[Federal Register Volume 64, Number 238 (Monday, December 13, 1999)]
[Notices]
[Pages 69552-69555]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-32195]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
[Docket No. NRTL-1-99]
Curtis-Straus LLC., Application for Recognition
AGENCY: Occupational Safety and Health Administration (OSHA); Labor.
ACTION: Notice.
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SUMMARY: This notice announces the application of Curtis-Straus LLC.
for recognition as a Nationally Recognized Testing Laboratory (NRTL)
under 29 CFR 1910.7, and presents the Agency's preliminary finding.
This preliminary finding does not constitute an interim or temporary
approval of this application.
DATES: Comments submitted by interested parties must be received no
later than February 11, 2000.
ADDRESS: Send comments concerning this notice to: Office of Technical
Programs and Coordination Activities, NRTL Program, Occupational Safety
and Health Administration, U.S. Department of Labor, 200 Constitution
Avenue, NW, Room N3653, Washington, DC 20210.
FOR FURTHER INFORMATION CONTACT: Bernard Pasquet, Office of Technical
Programs and Coordination Activities, NRTL Program, at the above
address, or phone (202) 693-2110.
SUPPLEMENTARY INFORMATION:
Notice of Application
The Occupational Safety and Health Administration (OSHA) hereby
gives notice that Curtis-Straus LLC. (CSL) has applied for recognition
as a Nationally
[[Page 69553]]
Recognized Testing Laboratory (NRTL) for testing and certification of
the equipment or materials and using the site, listed below. CSL has
also requested recognition to use certain supplemental programs. OSHA
recognizes an organization as an NRTL, and processes applications
related to such recognitions, following requirements in Section 1910.7
of Title 29, Code of Federal Regulations (29 CFR 1910.7). Appendix A to
this section requires that OSHA publish this notice of the preliminary
finding on an application.
The current address of the laboratory covered by this application
is: Curtis-Straus LLC., 527 Great Road, Littleton, Massachusetts 01460.
Background
According to the application, Curtis-Straus LLC. (CSL) is a limited
liability company chartered in the Commonwealth of Massachusetts and
was established in 1996. CSL states that it offers testing services in
electrical safety and in a number of other areas. The applicant also
states that its founders and managers have, in the aggregate, over
thirty years of technical experience in these areas. The application
indicates that CSL is privately owned.
CSL submitted an application for recognition, dated February 9,
1998 (see Exhibit 2A). In response to requests from OSHA for
clarification and additional information, CSL amended its application
in submissions dated June 24, 1998, and August 9, 1999 (see Exhibits 2B
and 2C). Some documents in these submissions, and part of the original
application, have been withheld from disclosure under Exemption 4 of
the Freedom of Information Act (FOIA). Staff of the NRTL Program
performed an on-site assessment (review) of the Littleton,
Massachusetts, facility on October 26-29, 1998. In the on-site review
report, the program staff recommended a ``positive finding.''
Regarding the merits of the application, the applicant has
presented documentation that describes how it will operate as an NRTL.
However, it is an organization that, to date, has not operated a
product certification program and CSL only recently developed the
documents for the certification phase of its planned NRTL operations.
Most of the detailed procedures the applicant plans to follow are
contained in its Standard Operating Procedures Manual (SOPM), which is
one of the documents that has been withheld from disclosure under FOIA.
The four recognition requirements of 29 CFR 1910.7 are presented
below, along with examples that illustrate how CSL has met or plans to
meet each of these requirements.
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 CSL has adequate testing
equipment and an adequate facility to perform the tests required under
the test standards for which it seeks recognition. Security measures
are in place to restrict or control access to their facility, and
procedures exist on handling of test samples. The report also indicates
that testing and processing procedures are in place, although some were
in the process of review and update. CSL has only recently developed
the testing procedures for the standards for which it seeks
recognition. It utilizes outside calibration sources and has developed
procedures for internal calibrations of certain equipment. The
application indicates that CSL maintains records on testing equipment,
which include information on repair, routine maintenance, and
calibrations. The application and on-site review report address
personnel qualifications and training, and identify CSL staff involved
with product testing, along with a summary of their education and
experience. Also, the report indicates that CSL personnel have adequate
technical knowledge for the work they perform. Moreover, the review
report indicates that the Quality System Manual (QSM) and SOPM are the
primary documents for the CSL quality assurance activities. The
application contains the procedures CSL will utilize for conducting the
internal audits of its operations.
The application indicates that CSL has not tested products to all
requirements of a test standard, and as already mentioned, CSL has just
developed many of the procedures it will utilize to do such testing.
Therefore, OSHA has not yet evaluated the actual use of the testing and
reporting procedures that CSL will utilize for purposes of certifying
to a complete test standard, and OSHA needs to investigate this aspect
of CSL's operations when these procedures are in use. Accordingly, OSHA
plans to include a condition in the recognition notice to provide the
Agency with the opportunity to make this evaluation.
Control Procedures
Section 1910.7(b)(2) requires that the NRTL provide certain
controls and services, to the extent necessary, for the particular
equipment or material to be listed, labeled, or accepted. They include
control 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 applicant has developed procedures and related documentation
for initially qualifying a manufacturer under the CSL certification
program and for performing the required follow-up inspections at a
manufacturer's facility. CSL has stated in its SOPM that it will
perform follow-up ``factory inspections at least four times per year.''
These inspections will be one part of the activities that the applicant
will utilize in controlling its certification mark. In its application,
CSL included evidence of its application for registration of its
certification mark with the U.S. Trademark and Patent Office (USPTO).
The USPTO has issued a notice of allowance for this mark.
According to the on-site review report, CSL has not had a product
certification program prior to applying for recognition as an OSHA
NRTL. Staff of the NRTL Program reviewed a number of documents during
the on-site visit that described the approach CSL would take in
operating its program. After the visit, CSL finalized more detailed
procedures, previously mentioned, for qualification and follow-up
inspection of the manufacturer. CSL also presented procedures to
establish and modify a ``listing'' of products it has certified and to
control its mark on these products. Since CSL has just developed its
NRTL follow-up program, and has not listed or labeled any products
under these procedures, OSHA has been unable to evaluate the actual use
of CSL's product certification program. The condition, mentioned above,
that OSHA plans to include would also provide the Agency with the
opportunity to make this evaluation. In addition, OSHA is concerned
about the adequacy of CSL's proposed procedures to control its
certification mark. As a result, OSHA plans to impose another condition
to ensure that CSL will adequately control its mark.
[[Page 69554]]
Independence
Section 1910.7(b)(3) requires that the NRTL be completely
independent of employers subject to the tested equipment requirements,
and of any manufacturers or vendors of equipment or materials being
tested for these purposes.
In its original application, CSL has stated that there is ``no
ownership of Curtis-Straus by (organizations that are) manufacturers or
suppliers of products or components to be tested or certified.'' The
applicant also states that none of its owners ``works for, or has
ownership of, or significant interest in'' any such organization. More
recently, CSL provided a more comprehensive statement of its
independence from ``suppliers'' (i.e., a manufacturer or distributor)
and ``major users'' (i.e., employers that make major use) of any
products that must be certified by an NRTL. The applicant also states
that its ``conflict of interest policies are in place and . . .
conflict of interest statements are signed by all personnel.''
Creditable Reports/Complaint Handling
Section 1910.7(b)(4) provides that an NRTL must maintain effective
procedures for producing credible findings and reports that are
objective and without bias, as well as for handling complaints and
disputes under a fair and reasonable system.
As previously stated, CSL has only recently developed the
procedures it will utilize in testing and certifying products. This
includes the procedures for evaluating and reporting the findings for
its initial or follow-up testing of products to ensure they conform to
all requirements of a test standard. The applicant did include examples
of the kind of reports it will generate. However, as in the case of the
testing procedures, the evaluation and reporting procedures are new to
CSL, and OSHA would need to evaluate them when the applicant uses them
for its NRTL operations. Regarding the handling of complaints and
disputes, the applicant'' SOPM contains the details on how it will
handle a complaint it receives from its clients or from the public.
Standards
CSL seeks recognition for testing and certification of products to
determine compliance with the following five (5) test standards, and
OSHA has determined the standards are ``appropriate,'' within the
meaning of 29 CFR 1910.7(c):
ANSI/UL 1459 Telephone Equipment
ANSI/UL 1950 Information Technology Equipment Including Electrical
Business Equipment
UL 2601-1 Medical Electrical Equipment, Part 1: General Requirements
for Safety
UL 3101-1 Electrical Equipment for Laboratory Use; Part 1: General
Requirements
UL 3111-1 Electrical Measuring and Test Equipment, Part 1: General
Requirements
The designations and titles of the above test standards were
current at the time of the preparation of this notice.
Programs and Procedures
Curtis-Straus also seeks to use the supplemental programs listed
below, based upon the criteria detailed in the March 9, 1995 Federal
Register notice (60 FR 12980, 3/9/95). This notice lists nine (9)
programs and procedures (collectively, programs), eight of which
(called supplemental programs) an NRTL may use to control and audit,
but not actually to generate, the data relied upon for product
certification. An NRTL's initial recognition always includes the first
or basic program, which requires that all product testing and
evaluation be performed in-house by the NRTL that will certify the
product. The on-site review report indicates that CSL appears to meet
the criteria for use of the following supplemental programs for which
it has applied:
Program 8: Acceptance of product evaluations from organizations that
function as part of the International Electrotechnical Commission
Certification Body (IEC-CB) Scheme.
Program 9: Acceptance of services other than testing or evaluation
performed by subcontractors or agents. (Limitation--recognition covers
equipment calibration and maintenance services only.)
CSL does not plan to use Program 9 for purposes of conducting its
follow-up inspections, which is permitted under this program.
Accordingly, the Agency plans to include the limitation on the use of
Program 9, shown above.
OSHA developed the program descriptions to limit how an NRTL may
perform certain aspects of its work and to permit the activities
covered under the programs only when the NRTL meets certain criteria.
In this sense, they are special conditions that the Agency places on an
NRTL's recognition. OSHA does not consider these programs in
determining whether an NRTL meets the requirements for recognition
under 29 CFR 1910.7. However, OSHA does treat these programs as one of
the three elements that defines an NRTL's scope of recognition.
CSL also sought recognition for two other programs, one of which it
withdrew from consideration. OSHA is not granting recognition for the
other program at this time. Under this program, an NRTL may use others
in performing all the testing required for a test standard. However,
CSL does not have experience in testing and certification to a complete
standard, and may have less opportunity to develop the required
experience if it uses others to do these activities. This experience is
essential for its continued recognition as an NRTL. Finally, OSHA will
need to review the actual implementation of certain key aspects of
CSL's operations as an NRTL, which, as already noted, were not yet in
place when OSHA performed its on-site review of CSL. As a result, CSL
would have to apply in the future for use of any other programs.
Conditions
OSHA has concerns about CSL because the Agency has not had the
opportunity to evaluate the actual testing, evaluation, and reporting
procedures, and use of the follow-up program, since these have not yet
been implemented. Many of these procedures and practices will be new to
CSL. Unless CSL meets a condition imposed by OSHA, it could not be
recognized as an NRTL under 29 CFR 1910.7. As a result, OSHA plans to
conditionally recognize CSL subject to a later assessment of the
detailed procedures and practices once they are in place.
This approach is consistent with OSHA's past recognition of other
organizations as NRTLs who, like CSL, were mainly experienced in
testing products to specific customer or partial test standard
requirements. OSHA indicated in the Federal Register notice for those
recognitions that the procedures to be used were new to the
organization (for example, see 56 FR 28581, 6/21/91; and 58 FR 15511,
March 23, 1993). OSHA will require CSL to take steps to correct any
deficiencies that OSHA may find during its initial follow-up review. If
deficiencies are not corrected, then OSHA will commence its process to
revoke the recognition of the NRTL.
In addition, OSHA has concerns about the CSL's ability to
adequately control its certification mark. CSL plans to monitor use of
its mark during its follow-up inspections and plans to monitor media to
check for misuse of its mark. However, its procedures on authorizing
its labels appear to present the opportunity for a manufacturer to
[[Page 69555]]
label, intentionally or not, products that are not covered under the
listing agreement with CSL. Under its procedures, CSL gives a
manufacturer general authorization to use the CSL mark or label on a
product but does not appear to control the actual marking or labeling
that the manufacturer would use on a lot or run of production, much
less on a series of such runs of production.
CSL's authorization procedure and listing agreement contain
provisions to prohibit a manufacturer's use of the mark on products
that are not ``identical to the sample'' CSL has certified. However,
such proscriptions do not ensure that CSL actually controls its mark on
a given run of production. As mentioned, CSL does plan to perform
after-the-fact monitoring of the manufacturer to check for misuse.
Also, it will take appropriate action if it discovers misuse. However,
its procedures do not appear effective in trying to initially prevent
misuse of the mark and, to compound matters, its planned monitoring
could be ineffective in detecting instances when misuse has occurred,
especially considering that many thousands of products may be affected.
Such misuse of labels may have serious consequences for workers who use
products that they believe are safe, but which turn out to be unsafe
and which CSL, although well intentioned in its procedures, cannot
effectively detect. As a result, OSHA also plans to include a condition
on CSL that it implement, as part of its system for authorization of
the use of its mark on products, an effective method to ensure that
only products it has certified carry this mark. If CSL does not meet
this condition, it would not meet the requirement in 29 CFR
1910.7(b)(3), under which an NRTL must maintain adequate control
programs, and could not be recognized as an NRTL.
Therefore, OSHA intends to impose the following conditions in the
final notice to officially recognize CSL as an NRTL. These conditions
apply solely to CSL's operations as an NRTL and solely to those
products that it certifies for purposes of enabling employers to meet
OSHA product approval requirements. These conditions would be in
addition to all other conditions that OSHA normally imposes in its
recognition of an organization as an NRTL.
1. Within 30 days of certifying its first products under the NRTL
Program, CSL will notify the OSHA NRTL Program Director so that OSHA
may review CSL's implementation of its procedures for testing and
certification of products covered within the scope of the test
standards listed above.
2. As part of its system of authorization or issuance of the use of
its certification mark, CSL must establish, maintain, and utilize
proper procedures that ensure its mark is applied only to the specific
run(s) of production of the products that CSL has certified.
Preliminary Finding
Curtis-Straus LLC. (CSL) has addressed the requirements that must
be met for recognition as an NRTL, as summarized above. In addition,
the NRTL Program staff has performed an on-site review of CSL's
Littleton, Massachusetts, facility and investigated the processes,
procedures, practices, and general operations used by the laboratory.
Discrepancies noted by the review staff during the on-site review were
addressed by CSL following the on-site evaluation, as detailed above,
and are included as an integral part of the on-site review report (see
Exhibit 3).
Following a review of the complete application file and the on-site
review report, the NRTL Program staff has concluded that the applicant
can be granted recognition as a Nationally Recognized Testing
Laboratory for the Littleton, Massachusetts, facility and for the five
(5) test standards identified above, subject to the conditions and
limitation described above. The recognition would also include the two
programs listed above. The staff therefore recommended to the Assistant
Secretary that the application be preliminarily approved.
Based upon the recommendation of the staff, the Assistant Secretary
has made a preliminary finding that Curtis-Straus LLC. can meet the
recognition requirements, as prescribed by 29 CFR 1910.7, for the 5
test standards and the facility noted above, with the conditions and
limitation to be applied as noted.
OSHA welcomes public comments, in sufficient detail, as to whether
Curtis-Straus LLC. has met the requirements of 29 CFR 1910.7 for the
expansion of its recognition as a Nationally Recognized Testing
Laboratory. Your comment should consist of pertinent written documents
and exhibits. To consider it, OSHA must receive the comment at the
address provided above (see ADDRESS), no later than the last date for
comments (see DATES above). You may obtain or review copies of the CSL
application, the on-site review report, and all submitted comments, as
received, by contacting the Docket Office, Room N2625, Occupational
Safety and Health Administration, U.S. Department of Labor, at the
above address. You should refer to Docket No. NRTL-1-99, the permanent
record of public information on CSL's recognition.
The NRTL Program staff will review all timely comments and, after
resolution of issues raised by these comments, will recommend whether
to grant the CSL application for recognition. The Assistant Secretary
will make the final decision on granting the recognition and, in making
this decision, may undertake other proceedings prescribed in Appendix A
to 29 CFR 1910.7. OSHA will publish a public notice of this final
decision in the Federal Register.
Signed at Washington, DC, this 3rd day of December, 1999.
Charles N. Jeffress,
Assistant Secretary.
[FR Doc. 99-32195 Filed 12-10-99; 8:45 am]
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