[Federal Register Volume 65, Number 89 (Monday, May 8, 2000)]
[Notices]
[Pages 26637-26640]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-11442]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

[Docket No. NRTL-1-99]


Curtis-Straus LLC., Recognition as an NRTL

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

ACTION: Notice.

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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

[[Page 26638]]

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

[[Page 26639]]

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

[[Page 26640]]

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.

    Signed at Washington, D.C. this 21st day of April, 2000.
Charles N. Jeffress,
Assistant Secretary.
[FR Doc. 00-11442 Filed 5-5-00; 8:45 am]
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