2011-6856. TUV Rheinland PTL, LLC; Recognition as an NRTL

AGENCY:

Occupational Safety and Health Administration (OSHA), Labor.

ACTION:

Notice.

SUMMARY:

This notice announces the Agency's final decision to grant recognition to TUV Rheinland PTL, LLC, as a Nationally Recognized Testing Laboratory under 29 CFR 1910.7.

DATES:

This recognition becomes effective on March 23, 2011 and will be valid until March 23, 2016, unless terminated or modified prior to that date in accordance with 29 CFR 1910.7.

FOR FURTHER INFORMATION CONTACT:

Office of Technical Programs and Coordination Activities, NRTL Program, Occupational Safety and Health Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-3655, Washington, DC 20210, or phone [phone]. For information about the Nationally Recognized Testing Laboratory Program, go to http://www.osha.gov,, and select “N” in the site index.

SUPPLEMENTARY INFORMATION:

Notice of Final Decision

The Occupational Safety and Health Administration (OSHA) hereby gives notice of its recognition of TUV Rheinland PTL, LLC (TUVPTL) as a Nationally Recognized Testing Laboratory (NRTL). The scope of this recognition includes testing and certification of the equipment and materials, and use of the supplemental program, listed below. OSHA will detail TUVPTL's scope of recognition on an informational Web page for the NRTL, as further explained below.

OSHA recognition of an NRTL signifies that the organization meets the legal requirements specified in 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, employers may use products approved by the NRTL to meet OSHA standards that require product testing and certification.

The Agency processes applications by an NRTL for initial recognition, or for an expansion or renewal of this recognition, following requirements in Appendix A to 29 CFR 1910.7. This appendix requires that the Agency publish two notices in the Federal Register in processing an application. In the first notice, OSHA announces the application and provides its preliminary finding, and, in the second notice, the Agency provides its final decision on the application. These notices set forth the NRTL's scope of recognition, or modifications of that scope. OSHA maintains an informational Web page for each NRTL that details its scope of recognition. These pages are available from OSHA's Web site at http://www.osha.gov/​dts/​otpca/​nrtl/​index.html. Each NRTL's scope of recognition has three elements: (1) The type of products the NRTL may test, with each type specified by its applicable test standard; (2) the recognized site(s) that has/have the technical capability to perform the product testing and certification activities for test standards within the NRTL's scope; and (3) the supplemental program(s) that the NRTL may use, each of which allows the NRTL to rely on other parties to perform activities necessary for product testing and certification.

TUVPTL applied for recognition as an NRTL (See Ex. 2—TUVPTL application dated 7/29/2008) ^[1] pursuant to 29 CFR 1910.7, and OSHA published the required preliminary notice in the Federal Register on November 18, 2010 (75 FR 70692) to announce the application. The notice included a preliminary finding that TUVPTL could meet the requirements for recognition detailed in 29 CFR 1910.7, and invited public comment on the application by December 20, 2010. OSHA received no comments in response to this notice. OSHA now is proceeding with this final notice to grant TUVPTL's recognition application.

All public documents pertaining to the TUVPTL application are available for review by contacting the Docket Office, Occupational Safety and Health Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-2625, Washington, DC 20210. These materials also are available online at http://www.regulations.gov under Docket No. OSHA-2010-0013.

The current address of the laboratory facility (site) that OSHA recognizes for TUVPTL is: TUV Rheinland PTL, 2210 South Roosevelt Street, Tempe, Arizona 85282.

General Background on the Application

According to public information (http://www.tuvptl.com/​tuv-ptl-history.html), TUVPTL states that it is a testing and certification laboratory for photovoltaic products and a leading test organization for photovoltaic technology. Arizona State University (ASU) established the organization in 1992 as the Photovoltaic Testing Laboratory (PTL). The TUVPTL Web site states that the PTL was instrumental in the development of many major standards concerning photovoltaic products. It was part of ASU until becoming an affiliate of TUV Rheinland Group.

TUV Rheinland North America, Inc., (TUVRNA), a currently recognized NRTL, submitted an application, dated July 29, 2008, to expand its recognition to include TUVPTL as a recognized site. (See Ex. 2.) In response to OSHA's request for clarification, TUVRNA amended its application to provide additional technical details, and then provided further details in a later update. (See Ex. 3—TUVPTL amended application dated 5/29/2009.) OSHA's NRTL Program staff performed an on-site assessment of TUVPTL's facility in January 2010. Based on this assessment, TUVPTL revised its application to seek recognition as an NRTL, thus superseding the July 2008 expansion application by TUVRNA. (See Ex. 4—TUVPTL revised application dated 1/29/2010.) This revised application incorporated the bulk of the amended application. The OSHA staff recommended recognition of TUVPTL in their on-site review report of the assessment. (See Ex. 5—OSHA on-site review report on TUVPTL.)

Due to its close affiliation with TUVRNA, the applicant will use many TUVRNA operational and quality-control procedures for operating as an NRTL. For example, TUVPTL's NRTL quality-control system will follow that used by TUVRNA: QP100001—Product Certification Quality Manual (Ex. 3; see document designated QP100001). Through its application information (see Ex. 2), TUVPTL represents that it maintains the experience, expertise, personnel, organization, equipment, and facilities suitable for accreditation as an OSHA NRTL. It also states that it meets, or will meet, the requirements for recognition defined in 29 CFR 1910.7.

This notice discusses the four requirements for recognition (i.e., capability, control procedures, independence, and creditable reports and complaint handling) below, along with examples that illustrate how TUVPTL meets each of these requirements. The applicant's summary addressing OSHA's evaluation criteria (see Detailed Application Information/Evaluation Criteria (DAI/EC) summary documents, Exs. 3 and 4) reference many, but not all, of the documents or processes described below in this notice.

Capability

Section 1910.7(b)(1) states that, for each specified item of equipment or material requiring listing, labeling, or acceptance by an NRTL, the NRTL 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 “Capability” section of the DAI/EC summary document (NA) shows that the applicant has security measures and detailed procedures in place to restrict or control access to its facility, to areas within its facility, and to confidential information. This section also states that TUVPTL's facility has equipment for monitoring, controlling, and recording environmental conditions during tests, and for handling test samples. It states further that the facility has adequate test areas and energy sources, and procedures for controlling incompatible activities. OSHA's on-site review report (Ex. 5, p. 2) confirmed this information concerning the facility, as well as its adequacy. TUVPTL provided a detailed list of its testing equipment (NA), and OSHA's on-site review (Ex. 5, p. 2) confirmed that this equipment is in place and adequate for the scope of testing requested.

The “Capability” section of the DAI/EC summary documents (NA) indicates that TUVPTL has detailed procedures addressing the maintenance and calibration of equipment, as well as the types of records maintained for, or supporting, many laboratory activities. It also indicates that TUVPTL has detailed procedures for conducting testing, review, and evaluation, and for capturing the test data required by the standard for which it seeks recognition. OSHA's on-site review report (Ex. 5, p. 2) notes that TUVPTL currently is using these procedures to test products for other NRTLs. Further, this section indicates that TUVPTL has detailed procedures for processing applications and developing new procedures.

The revised application (Ex. 4) indicates that TUVPTL has the necessary procedures to adequately address training or qualifying staff for particular technical tasks (NA). The revised application and OSHA's on-site review report (Ex. 5, p. 3) indicate that TUVPTL has the qualified personnel to perform the proposed scope of testing based on their education, training, technical knowledge, and experience. The revised application and OSHA's on-site review report (Ex. 5, p. 3) also provide evidence that TUVPTL has an adequate quality-control system in place.

Control Procedures

Section 1910.7(b)(2) requires that the NRTL provide controls and services, to the extent necessary, for the particular equipment or material undergoing listing, labeling, or acceptance. These controls and services include 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 “Control Programs” section of the DAI/EC summary document shows that TUVPTL has the quality-control manual and detailed procedures to address the steps involved in listing and certifying products. TUVPTL will use the certification mark of its affiliate, TUVRNA, which is similar to an arrangement granted by OSHA to two other affiliated NRTLs. (See 67 FR 3737, January 25, 2002.) However, TUVPTL personnel must perform the final technical review, make the certification decision, and authorize the use of the mark. OSHA is imposing this condition as part of TUVPTL's NRTL recognition. In addition, the “Control Programs” section shows that the applicant has certification procedures (NA), and that these procedures address authorization of certifications and audits of factory facilities. The audits apply to both the initial evaluations and the follow-up inspections of manufacturers' facilities. This section indicates that procedures also exist for authorizing the use of the certification mark, and the actions taken when TUVPTL finds that the manufacturer is deviating from the certification requirements. Factory inspections will be a new activity for TUVPTL, and OSHA will need to review the effectiveness of TUVPTL's inspection program when it is in place. As a result, OSHA is imposing a condition as part of TUVPTL's NRTL recognition that ensures that TUVPTL conducts inspections properly, and at the frequency set forth in the applicable NRTL Program policy (see OSHA Instruction CPL 1-0.3, Appendix C, paragraph III.A).

Independence

Section 1910.7(b)(3) requires that the NRTL be completely independent of employers that are subject to the testing requirements, and of any manufacturers or vendors of equipment or materials tested under the NRTL Program. OSHA has a policy for the independence of NRTLs that specifies the criteria used for determining whether an organization meets the above requirement. (See OSHA Instruction CPL 1-0.3, Appendix C, paragraph V.) This policy contains a non-exhaustive list of relationships that would cause an organization to fail to meet the specified criteria.

The “Independence” section of the DAI/EC, and additional information submitted by TUVPTL (Ex. 4, section titled, “Information For Evaluating Compliance”) shows that it has none of these relationships, or any other relationship that could subject it to undue influence when testing for product safety. TUVPTL's major owner is a subsidiary of the parent company of TUVRNA, the NRTL currently recognized by OSHA. OSHA found no information about TUVRNA's ownership that would raise an issue of TUVPTL's non-compliance with the NRTL Program's independence policy.

There are two other owners of TUVPTL, each owning less than 10% of the organization. One owner is an individual, and OSHA found no information showing any affiliation of this individual with manufacturers, vendors, or major users of products requiring NRTL approval. The remaining owner is Arizona Technology Enterprises (AzTE), which has a Web page (http://www.azte.com/​page/​about_​us/​foundation) that states that it “was established in 2003 as a limited liability company whose sole member is the ASU Foundation. The ASU Foundation is an independent non-profit organization that acts as the principal agent through which gifts are made to benefit [ASU].” OSHA found no information to indicate that a manufacturer, vendor, or major user of products requiring NRTL approval, or the major owners of these entities, has an ownership interest in the Foundation or ASU, with ASU being a nonprofit, state-operated educational institution.

According to AzTE's Web page (http://www.azte.com/​page/​for_​industry), “AzTE drives the transfer of discoveries and innovation from ASU's labs to the marketplace through technology partnering and the creation of new technology-based ventures.” AzTE acts as the agent to license these technologies, and takes an equity stake in the companies that commercialize the technology. AzTE's Web page (http://www.azte.com/​page/​portfolio) shows that the vast majority of the technologies licensed in this manner do not involve the types of products for which OSHA requires NRTL approval. Companies may use materials and items developed from a few of these technologies (such as a sensor, electrode, or wafer) in manufacturing these types of products, but OSHA found only one product that AzTE licenses that requires NRTL approval. The entity to which AzTE licensed this product, a bacterial detection system, was Biosense International (Biosense). At the time OSHA published its preliminary notice to announce TUVPTL's application (75 FR 70692), the State of Arizona Corporate Commission, which registered Biosense as a corporation, administratively dissolved Biosense as of June 14, 2010. At the time OSHA prepared this final notice, Biosense is in good standing according to the Commission's Web site. However, OSHA has no information that AzTE's ownership of BioSense would pose any conflicts with OSHA's independence requirement. The remainder of AzTE's equity stakes are minor, thus mitigating the undue influence that such companies could exert on TUVPTL should these companies sell or use products tested by TUVPTL.

To address future business ventures by AzTE, OSHA is imposing conditions on TUVPTL to avoid any situation that could conflict with OSHA's NRTL independence requirement; OSHA will actively monitor TUVPTL's compliance with these conditions.

In summary, the information related to independence demonstrates that TUVPTL meets the independence requirement. Additionally, OSHA is imposing conditions on TUVPTL that will enable OSHA to monitor TUVPTL's compliance with the NRTL independence requirements in the future.

Creditable Reports and Complaint Handling

Section 1910.7(b)(4) specifies that an NRTL must maintain effective procedures for producing credible findings and reports that are objective and free of bias, and for handling complaints and disputes under a fair and reasonable system. The “Report and Complaint Procedures” section of the DAI/EC summary document (NA) shows that the applicant has detailed procedures describing the content of the test reports, and other detailed procedures describing the preparation and approval of these reports. This section also shows that the applicant has procedures for recording, analyzing, and processing complaints from users, manufacturers, and other parties in a fair manner.

Supplemental Programs

OSHA is approving TUVPTL to use the following supplemental program for which it applied:

Program 9: Acceptance of Services Other Than Testing or Evaluation Performed by Subcontractors or Agents (Calibration Services Only)

OSHA is approving TUVPTL to use Program 9 only for calibration services, and added this limitation to the program's description above. The application notice for TUVPTL indicated this limitation, and OSHA is adding it here for clarity. As noted in an earlier Federal Register notice of NRTL recognition (75 FR 222), OSHA will approve a new NRTL to use Program 9 for other services or other supplemental programs only after OSHA determines that the new NRTL tests, evaluates, and performs inspections adequately using its own staff located at its recognized site(s).

Additional Conditions

As noted above, a minor owner of TUVPTL, AzTE, may have an equity stake in companies that use technologies licensed by AzTE. In its present review, OSHA found that AzTE's ownership interest in these companies does not currently result in a conflict with OSHA's NRTL independence requirement; however, the possibility exists that AzTE could, in the future, acquire sufficient ownership in one of these companies to establish such a conflict or potential conflict should any of these companies sell, or become a major user of, the types of products that require NRTL approval. Thus, OSHA is imposing conditions to avoid conflicts or possible conflicts. These conditions are numbered 1 and 2 under the “Conditions” section below.

Additionally, as described above, while TUVPTL has testing, review, and evaluation procedures, OSHA could not review how TUVPTL fully implemented them because TUVPTL was not using them fully for testing and certifying products under the NRTL Program. In addition, as also described above, while TUVPTL has factory-inspection procedures, it currently does not conduct regular factory inspections. In this regard, TUVPTL only recently developed some components of these factory-inspection procedures. Therefore, OSHA will, having granted NRTL recognition to TUVPTL, review the effectiveness of TUVPTL's factory-inspection program, and do so within a reasonable period. Consequently, OSHA is recognizing TUVPTL conditionally for these procedures, i.e., subject to a later determination of the effectiveness with which TUVPTL implements these procedures. In addition, because TUVPTL will use the mark of its affiliate, TUV Rheinland of North America, Inc., OSHA is imposing a condition to ensure that TUVPTL personnel perform the critical steps involved in certification. These conditions are numbered 3 and 4 under the “Conditions” section below.

These conditions apply solely to TUVPTL's operations as an NRTL, and only to those products that it certifies for purposes of enabling employers to meet OSHA product-approval requirements. These conditions are in addition to all other conditions that OSHA normally imposes in its recognition of an organization as an NRTL.

Imposing these conditions is consistent with OSHA's past recognition of several organizations as NRTLs that met the basic recognition requirements, but needed to further refine or implement their procedures (for example, see 63 FR 68306, 12/10/1998, and 65 FR 26637, 05/08/2000). Based on TUVPTL's current activities in testing and certification, OSHA is confident that TUVPTL will conform to the requirements for recognition noted above.

Final Decision and Order

The NRTL Program staff examined TUVPTL's application, the additional submissions, the on-site review report, and other pertinent information. Based on this examination and the analysis, OSHA finds that TUVPTL meets the requirements of 29 CFR 1910.7 for recognition as a Nationally Recognized Testing Laboratory subject to the limitations and conditions listed below. The recognition applies to the site listed above, and the test standard listed below. Pursuant to the authority granted by 29 CFR 1910.7, OSHA hereby grants the recognition of TUVPTL, subject to this limitation and these conditions.

Limitation

OSHA limits the recognition of TUVPTL to testing and certification of products for demonstration of conformance to the following test standard,^[2] which OSHA determines is an appropriate test standard within the meaning of 29 CFR 1910.7(c):

UL 1703 Flat-Plate Photovoltaic Modules and Panels

OSHA limits recognition of any NRTL for a particular test standard to equipment or materials (i.e., products) for which OSHA standards require third-party testing and certification before use in the workplace. Consequently, if a test standard also covers any product for which OSHA does not require such testing and certification, an NRTL's scope of recognition does not include that product.

The American National Standards Institute (ANSI) may approve the test standard listed above as an American National Standard. However, for convenience, we may use the designation of the standards-developing organization for the standard instead of the ANSI designation. Under the NRTL Program's policy (see OSHA Instruction CPL 1-0.3, Appendix C, paragraph XIV), any NRTL recognized for a particular test standard may use either the proprietary version of the test standard or the ANSI version of that standard. Contact ANSI to determine whether a test standard is currently ANSI-approved.

Conditions

TUVPTL also must abide by the following conditions of its NRTL recognition, in addition to those conditions already required by 29 CFR 1910.7:

1. AzTE must comply with the following conditions during the period it has an ownership interest in TUVPTL, or in any company that may subsequently purchase or replace TUVPTL, and understands that failure to comply with these conditions may result in OSHA revoking or imposing limits on TUVPTL's NRTL recognition:

a. Identify the total number of companies in which it has an ownership interest and, of this total, the number in which AzTE's interest in the total ownership of a company is 2% or less, and the number in which this interest in a company exceeds 2%.

b. Provide OSHA, annually and as requested, (i) an updated list of companies in which AzTE's ownership interests in a company exceed 2% of the total ownership of the company, and (ii) for each of these companies, a description of each company's business purpose. AzTE also must state whether any of these companies manufactures, distributes, or sells a type of product shown on OSHA's Web page titled, “Type of Products Requiring NRTL Approval.”

c. Provide OSHA access (e.g., when auditing TUVPTL) to the record(s) or document(s) filed with the applicable legal authority (e.g., the Secretary of State or other state authority) describing AzTE's ownership interest in those companies in which OSHA determines AzTE has an ownership interest exceeding 2% of the total ownership of the company.

d. Provide OSHA, annually and as requested, the names and affiliations of any of its directors who are not directors of the Arizona State University Foundation.

2. TUVPTL must comply with the following conditions while AzTE, or any other entity that manufactures, distributes, or sells a product tested by TUVPTL, or is affiliated with such an entity,^[3] has an ownership interest in TUVPTL:

a. Not test or certify any product under the NRTL Program made, distributed, or sold by a company owned in excess of 2% by AzTE. In addition, before testing or certifying any product for an NRTL client applicant, TUVPTL will follow detailed procedures, reviewed and found acceptable by OSHA, to determine that such a company did not make, distribute, or sell the product.

b. Cease certifications related to the NRTL Program if the following criteria are met: (i) AzTE has more than a 10% ownership interest in a company; (ii) OSHA determines that such a company or one of its subsidiaries, affiliates, or significant owners, makes, distributes, or sells a type of product for which OSHA requires NRTL approval (i.e., one currently shown in OSHA's Web page titled, “Type of Products Requiring NRTL Approval”); and (iii) OSHA determines that the risk of actual or potential undue influence resulting from this ownership is not minor (see Condition 2.c, below). If these criteria are met, and AzTE does not, within 60 days of OSHA's request, take steps to reduce such ownership interests below 10%, OSHA will initiate the process to revoke TUVPTL's NRTL recognition.

c. For purposes of Condition 2.b, above, TUVPTL must provide or make available, at OSHA's request, information required by OSHA to determine whether a risk of actual or potential undue influence is not minor. This information may include, but is not limited to, a financial statement(s) or the annual report of the company owned by AzTE, and, if not included in the document(s) provided, a list of the types of products sold or made by the company, and the overall percentage of the company's total revenue derived from selling these products. If TUVPTL cannot or does not provide or make available this information at OSHA's request, OSHA will be unable to determine whether the risk is minor, and, thus, will commence the process to revoke TUVPTL's NRTL recognition.

d. To provide OSHA, annually and as requested, TUVPTL's overall client list, noting those clients that are NRTL clients and, for each such client, whether it is a company in which AzTE has more than a 10% ownership interest. Each list shall be in an electronic format, and shall include the information specified by OSHA. For example, this information may include the client's name and address; the product name(s) and model number(s); the fees paid during the last calendar year by the client for testing and certifying its product(s); and the percentage of TUVPTL's total revenue derived during the last calendar year from testing and certifying this/these product(s).

3. Within 30 days of certifying its first products under the NRTL Program, TUVPTL will notify the OSHA NRTL Program Director of this activity so that OSHA may schedule its first audit of TUVPTL. At this first audit of TUVPTL, TUVPTL must demonstrate that it properly conducted testing, review, evaluation, and factory inspections; TUVPTL must conduct factory inspections at the frequency set forth in the applicable NRTL Program policy.

4. Only TUVPTL personnel may perform the final technical review, make the final certification decision, and authorize use of the TUV Rheinland of North America, Inc., mark for those products TUVPTL certifies under the NRTL Program;

5. TUVPTL will allow OSHA access to TUVPTL's facilities and records to ascertain continuing compliance with the terms of its NRTL recognition, and to perform such investigations as OSHA deems necessary;

6. If TUVPTL has reason to doubt the efficacy of any test standard it is using under its NRTL recognition, it will promptly inform the test standard-developing organization of this concern, and provide that organization with the appropriate relevant information on which it bases its concern;

7. TUVPTL will not engage in, or permit others to engage in, any misrepresentation of the scope or conditions of its NRTL recognition. As part of this condition, TUVPTL agrees that it will allow no representation that it is either a recognized or an accredited NRTL without clearly indicating the specific equipment or material to which this recognition applies, and also clearly indicating that OSHA limits its NRTL recognition to specific products;

8. TUVPTL will inform OSHA as soon as possible, in writing, of any change of ownership, facilities, or key personnel, and of any major changes in its operations as an NRTL, including details of these changes;

9. TUVPTL will meet all of the terms of its NRTL recognition, and will always comply with all OSHA policies pertaining to this recognition; and

10. TUVPTL will continue to meet the requirements for NRTL recognition in all areas covered by the scope of this recognition.

Authority and Signature

David Michaels, PhD, MPH, Assistant Secretary of Labor for Occupational Safety and Health, 200 Constitution Avenue, NW., Washington, DC 20210, directed the preparation of this notice. Accordingly, the Agency is issuing this notice pursuant to Sections 6(b) and 8(g) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 655 and 657), Secretary of Labor's Order No. 4-2010 (75 FR 55355), and 29 CFR part 1911.

Signed at Washington, DC, on March 18, 2011.

David Michaels,

Assistant Secretary of Labor for Occupational Safety and Health.

Footnotes

1.  A number of documents, or information within documents, described in this Federal Register notice are the applicant's internal, detailed procedures, or contain other confidential business or trade-secret information. These documents and information, designated by an “NA” at the end of, or within, the sentence or paragraph describing them, are not available to the public.

2.  The designation and title of this test standard was current at the time OSHA prepared this notice.

3.  Any condition that applies to AzTE also would apply to such an entity.