DEPARTMENT OF LABOR

Occupational Safety and Health Administration

[Docket No. NRTL-2-98]

NSF International, 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 NSF International for recognition as a Nationally Recognized Testing Laboratory (NRTL) under 29 CFR 1910.7.

EFFECTIVE DATE: This recognition becomes effective on December 10, 1998 and will be valid until December 10, 2003, 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 Application

The Occupational Safety and Health Administration (OSHA) hereby gives notice of its recognition of NSF International (NSF) as a Nationally Recognized Testing Laboratory (NRTL), for testing and certification of the equipment or materials, and use of the site and the supplemental programs, listed below. OSHA recognizes an organization as an NRTL, and processes applications related to such recognitions, following requirements in Section 1910.7 of Title 29, Code of Federal Regulations (29 CFR 1910.7). Appendix A to this section requires that OSHA publish this public notice of its final decision on an application.

NSF applied for recognition as an NRTL, pursuant to 29 CFR 1910.7, and OSHA published the required notice in the Federal Register (63 FR 46082, 8/28/98) to announce the application. The notice included a preliminary finding that NSF could meet the requirements for recognition detailed in 29 CFR 1910.7, and invited public comment on the application by October 27, 1998. OSHA received no comments concerning this application for recognition.

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-2-98, the permanent record of public information on the NSF recognition.

The address of the testing facility (site) that OSHA recognizes for NSF is: NSF International, 3475 Plymouth Road, Ann Arbor, Michigan 48105.

Background on the Applicant and the Application

According to its application, NSF International (NSF) has its headquarters in Ann Arbor, Michigan, and was incorporated in that state in 1990. The applicant asserts it has been a not-for-profit developer of test standards and a third party certifier for more than fifty years. The Bylaws of NSF state that it "shall be operated exclusively for charitable, educational, and scientific purposes and for the purpose of testing for public safety . . . as a nonprofit corporation." The Bylaws and other documentation submitted by NSF indicate that NSF develops "third-party consensus standards" covering the areas of safety, health, sanitation, and environment. The application documents that NSF currently engages in conformity assessment activities connected with several certification programs that it operates in those areas.

NSF submitted an application for recognition, dated July 6, 1997 (see Exhibit 2A), and later submitted three amendments. On July 29, 1997, NSF amended its application to add two additional test standards to the proposed scope of recognition (see Exhibit 2B). On December 9 and 16, 1997, NSF amended its application to replace one test standard it previously requested and to request recognition to use certain supplemental programs (see Exhibits 2C and 2D). Under these programs, an NRTL may use outside parties to perform some of the activities involved in testing and certification of products.

The applicant submitted several documents in support of its application. These documents include its Corporate Quality Assurance Manual (CQAM) and its Laboratories Quality Assurance Manual (LQAM). The CQAM describes the overall quality system used at NSF, and includes an explanation and reference to the Standard Operating Procedures (SOPs), which "detail the actions necessary to accomplish a particular task." The LQAM provides detailed policies, processes, and steps for the activities performed by NSF's laboratories. The LQAM also references the more specific SOPs. The CQAM and LQAM provide part of the overall framework that will govern many of the activities NSF would have to perform as an NRTL. NSF also submitted an example of an application and contract for its certification services, and the detailed Certification Policies that form part of this contract (see Exhibit 2E). These items are applicable to all products certified by NSF, and will be applicable to the certification of products for electrical safety.

The requirements for recognition are presented below, along with examples that illustrate how NSF has met 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 LQAM provides overall descriptions of NSF's laboratories, and details facilities and equipment available in each of these laboratories. According to the application, NSF has security measures in place to restrict or control access to its facility, to sections within its facility, and to confidential information. The LQAM contains a listing or references to listings of equipment available for each laboratory. It also addresses the maintenance program for equipment, the calibration procedures and frequency, and the types of records maintained for or supportive of many laboratory activities. NSF addresses testing, sample handling, sampling, and test methods in its CQAM or its LQAM. It also has documented the specific equipment it plans to use for testing to the standards it has requested for recognition.

In addition, NSF has submitted for OSHA review samples of the test and evaluation procedures it plans to use. However, the test standard information that NSF provided in its application indicates many test procedures it plans to use are not yet in place. As a result, OSHA has not performed an actual evaluation of the specific testing, evaluation and reporting methods that NSF will utilize in certifying to any of the requested test standards. OSHA needs to investigate how these methods will work when NSF implements them.

The CQAM and LQAM cover personnel qualifications and training; other materials identify NSF staff that will be involved with the NRTL operations, along with a summary of their education and experience. According to OSHA's on-site review report, NSF has sufficient personnel with education, training, technical knowledge, and experience to undertake the functions needed as an NRTL. Also, the report indicates NSF's quality control, partially embodied in the CQAM and LQAM, is adequate.

Control Programs

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 CQAM addresses the conformity assessment operations of NSF, including the steps involved in the listing and certification of products. NSF has submitted documentation showing it has a registered certification mark. In addition, the NSF's certification policies provide further details regarding the authorization of certifications, and audits of facilities. The audits apply to both the initial assessment and the follow-up inspection of manufacturers' facilities. NSF provided further details regarding the procedures for authorizing the use of the NSF mark, and the listings that NSF issues or revises in connection with its current certification programs.

According to the on-site review report, NSF will perform follow-up inspections at manufacturing sites four times a year. The certification policies, and corresponding detailed procedures, contain many elements that NSF will adapt for use in its NRTL operations. NSF has not yet certified or listed any products for which it requests recognition, and the follow-up inspection program it will use as an NRTL is a new program for NSF. Therefore, OSHA will need to evaluate this new program, and the actual certification and listing procedures when NSF uses them for its NRTL operations.

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 mentioned, NSF's Bylaws indicate it is a "nonprofit corporation." The Bylaws also state that NSF is a "nonstock, directorship basis" corporation and that "the Board of Directors shall establish policies and oversee management of the Corporation," and "elect Directors [and] . . . officers." In addition, the "Conflicts of Interest" section of the Bylaws contains self- disclosure and disqualification requirements for directors and officers in matters involving contracts and transactions in which they are "interested."

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 LQAM references the test data sheets and other documents used to record test data, and indicates that results from tests are recorded in an information management system. The information in this system is then used to generate preliminary test reports that NSF personnel review and check before completing them. Specific referenced procedures are used for the direct measurement of data, and for the review and authorization of preliminary and final test reports. As for the handling of complaints and disputes, the CQAM and LQAM describe aspects of the NSF customer feedback systems, and contain references to the specific procedures that apply. In addition, the certification policies specifically address customer complaints, which could apply either to a user or a manufacturer of the products NSF certifies.

Supplemental Programs

NSF applied for recognition to use three (3) supplemental programs, based upon the criteria first detailed in the March 9, 1995 Federal Register notice (60 FR 12980). 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 automatically 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 NSF appears to meet the requirements for use of the supplemental programs for which it has applied.

Additional Condition

As described above, OSHA has concerns about NSF because it has not had the opportunity to evaluate the actual testing and reporting procedures, and use of the follow-up program, since NSF has not yet implemented them. OSHA will therefore need to evaluate NSF when it implements the detailed procedures and practices it plans to use to test and certify products as an NRTL, and will conditionally recognize NSF subject to a later assessment of the process once it is in place.

Therefore, OSHA has included an appropriate condition below to address its concerns. This condition applies solely to the NSF operations as an NRTL, and is in addition to the other conditions listed below, which OSHA normally imposes in its recognition of an organization as an NRTL.

Final Decision and Order

The NRTL Program staff has examined the complete application, the amendments to the application, the supporting documentation, and the OSHA staff finding including the on-site review report, dated December 22, 1997 (see Exhibit 3). Based upon this examination, OSHA finds that NSF International has met the requirements of 29 CFR 1910.7 to be recognized 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, NSF International 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 (products) for which OSHA standards require third party testing and certification before use in the workplace. OSHA's recognition is further limited to the site listed above, and to the use of the following 3 test standards for the testing and certification of products included within the scope of these standards. OSHA has determined these standards are appropriate, within the meaning of 29 CFR 1910.7(c).

ANSI/UL 197 Commercial Electric Cooking Appliances

ANSI/UL 471 Commercial Refrigerators and Freezers

ANSI/UL 921 Commercial Electric Dishwashers

The designations and titles of the above standards were current at the time of the preparation of the notice of the preliminary finding.

This recognition is also limited to the use of the following 3 supplemental programs. Recognition of these programs is contingent on continued adherence to the criteria for their use.

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

Conditions

NSF International 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, NSF will notify the OSHA NRTL Program Director so that OSHA may review NSF's implementation of procedures for testing and follow-up inspections of products covered within the scope of the above-listed test standards;

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

If NSF has reason to doubt the efficacy of any test standard it is using under this program, it must promptly inform the test standard developing organization of this fact and provide that organization with appropriate relevant information upon which its concerns are based;

NSF 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, NSF agrees that it will allow no representation that it is either a recognized or an 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;

NSF must inform OSHA as soon as possible, in writing, of any change of ownership or key personnel, including details;

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

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

NSF 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, DC this 2nd day of December, 1998.

Charles N. Jeffress,
Assistant Secretary.

[FR Doc. 98-32878 Filed 12-9-98; 8:45 am]

BILLING CODE 4510-26-P

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