directive

    The NRTL Program Directive sets forth OSHA policies, procedures, 
and interpretations that supplement and clarify the NRTL Program 
regulation, 29 CFR 1910.7 and Appendix A (NRTL Program Policies, 
Procedures and Guidelines, CPL 01-00-004, available at https://www.osha.gov/sites/default/files/enforcement/directives/CPL_01-00-004.pdf). OSHA recently revised the NRTL Program Directive, on October 
1, 2019.
    The revised NRTL Program Directive contains a revised definition of 
``recognized site.'' To be recognized, ``a site must be 
administratively and operationally controlled by the NRTL and must 
perform at least one of the following functions: testing and inspection 
(and/or accepting test data or inspections), performing reviews, or 
making certification decisions with the NRTL management system'' (NRTL 
Program Directive, Annex C). In revising the definition, OSHA 
eliminated ownership requirements contained in the prior definition of 
recognized site (NRTL Program Directive Ch. 1.IX.D). Thus, to be a 
recognized site, the site no longer has to be owned by the NRTL.
    Prior to issuing the revised NRTL Program Directive (CPL-01-004), 
OSHA permitted NRTLs to use a number of different supplemental programs 
in order to use the services of other facilities to test and certify 
products used in the workplace (60 FR 12980, 74 FR 923). One of these 
supplemental programs was Supplemental Program

[[Page 75043]]

10, Satellite Notification Acceptance Program (SNAP). SNAP was 
implemented on May 11, 2009 (74 FR 923), and permitted NRTLs to perform 
certain functions to support testing and certification operations at 
``SNAP sites.'' Under SNAP, a NRTL had to have administrative and 
operational control over the NRTL's SNAP sites but ownership by the 
NRTL was not necessary. Thus, the majority of SNAP sites could not be 
``recognized sites'' because of the ownership requirements that were 
then contained in the definition of recognized sites in the old NRTL 
Directive (i.e., a majority of the sites could not be ``recognized 
sites'' because they were not owned by the NTRLs).
    OSHA terminated all the supplemental programs, including SNAP, in 
the revised NRTL Program Directive (Ch. 1.IX.B, D). SNAP is no longer 
necessary because the revised definition of ``recognized site'' permits 
OSHA to recognize sites that are administratively and operationally 
controlled by the NRTL but not necessarily owned by the NRTL. As OSHA 
noted in the revised Directive, NRTLs will now be able to apply to OSHA 
to make existing SNAP sites recognized sites (Id.).
OSHA Policies on Transition to the Revised NRTL Program Directive
    After issuing the revised NRTL Program Directive, on October 19, 
2019, OSHA issued a policy memorandum, Revision to Policy Impacting the 
Revised Nationally Recognized Testing Laboratory (NRTL) Program, 
Policies, Procedures and Guidelines Directive (the October 19, 2019 
memorandum), which, among other things, provided that existing NRTLs 
could comply with the prior NRTL Program Directive, rather than the 
revised NRTL Program Directive, until September 30, 2020 (available at 
https://www.osha.gov/dts/otpca/nrtl/NRTLDirectiveTransitionMemo.html). 
Then, on July 2, 2020, OSHA issued another policy memorandum, Extension 
of Some Deadlines to Comply with Revised Nationally Recognized Testing 
Laboratory (NRTL) Program Policies, Procedures and Guidelines Directive 
(the July 2, 2020 memorandum), which, among other things, rescinded and 
replaced the October 19, 2019 memorandum, and extended by a year some 
of the dates by which existing NRTLs would need to comply with the 
revised NRTL Program Directive (available at https://www.osha.gov/memos/2020-07-02/nationally-recognized-testing-laboratory-program/directive-compliance-extension). The July 2, 2020 memorandum, provides 
in relevant part that:
     Existing NRTLs (each organization OSHA recognize[d] as a 
NRTL on October 1, 2019) must comply with the requirements of the 
revised NRTL Program Directive no later than October 1, 2021. Existing 
NRTLs may comply with the requirements of the prior NRTL Directive 
(CPL-01-00-003) until September 30, 2021.
     OSHA will evaluate pending expansion applications for 
existing NRTLs under the prior NRTL Program Directive to the extent 
final decisions on those applications are published in the Federal 
Register prior to October 1, 2021. Assuming OSHA grants the expansion 
application, the NRTL will need to be in full compliance with the 
revised NRTL Program Directive, with respect to the NRTL's entire scope 
of recognition, no later than October 1, 2021. For example, if OSHA 
publishes a final decision on an expansion application in the Federal 
Register on September 30, 2021, then the NRTL will have to be in full 
compliance with the revised NRTL Program Directive, with respect to the 
NRTL's entire scope of recognition, no later than October 1, 2021.
     OSHA will evaluate pending expansion applications for 
existing NRTLs under the revised NRTL Program Directive to the extent 
final decisions on those applications are published in the Federal 
Register on or after October 1, 2021. Depending on the status of the 
application, OSHA may, in the discretion of the agency, waive certain 
fees associated with the application to the extent accrual of those 
fees are due solely to OSHA's transition to the revised NRTL Program 
Directive. Assuming OSHA grants the expansion application, the NRTL 
will need to be in compliance with the revised NRTL Program Directive 
with respect to the NRTL's expanded scope immediately (i.e., on the 
date the final decision on the expansion application is published in 
the Federal Register).
     Audits and assessments of existing NRTLs conducted on or 
after October 1, 2019, will be conducted under the revised NRTL Program 
Directive. However, until October 1, 2021, items that OSHA would 
normally note as nonconformances with the revised NRTL Program 
Directive requiring timely response and correction will be noted as 
observations or long term corrective actions. While such observations 
and long term corrective actions will not require a response and 
correction in connection with the relevant audit or assessment, 
existing NRTLs will need to comply with the revised NRTL Program 
Directive no later than October 1, 2021.
    As OSHA stated in the July 2, 2020 memorandum, other than extending 
some of the dates by which existing NRTLs would need to comply with the 
revised NRTL Program Directive, ``the policies in [the July 2, 2020] 
memorandum are otherwise the same as those contained in the rescinded 
[October 19, 2019] memorandum.'' As OSHA also stated, ``any Federal 
Register Notice establishing OSHA policies for transition to the 
termination of the Satellite Notification and Acceptance Program (SNAP) 
will supersede the policies contained in [the July 2, 2020] memorandum, 
to the extent that there is a conflict.''

C. OSHA's Proposed Policy for Transitioning to the Termination of SNAP

    In a February 10, 2020 Federal Register Notice, OSHA proposed a 
policy for transitioning to SNAP termination (85 FR 7606 (available at 
https://www.osha.gov/sites/default/files/laws-regs/federalregister/2020-02-10_0.pdf)). OSHA proposed this policy based on the recognition 
that immediate termination of SNAP might cause an undue burden on some 
NRTLs with existing SNAP sites, as well as on its goal of permitting a 
smooth transition to SNAP termination for NRTLs with existing SNAP 
sites (85 FR at 7608).
    As stated in the February 10, 2020 Federal Register Notice, while 
OSHA was not required by the Administrative Procedures Act, 5 U.S.C. 
551, et seq., to engage in notice and comment rulemaking procedures 
prior to the adoption and implementation of the proposed policy, OSHA 
requested public comment regarding the proposed policy in order to gain 
input and insight from interested parties. Comments were due to be 
submitted by March 11, 2020.
    Under the proposed policy, SNAP would be entirely terminated one 
year after the date of publication of the Federal Register notice 
announcing OSHA's final decision on this proposed policy. Prior to that 
time, if a NRTL with existing SNAP sites followed the proposed 
procedures described in the Notice, that NRTL could continue to perform 
SNAP activities at the NRTL's existing SNAP sites (for a period, or 
periods, that would be established by the proposed policy, and ending 
no later than one year after the date of publication of the Federal 
Register notice announcing OSHA's final decision on this proposed 
policy).
    Finally, OSHA stated in the February 10, 2020 Federal Register 
Notice, that the policies proposed in the Notice

[[Page 75044]]

would supersede the policies contained in the October 19, 2019 
memorandum (discussed above), to the extent there was a conflict. OSHA 
also stated that, as of October 1, 2019 (the date OSHA issued the 
revised NRTL Program Directive), in accordance with current OSHA 
policy, OSHA would reject any application submitted by a NRTL or NRTL 
applicant-organization to be recognized for any of the previous 
supplemental programs, including SNAP.

II. Final Decision Issuing Policy for Transitioning to the Termination 
of SNAP

    In this notice, OSHA issues a final policy for transitioning to the 
termination of SNAP. The final policy is nearly identical to the policy 
proposed in the February 10, 2020 Federal Register Notice, with certain 
exceptions discussed below.
    In proposing its policy, OSHA recognized that NRTLs might need more 
time to transition their existing SNAP sites to recognized sites than 
the year-long transition period (from October 1, 2019 to October 1, 
2020) permitted by the October 19, 2019 memorandum, for complying with 
the revised Directive. Therefore, under the proposed policy, NRTLs that 
timely applied for scope expansion (i.e., to convert their existing 
SNAP sites to recognized sites) and met other conditions stipulated in 
the policy, would be permitted to continue performing SNAP activities 
at existing SNAP sites listed in their applications up to a full year 
after the date of publication of the Federal Register notice finalizing 
the policy (see sections 3.b and 10 of the proposed policy).
    OSHA has decided to retain this time limit in the final policy. 
Therefore, under the final policy, NRTLs that timely apply for scope 
expansion and meet other conditions stipulated in the final policy will 
be permitted to continue performing SNAP activities at existing SNAP 
sites listed in their applications up to November 24, 2021 (see 
paragraphs 3.b and 11 of the final policy). This time limit slightly 
extends the extra time OSHA originally anticipated (up until October 1, 
2021) when it published the proposed policy that existing NRTLs would 
need for a smooth transition of their SNAP sites to recognized sites. 
However, OSHA concludes the extra transition time permitted by the 
final policy is negligible.
    Some of the other time limits in the proposed policy, if finalized, 
would have raised questions of fairness and consistency because OSHA 
rescinded the October 19, 2019 memorandum, and replaced it with the 
July 2, 2020 memorandum. When OSHA issued the proposed policy in 
February 2020, it envisioned all time limits in the proposed policy 
occurring after October 1, 2020, the date by which existing NRTLs 
needed to comply with the revised NRTL Program Directive pursuant to 
the October 19, 2019 memorandum. Therefore, when OSHA issued the 
proposed policy, it believed all time limits in the proposed policy 
would give NRTLs with existing SNAP sites extra transition time on top 
of the transition year already permitted by the October 19, 2019 
policy. However, because OSHA extended the October 1, 2020 deadline by 
a year in the July 2, 2020 memorandum, certain time limits in the 
proposed policy, if finalized, would require existing NRTLs to cease 
performing SNAP activities at existing SNAP sites well before the new 
October 1, 2021 deadline. This would occur for some NRTLs even though 
they timely submitted all documents to OSHA (see sections 1.a, 1.c, and 
2 of the proposed policy) and were actively seeking to convert their 
SNAP sites to recognized sites. Thus, for example, under the proposed 
policy, if a NRTL that timely submitted documents to OSHA did not meet 
one or more of the other preconditions of eligibility for the SNAP 
sites listed in its application for scope expansion, the NRTL would be 
required to immediately cease performing SNAP activities at the SNAP 
sites listed in the application (see sections 2 and 5.b of the proposed 
policy).
    OSHA concludes that it would be unfair to require a NRTL that 
timely submitted its documents to OSHA and is actively seeking to 
convert its SNAP sites to recognized sites to cease performing SNAP 
activities at the SNAP sites listed in its expansion application prior 
to September 30, 2021 (the last date existing NRTLs may comply with the 
requirements of the prior NRTL Directive pursuant to the July 2, 2020 
memorandum). Therefore, the final policy permits such NRTLs to continue 
performing SNAP activities at existing SNAP sites listed in their 
applications until September 30, 2021.
    There are different factors at play for NRTLs that do not timely 
submit their documents to OSHA and/or are not actively seeking to 
convert their SNAP sites to recognized sites, for example, because they 
withdrew an application for scope expansion or because OSHA denies an 
application for scope expansion (see sections 2, 5.c, 6, 7, 8, and 9 of 
the proposed policy). OSHA adopted the transition periods for existing 
NRTLs in the October 19, 2019 and July 2, 2020 memoranda, to permit 
NRTLs adequate time to transition from the prior NRTL Directive to the 
revised NRTL Directive. A NRTL that does not submit timely documents to 
OSHA or makes an affirmative decision to withdraw an application for 
scope expansion has signaled that it does not want to transition its 
SNAP sites to recognized sites. Furthermore, if OSHA denies an 
application for scope expansion, it will have concluded that the SNAP 
sites listed in the application do not have the capability to operate 
as NRTL-recognized sites, and there will be no further need for the 
NRTL to transition those sites to recognized sites. Permitting such 
NRTLs to continue performing SNAP activities at existing SNAP sites 
until September 30, 2021, would be contrary to the purpose of the 
October 19, 2019 and July 2, 2020 memoranda, and the final policy 
therefore retains proposed time limits for NRTLs that do not timely 
submit their documents to OSHA and/or are not actively seeking to 
convert their SNAP sites to recognized sites.
    OSHA received three timely-filed comments in response to the 
February 10, 2020 Federal Register Notice. SGS North America (SGS) 
asserts that the proposed policy is contrary to the procedures in 
Appendix A to the NRTL Program Regulation because the Appendix requires 
OSHA to conduct an on-site assessment in connection with each 
application for conversion from a SNAP site to a recognized site. This 
is so, according to SGS, because ``SNAP sites are largely monitored by 
the NRTL with limited oversight from OSHA,'' and OSHA would therefore 
``award recognized site status based solely on administrative 
information submitted by the NRTL, without evaluating whether the SNAP 
site effectively and safely implements the operations, procedures, 
testing, and control programs included within these administrative 
materials'' (OSHA-2007-0053-0012).\1\
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    \1\ Comments are available on www.regulations.gov under docket 
number OSHA-2007-0053. OSHA cites comments according to the document 
number they are given on www.regulations.gov.
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    OSHA disagrees with SGS's comment for several reasons. First, SGS 
ignores a key aspect of the proposed policy that clarifies that the 
policy is a simple restatement, and not a revision, of what is already 
required by Appendix A.\2\

[[Page 75045]]

According to paragraph 3.a of the proposed policy, if a NRTL met all 
the preconditions of eligibility for a SNAP site, it would be entitled 
to ``Potential Streamlined Conversion.'' As OSHA stated in the policy, 
this means simply that ``[c]onsistent with Appendix A, OSHA would make 
determinations as to whether on-site reviews are necessary on a case-
by-case basis.'' Thus, SGS is wrong that on-site reviews would not be 
``an expected part of the process'' under the proposed policy. In 
individual cases, on-site reviews might very much be incorporated into 
OSHA's decision on an application.\3\
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    \2\ Because the proposed policy is merely a restatement of the 
procedures in Appendix A, SGS is wrong that the proposed policy, if 
finalized, would represent a substantive revision to Appendix A and 
that OSHA must therefore ``engage in formal notice and comment 
rulemaking'' under the Administrative Procedures Act, 5 U.S.C. 553, 
in connection with the proposed policy. For the same reason, SGS is 
also wrong that the proposed policy is inequitable and provides an 
unfair competitive advantage because it permits NRTLs to avoid the 
Appendix A requirements through ``truncated'' procedures. OSHA 
notes, moreover, that OSHA provided the public with notice in the 
Federal Register of, and an opportunity to comment on, the proposed 
policy. Therefore, even if the proposed policy were a substantive 
rule, as SGS asserts, OSHA would have met applicable requirements 
for notice and comment in 5 U.S.C. 553.
    \3\ OSHA has replaced the term ``Potential Streamlined 
Conversion'' with the term ``Conduct of Onsite Assessments'' in 
paragraph 3.a of the final policy to clarify the purpose of the 
paragraph.
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    Second, SGS's claims are not ripe because, again, OSHA will be 
making determinations on whether it will conduct on-site reviews on a 
case-by-case basis. SGS will have a full and fair opportunity to submit 
comments in response to OSHA's preliminary determinations on other 
NRTLs' applications to convert SNAP sites to recognized sites according 
to the procedures in Appendix A to the NRTL Program regulation. If SGS 
believes that there is insufficient evidence to support another NRTL's 
application to convert a SNAP site to a recognized site, or that an on-
site review is required for a particular application, it can raise 
those concerns at the appropriate time provided for by Appendix A.\4\ 
However, at the current time, SGS's claims are entirely speculative.
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    \4\ When NRTLs apply to convert SNAP sites to recognized sites, 
the public will be made aware of which SNAP sites will potentially 
become recognized sites. SGS's concern about disclosure of this 
information is therefore misplaced.
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    Third, SGS misunderstands Appendix A to the NRTL Program 
Regulation. Appendix A provides that OSHA ``will act upon and process 
[an] application for expansion in accordance with subsection I.B. of 
th[e] appendix'' (29 CFR 1910.7 App. A.II.B.2.a). Subsection I.B 
provides in relevant part that, in processing applications, ``OSHA 
shall, as necessary, conduct an on-site review of the testing 
facilities of the applicant, as well as the applicant's administrative 
and technical practices'' (29 CFR 1910.7 App. A.I.B.1.b). Thus, 
according to the Appendix, OSHA must, first and foremost, determine 
whether an on-site review is necessary in connection with a particular 
expansion application.
    Contrary to SGS's assertion, OSHA will take into consideration the 
results of the prior audits it conducted of a SNAP site in determining 
whether an on-site review is necessary for that SNAP site. When OSHA 
implemented SNAP in 2009, it determined that OSHA audits of SNAP sites 
were necessary to maintain the integrity of the NRTL program (74 FR 
923, 926 (Jan. 9, 2009)). While OSHA might not audit SNAP sites as 
often as recognized sites, OSHA's concludes that its history of 
directly auditing SNAP sites might render on-site review unnecessary in 
individual cases. And, again, as OSHA stated in the proposed policy 
(and states in the final policy), it will make such determinations on a 
case-by-case basis, and OSHA will simply not be ``relying on the 
goodwill associated with a prior NRTL site to transfer those 
credentials to a new facility,'' as SGS maintains.\5\
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    \5\ Therefore, SGS is wrong when it asserts that the proposed 
policy is contrary to an April 21, 1993 OSHA letter of 
interpretation (available at https://www.osha.gov/laws-regs/standardinterpretations/1993-04-21).
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    It should also be noted that, when it implemented SNAP, OSHA took 
steps to ensure the independence of the NRTL's SNAP auditors from the 
SNAP sites themselves. As OSHA stated:

    OSHA proposed that an NRTL's SNAP auditors must be in an 
organizational unit that is separate from the NRTL's operations, and 
that the unit must report directly to a senior executive of the 
NRTL. OSHA proposed this condition to ensure that SNAP auditors were 
independent of an NRTL's operational units, and that auditing units 
had authority to compel operational units to conform with the 
prescribed SNAP conditions. Two commenters opposed this condition. 
(Exs. OSHA-2007-0053-0007 and -0008.). The first commenter believed 
this condition was inappropriate because auditing units may report 
to a team of executives instead of one executive, while the second 
commenter noted that the executive structure envisioned in the 
proposal may not exist in many NRTL organizations. OSHA agrees with 
these comments, and revised the condition to specify that SNAP 
auditors cannot be under the control or direction of any SNAP site, 
and that auditors must report audit results from a SNAP site to the 
SNAP headquarters of the NRTL.

74 FR at 925. OSHA concluded at the time it implemented SNAP, and it 
reaffirms here, that such controls ensured the independence and 
integrity of internal SNAP audits. It is therefore entirely appropriate 
for OSHA to rely on prior audits of a SNAP site conducted by a NRTL (in 
addition to those conducted by OSHA) in determining whether on-site 
review is necessary in a given case. OSHA will, of course, review 
whether a NRTL implemented required controls for internal audits of 
SNAP sites as part of its determination whether on-site review is 
necessary in a particular case.
    In addition, the proposed policy makes clear that OSHA will 
incorporate its own prior audits, a NRTL's prior audits, and other 
relevant evidence into its determinations of whether on-site review is 
necessary. As OSHA stated in paragraphs 1.g.ii and 1.g.iii of the 
proposed policy, to meet the preconditions of eligibility (and 
therefore be entitled to a special review by OSHA as to whether on-site 
review is necessary), a NRTL would need to submit to OSHA:

    ii. Copies of any audit or other reports of, or about, the SNAP 
site generated (either internally (e.g., by the NRTL) or externally 
(e.g., by OSHA or other accreditor)) in connection with any audits, 
assessments, or other investigations conducted (a) by OSHA, the 
NRTL, any other entity, and (b) within the 30 months preceding the 
date of publication of the Federal Register notice announcing OSHA's 
final decision on this proposed policy; [and]
    iii. Supporting Documentation that shows (a) what was reviewed 
during any audits, assessments, or other investigations of the SNAP 
site conducted by OSHA, the NRTL, any other entity within the NRTL's 
organizational structure, or any other investigative body, and 
within the 30 months preceding the date of publication of the 
Federal Register notice announcing OSHA's final decision on this 
proposed policy, (b) any nonconformances identified during these 
audits, assessments, or investigations, and (c) a root cause 
analysis of these nonconformances.

OSHA adopts these paragraphs as proposed and notes, moreover, that it 
maintains records of its prior audits of SNAP sites (including those 
that were conducted beyond the 30 months preceding the date of 
publication of this final policy) and will also take these records into 
account in making its determinations. As such, OSHA will base its case-
by-case determinations of whether on-site reviews are necessary on 
relevant evidence that will enable it to make informed decisions.
    Finally, SGS is wrong when it states that the proposed policy runs 
afoul of Appendix A because the Appendix provides that ``OSHA may 
decide not to conduct an on-site review'' in connection with an 
expansion application ``where the substantive scope of the request to 
expand recognition is closely related to the current area of 
recognition'' (29 CFR 1910.7 App. A.II.B.2.b). Contrary to SGS's 
assertion, the cited provision

[[Page 75046]]

should not be read in isolation. Again, the Appendix also provides that 
OSHA need only conduct on-site reviews ``as necessary'' to permit OSHA 
to make an informed decision on an application. In the context of an 
expansion application to convert SNAP sites to recognized sites, on-
site reviews may not be necessary because, under the prior Directive, 
OSHA recognized NRTLs for SNAP. That such an application is closely 
related to the NRTL's current area of recognition is evident from 
OSHA's own audits, and the controls OSHA implemented to ensure the 
integrity of internal audits, of the NRTL's SNAP sites. If the 
application were not ``closely related to the current area of 
recognition,'' there would have been no need for OSHA to conduct these 
audits or implement these controls.\6\
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    \6\ Therefore, SGS is also wrong that ``the substantive scope'' 
of an application to convert a SNAP site to a recognized site cannot 
be ``closely related to the current area of recognition'' because 
SNAP sites are not recognized sites.
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    Underwriters Laboratories LLC (UL) asserts that ``there is no 
justification for a disruptively abrupt cessation of SNAP activities 
for any of the reasons in the Federal Register notice,'' and that OSHA 
should instead require cessation of SNAP activities for all SNAP sites 
on a date certain and delete proposed time limits to the extent they 
would require immediate cessation of SNAP activities (OSHA-2007-0053-
0014).
    OSHA concludes UL's concerns about the proposed policy's time 
limits are, for the most part, addressed by the revisions to the 
proposed time limits in the final policy, as discussed above. Again, 
under the final policy, a NRTL that timely submits their SNAP 
conversion documents to OSHA, and is actively seeking to convert their 
SNAP sites to recognized sites, but does not meet one or more of the 
other preconditions of eligibility for the SNAP sites listed in the 
application for scope expansion, may continue performing SNAP 
activities at the SNAP sites listed in its expansion application until 
September 30, 2021.\7\
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    \7\ UL suggests that, under current OSHA policy, ``after the 
SNAP is fully terminated, . . . activities that are required to be 
performed by staff assigned to a Recognized site [ ] can be 
performed'' at a site that is the subject of a site expansion 
application before OSHA rules on the application. OSHA emphasizes 
that UL is incorrect and this is not current OSHA policy.
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    As also discussed above, there are different factors at play for 
NRTLs that do not timely submit their documents to OSHA and/or are not 
actively seeking to convert their SNAP sites to recognized sites. OSHA 
therefore disagrees with UL's comment to the extent UL asserts that the 
final policy should allow these NRTLs to continue performing SNAP 
activities at SNAP sites beyond the time limits described in the 
proposed policy.
    UL also objects to paragraph 9 of the proposed policy, which 
addressed the effect of a final decision by OSHA on an application 
meeting the preconditions of eligibility. UL suggests that the 
paragraph be revised to require that a NRTL immediately cease 
performing SNAP activities at the SNAP sites listed in the application 
that were not approved to become recognized sites, and not merely those 
SNAP sites that met the preconditions of eligibility.
    As discussed above, OSHA revised the proposed time limits in the 
final policy. It is therefore modifying the final policy accordingly 
(including the provision about which UL had concern).
    UL objects to the precondition of eligibility that a NRTL include 
with its list of existing SNAP sites the date each SNAP site was 
approved by the NRTL. According to UL, the exact date is difficult to 
determine for older SNAP sites and this difficulty renders the 30 day 
timeframe to submit the list of existing SNAP sites unrealistic. 
Moreover, according to UL, there is ``no need or value to know the 
specific date of approval.'' Therefore, UL asserts the precondition 
should instead provide that NRTLs indicate ``what SNAP sites have been 
approved for 5 or more years and the date of approval only for sites 
approved for less than 5 years.''
    OSHA agrees with UL that NRTLs may have difficulty determining the 
exact dates they approved older SNAP sites. Therefore, the final policy 
provides that for each SNAP site listed, a NRTL must list the date the 
SNAP site was approved by the NRTL EXCEPT that, where a SNAP site has 
been approved for 30 months or more preceding November 24, 2020, the 
NRTL may state that that the SNAP site has been approved for 30 or more 
months, without listing the exact date of approval. The NRTL may meet 
this precondition of eligibility in its application for scope expansion 
(see paragraph 1.c) to the extent the precondition is not met in the 
NRTL's list of existing SNAP sites.
    UL asserts that OSHA should revise paragraphs 1.g.ii and 1.g.iii of 
the proposed policy, quoted above, to indicate that the ``audits and 
information referenced in [these paragraphs] should only be audits and 
information pertinent to the activities required to be performed by 
staff assigned to Recognized sites.''
    OSHA disagrees with this comment. The purpose of these paragraphs 
is to ensure that NRTLs provide OSHA with historical information about 
SNAP sites so that OSHA can make informed determinations on whether on-
site reviews are necessary in individual cases and, ultimately, whether 
to grant NRTLs' applications for expansion of recognition. OSHA 
concludes that the information proposed to be required by these 
paragraphs is necessary for OSHA to make such informed determinations 
and these paragraphs are included, as proposed, in the final policy.
    UL objects to paragraph 10 of the proposed policy, which provided 
that ``[a] NRTL would be required to cease performing SNAP activities 
at existing SNAP sites that were listed in the application and met the 
preconditions of eligibility one year after the date of publication of 
the Federal Register notice announcing OSHA's final decision on this 
proposed policy.'' According to UL, ``[t]he time period should be 24 
months for OSHA to realistically process this one-time additional 
workload.''
    OSHA disagrees with this comment and believes that the one-year 
time period will be sufficient to process the additional workload. 
However, OSHA notes that paragraph 12 of the final policy (like the 
proposed policy) provides for a potential extension of the SNAP 
Termination Date in appropriate circumstances.
    Finally, UL makes several ``general'' assertions that go well 
beyond the scope of the proposed policy. First, UL asserts that OSHA 
should ``abandon the location element of NRTL scopes'' because 
``[e]xcept for laboratory testing, the idea that certification 
activities are performed at discrete physical locations is now an 
anachronism.'' Second, UL asserts that, ``[i]f OSHA continues to 
utilize a location element to the scope of Recognition of NRTLs, a 
self-qualification option for locations for NRTLs continues to be 
needed'' because a ``NRTL that completes all certification work (except 
laboratory testing) via internet can quickly rent space, arrange for 
fast internet access at that space, and direct qualified staff to that 
space as a possible work location in a matter of weeks.'' Third, UL 
asserts that ``[i]f OSHA continues to utilize a location element in the 
scope of Recognition of NRTLs,'' it should ``document explicitly what 
NRTL activities are required to be performed by staff assigned to a 
Recognized site,'' and not simply ``what activities are allowed to be 
performed,'' so that ``NRTLs can know ``whether existing SNAP sites 
need to be converted to Recognized sites or can, with needed changes to 
the activities performed by staff assigned to the site, simply become 
Unrecognized sites.''

[[Page 75047]]

    The purpose of the proposed (and final) policy is to ensure a 
smooth transition from SNAP, which OSHA eliminated when it revised the 
NRTL Program Directive. UL's ``general'' assertions appear to object to 
the revised Directive itself and not to the proposed policy. Therefore, 
the substance of UL's ``general'' assertions are beyond the scope of 
this Notice.
    Reynaldo Figueredo (OSHA-2007-0053-0013) comments that:

    The proposed revision to the NRTL program Directive definition 
of a recognized site would removes the requirement that the site no 
longer has to be owned by the NRTL. This simplifies the process and 
eliminates the SNAP program. However, this change does not address 
the fundamental competency or technical testing and inspection 
capability at the site. With this change, the NRTL may select and 
``qualify'' the site to perform testing and inspection functions. A 
key question is whether or not the NRTL is capable of assessing the 
site's personnel and equipment which is a different function from 
its NRTL responsibilities. We recommend that all testing and/or 
inspection sites be accredited by an accreditation body that is US 
based and is a signatory to the ILAC MRA. This is a normal activity 
that accreditation bodies perform on a daily basis.

Mr. Figueredo's comment, like UL's ``general'' assertions, appears to 
object to the revised Directive itself and not to the proposed policy. 
Therefore, the substance of this comment is beyond the scope of this 
Notice.

III. OSHA's SNAP Transition Policy

    With this Federal Register notice, OSHA issues this final policy 
for transitioning to the termination of SNAP. Pursuant to this final 
policy:
     This policy supersedes the policies contained in the July 
2, 2020 memorandum (discussed above), to the extent there is a 
conflict.
     As of October 1, 2019 (the date OSHA issued the revised 
NRTL Program Directive), in accordance with current OSHA policy, OSHA 
will reject any application submitted by a NRTL or NRTL applicant-
organization to be recognized for any of the previous supplemental 
programs, including SNAP.
     OSHA implements the following policies for the conversion 
of existing SNAP Sites to Recognized Sites and the interim performance 
of SNAP activities at SNAP Sites:
    1. Preconditions of Eligibility. To meet the preconditions of 
eligibility, a NRTL must do all of the following:
    a. Submit to OSHA a list of the NRTL's existing SNAP sites no later 
than December 24, 2020. For each SNAP site listed, a NRTL must list the 
date the SNAP site was approved by the NRTL EXCEPT that, where a SNAP 
site has been approved for 30 months or more preceding November 24, 
2020, the NRTL may state that the SNAP site has been approved for 30 or 
more months, without listing the exact date of approval. The NRTL may 
meet this precondition of eligibility in its application for scope 
expansion (see paragraph 1.c) to the extent the precondition is not met 
in the NRTL's list of existing SNAP sites.
    b. Not designate any new SNAP sites after submitting to OSHA the 
list of existing SNAP sites.
    c. Submit to OSHA an application for scope expansion (i.e., to 
convert existing SNAP sites to recognized sites) no later than January 
25, 2021.
    d. Include in the scope expansion application a list of the SNAP 
sites the NRTL wants converted to recognized sites. The NRTL is 
permitted to include in the scope expansion application list only those 
SNAP sites the NRTL also included in the list of SNAP sites it 
submitted to OSHA by December 24, 2020.
    e. Specify that it wants the scope expansion application processed 
under the procedures described here.
    f. Submit to OSHA all required application fees as outlined in the 
Revised NRTL Schedule of Fees. See https://www.osha.gov/dts/otpca/nrtl/nrtlfees.html. The following fees must accompany the scope expansion 
application: $2,490 for the Expansion application--Limited review; and 
$2,490 for each site for which the NRTL seeks recognition. (Other fees 
would be invoiced as necessary (for example the $3,180 fee for a 
Federal Register notice application, and fees for onsite assessments, 
if conducted)).
    g. At a minimum, submit to OSHA, for each SNAP site listed in the 
application, the following historical assessment records and supporting 
documentation:
    i. The NRTL functions performed at the SNAP site (e.g., testing, 
certification, audits of testing laboratories);
    ii. The date the SNAP site was approved by the NRTL EXCEPT that, 
where a SNAP site has been approved for 30 months or more preceding 
November 24, 2020, the NRTL may state that the SNAP site has been 
approved for 30 or more months, without listing the exact date of 
approval.
    iii. Copies of any audit or other reports of, or about, the SNAP 
site generated (either internally (e.g., by the NRTL) or externally 
(e.g., by OSHA or other accreditor)) in connection with any audits, 
assessments, or other investigations conducted (a) by OSHA, the NRTL, 
or any other entity, and (b) within the 30 months preceding November 
24, 2020;
    iv. Supporting Documentation that shows (a) what was reviewed 
during any audits, assessments, or other investigations of the SNAP 
site conducted by OSHA, the NRTL, any other entity within the NRTL's 
organizational structure, or any other investigative body, and within 
the 30 months preceding November 24, 2020, (b) any nonconformances 
identified during these audits, assessments, or investigations, and (c) 
a root cause analysis of these nonconformances; and
    v. An organizational chart for the SNAP site identifying leadership 
and employees involved with NRTL-related work activities.
    2. Continued Performance of SNAP Activities at Existing SNAP Sites 
Contingent on Timely Submission of Documents.
    a. If a NRTL fails to timely submit to OSHA a list of the NRTL's 
existing SNAP sites by December 24, 2020, the NRTL must cease 
performing SNAP activities at all of the NRTL's existing SNAP sites on 
December 28, 2020.
    b. If a NRTL timely submits to OSHA a list of the NRTL's existing 
SNAP sites by December 24, 2020, but that list does not contain all of 
the NRTL's existing SNAP sites, the NRTL must cease performing SNAP 
activities at existing SNAP sites not contained in the list on December 
28, 2020.
    c. If a NRTL timely submits to OSHA a list of the NRTL's existing 
SNAP sites by December 24, 2020, but does not submit to OSHA a timely 
application to convert the existing SNAP sites in the list to 
recognized sites by January 25, 2021, then the NRTL must cease 
performing SNAP activities at all of the NRTL's existing SNAP sites no 
later than January 25, 2021.
    d. If a NRTL timely submits to OSHA a list of the NRTL's existing 
SNAP sites by December 24, 2020, and then submits to OSHA a timely 
application to convert only some of the existing SNAP sites in the list 
to recognized sites by January 25, 2021, then the NRTL must cease 
performing SNAP activities at SNAP sites that the NRTL did not list in 
the application no later than January 25, 2021.
    e. OSHA might allow for short extensions of these time limits, at 
the discretion of the agency, and if good cause is shown by the NRTL.
    3. Effect of Meeting the Preconditions of Eligibility. If a NRTL 
meets all the preconditions of eligibility for a SNAP site, it is 
entitled to the following:
    a. Conduct of On-site Assessments. OSHA typically performs on-site 
assessments in connection with site

[[Page 75048]]

expansion requests. However, OSHA might, at the discretion of the 
agency, opt not to do so with respect to SNAP sites that meet the 
preconditions of eligibility. Appendix A to the NRTL Program 
Regulation, 29 CFR 1910.7, provides that, in reviewing expansion 
applications, OSHA shall, as necessary, conduct an on-site review of 
the testing facilities of the applicant, and may decide not to conduct 
an on-site review, where the substantive scope of the request to expand 
recognition is closely related to the current area of recognition. 
Consistent with Appendix A, OSHA will make determinations as to whether 
on-site reviews are necessary on a case-by-case basis.
    b. Interim Performance of SNAP Activities at SNAP Sites. NRTLs may 
continue performing SNAP functions at the SNAP sites that are listed in 
the NRTL's application and that meet the preconditions of eligibility, 
but only for the time period(s) permitted by these procedures.
    4. Effect of Not Meeting the Preconditions of Eligibility. If a 
NRTL timely submits to OSHA a list of the NRTL's existing SNAP sites by 
December 24, 2020), and then submits to OSHA a timely application to 
convert all or some of the NRTL's existing SNAP sites in the list to 
recognized sites by January 25, 2021, this NRTL may continue performing 
SNAP functions at the SNAP sites that are listed in the NRTL's 
application that do not meet all or some of the other preconditions of 
eligibility, but only for the time period(s) permitted by these 
procedures. This NRTL must cease performing SNAP functions at these 
SNAP sites no later than September 30, 2021, to the extent these 
procedures do not otherwise address when SNAP functions must cease for 
the NRTL. This will be the case even if OSHA does not issue a final 
decision on the NRTL's application by September 30, 2021.
    5. Review of Applications.
    a. To the extent SNAP sites in an application meet the 
preconditions of eligibility, OSHA will review that application, or 
portion of application, in accordance with the NRTL Program regulation, 
29 CFR 1910.7, Appendix A to that regulation, the July 2, 2020 
memorandum, discussed above, and these SNAP conversion procedures, to 
determine the capability of the SNAP site to operate as a NRTL-
recognized site. OSHA will base this determination on the documentation 
submitted with the application, historical on-site assessments of the 
NRTL's SNAP Sites and SNAP Headquarters, and any other factors it deems 
relevant, including, for example, the conduct of an on-site 
assessment(s), if deemed necessary.
    b. In reviewing applications, or portions of applications, 
concerning SNAP sites that do not meet the preconditions of 
eligibility, OSHA will follow normal site expansion procedures, 
including the conduct of on-site assessments. NRTLs should consult the 
NRTL Program regulation, 29 CFR 1910.7, Appendix A to that regulation, 
and the July 2, 2020 memorandum, discussed above, for the procedures 
that OSHA would follow with respect to these SNAP sites. It should be 
noted that these NRTLs may be able to continue performing SNAP 
functions at these SNAP sites, but only in accordance with these 
procedures (see paragraphs 2 and 4 of these procedures).
    6. Opportunity to Respond (Discretionary) for NRTLs That Specify in 
Their Scope Expansion Applications That They Want Their Applications 
Processed Under the Procedures Described. Although a NRTL timely 
submits to OSHA a list of the NRTL's existing SNAP sites by December 
24, 2020, and then submits to OSHA a timely application to convert all 
or some of the NRTL's existing SNAP sites in the list to recognized 
sites by January 25, 2021, the NRTL might not meet one or more of the 
other preconditions of eligibility for some or all of the SNAP sites 
listed in the application. For example, a NRTL might fail to submit to 
OSHA the required historical assessments or supporting documentation 
for one or more of the SNAP sites listed in an application. In 
addition, to make a determination on an application, OSHA might require 
further information or clarification, in addition to the information 
that would be required by the preconditions of eligibility. Therefore, 
after conducting a review of a scope expansion application in which a 
NRTL specifies that it wants the application processed under the 
procedures described (Precondition of Eligibility (e)), OSHA might, at 
the discretion of the agency, give the NRTL 15 days to provide 
clarification or missing information.
    a. If OSHA receives a timely response from the applicant (within 15 
days), or a timely written request for an extension (within 15 days) 
and subsequent response within the time permitted for extension (if the 
request for extension is granted), OSHA will recommend a positive or 
negative finding on the application.
    b. Alternatively, OSHA will treat the application as a normal site 
expansion application, outside of these procedures, if the NRTL 
requests in a timely-filed response that the application be treated as 
such. However, the NRTL may continue performing SNAP functions for 
those SNAP sites in accordance with these procedures (see paragraph 4 
of these procedures).
    c. If OSHA does not receive a timely response, or a timely request 
for an extension and subsequent response within the time permitted for 
extension (if granted), it will consider the application withdrawn and 
the NRTL will be required to immediately cease performing SNAP 
activities at the SNAP sites listed in the application.
    7. Effect of a Negative Finding on an Application. If a negative 
finding is issued, the NRTL will have an opportunity (a) to withdraw 
the application, (b) revise the application (for example, to remove 
from the application those sites OSHA staff consider non-compliant, or 
to indicate that OSHA should process the application as a traditional 
application for site expansion rather than under these procedures), or 
(c) request that the original application be forwarded to the Assistant 
Secretary for Occupational Safety and Health, as outlined in Appendix A 
to the NRTL Program regulation, 29 CFR 1910.7.
    8. Effect of Withdrawal of an Application. If the application is 
withdrawn by the applicant or considered withdrawn by OSHA, the NRTL 
must immediately cease performing SNAP activities at the SNAP sites 
that were listed in the withdrawn application. While the NRTL could 
still apply to have these sites included in the NRTL's scope of 
recognition, OSHA will follow normal site expansion procedures, 
including the conduct of on-site assessments, for any such 
applications. The NRTL may not resume the conduct of SNAP activities at 
these sites if it files a new application for scope expansion.
    9. Effect of the Revision of an Application. If the applicant 
revises the application to remove from the application individual SNAP 
sites listed in the application, the NRTL will be permitted to continue 
to perform SNAP activities only at those SNAP sites that remain in the 
application. The applicant must immediately cease performing SNAP 
activities at SNAP sites no longer in the application. While the NRTL 
could still apply for recognition of any sites removed from the 
application, OSHA will follow normal site expansion procedures, 
including the conduct of on-site assessments, for any such 
applications. The NRTL may not resume the conduct of SNAP activities at 
these sites if it files a new application for scope expansion.

[[Page 75049]]

    10. Effect of Final Decision on Application. Once a final decision 
is made regarding the capability of a SNAP site to operate as a NRTL-
recognized site, this decision will be published in the Federal 
Register, upon which time the NRTL must immediately cease performing 
SNAP activities at the SNAP sites listed in the application that were 
not approved to become recognized sites.
    11. Termination of the SNAP Entirely. A NRTL must cease performing 
SNAP activities at existing SNAP sites that are listed in the 
application and meet the preconditions of eligibility no later than 
November 24, 2021. This will be the case even if OSHA does not issue a 
final decision on the NRTL's application by that date. The SNAP will be 
entirely terminated on November 24, 2021.
    12. Potential Extension of SNAP Termination Date. OSHA might, at 
the discretion of the agency, extend the SNAP termination date. OSHA 
notes, however, that it will not extend the termination date because 
final decisions on some applications cannot be issued on a streamlined 
basis. OSHA is not able to issue a final decision on a streamlined 
basis, for example, if it determines that it needs to conduct an on-
site assessment or a negative finding is issued in connection with an 
application. An extension of the SNAP termination date based on these 
time-intensive issues is not justified.
    Disclaimer: This policy is not a standard, regulation, or any other 
type of substantive rule. No statement in this policy should be 
construed to require the regulated community to adopt any practices, 
means, methods, operations, or processes beyond those which are already 
required by the Occupational Safety and Health Act of 1970 (OSH Act) 
(29 U.S.C. 668) or standards and regulations promulgated under the OSH 
Act. This document does not have the force and effect of law and is not 
meant to bind the public in any way. This document is intended only to 
provide clarity to the public regarding existing requirements under the 
law or agency policies.

IV. Authority and Signature

    Loren Sweatt, Principal Deputy Assistant Secretary of Labor for 
Occupational Safety and Health, authorized the preparation of this 
notice. Accordingly, the agency is issuing this notice pursuant to 29 
U.S.C. 657(g)(2)), Secretary of Labor's Order No. 8-2020 (85 FR 58393, 
Sept. 18, 2020), and 29 CFR 1910.7.

    Signed at Washington, DC, on November 17, 2020.
Loren Sweatt,
Principal Deputy Assistant Secretary of Labor for Occupational Safety 
and Health.
[FR Doc. 2020-25770 Filed 11-23-20; 8:45 am]
BILLING CODE 4510-26-P