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.

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 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;

* 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]