Document Headings

                    Document headings vary by document type but may contain                    the following:                  
                -                       the agency or agencies that issued and signed a document                    
                -                       the number of the CFR title and the number of each part                      the document amends, proposes to amend, or is directly                      related to                    
                -                       the agency docket number / agency internal file number                    
                -                       the RIN which identifies each regulatory action listed in                      the Unified Agenda of Federal Regulatory and Deregulatory                      Actions                    

                    See the                                          Document Drafting Handbook                                        for more details.                  

###### Department of Labor

###### Occupational Safety and Health Administration

          - [Docket No. 2010-0046]

# AGENCY:

Occupational Safety and Health Administration (OSHA), Labor.

# ACTION:

Notice.

# SUMMARY:

This notice announces the Agency's final decision to grant recognition to QPS Evaluation Services Inc., as a Nationally Recognized Testing Laboratory under 29 CFR 1910.7.

# DATES:

This recognition becomes effective on March 2, 2011 and will be valid until March 2, 2016, unless terminated or modified prior to that date in accordance with 29 CFR 1910.7.

# FOR FURTHER INFORMATION CONTACT:

                        Office of Technical Programs and Coordination Activities, NRTL Program, Occupational Safety and Health Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-3655, Washington, DC 20210, or phone (202) 693-2110. For more information about the Nationally Recognized Testing Laboratory Program, go to                         *http://osha.gov*                         and select “N” in the site index.                    

# SUPPLEMENTARY INFORMATION:

 

## Notice of Final Decision

The Occupational Safety and Health Administration (OSHA) hereby gives notice of its recognition of QPS Evaluation Services Inc., (QPS) as a Nationally Recognized Testing Laboratory (NRTL). The scope of this recognition includes testing and certification of the equipment and materials, and use of the supplemental program, listed below. OSHA will detail QPS's scope of recognition on an informational Web page for the NRTL, as further explained below.

OSHA recognition of an NRTL signifies that the organization meets the legal requirements specified in 29 CFR 1910.7. Recognition is an acknowledgment that the organization can perform independent safety testing and certification of the specific products covered within its scope of recognition, and is not a delegation or grant of government authority. As a result of recognition, employers may use products approved by the NRTL to meet OSHA standards that require product testing and certification.

                    The Agency processes applications by an NRTL for initial recognition, or for expansion or renewal of this recognition, following requirements in Appendix A to 29 CFR 1910.7. This appendix requires that the Agency publish two notices in the                     **Federal Register**                     in processing an application. In the first notice, OSHA announces the application and provides its preliminary finding and, in the second notice, the Agency provides its final decision on the application. These notices set forth the NRTL's scope of recognition, or modifications of that scope. OSHA maintains an informational Web page for each NRTL that details its scope of recognition. These pages are available from OSHA's Web site at                     *http://www.osha-slc.gov/​dts/​otpca/​nrtl/​index.html.*

Each NRTL's scope of recognition has three elements: (1) The type of products the NRTL may test, with each type specified by its applicable test standard; (2) the recognized site(s) that has/have the technical capability to perform the product testing and certification activities for test standards within the NRTL's scope; and (3) the supplemental program(s) that the NRTL may use, each of which allows the NRTL to rely on other parties to perform activities necessary for product testing and certification.

                    QPS applied for recognition as an NRTL (                    *See*                     Ex. 2—QPS application dated 1/27/2006) [1]                                          pursuant to 29 CFR 1910.7, and OSHA published the required preliminary notice in the                     **Federal Register**                     on November 18, 2010 (75 FR 70696) to announce the application. The notice included a preliminary finding that QPS could meet the requirements for recognition detailed in 29 CFR 1910.7, and invited public comment on the application by December 20, 2010. OSHA received no comments in response to the notice. OSHA now is proceeding with this final notice to grant QPS's recognition application.                

                    All public documents pertaining to the QPS application are available for review by contacting the Docket Office, Occupational Safety and Health Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-2625, Washington, DC 20210. These materials also are available online at                     *http://www.regulations.gov*                     under Docket No. OSHA-2010-0046.                

The current address of the laboratory facility (site) that OSHA recognizes for QPS is: QPS Evaluation Services Inc., 81 Kelfield Street, Unit 8, Toronto, Ontario, M9W 5A3, Canada.

## General Background on the Application

                    According to the application, QPS was established in 1995 as a Canadian Standards Association field-inspection agency. In 1998, QPS performed technical services for Entela, Inc., an organization formerly recognized by OSHA as an NRTL, which another NRTL subsequently acquired. The application also states that QPS received accreditation by other well-known accreditors (                    *i.e.,*                     the Standards Council of Canada and the International Electrotechnical Commission Certification Body (IEC CB) Scheme).                

                    QPS applied on January 27, 2006, for recognition of one site and a number of test standards. (                    *See*                     Ex. 2.) In response to OSHA's request for clarification, QPS amended its application to provide additional technical details, and then provided further details in a later update. (                    *See*                     Ex. 3—QPS amended application, dated 4/15/2008 and 11/30/2009.) OSHA's NRTL Program staff performed an on-site assessment of the QPS facility in April 2010. Based on this assessment, the OSHA staff recommended recognition of QPS in their on-site review report of the assessment. (                    *See*                     Ex. 4—OSHA on-site review report on QPS.)                

                    Through its amended application information (                    *see*                     Ex. 3), QPS represented that it maintains the experience, expertise, personnel, organization, equipment, and facilities suitable for accreditation as an OSHA Nationally Recognized Testing Laboratory. It also represented that it meets, or will meet, the requirements for recognition defined in 29 CFR 1910.7.                

                    OSHA addresses the four requirements for recognition (i.e., capability, control procedures, independence, and creditable reports and complaint handling) below, along with examples that illustrate how QPS meets each of these requirements. The applicant's summary addressing OSHA's evaluation criteria references                           ( print page 11519)                        many, but not all, of the documents or processes described below (see the QPS basic information summary; hereafter, “Basic Summary,” which is part of Ex. 3, portions of which are confidential).                

## Capability

Section 1910.7(b)(1) states that, for each specified item of equipment or material proposed for listing, labeling, or acceptance, the NRTL must have the capability (including proper testing equipment and facilities, trained staff, written testing procedures, and calibration and quality-control programs) to perform appropriate testing. The “Capability” section of the Basic Summary (NA) shows that the applicant has security measures and detailed procedures in place to restrict or control access to its facility, to areas within its facility, and to confidential information. This section also states that QPS's facility has equipment for monitoring, controlling, and recording environmental conditions during tests. QPS provided a list of this equipment, which NRTL Program staff examined during the on-site review (Ex. 4, p. 1). This section shows that QPS has detailed procedures for handling test samples. In addition, the Basic Summary or documents it references show that the QPS facility has adequate test areas and energy sources, and procedures for controlling incompatible activities. QPS provided a detailed list of its testing equipment (NA), and OSHA's on-site review (Ex. 4, p. 2) confirmed that much of this equipment is in place. Review of the application shows that the equipment listed is available (NA) and adequate for the scope of testing described below.

The “Capability” section of the Basic Summary (NA) indicates that QPS has detailed procedures addressing the maintenance and calibration of equipment, as well as the types of records maintained for, or supporting, many laboratory activities. It also indicates that QPS has detailed procedures for conducting testing, review, and evaluation, and for capturing the test and other data required by the standard for which it seeks recognition. OSHA's on-site review (Ex. 4, p. 2) examined these test data and evaluation documents. QPS currently is using some of these procedures to test products for NRTLs. Further, this section indicates that QPS has detailed procedures for processing applications, and for developing new procedures.

The amended application (Ex. 3) contained adequate procedures to address training or qualifying staff for particular technical tasks (NA). The amended application indicates that QPS has sufficient qualified personnel to perform the proposed scope of testing based on their education, training, technical knowledge, and experience. OSHA's on-site review (Ex. 4, p. 3) confirmed many of these qualifications. The amended application provides evidence that QPS has an adequate quality-control system in place, and OSHA's on-site review (Ex. 4, p. 3) verified the performance of internal audits, and tracking and resolution of nonconformances.

## Control Procedures

Section 1910.7(b)(2) requires that the NRTL provide controls and services, to the extent necessary, for the particular equipment or material proposed for listing, labeling, or acceptance. These controls and services include procedures for identifying the listed or labeled equipment or materials, inspections of production runs at factories to assure conformance with test standards, and field inspections to monitor and assure the proper use of identifying marks or labels.

The “Control Programs” section of the Basic Summary shows that QPS has the quality-control manual and detailed procedures to address the steps involved to list and certify products. QPS has a registered certification mark. In addition, the “Control Programs” section shows that the applicant has certification procedures (NA); these procedures address the authorization of certifications and audits of factory facilities. The audits apply to both the initial evaluations and the follow-up inspections of manufacturers' facilities. This section indicates that procedures also exist for authorizing the use of the certification mark, and the actions taken when QPS finds that the manufacturer is deviating from the certification requirements. Factory inspections will be a new activity for QPS, and OSHA will need to review the effectiveness of QPS's inspection program when it is in place. As a result, OSHA is proposing a condition to ensure that QPS conducts inspections properly, and at the frequency set forth in the applicable NRTL Program policy (see OSHA Instruction CPL 1-0.3, Appendix C, paragraph III.A).

## Independence

                    Section 1910.7(b)(3) requires that the NRTL be completely independent of employers that are subject to the testing requirements, and of any manufacturers or vendors of equipment or materials tested under the NRTL Program. OSHA has a policy for the independence of NRTLs that specifies the criteria used for determining whether an organization meets the above requirement. (                    *See*                     OSHA Instruction CPL 1-0.3, Appendix C, paragraph V.) This policy contains a non-exhaustive list of relationships that would cause an organization to fail to meet the specified criteria. The “Independence” section of the Basic Summary, and additional information submitted by QPS (NA), shows that it has none of these relationships, or any other relationship that could subject it to undue influence when testing for product safety. QPS is a privately owned organization, and OSHA found no information about its ownership that would qualify as a conflict under OSHA's independence policy. The amended application indicates that there is no financial affiliation between the ownership of QPS and manufacturers. In summary, the information related to independence demonstrates that QPS meets the independence requirement.                

## Credible Reports and Complaint Handling

Section 1910.7(b)(4) specifies that an NRTL must maintain effective procedures for producing credible findings and reports that are objective and free of bias, and for handling complaints and disputes under a fair and reasonable system. The “Report and Complaint Procedures” section of the Summary document (NA) shows that the applicant has detailed procedures describing the content of the test reports, and other detailed procedures describing the preparation and approval of these reports. This section also shows that the applicant has procedures for recording, analyzing, and processing complaints from users, manufacturers, and other parties in a fair manner. The on-site review (Ex. 4, p. 3) confirmed that QPS processes complaints in a timely and appropriate manner.

## Supplemental Programs

OSHA is approving QPS to use the following supplemental program for which it applied:

Program 9: Acceptance of services other than testing or evaluation performed by subcontractors or agents (for calibration services only).

                    QPS applied to use additional programs, but then voluntarily withdrew its request after OSHA informed QPS that OSHA was ending the practice of approving most of these programs for new applicants. In the past, when granting NRTL recognition to an organization, OSHA approved the applicant's use of any supplemental programs for which the applicant met the criteria. However, OSHA is                           ( print page 11520)                        discontinuing this practice for new applicants for the NRTL Program because the applicants do not yet have experience in implementing the procedures for testing, evaluating, and performing inspections used under the NRTL Program. This practice did not allow the NRTL's staff at its recognized site(s) to attain the necessary experience, nor did the practice allow OSHA adequate time to evaluate properly that staff's technical experience. OSHA also is discontinuing the practice when an existing NRTL applies to expand its recognition under the NRTL Program to include additional standards for testing a type of product not tested previously by the NRTL under the NRTL Program. Examples of such product testing include testing hazardous-location products when OSHA recognizes the NRTL for testing only ordinary-location products, and testing gas-operated products when OSHA limits the NRTL's recognition to testing only electrically operated products. Therefore, before OSHA approves any NRTL or applicant to use or rely on tests, evaluations, and inspections performed by other parties, OSHA must first ensure that the NRTL/applicant performs these activities adequately using its own staff located at its recognized site(s). The only exception to this policy is Program 9, which permits the use of qualified parties to calibrate an NRTL's testing equipment. This exception does not affect materially the capability of an NRTL/applicant to meet OSHA's requirements for recognition. However, regarding approval to use Program 9 for other services or supplemental programs, an NRTL/applicant may apply for such approval when OSHA determines that the NRTL/applicant tests, evaluates, and performs inspections adequately using its own staff located at its recognized site(s). Accordingly, OSHA will continue to deny use of such a program, or withdraw its prior approval to use such a program, when it determines that an NRTL/applicant is not testing, evaluating, and performing inspections adequately using its own staff located at its recognized site(s).                

## Additional Condition

As described above, while QPS has testing and evaluation procedures, OSHA could not review how QPS implemented them because QPS did not use them for testing and certifying products under the program. In addition, as also described above, while QPS has factory-inspection procedures, it currently does not conduct regular factory inspections. QPS recently developed some of these testing- and factory-inspection procedures. Therefore, OSHA also must review the effectiveness of QPS's testing and evaluation procedures, as well as its factory-inspection program, following recognition of QPS as an NRTL, and do so within a reasonable period after granting such recognition. Consequently, OSHA recognizes QPS conditionally, subject to a later determination of the effectiveness of these procedures. OSHA is listing this condition first under the “Conditions” section below. This condition applies solely to QPS's operations as an NRTL, and only to those products that it certifies for purposes of enabling employers to meet OSHA product-approval requirements. This condition is in addition to all other conditions that OSHA normally imposes in its recognition of an organization as an NRTL.

                    Imposing this condition is consistent with OSHA's past recognition of organizations as NRTLs that met the basic recognition requirements, but needed to further refine or implement their procedures (for example,                     *see*63 FR 68306, 12/10/1998, and 65 FR 26637, 05/08/2000). Based on QPS's current activities in testing and certification, OSHA is confident that QPS will perform its activities properly in the areas noted above.                

## Final Decision and Order

The NRTL Program staff examined QPS's application, the additional submissions, the on-site review report, and other pertinent documents. Based on this examination and analysis, OSHA finds that QPS meets the requirements of 29 CFR 1910.7 for recognition as a Nationally Recognized Testing Laboratory, subject to the limitation and conditions listed below. The recognition applies to the site listed above, and it covers the test standards listed below, subject to the limitation and conditions also listed below. Pursuant to the authority granted by 29 CFR 1910.7, OSHA hereby grants the recognition of QPS, subject to this limitation and these conditions.

### Limitation

                    OSHA hereby limits the recognition of QPS to testing and certification of products for demonstration of conformance to the following test standards, each of which OSHA determines is an appropriate test standard within the meaning of 29 CFR 1910.7(c).[2] 

UL 508A Industrial Control Panels.

UL 913 Intrinsically Safe Apparatus and Associated Apparatus for Use in Class I, II, III, Division I, Hazardous (Classified) Locations.

UL 1203 Explosion Proof and Dust Ignition Proof Electrical Equipment for Use in Hazardous (Classified) Locations.

UL 6500 Audio/Video and Musical Instrument Apparatus for Household, Commercial, and Similar General Use.

UL 60335-1  Safety of Household and Similar Electrical Appliances, Part 1: General Requirements.

UL 60601-1 Medical Electrical Equipment, Part 1: General Requirements for Safety.

UL 60950 Information Technology Equipment.

UL 61010-1 Electrical Equipment for Measurement, Control, and Laboratory Use—Part 1: General Requirements.

                    OSHA limits recognition of any NRTL for a particular test standard to equipment or materials (                    *i.e.,*                     products) for which OSHA standards require third-party testing and certification before use in the workplace. Consequently, if a test standard also covers any product for which OSHA does not require such testing and certification, an NRTL's scope of recognition does not include that product.                

                    The American National Standards Institute (ANSI) may approve the test standard listed above as an American National Standard. However, for convenience, we may use the designation of the standards-developing organization for the standard instead of the ANSI designation. Under the NRTL Program's policy (                    *see*                     OSHA Instruction CPL 1-0.3, Appendix C, paragraph XIV), any NRTL recognized for a particular test standard may use either the proprietary version of the test standard or the ANSI version of that standard. Contact ANSI to determine whether a test standard is currently ANSI-approved.                

### Conditions

QPS also must abide by the following conditions of its NRTL recognition, in addition to those conditions already required by 29 CFR 1910.7:

                    1. Within 30 days of certifying its first products under the NRTL Program, QPS will notify the OSHA NRTL Program Director of this activity so that OSHA                           ( print page 11521)                        may schedule its first audit of QPS. At this first audit of QPS, QPS must demonstrate that it properly conducted testing, review, evaluation, and factory inspections; QPS must conduct factory inspections at the frequency set forth in the applicable NRTL Program policy.                

2. QPS will allow OSHA access to its facilities and records to ascertain continuing compliance with the terms of its NRTL recognition, and to perform such investigations as OSHA deems necessary;

3. If QPS has reason to doubt the efficacy of any test standard it is using under its NRTL recognition, it will promptly inform the test standard-developing organization of this concern, and provide that organization with the appropriate relevant information on which it bases its concern;

4. QPS will not engage in, or permit others to engage in, any misrepresentation of the scope or conditions of its recognition. As part of this condition, QPS agrees that it will allow no representation that it is either a recognized or an accredited NRTL without clearly indicating the specific equipment or material to which this recognition applies, and also clearly indicating that OSHA limits its NRTL recognition to specific products;

5. QPS will inform OSHA as soon as possible, in writing, of any change of ownership, facilities, or key personnel, and of any major changes in its operations as an NRTL, including details of these changes;

6. QPS will meet all of the terms of its NRTL recognition, and will always comply with all OSHA policies pertaining to this recognition; and

7. QPS will continue to meet the requirements for NRTL recognition in all areas covered by the scope of this recognition.

## Authority and Signature

David Michaels, PhD, MPH, Assistant Secretary of Labor for Occupational Safety and Health, 200 Constitution Avenue, NW., Washington, DC 20210, directed the preparation of this notice. Accordingly, the Agency is issuing this notice pursuant to Sections 6(b) and 8(g) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 655 and 657), Secretary of Labor's Order No. 4-2010 (75 FR 55355), and 29 CFR part 1911.

Signed at Washington, DC, on February 25, 2011.

David Michaels,

Assistant Secretary of Labor for Occupational Safety and Health.

# Footnotes

1.                             A number of documents, or information within documents, described in this                         **Federal Register**                         notice are the applicant's internal, detailed procedures, or contain other confidential business or trade-secret information. These documents and information, designated by an “NA” at the end of, or within, the sentence or paragraph describing them, are not available to the public.                    
        Back to Citation      

2.                             The designations and titles of these test standards were current at the time of the preparation of this notice.                    
        Back to Citation      

[FR Doc. 2011-4698 Filed 3-1-11; 8:45 am]

BILLING CODE 4510-26-P