[Federal Register Volume 66, Number 52 (Friday, March 16, 2001)]
[Notices]
[Pages 15291-15295]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-6565]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

[Docket No. NRTL-1-01]


TUV Product Services GmbH, Application for Recognition

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

ACTION: Notice.

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SUMMARY: This notice announces the application of TUV Product Services 
GmbH 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, or any request for 
extension of the time to comment, must be received no later than April 
16, 2001.

ADDRESSES: Submit written comments concerning this notice to: Docket 
Office, Docket NRTL-1-01, U.S. Department of Labor, Occupational Safety 
and Health Administration, Room N2625, 200 Constitution Avenue, NW., 
Washington, DC 20210; telephone: (202) 693-2350. Commenters may 
transmit written comments of 10 pages or less in length by facsimile to 
(202) 693-1648. Submit request for extensions concerning this notice 
to: Office of Technical Programs and Coordination Activities, NRTL 
Program, Occupational Safety and Health Administration, U.S. Department 
of Labor, Room N3653, 200 Constitution Avenue, NW., Washington, DC 
20210.

FOR FURTHER INFORMATION CONTACT: Bernard Pasquet, Office of Technical 
Programs and Coordination Activities, NRTL Program, Room N3653 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 TUV Product Services GmbH (TUVPSG) has applied for 
recognition as a Nationally Recognized Testing Laboratory (NRTL) for 
testing and certification of the equipment or materials and using the 
site, listed below. TUVPSG has also requested recognition to use 
certain supplemental programs.
    OSHA recognition of an NRTL signifies that the organization has met 
the legal requirements in Sec. 1910.7 of Title 29, Code of Federal 
Regulations (29 CFR part 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, OSHA can accept products ``properly 
certified'' by the NRTL. OSHA processes applications related to an 
NRTL's recognition following requirements in Appendix A to 29 CFR 
1910.7. This appendix requires that the Agency publish this public 
notice of the preliminary finding on an application.
    The current address of the laboratory covered by this application 
is: TUV Product Services GmbH, Ridlerstrasse 65, D-80339, Munich, 
Germany.

Background

    According to the application, TUV Product Services GmbH (TUVPSG) is 
a limited liability company founded under German law in 1988. TUVPSG 
states that it is an ``international organization for testing, 
evaluation, and certification of products and management systems.'' 
Also, the applicant states that it traces its origins to German steam 
boiler inspection associations formed as early as 1866 ``to protect 
workers against injury and to prevent damage to industrial 
installations.'' TUVPSG owns and operates a number of laboratories in 
Germany and in many other countries, including the U.S. However, the 
recognition would only apply to the one location listed above.
    The regulations for the NRTL Program in 29 CFR 1910.7 allow any 
testing organization, whether or not it is US-based, to apply to OSHA 
for recognition as an NRTL. However, in determining eligibility for a 
foreign-based testing organization, such as TUVPSG, the regulations 
require OSHA to take into consideration reciprocal treatment by the 
foreign government of certain US-based testing agencies. Germany is 
part of the European Union (EU), and the US and the EU have signed a 
Mutual Recognition Agreement (MRA) on conformity assessment, which went 
into effect in May 1999. The MRA includes provisions for the reciprocal 
treatment of US-based testing agencies by governments of countries that 
are part of the EU. As a result of the MRA, reciprocity is assumed for 
all countries in the EU, and OSHA does not have to go through a 
country-by-country determination. The MRA does not change any of the 
requirements or processes that OSHA follows under its NRTL Program. For 
more information on the MRA, refer to the U.S. Department of Commerce 
web site.
    In the application, TUVPSG states that it is owned by TUV 
Suddeutschland and TUV Nord, both based in Germany. However, recently 
TUV Suddeutschland (TUVS) became sole owner of TUVPSG. 
Organizationally, the applicant falls within the ``Product Division'' 
of TUVS, one of its three main divisions. TUVS in general provides 
testing and other technical services in a number of areas throughout 
the world.
    TUVPSG submitted an application for recognition, dated August 21, 
1998 (see Exhibit 2-1). OSHA received this application from the 
European Commission (EC) on March 1, 1999, along with applications from 
other organizations located in the EU. The EC submitted the 
applications under the provisions of the Electrical Safety Annex of the 
MRA. However, none of these applications contained sufficient 
information for processing, and OSHA returned them to the Commission in 
April 1999 to obtain the additional information.

[[Page 15292]]

    The Commission resubmitted the application for TUVPSG to OSHA, 
which the Agency received on March 3, 2000 (see Exhibit 2-2). This 
application includes the substantive portion originally submitted and 
is therefore dated August 21, 1998. In the application, TUVPSG 
requested recognition for four test standards, originally specifying 
international test standards but, to meet OSHA requirements, later 
specifying the equivalent US test standards. Some of the documents in 
the application needed translation, which were received on June 5, 
2000. In response to requests from OSHA for clarification and 
additional information, TUVPSG supplemented its application in 
submissions dated August 11 and August 28, 2000 (see Exhibits 2-3 and 
2-4). It also supplemented its application in a submission dated 
November 8, 2000 (see Exhibit 2-5), which included a request for 
recognition of 34 additional test standards, bringing the total 
standards requested for recognition to 38.
    Some documents in the submissions, and parts of the original 
application, have been designated as ``confidential'' by the applicant. 
Generally, the applicant maintains the 4 levels of operational 
documentation mentioned in international quality standards. It 
generally considers its level 3 and 4 documents to be confidential or 
privileged. OSHA has evaluated the applicant's designations and 
believes the documents in question could be withheld from disclosure 
under Exemption 4 of the Freedom of Information Act (FOIA). As a 
result, OSHA has not included these documents in the public docket for 
the application, which we further describe later in this notice.
    Staff of the NRTL Program performed an on-site review (assessment) 
of the Munich, Germany, facility on September 18-22, 2000. In the on-
site review report (see Exhibit 3), the program staff recommended a 
``positive finding.''
    Regarding the merits of the application, the applicant has 
presented detailed documentation that describes how it currently 
performs its testing and certification activities. The policies, 
procedures, work instructions, methods, and other practices described 
in this documentation would be used in its operations as an NRTL. Where 
appropriate, it has supplemented or modified the policies and 
procedures to conform to OSHA's requirements for an NRTL under 29 CFR 
1910.7.
    TUVPSG currently performs a large range of product testing and 
certification activities, primarily testing to European based testing 
standards, such as EN and IEC standards. For example, it currently 
performs testing required under EN 60950, and has provisions for 
addressing national deviations adopted by various countries, including 
those for the US. One of the test standards for which it requests 
recognition is UL 1950, which is equivalent to EN60950 but includes the 
US deviations. TUVPSG performs its testing and certification activities 
primarily to assure compliance of products to requirements under 
directives issued within the European Union. However, it has also 
performed testing to US based test standards, such as UL 1950. As part 
of its current certification activities, it conducts initial and 
follow-up inspections at manufacturers' facilities, one facet of the 
activities that NRTLs recognized by OSHA must perform. It also 
authorizes the use of certification marks, another aspect of the work 
that NRTLs must perform. However, the marks it authorizes are primarily 
necessary for the European marketplace. For purposes of its 
certification under OSHA's NRTL Program, TUVPSG will utilize a US 
registered certification owned by its subsidiary in the US.
    The four recognition requirements of 29 CFR 1910.7 are presented 
below, along with an explanation illustrating how TUVPSG 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 application and on-site review report indicates that TUVPSG 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 for handling test samples. The report 
also indicates that testing and processing procedures are in place, and 
the application describes the program for the development of new 
testing procedures. The applicant submitted 24 specific test methods 
that it currently uses and would utilize for its proposed NRTL testing 
activities. For some of the test standards, it will develop testing 
report formats prior to performing testing and certification of 
products under the specific standard.
    It utilizes outside calibration sources and also has procedures for 
and performs internal calibrations of certain equipment. The 
application indicates that TUVPSG 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 the applicant's 
staff involved with product testing, along with a summary of their 
education and experience. Also, the report indicates that TUVPSG 
personnel have adequate technical knowledge for the work they perform. 
Moreover, the review report describes the applicant's quality assurance 
program, which is explained in more detail in TUVPSG's Quality Manual. 
Finally, the applicant performs internal system and internal technical 
audits of its operations on a regular basis.

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 procedures and related documentation for 
initially qualifying a manufacturer and for performing the required 
follow-up inspections at a manufacturer's facility. In its procedures, 
it identifies criteria it will use to determine the frequency with 
which it will perform these follow-up factory inspections. It has 
adopted the criteria detailed in OSHA policies for NRTLs, which specify 
that NRTLs perform no fewer than four (4) inspections per year at 
certain facilities and no fewer than two (2) inspections per year under 
certain conditions. The factory inspections would be one part of the 
activities that the applicant will utilize in controlling its 
certification mark. In its application, TUVPSG included evidence of the 
application by its American subsidiary for registration of a TUV 
certification mark with the U.S. Patent and Trademark Office (USPTO).
    The applicant has procedures for control and issuance of product 
certifications. According to the review report, it has issued in excess 
of 25,000

[[Page 15293]]

certifications under its procedures that control product certification. 
The applicant maintains a detailed database of the product 
certifications, which would serve as its listing record. The report 
also states that the applicant has experience in authorizing and 
controlling the use of a certification mark, following many of the 
procedures and methods it uses for control of its certification 
certificates. For purposes of OSHA's NRTL Program, control by the NRTL 
of its certification mark is uppermost in importance. TUVPSG's control 
of a US registered certification mark under the NRTL Program will be a 
new activity for the applicant, and OSHA proposes to include a 
condition related to this control.

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.
    As previously stated, TUV Suddeutschland (TUVS) is currently the 
sole owner of TUVPSG. In addition, application and other information 
reviewed by OSHA has not revealed that TUVPSG has the kinds of 
relationships described in OSHA policy that would cause the applicant 
to fail to meet the independence requirement. Based on this 
information, TUVPSG does not own or control and is not owned or 
controlled by the kind of entities of concern to OSHA. In addition, 
information on business activities and subsidiaries of the TUVPSG's 
parent company has not revealed any apparent conflicts of interest that 
could adversely influence the applicant's testing and certification 
activities. TUVPSG has an employment contract that control conflicts of 
interest.

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.
    The applicant utilizes standardized formats for recording and 
reporting testing data and inspection data. It has procedures for 
evaluating and reporting the findings for testing and inspection 
activities to check conformance to all requirements of a test standard. 
The applicant included examples of completed inspection forms.
    Regarding the handling of complaints and disputes, the applicant's 
complaint management procedure provides the framework to handle 
complaints it receives from its clients or from the public or other 
interested parties. According to the review report, under one 
certification system operated by the applicant, it must respond to an 
initial complaint within 24 hours. OSHA has no such requirements for 
NRTLs, but the review report indicates that the applicant will utilize 
its current form of system controls and documentation to handle 
complaints stemming from its NRTL certification activities.

Standards

    TUVPSG seeks recognition for testing and certification of products 
to determine compliance with the following 38 test standards, and OSHA 
has determined the standards are ``appropriate,'' within the meaning of 
29 CFR 1910.7(c). OSHA recognition of any NRTL for a particular test 
standard is limited to equipment or materials (i.e., products) for 
which OSHA standards require third party testing and certification 
before use in the workplace. As a result, the Agency's recognition of 
an NRTL for a test standard excludes any product(s), falling within the 
scope of the test standard, for which OSHA has no such requirements.

UL 82  Electric Gardening Appliances
UL 122  Photographic Equipment
UL 507  Electric Fans
UL 508  Industrial Control Equipment
UL 561  Floor Finishing Machines
UL 745-1  Portable Electric Tools
UL 745-2-1  Particular Requirements of Drills
UL 745-2-2  Particular Requirements for Screwdrivers and Impact 
Wrenches
UL 745-2-3  Particular Requirements for Grinders, Polishers, and Disk-
Type Sanders
UL 745-2-4  Particular Requirements for Sanders
UL 745-2-5  Particular Requirements for Circular Saws and Circular 
Knives
UL 745-2-6  Particular Requirements for Hammers
UL 745-2-8  Particular Requirements for Shears and Nibblers
UL 745-2-9  Particular Requirements for Tappers
UL 745-2-11  Particular Requirements for Reciprocating Saws
UL 745-2-12  Particular Requirements for Concrete Vibrators
UL 745-2-14  Particular Requirements for Planers
UL 745-2-17  Particular Requirements for Routers and Trimmers
UL 745-2-30  Particular Requirements for Staplers
UL 745-2-31  Particular Requirements for Diamond Core Drills
UL 745-2-32  Particular Requirements for Magnetic Drill Presses
UL 745-2-33  Particular Requirements for Portable Bandsaws
UL 745-2-34  Particular Requirements for Strapping Tools
UL 745-2-35  Particular Requirements for Drain Cleaners
UL 745-2-36  Particular Requirements for Hand Motor Tools
UL 745-2-37  Particular Requirements for Plate Jointers
UL 775  Graphic Arts Equipment
UL 778  Motor-Operated Water Pumps
UL 987  Stationary and Fixed Electric Tools
UL 1017  Vacuum Cleaners, Blower Cleaners, and Household Floor 
Finishing Machines
UL 1419  Professional Video and Audio Equipment
UL 1459  Telephone Equipment
UL 1585  Class 2 and Class 3 Transformers
UL 1776  High-Pressure Cleaning Machines
UL 1950  Technology Equipment Including Electrical Business Equipment
UL 3101-1  Electrical Equipment for Laboratory Use; Part 1: General 
Requirements
UL 3111-1  Electrical Measuring and Test Equipment, Part 1: General 
Requirements
UL 6500  Audio/Video and Musical Instrument Apparatus for Household, 
Commercial, and Similar General Use

    The designations and titles of the above test standards were 
current at the time of the preparation of this notice.
    Many of the Underwriters Laboratories (UL) test standards listed 
above are approved as American National Standards by the American 
National Standards Institute (ANSI). However, for convenience in 
compiling the list, we show the designation of the standards developing 
organization (e.g., UL 22) for the standard, as opposed to the ANSI 
designation (e.g., ANSI/UL 22). Under our procedures, an NRTL 
recognized for an ANSI approved test standard may use either the latest 
proprietary version of the test standard or the latest ANSI version of 
that standard, regardless of whether it is currently recognized for the 
proprietary or ANSI version. Contact ANSI or the ANSI web site to find 
out whether or not a standard is currently ANSI approved.

Programs and Procedures

    TUV Product Services GmbH 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).

[[Page 15294]]

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 TUVPSG 
appears to meet the criteria for use of the following supplemental 
programs for which it has applied:
    Program 2: Acceptance of testing data from independent 
organizations, other than NRTLs.
    Program 3: Acceptance of product evaluations from independent 
organizations, other than NRTLs.
    Program 4: Acceptance of witnessed testing data.
    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.
    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.
    TUVPSG also sought recognition for the three remaining supplemental 
programs, but OSHA is not granting recognition for these programs at 
this time. Under these programs, an NRTL may use manufacturer's data in 
performing the testing and evaluation activities required for a test 
standard. However, as noted in the review report, the manufacturers for 
which TUVPSG performs testing could lack sufficient familiarity with 
testing to the US deviations. As stated in the report, TUVPSG may 
reapply for the 3 programs ``in a few years when (the) manufacturers 
have participated in the witness testing program'' and it is familiar 
with their ``testing capability and confidence in their ability to test 
to US deviations, with respect to products destined for the US 
marketplace.''

Conditions

    As already indicated, TUVPSG plans to utilize the proprietary US 
registered mark of its US subsidiary in certifying products as an NRTL. 
This is a new undertaking for the applicant and although it has 
procedures for controlling a certification mark, it still needs to 
further develop and refine the detailed procedures it will use to 
control this particular mark. As a result, OSHA would conditionally 
recognize TUVPSG subject to an assessment of the detailed procedures 
and practices for controlling this mark once they are in place.
    The US registered mark is the only one that OSHA would recognize 
for TUVPSG. In addition, only the site listed in this notice will be 
able to authorize use of this mark. Since this mark is specific to the 
NRTL Program, the US subsidiary may not authorize its use unless it 
were to be recognized as an NRTL. Similarly, none of the other TUVPSG 
laboratories or locations may authorize the use of this mark. To ensure 
the applicant and the public understand this fact, OSHA plans to impose 
a condition to this effect.
    As also noted, the applicant has just adopted procedures concerning 
the criteria for determining the frequency at which it will conduct 
factory follow-up inspections. Here too it needs more detailed 
procedures to effectively and properly implement the criteria. OSHA 
would have to review TUVPSG's approach in implementing the criteria for 
the twice per year inspections before it begins to conduct inspections 
at this frequency. As a result, OSHA would conditionally recognize 
TUVPSG subject to an assessment of the details of this approach once it 
is in place.
    Imposing the proposed conditions is consistent with OSHA's past 
recognition of certain organizations as NRTLs, which met the basic 
requirements but needed to further develop or refine their procedures 
(for example, see 63 FR 68306 12/10/1998; and 65 FR 26637, 05/08/2000). 
Given the applicant's current breadth of activities in testing and 
certification, OSHA is confident that TUVPSG would develop and 
implement procedures and practices to appropriately perform the 
activities in the areas noted above.
    Therefore, OSHA would impose the following conditions in the final 
notice to officially recognize TUVPSG as an NRTL. These conditions 
apply solely to TUVPSG'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, TUVPSG will notify the OSHA NRTL Program Director so that OSHA 
may review TUVPSG's implementation of its procedures for controlling 
the US registered certification mark of its US subsidiary, TUV Product 
Services, Inc., based in Danvers, Massachusetts.
    2. Only TUV Product Services GmbH (TUVPSG) may authorize the US 
registered certification mark currently owned by its US subsidiary, TUV 
Product Services, Inc., based in Danvers, Massachusetts. TUVPSG may 
authorize the use of this mark only at the facility recognized by OSHA.
    3. Prior to conducting inspections of manufacturing facilities 
based on a frequency of twice per year, OSHA must review and accept the 
detailed procedures that TUVPSG will utilize to determine when to use 
this frequency for such inspections.

Preliminary Finding

    TUV Product Services GmbH (TUVPSG) 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 
TUVPSG's Munich, Germany, facility and investigated the processes, 
procedures, practices, and general operations used by the laboratory. 
Discrepancies noted by the review staff were addressed by TUVPSG 
following the on-site review, 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 Munich, Germany, facility and for the 38 test 
standards identified above, subject to the conditions described 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 TUV Product Services GmbH can meet 
the recognition requirements, as prescribed by 29 CFR 1910.7, for the 
38 test standards and the facility noted above, with the conditions to 
be applied as noted.
    OSHA welcomes public comments, in sufficient detail, as to whether 
TUV Product Services GmbH has met the

[[Page 15295]]

requirements of 29 CFR 1910.7 for 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 ADDRESSES) no later than the 
last date for comments (see DATES above). Should you need more time to 
comment, OSHA must receive your written request for extension at the 
address provided above (also see ADDRESSES) no later than the last date 
for comments (also see DATES above). You must include your reason(s) 
for any request for extension. OSHA will limit an extension to 30 days, 
unless the requester justifies a longer period. We may deny a request 
for extension if it is frivolous or otherwise unwarranted You may 
obtain or review copies of TUVPSG's application, the additional 
submissions, 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-1-01, the permanent 
record of public information on TUVPSG's recognition application.
    The NRTL Program staff will review all timely comments and, after 
resolution of issues raised by these comments, will recommend whether 
to grant TUVPSG's application for recognition. The Assistant Secretary 
will make the final decision on granting the recognition, and in making 
this decision, may undertake other proceedings that are 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 2d day of March, 2001.
R. Davis Layne,
Acting Assistant Secretary.
[FR Doc. 01-6565 Filed 3-15-01; 8:45 am]
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