Curtis-Straus LLC., Recognition as an NRTL

AGENCY:

Occupational Safety and Health Administration (OSHA); Labor.

ACTION:

Notice.

SUMMARY:

This notice announces the Agency's final decision on the application of Curtis-Straus LLC. for recognition as a Nationally Recognized Testing Laboratory (NRTL) under 29 CFR 1910.7.

EFFECTIVE DATE:

This recognition becomes effective on May 8, 2000, and will be valid until May 9, 2005, unless terminated or modified prior to that date, in accordance with 29 CFR 1910.7.

FOR FURTHER INFORMATION CONTACT:

Bernard Pasquet, 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, or phone (202) 693-2110.

SUPPLEMENTARY INFORMATION:

Notice of Final Decision

The Occupational Safety and Health Administration (OSHA) hereby gives notice of its recognition of Curtis-Straus LLC. (CSL) as a Nationally Recognized Testing Laboratory (NRTL). This recognition covers testing and certification of the equipment or materials, and covers the site, listed below. The recognition also includes CSL's use of the supplemental programs described below.

OSHA recognition of an NRTL signifies that the organization has met the legal requirements in section 1910.7 of title 29, Code of Federal Regulations (29 CFR 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 its final decision on an application.

CSL applied for recognition as an NRTL, pursuant to 29 CFR 1910.7, and OSHA published the required notice in the Federal Register (64 FR 69552, 12/13/99) to announce the application. The notice included a preliminary finding that CSL could meet the requirements for recognition detailed in 29 CFR 1910.7, and invited public comment on the application by February 11, 2000. OSHA received five comments in response to the notice, all of which expressed support for recognition of the applicant.

You may obtain or review copies of all public documents pertaining to the application by contacting the Docket Office, Occupational Safety and Health Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., Room N2625, Washington, DC 20210. You should refer to Docket No. NRTL-1-99, the permanent record of public information on the CSL recognition.

The address of the testing facility (site) that OSHA recognizes for CSL is: Curtis-Straus LLC., 527 Great Road, Littleton, Massachusetts 01460.

Background on the Applicant and the Application

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 on 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 (see Exhibit 3), the program staff recommended a “positive finding.”

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. The CSL Standard Operating Procedures Manual (SOPM), which is one of the documents withheld from disclosure under FOIA, contain most of the detailed procedures the applicant plans to follow.

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. We also presented this information in the notice of preliminary finding.

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 is recognized. 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 updating, at the time of the on-site review. CSL only recently developed the testing procedures it will use for the test standards listed below.

The application indicates that CSL maintains records on testing equipment, which include information on repair, routine maintenance, and calibrations. It uses outside calibration sources and has developed procedures for internal calibrations of certain equipment. 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 includes a condition in this 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 includes below also will 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 imposes another condition to ensure that CSL will adequately control its mark.

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 with the testing procedures, the evaluation and reporting procedures are new to CSL, and OSHA needs to evaluate them when the applicant uses them for its NRTL operations. Regarding the handling of complaints and disputes, the applicant's SOPM contains the details on how it will handle a complaint it receives from its clients or from the public.

Programs and Procedures

OSHA is granting the request by CSL to use the two (2) 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 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 will always include 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 meets the criteria for use of the following supplemental programs:

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.

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.

Additional Conditions

As described above, OSHA 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 conditionally recognizes 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 which, 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, 3/23/93). 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, 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 and issuing its labels appear to present the opportunity for a manufacturer to 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 may not initially prevent misuse of the mark, and its planned monitoring may not detect instances when misuse has occurred, especially considering that many thousands of products may be affected. Such misuse may have serious consequences for workers who use products that turn out to be unsafe, which CSL, although well intentioned in its procedures, did not effectively detect. As a result, OSHA has included a condition on CSL that it implement, as part of its system for authorization or issuance of the use of its mark on products, an effective method to ensure that only products that 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 continue to be recognized as an NRTL.

Therefore, OSHA has included appropriate conditions below to address these matters. These conditions apply solely to the CSL operations as an NRTL and solely to those products that it certifies for purposes of enabling employers to meet OSHA product approval requirements. The conditions are in addition to the other conditions listed below, which OSHA normally imposes in its recognition of an organization as an NRTL. The NRTL Program staff includes these type of additional conditions on OSHA's informational web page for the NRTL. When the staff determine that a particular condition has been satisfied, not only for CSL but for any NRTL, they will remove the condition from the web page and notify the NRTL accordingly. OSHA has no requirement to publish a public notice to remove conditions it imposes as part of its NRTL recognition activities.

Final Decision and Order

The NRTL Program staff has examined the complete application, the amendments to the application, and other pertinent documents. Based upon this examination and the OSHA staff finding, including the on-site review report (see Exhibit 3), OSHA finds that Curtis-Straus LLC. has met the requirements of 29 CFR 1910.7 for recognition as a Nationally Recognized Testing Laboratory to test and certify certain equipment or materials, subject to the limitations and conditions listed below. Pursuant to the authority in 29 CFR 1910.7, OSHA hereby recognizes Curtis-Straus LLC. as a Nationally Recognized Testing Laboratory, subject to the limitations and conditions listed below.

Limitations

OSHA recognizes CSL for testing and certification of products to demonstrate conformance to the following five (5) test standards, one part of the NRTL's scope of recognition. OSHA's recognition also includes the site and the use of the two supplemental programs, listed above. The Agency's recognition of CSL, or any NRTL, is always limited to equipment or materials (products) for which OSHA standards require third party testing and certification before use in the workplace. As a result, OSHA'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. OSHA has determined that the standards listed below 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 standards were current at the time of the preparation of the notice of the preliminary finding.

Conditions

Curtis-Straus LLC. must also abide by the following conditions of the recognition, in addition to those already required by 29 CFR 1910.7:

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.

As part of its system for 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.

OSHA must be allowed access to CSL's facilities and records for purposes of ascertaining continuing compliance with the terms of its recognition and to investigate as OSHA deems necessary;

If CSL has reason to doubt the efficacy of any test standard it is using under this program, it must 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;

CSL must not engage in or permit others to engage in any misrepresentation of the scope or conditions of its recognition. As part of this condition, CSL agrees that it will allow no representation of its recognition as a Nationally Recognized Testing Laboratory (NRTL) by OSHA without clearly indicating the specific equipment or material to which this recognition is tied, or that its recognition is limited to certain types of products;

CSL must inform OSHA as soon as possible, in writing, of any change of ownership, facilities, or key personnel, and of any major change in its operations as an NRTL, including details;

CSL will continue to meet all the terms of its recognition and will always comply with all OSHA policies pertaining to this recognition;

CSL will continue to meet the requirements for recognition in all areas where it has been recognized; and

CSL will always cooperate with OSHA to assure compliance with the spirit as well as the letter of its recognition and 29 CFR 1910.7.