[Federal Register Volume 60, Number 158 (Wednesday, August 16, 1995)]
[Notices]
[Pages 42594-42596]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-20258]



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DEPARTMENT OF LABOR
[Docket No. NRTL-3-92]


TUV Rheinland of North America, Inc.

AGENCY: Occupational Safety and Health Administration, Department of 
Labor.

ACTION: Notice of Recognition as a Nationally Recognized Testing 
Laboratory.

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SUMMARY: This notice announces the Agency's final decision on the 
application of TUV Rheinland of North America as a Nationally 
Recognized Testing Laboratory (NRTL) under 29 CFR 1910.7.

EFFECTIVE DATE: This recognition will become effective on August 16, 
1995 and will be valid for a period of five years from that date, until 
August 16, 2000, unless terminated prior to that date, in accordance 
with 29 CFR 1910.7.

FOR FURTHER INFORMATION CONTACT:
NRTL Recognition Program, Occupational Safety and Health 
Administration, U.S. Department of Labor, 200 Constitution Avenue, 
N.W., Room N3653, Washington, D.C. 20210 .

SUPPLEMENTARY INFORMATION:

Notice of Final Decision

    Notice is hereby given that TUV Rheinland of North America, Inc. 
(TUV), which made application for recognition pursuant to 29 CFR 1910.7 
for recognition as a Nationally Recognized Testing Laboratory, has been 
recognized as a Nationally Recognized Testing Laboratory for the 
equipment or material listed below.
    The address of the laboratory covered by this recognition is: TUV 
Rheinland of North America, Inc., 12 Commerce Road, Newtown, 
Connecticut 06470.

Background

    TUV Rheinland of North America, Inc. is a privately held Product 
Safety and Quality Assurance Testing firm with offices throughout the 
United States and Canada. TUV Rheinland of North America, Inc. is 
wholly owned by TUV Rheinland e. V. of Cologne, Germany. The only 
facility for which TUV has requested recognition is its North American 
Headquarters located in Newtown, Connecticut (see Exhibit 2. C., p 2 of 
cover letter, and Attachments 2, 3, and 4). TUV Rheinland of North 
America, Inc. is a U.S. corporation incorporated in the state of 
Delaware in 1983. (See Ex. 2. E., Att. 5).
    On November 19, 1993, the Occupational Safety and Health 
Administration published a notice of application for recognition as a 
nationally recognized testing laboratory of TUV Rheinland of North 
America, Inc. in the Federal Register, pursuant to 29 CFR 1910.7 (58 FR 
61101). The notice included a preliminary finding that TUV could meet 
the requirements for recognition detailed in 29 CFR 1910.7 and it 
invited public comment on the application by January 18, 1994.
    On January 6, 1994, MET Laboratories, Inc. (MET) submitted comments 
in response to the preliminary finding (58 FR 61101) opposing TUV's 
recognition as a NRTL primarily based upon OSHA's not having referenced 
a determination of TUV/NA's status as either a foreign entity or 
foreign based. (See Ex. 4-1).
    On January 12, 1994, ACIL (formerly, the American Council of 
Independent Laboratories, Inc.) requested an extension of time in which 
to submit comments on the application (Ex. 4-2). The ACIL claimed that 
its preliminary investigation had uncovered ``substantial 
deficiencies'' in the application and that more time was necessary to 
submit pertinent documentation related to the instant application. ACIL 
raised the issue of whether the applicant is completely independent 
from the parent organization. According to the ACIL, the resolution of 
the questions raised would require, among other things, the study and 
analysis of relevant German laws and requested additional time until 
March 18, 1994, to file its comments on TUV's application. (See Ex. 4-
2).
    The applicant responded to ACIL's comments on February 8, 1994, 
refuting ACIL's statement that TUV Rheinland of North America, Inc. may 
not be able to operate independently of TUV Rheinland of Cologne. (See 
Ex. 5).
    After a careful review of all comments, the request for an 
extension of time for comment was accepted by OSHA, and the comment 
period was actually extended until April 4, 1994, (59 FR 10432). (See 
Ex. 6).
    Two comments were received in response to 59 FR 10432, the Federal 
Register notice of extension of the comment period.
    One comment, dated March 3, 1994, was from MET Laboratories, Inc. 
(MET), and discussed TUV/NA's application for a registered 
certification mark and the status of TUV as a U.S. corporation. (See 
Ex. 7-2).
    The other comment was from ACIL, and was dated March 4, 1994. The 
major issues raised pertained to the status of TUV as ``foreign 
based''; the improper use of a certification mark; and TUV Rheinland as 
an association consisting, in part, of manufacturers. (See Ex. 7-1).
    After a thorough review of the comments and TUV's response, dated 
July 28, 1994 (Ex. 8), by both OSHA and the Office of the Solicitor of 
the U.S. Department of Labor, the determination was made that the 
applicant is independent in the sense that it is not a foreign entity 
or foreign based. While TUV Rheinland of North America, Inc., which is 
incorporated in the United States, is a subsidiary of TUV Rheinland e. 
V., which is based in Cologne, Germany, it is no different from other 
NRTLs which are incorporated in the U.S. and owned by foreign entities, 
and which are not considered as foreign based. Further, the decision 
whether or not to certify a product under the NRTL program is made 
solely by TUV 

[[Page 42595]]
Rheinland of North America, Inc. If a formal interpretation of any 
portion of a standard used to certify a product in conjunction with the 
Nationally Recognized Testing Laboratory (NRTL) program is necessary, 
it will be determined by means of internal staff meetings among senior 
engineers of TUV Rheinland of North America, Inc. In the event that an 
interpretation issue remains after such a meeting, it will be referred 
to the appropriate Technical Advisory Group (TAG) which, for the ANSI/
UL 1950 test standard, is the U.S. TAG Technical Committee (TC) 74 of 
the International Electrotechnical Commission (IEC). (See Ex. 9).
    With regard to its application to the U.S. Patent and Trademark 
Office for a certified registration mark, TUV Rheinland of North 
America, Inc. has filed an application for a certification mark 
registration which, in addition to a design, will also contain the name 
of the organization, i.e., `` TUV Rheinland of North America, Inc.''. 
(See Ex's. 8 and 10).
    The Occupational Safety and Health Administration has evaluated the 
entire record in relation to the regulations set out in 29 CFR 1910.7 
and makes the following findings:

Capability

    Section 1910.7(b)(1) states that for each specified item of 
equipment or material to be listed, labeled or accepted, the laboratory 
must have the capability (including proper testing equipment and 
facilities, trained staff, written testing procedures, and calibration 
and quality control programs) to perform appropriate testing.
    The on-site review report indicates that TUV does have testing 
equipment and facilities appropriate for the areas of recognition it 
seeks. The laboratory has available all the general test equipment 
required to perform the testing required by the standards.
    TUV's laboratory has adequate floor space for testing and 
evaluation and an adequate number of technical and professional 
personnel to accomplish the services required for the present workload 
in the areas of recognition it seeks. Environmental conditions in the 
laboratory are adequately controlled for the type of testing performing 
in the laboratory.
    OSHA has determined that TUV has appropriate written test 
procedures, and calibration and quality control programs to enable it 
to adequately perform appropriate testing.

Creditable Reports/Complaint Handling

    Section 1910.7(b)(4) provides that an OSHA recognized NRTL must 
maintain effective procedures for producing creditable findings and 
reports that are objective and without bias. TUV Rheinland of North 
America, Inc. meets these criteria.
    TUV's application as well as the on-site review report indicate 
that the applicant does maintain effective procedures for producing 
creditable findings and reports that are objective. The laboratory 
maintains a written procedure for identifying product samples submitted 
for testing to ensure that there is no confusion regarding the identity 
of the samples or the results of the measurement. These procedures 
include the receipt, retention, and disposal of products submitted for 
testing.
    TUV also has a procedure for handling complaints from any 
interested parties as well as clients.

Type of Testing

    The standard contemplates that testing done by NRTLs fall into one 
of two categories: Testing to determine conformance with appropriate 
test standards, or experimental testing where there might not be one 
specific test standard covering the new product or material. TUV has 
applied for recognition in the first category.

Follow-Up Procedures

    Section 1910.7(b)(2) requires that the NRTL provide certain follow-
up procedures, to the extent necessary, for the particular equipment or 
material to be listed, labeled, or accepted. These include 
implementation of control procedures for identifying the listed or 
labeled equipment or materials, inspecting the production run at 
factories to assure conformance with test standards, and conducting 
field inspections to monitor and assure the proper use of the label.
    TUV has a written procedure making its clients subject to four 
unannounced on-site follow-up inspections annually. This formal 
inspection procedure includes standardized inspection forms. Listed 
products are also subject to field audits. TUV reserves the right to 
conduct field audits on any certified or listed product by purchasing 
the product from the manufacturer, distributor, or retailer. The audit 
procedure is the same that for a follow-up inspection.

Test Standards

    Section 1910.7 requires that an NRTL use ``appropriate test 
standards'', which are defined, in part, to include any standard that 
is currently designated as an American National Standards Institute 
(ANSI) safety designated product standard or an American Society for 
Testing and Materials (ASTM) test standard used for evaluation of 
products or materials.
    The standard that TUV has requested is an ANSI/UL standard and, 
therefore, meets the requirements of section 1910.7(c).

Final Decision and Order

    Based upon a preponderance of evidence resulting from an 
examination of the complete application, the supporting documentation, 
the comments and rebuttal from TUV, and the OSHA staff finding 
including the on-site report, OSHA finds that TUV Rheinland of North 
America, Inc. has met the requirements of 29 CFR 1910.7 to be 
recognized by OSHA as a Nationally Recognized Testing Laboratory to 
test and certify certain equipment or materials.
    Pursuant to the authority in 29 CFR 1910.7, TUV Rheinland of North 
America, Inc., is hereby recognized as a Nationally Recognized Testing 
Laboratory subject to the limitations and conditions listed below:

Limitations

    This recognition is limited to equipment or materials which, under 
29 CFR Part 1910, require testing, listing, labeling, approval, 
acceptance, or certification, by a Nationally Recognized Testing 
Laboratory. This recognition is limited to the use of the following 
test standard for the testing and certification of equipment or 
materials included within the scope of this standard:
     TUV has stated that the standard is used to test and 
certify equipment or materials which may be used in environments under 
OSHA's jurisdiction. This standard is considered an appropriate test 
standard under 29 CFR 1910.7(c):
    ANSI/UL 1950--Information Technology Equipment Including Electrical 
Business Equipment

Conditions

    TUV Rheinland of North America, Inc. shall also abide by the 
following conditions of its recognition, in addition to those already 
required by 29 CFR 1910.7:
     The Occupational Safety and Health Administration shall be 
allowed access to TUV's facilities and records for purposes of 
ascertaining continuing compliance with the terms of its recognition 
and to investigate as OSHA deems necessary;

[[Page 42596]]

     Because of the interval between the on-site assessment and 
this recognition, those procedures authorized by the ``Nationally 
Recognized Testing Laboratories; Clarification of the Types of Programs 
and Procedures,'' 60 FR 12980, dated March, 9, 1995, must be applied 
for in accordance with the requirements specified therein;
     If TUV has reason to doubt the efficacy of any test 
standard it is using under this program, it shall promptly inform the 
organization that developed the test standard of this fact and provide 
that organization with appropriate relevant information upon which its 
concerns are based;
     TUV shall not engage in or permit others to engage in any 
misrepresentation of the scope or conditions of its recognition. As 
part of this condition, TUV agrees that it will allow no representation 
that it is either a recognized or accredited Nationally Recognized 
Testing Laboratory (NRTL) without clearly indicating the specific 
equipment or material to which this recognition is tied, or that its 
recognition is limited to certain products;
     TUV shall inform OSHA as soon as possible, in writing, of 
any change of ownership, facilities, or key personnel, including 
details;
     TUV shall continue to meet the requirements for 
recognition in all areas where it has been recognized; and
     TUV shall continue to cooperate with OSHA to assure 
compliance with the spirit as well as the letter of its recognition and 
29 CFR 1910.7.
    Effective Date: This recognition will become effective on August 
16, 1995 and will be valid for a period of five years from that date, 
until August 16, 2,000, unless terminated prior to that date, in 
accordance with 29 CFR 1910.7.

    Signed at Washington, D.C. this 10 day of August, 1995.
Joseph A. Dear,
Assistant Secretary.
[FR Doc. 95-20258 Filed 8-15-95; 8:45 am]
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