Issue: To consider, discuss, and provide recommendation for consideration by the Commission regarding Florida licensed Professional Engineers having the ability to validate their own product approval applications.

Background:

61G20-3.009 Criteria for Certification of Independence.

A certification of independence shall be provided by a Florida registered architect or licensed professional engineer as applicable or by an officer of the entity, agency or laboratory who is responsible for operation of said entity, agency or laboratory that attests to the following:

(1) The entity, agency or laboratory does not have, nor does it intend to acquire or will it acquire, a financial interest in any company manufacturing or distributing products tested or labeled by the agency.

(2) The entity, agency or laboratory is not owned, operated or controlled by any company manufacturing or distributing products it tests or labels.

(3) The Florida registered architect or licensed professional engineer performing an evaluation does not have nor will acquire, a financial interest in any company manufacturing or distributing products for which the reports are being issued.

(4) The Florida registered architect or licensed professional engineer performing an evaluation does not have, nor will acquire, a financial interest in any other entity involved in the approval process of the product.

61G20-3.002 Definitions.

(1) Accreditation means a procedure by which a Commission approved body gives formal recognition that a body or person is competent to carry out specific tasks.

(2) Approved accreditation entity body means a Commission approved, third party entity, which initially accredits and subsequently monitors, on a continuing basis, the competency and performance of an agency related to carrying out specific tasks.

(3) Approved certification agency means an organization approved by the Commission pursuant to subsection 61G20-3.008(4), F.A.C., to certify products.

(4) Approved product evaluation entity means an organization recognized by Florida law or approved by the Commission pursuant to subsection 61G20-3.008(1), F.A.C., to evaluate products, for compliance with the Code or intent of the Code or the standards referenced therein resulting in the issuance of an evaluation report.

(7) Approved validation entity means a third party entity approved by the Commission pursuant to subsection 61G20-3.008(2), F.A.C., which shall certify to the Commission the product’s compliance with the standards specified in the Code or intent of the Code for use in state approval.

(17)(a) Evaluation report means a report based upon testing or comparative or rational analysis, or a combination thereof, from an approved product evaluation entity or a licensed Florida professional engineer or architect indicating that the product was evaluated to be in compliance with the Code or the intent of the Code and that the product complies with the Code or is, for the purpose intended, at least equivalent to that required by the Code.

(37) Validation means determination of compliance pursuant to Rule 61G20-3.006, F.A.C., for state approval.

61G20-3.008 Approval of Product Evaluation Entities, Product Validation Entities, Testing Laboratories, Certification Agencies, Quality Assurance Agencies and Accreditation Bodies.

(1) Approved Product Evaluation Entities. Approval by the Commission is limited to the scope established by Section 553.842, F.S.

(a) The following entities are approved evaluation entities:

1. The National Evaluation Service (NES);

2. The Miami-Dade County Building Code Compliance Office Product Control Division (MDCBCCOPCD);

3. The International Code Council, International Evaluation Services (IES); and

4. The International Association of Plumbing and Mechanical Officials Evaluation Service (IAPMO).

(b) Architects and engineers licensed in this state are also approved to conduct product evaluation.

(2) Approved Validation Entities.

(a) An entity shall be approved by the Commission as a validation entity if it is a Commission approved evaluation entity or certification agency, and it certifies to the Commission compliance with standards established by the Code or intent of the Code. Architects and engineers licensed in this State are also approved to conduct validation for the state approval. Testing Laboratories are not allowed to conduct validations.

(b) An entity may be approved as a validation entity after applying to the Commission for approval. Applications must be submitted in accordance with subsections 61G20-3.011(1) and 61G20-3.007(3), F.A.C., including a Certificate of Independence in accordance with Rule 61G20-3.009, F.A.C., and fees submitted pursuant to subsection 61G20-3.007(2), F.A.C. Application shall be made through the Building Codes Information System on the Internet, www.floridabuilding.org, and payment shall be by credit card or electronic check.

(c) Approvals shall be valid until such time as Commission approval requirements change, the entity no longer qualifies under current requirements or the approval is suspended or revoked.

(3) Approved Testing Laboratory Criteria. Approval by the Commission is limited to the scope of accreditation established by approve accreditation entities.

(a) An entity shall be approved by the Commission as an approved testing laboratory if it complies with one of the following. Approval shall be limited to those procedures listed on the certificate of accreditation or accreditation listing issued by the accreditation body.

1. Testing laboratories accredited by American Association for Laboratory Accreditation (A2LA) that meet the requirements of the International Organization for Standardization/International Electrotechnical Commission (ISO/IEC) Guide 17025: General Requirements for the Competence of Calibration and Testing Laboratories or other standard certified as equivalent by the accrediting entity pursuant to Rule 61G20-3.015, F.A.C., and approved by the Commission.

2. Testing laboratories accredited by National Voluntary Laboratory Accreditation Program (NVLAP) that meet the requirements of ISO/IEC Guide 17025: General Requirements for the Competence of Calibration and Testing Laboratories or other standard certified as equivalent by the accrediting entity pursuant to Rule 61G20-3.015, F.A.C., and approved by the Commission.

3. Testing laboratories accredited by approved product evaluation entities that meet the requirements of ISO/IEC Guide 17025: General Requirements for the Competence of Calibration and Testing Laboratories or other standard certified as equivalent by the accrediting entity pursuant to Rule 61G20-3.015, F.A.C, and approved by the Commission.

4. Testing laboratories accredited by other approved accreditation bodies that meet the requirements of ISO/IEC Guide 17025: General Requirements for the Competence of Calibration and Testing Laboratories or other standard certified as equivalent by the accrediting entity pursuant to Rule 61G20-3.015, F.A.C., and approved by the Commission.

(b) Testing laboratories shall apply to the Commission for approval by filing and application in accordance with subsections 61G20-3.011(1) and subsection 61G20-3.007(3), F.A.C., including a Certificate of Independence in accordance with Rule 61G20-3.009, F.A.C., and submitting fees pursuant to subsection 61G20-3.007(2), F.A.C.

(c) Approvals shall be valid until such time as Commission approval requirements change, the testing laboratory no longer qualifies under current requirements; the accreditation expires, or is removed, or is both expired and removed; or the approval is suspended or revoked.

(4) Approved Certification Agency Criteria. Approval by the Commission is limited to the scope of accreditation established by approved accreditation entities.

(a) An entity shall be approved by the Commission as a certification agency if it complies with one of the following. Approval shall be limited to those procedures listed on the certificate of accreditation or accreditation listing issued by the accreditation body:

1. Certification Agencies accredited by ANSI that meet the requirements of ISO/IEC Guide 65: General Requirements for Bodies Operating Product Certification Systems or other standard certified as equivalent by the accrediting entity pursuant to Rule 61G20-3.015, F.A.C., and approved by the Commission.

2. Certification Agencies accredited as meeting the requirements of ISO/IEC Guide 65: General Requirements for Bodies Operating Product Certification Systems or other standard certified as equivalent by the accrediting entity pursuant to Rule 61G20-3.015, F.A.C., and approved by the Commission.

3. Lumber grading or inspection agencies approved by the American Lumber Standards Committee (ALSC) or other agency approved by the Commission as equivalent, in accordance with United Stated Department of Commerce “Voluntary Product Standard: DOC PS 20-99,” “American Softwood Lumber Standard.”

(b) Certification Agencies shall apply to the Commission for approval by filing an application as provided by subsections 61G20-3.011(1) and 61G20-3.007(3), F.A.C., including a Certificate of Independence in accordance with Rule 61G20-3.009, F.A.C., and submitting fees pursuant to subsection 61G20-3.007(2), F.A.C.

(c) Approvals shall be valid until such time as Commission approval requirements change, the certification agency no longer qualifies under current requirements; the accreditation expires, or is removed, or is both expired and removed; or the approval is suspended or revoked.

(5) Approved Quality Assurance Agency Criteria. Approval by the Commission is limited to the scope of accreditation established by approved accreditation entities.

(a) An entity shall be approved by the Commission as a quality assurance agency if it complies with one of the following. Approval shall be limited to those procedures listed on the certificate of accreditation issued by the accreditation body. Architects and engineers licensed in this state are exempt from the requirements for independent audits of financial accounts and records required by ISO/IEC Guide TR 17020.

1. Quality assurance agencies accredited as meeting the requirements of ISO/IEC Guide TR 17020: 1998, General Criteria for the Operation of Various Types of Bodies Performing Inspection or other standard certified as equivalent by an approved product evaluation entity pursuant to Rule 61G20-3.015, F.A.C., and approved by the Commission.

2. Quality assurance agencies accredited as meeting the requirements of ISO/IEC Guide TR 17020: 1998, General Criteria for the Operation of Various Types of Bodies Performing Inspection or other standard certified as equivalent by an approved certification agency pursuant to Rule 61G20-3.015, F.A.C., and approved by the Commission.

3. Quality assurance agencies accredited as meeting the requirements of ISO/IEC Guide TR 17020: 1998, General Criteria for the Operation of Various Types of Bodies Performing Inspection or other standard certified as equivalent by an approved accreditation body pursuant to Rule 61G20-3.015, F.A.C., and approved by the Commission.

(b) Quality assurance agencies shall apply to the Commission for approval by filing an application in accordance with subsections 61G20-3.011(1) and 61G20-3.007(3), F.A.C., including a Certificate of Independence in accordance with Rule 61G20-3.009, F.A.C., and submitting fees pursuant to subsection 61G20-3.007(2), F.A.C. Application shall be made through the Building Codes Information System on the Internet, www.floridabuilding.org, and payment shall be by credit card or electronic check.

(c) Approvals shall be valid until such time as Commission approval requirements change, the quality assurance agency no longer qualifies under current requirements; the accreditation expires, or is removed, or is both expired and removed; or the approval is suspended or revoked.

(d) Quality assurance agencies shall audit the quality assurance program of manufacturers and audit production quality of products. Auditing of a quality assurance program shall be by one or more of the following methods: visits to manufacturing facilities, inspection of products at construction sites, inspection of products at state distribution facilities or testing of regular production items. Such auditing shall be performed at intervals not to exceed 12 months.

(e) Commission approved certification agencies are also approved as quality assurance entities for the products covered by their certification program.

(6) Approved Accreditation Body Criteria.

(a) The following are recognized by the Commission as approved accreditation bodies for accrediting testing laboratories, certification programs and quality assurance program auditors/inspection bodies:

1. Entities accrediting testing laboratories, certification agencies and quality assurance agencies pursuant to subsections 61G20-3.008, F.A.C.

2. Bodies operating acceptance/accreditation programs for testing bodies pursuant to ISO/IEC Guide 58, Calibration and Testing Laboratory Accreditation Systems – General Requirements for Operation and Recognition.

3. Bodies operating acceptance/accreditation programs for certification programs pursuant to ISO/IEC Guide 61, General Requirements for Assessment and Accreditation of Certification/Registration Bodies.

4. Bodies operating acceptance/accreditation programs for quality assurance/inspection bodies pursuant to ISO/IEC Guide TR 17010: 1998, General Requirements for Bodies Providing Accreditation of Inspection Bodies.

(b) Where accrediting bodies utilize standards other than the ISO accreditation standards referenced in Rule 61G20-3.008, F.A.C., they shall provide a certification of equivalence pursuant to Rule 61G20-3.015, F.A.C., to the Commission for approval pursuant to subsection 61G20-3.015(2), F.A.C.

(c) Approvals shall be valid until such time as Commission approval requirements change, the accreditation body no longer qualifies under current requirements or the approval is suspended or revoked.

(d) A Commission approved accreditation body shall not perform the functions of a testing body.

Rulemaking Authority 553.842(8) FS. Law Implemented 553.842(8) FS. History–New 5-5-02, Amended 9-4-03, 3-9-04, 11-22-06, 4-10-08, 12-9-09, Formerly 9B-72.100, Amended 7-14-11, Formerly 9N-3.008.

Declaratory Statement Request DS2014-024

Question #1:

To the question #1: Situation 1: I am the engineer that prepared, signed and sealed the window drawings NO. 1518, 1519 &1520 that exist as part of Dade County NOA's 13-0829.18, .19 & .17 & Florida approvals FL10015, 10022& 10026 respectively. The manufacturer of these products is in process of applying for 1A state approvals using the referenced NOA's, listing Dade as the QA & certification entity. The manufacturer desires to list me as the validator. I have no financial interest in any of the parties involved (manufacturer, Dade, test lab), I will not be listed on the applications as any entity in the application, and I am listed with the state as a validator. Can I validate these approvals?

Answer: No, as per Rule 61G20-3.009 (4), the work in question is considered to be an evaluation as defined in Rule 61G20-3.002 and therefore a validator/Engineer cannot validate his/her own evaluation.

Question #2:

To the question #2: Situation 2: I am the engineer that has prepared, signed and sealed installation instructions for products being issued to the State of Florida for product approval under method 1A (Entity certification) & Florida approval FL16258. WDMA will be the certification and QA entity for these products. In the product listing, the manufacturer will be uploading my certified installation instructions. The manufacturer desires that I be the validator. I have no financial interest in any of the parties involved (manufacturer, WDMA, test lab), I will not be listed on the applications as an entity in the application, and I am listed with the state as a validator. Can I validate the approvals?

Answer: No, as per Rule 61G20-3.009 (4), the work in question is considered to be an evaluation as defined in Rule 61G20-3.002 and therefore a validator/Engineer cannot validate his/her own evaluation.

Overview of Discussion During the POC Meeting:

The Petitioner provided the POC with an overview of the issue and noted he felt it was an unfair trade restriction to not allow an engineer who evaluates a product, and has no financial interest in the product or the various relevant entities, to validate the product. The POC discussed the issue and agreed that although the Rule appeared clear on the issue they would like to discuss whether this is a reasonable requirement at the next POC meeting. The POC requested an agenda item be added to the June 2014 POC meeting as follows: Staff presentation on current requirements and rationale, and POC discussion regarding the provisions in Rule 61G20-3.009 (4) requiring that a validator cannot validate their own evaluation.

Notes: Oversight

Nationally certified product testing/certification/evaluation entities (test labs, certification agencies and evaluation entities other than engineers and architects) – function under accreditation and periodic monitoring programs as required by Rule 61G20-3.

Independent peer review – this will enable an independent architect or engineer, in the field of expertise related to the product, to review the original architect’s or engineer’s analysis and product evaluation report. This independent review would judge the technical adequacy of the certification of compliance to the code. It also validates the reviews done by the architect and engineers, who do not undergo accreditation by third party.

(37) Validation means determination of compliance pursuant to Rule 61G20-3.006, F.A.C., for state approval.

Comments Received:

Here’s my reasoning behind standing against allowing PEs to self-validate.

Keystone Certifications would agree with the staff analysis as presented for Declaratory Statement DS2014-024 discussed at the April, 2014 POC meeting. We would recommend the POC and the Commission continue to have independent validators when a PE is involved in the evaluation of the products listed in the approval. Without this proactive rule, there would be no way to monitor the conflict of interest present when an engineer validates his/her own work.

In this instance, we don’t believe the rule can effectively separate the self-validation of work performed for a certification and the self-validation of work performed for an evaluation report. That argument and potential eventuality must be considered when discussing the consequences of allowing a PE to validate an application relying on his/her own engineering and/or evaluation. Please keep in mind, the PE would be validating his/her own evaluation report even if a certification agency certificate is the basis of the approval. All anchorage analysis that requires an engineer to sign and seal also requires the attachment of an evaluation report by that engineer unless the certification also includes the anchorage.

Finally, we believe that certification agencies validating applications using their own certifications cannot be compared to a PE validating his/her own evaluation or engineering. The Commission has much more oversight over the approval of a certification agency than they do a PE generating an evaluation report. The additional oversight includes requiring the certification agency to be accredited by an approved accrediting body, having the certification agency issue certifications only to code approved standards, and directly approving individual certification agencies. It is that additional oversight that minimizes any conflict of interest in having a certification agency validate an application using its own certification.

Please let me know if there’s anything else I can do. I did not copy Mr. McFee on this response but you may feel free to forward it to him for his consideration. Again, I am more than happy to work with John to get a single FMA statement for inclusion at the next POC meeting.

Thanks.

Steven M. Urich, PE

Building Envelope Program Manager

Keystone Certifications, Inc.

564 Old York Road, Suite 5

Etters, PA 17319

(717) 932-8500

(717) 932-8501

www.keystonecerts.com

______________________________________________________________________

Staff analysis: Staff concurs with the above comments and the need to continue the independent validation review as implemented under the current rule.