TUV Rheinland PTL, LLC; Application for Recognition, 70692-70696 [2010-29127]

Download as PDF 70692 Federal Register / Vol. 75, No. 222 / Thursday, November 18, 2010 / Notices of certification, are eligible to apply for adjustment assistance under Chapter 2 of Title II of the Trade Act of 1974, as amended. Signed in Washington, DC this 10th day of November 2010. Elliott S. Kushner, Certifying Officer, Division of Trade Adjustment Assistance. [FR Doc. 2010–29098 Filed 11–17–10; 8:45 am] BILLING CODE 4510–FN–P DEPARTMENT OF LABOR Occupational Safety and Health Administration [Docket No. OSHA–2010–0013] TUV Rheinland PTL, LLC; Application for Recognition Occupational Safety and Health Administration (OSHA), Labor. ACTION: Notice. AGENCY: This notice announces the application of TUV Rheinland PTL, LLC, for recognition as a Nationally Recognized Testing Laboratory, and presents the Agency’s preliminary finding to grant this recognition. DATES: Submit information or comments, or a request for an extension of the time to comment, on or before December 20, 2010. All submissions must bear a postmark or provide other evidence of the submission date. ADDRESSES: Submit comments by any of the following methods: Electronically: Submit comments electronically at http:// www.regulations.gov, which is the Federal eRulemaking Portal. Follow the instructions online for making electronic submissions. Fax: If submissions, including attachments, are no longer than 10 pages, commenters may fax them to the OSHA Docket Office at (202) 693–1648. Mail, hand delivery, express mail, or messenger or courier service: Submit one copy of the comments to the OSHA Docket Office, Docket No. OSHA–2010– 0013, U.S. Department of Labor, Room N–2625, 200 Constitution Avenue, NW., Washington, DC 20210. Deliveries (hand, express mail, and messenger and courier service) are accepted during the Department of Labor’s and Docket Office’s normal business hours, 8:15 a.m.–4:45 p.m., e.t. Instructions: All submissions must include the Agency name and the OSHA docket number (i.e., OSHA–2010–0013). OSHA will place all submissions, including any personal information provided, in the public docket without revision, and these submissions will be mstockstill on DSKH9S0YB1PROD with NOTICES SUMMARY: VerDate Mar<15>2010 16:56 Nov 17, 2010 Jkt 223001 made available online at http:// www.regulations.gov. Docket: To read or download submissions or other material in the docket (e.g., exhibits listed below), go to http://www.regulations.gov or the OSHA Docket Office at the address above. All documents in the docket are listed in the http://www.regulations.gov index; however, some information (e.g., copyrighted material) is not publicly available to read or download through the Web site. All submissions, including copyrighted material, are available for inspection and copying at the OSHA Docket Office. Extension of comment period: Submit requests for an extension of the comment period on or before December 20, 2010 to the 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 by fax to (202) 693–1644. FOR FURTHER INFORMATION CONTACT: MaryAnn Garrahan, Director, 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; telephone: (202) 693–2110. For information about the Nationally Recognized Testing Laboratory (NRTL) Program, go to http://www.osha.gov, and select ‘‘N’’ in the site index. SUPPLEMENTARY INFORMATION: 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 a 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 can be accessed 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. I. Notice of Application for Recognition The Occupational Safety and Health Administration (OSHA) is providing notice that TUV Rheinland PTL, LLC, (TUVPTL) applied for recognition as a NRTL. (See Ex. 2—TUVPTL recognition application dated 7/29/2008.) 1 The application covers testing and certification of the equipment or materials, and use of the supplemental programs, listed below. OSHA recognition of a 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 II. General Background on the Application In its application, TUVPTL lists the current address of the laboratory facility covered by the application as: TUV Rheinland PTL, 2210 South Roosevelt Street, Tempe, Arizona 85282. According to public information (http://www.tuvptl.com/tuv-ptlhistory.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. 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. PO 00000 Frm 00021 Fmt 4703 Sfmt 4703 E:\FR\FM\18NON1.SGM 18NON1 Federal Register / Vol. 75, No. 222 / Thursday, November 18, 2010 / Notices mstockstill on DSKH9S0YB1PROD with NOTICES (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 onsite assessment of TUVPTL’s facility in January 2010. Based on this assessment, TUVPTL revised its application to seek recognition as a 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 qualitycontrol procedures for operating as a 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 a 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, VerDate Mar<15>2010 16:56 Nov 17, 2010 Jkt 223001 to areas within its facility, and to confidential information. This section states that TUVPTL’s facility has equipment for monitoring, controlling, and recording environmental conditions during tests, and for handling test samples. It also states 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, and 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 for testing 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 onsite 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. PO 00000 Frm 00022 Fmt 4703 Sfmt 4703 70693 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 proposes to impose a condition to this effect. 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 proposing a condition to ensure that inspections are conducted 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 E:\FR\FM\18NON1.SGM 18NON1 mstockstill on DSKH9S0YB1PROD with NOTICES 70694 Federal Register / Vol. 75, No. 222 / Thursday, November 18, 2010 / Notices 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, each owning less than 10% of TUVPTL. One owner is an individual, and OSHA found no information showing any affiliation 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 has 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 non-profit, 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). However, the State of Arizona Corporate Commission, which registered Biosense as a corporation, administratively dissolved Biosense on June 14, 2010, and Biosense remained administratively dissolved as of the date of this notice. 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 VerDate Mar<15>2010 16:56 Nov 17, 2010 Jkt 223001 on TUVPTL to avoid any situation that could conflict with OSHA’s NRTL independence requirement; OSHA would 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 a 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. Standard Requested for Recognition TUVPTL seeks recognition for testing and certifying products to the following test standard: 2 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 2 The designation and title of this test standard was current at the time OSHA prepared this notice. PO 00000 Frm 00023 Fmt 4703 Sfmt 4703 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 ANSIapproved. Supplemental Programs Should OSHA approve this application for NRTL recognition, it also will grant approval for TUVPTL to use the following supplemental program because TUVPTL uses outside parties to perform its equipment calibration and, therefore, must properly qualify these parties for this purpose following the criteria in the program: Program 9: Acceptance of services other than testing or evaluation performed by subcontractors or agents 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 proposes to impose the following conditions to avoid conflicts or possible conflicts: 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 exceeds 2% of the total ownership of the company, and (ii) for each of these companies, a description of its 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, E:\FR\FM\18NON1.SGM 18NON1 mstockstill on DSKH9S0YB1PROD with NOTICES Federal Register / Vol. 75, No. 222 / Thursday, November 18, 2010 / Notices ‘‘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 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 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 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 2c 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% within 60 days, OSHA will initiate the process to revoke TUVPTL’s NRTL recognition. c. For purposes of condition #2b 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 3 Any condition that applies to AzTE also would apply to such an entity. VerDate Mar<15>2010 16:56 Nov 17, 2010 Jkt 223001 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, either annually or upon request, 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). 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 also must review the effectiveness of TUVPTL’s factoryinspection program should OSHA grant NRTL recognition to TUVPTL, and do so within a reasonable period after granting recognition. Consequently, OSHA proposes to recognize TUVPTL conditionally, i.e., subject to a later determination of the effectiveness of these procedures. In addition, because TUVPTL will use the mark of its affiliate, OSHA is imposing a condition to ensure that TUVPTL personnel perform the critical steps involved in certification. Therefore, the following conditions also would apply should OSHA recognize TUVPTL under the NRTL Program: 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, PO 00000 Frm 00024 Fmt 4703 Sfmt 4703 70695 evaluation, and factory inspections, and, for inspections, did so 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 mark for those products TUVPTL certifies under the NRTL Program. OSHA would include all of the conditions proposed above in the final notice should OSHA recognize TUVPTL as an NRTL. These conditions apply solely to TUVPTL’s operations as an NRTL, and solely to those products that it certifies for purposes of enabling employers to meet OSHA productapproval requirements. These conditions would be 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). Given the applicant’s current activities in testing and certification, OSHA is confident that TUVPTL will conform to the requirements for recognition noted above. Preliminary Finding on the Application TUVPTL submitted an acceptable application for recognition as an NRTL. OSHA’s review of the application file, and the results of the on-site review, indicate that TUVPTL can meet the requirements prescribed by 29 CFR 1910.7 for recognition to use the test standard listed above. This preliminary finding does not constitute an interim or temporary approval of the application. TUVPTL corrected the discrepancies noted by OSHA during the on-site review, and the on-site review report describes these corrections (Ex. 5). Following examination of the application file and the on-site review report, the NRTL Program staff concluded that OSHA can grant the applicant recognition as an NRTL for its Tempe, Arizona facility, subject to the conditions described above. The staff, therefore, recommended preliminarily that the Assistant Secretary approve the application. OSHA welcomes public comment as to whether TUVPTL meets the requirements of 29 CFR 1910.7 for recognition as an NRTL. Comments should consist of pertinent written documents and exhibits. Commenters needing more time to comment must E:\FR\FM\18NON1.SGM 18NON1 70696 Federal Register / Vol. 75, No. 222 / Thursday, November 18, 2010 / Notices submit a request in writing, stating the reasons for the request. OSHA must receive the written request for an extension by the due date for comments. OSHA will limit any extension to 30 days unless the requester justifies a longer period. OSHA may deny a request for an extension if it is not adequately justified. To obtain or review copies of the publicly available information in TUVPTL’s application and other pertinent documents (including exhibits), as well as all submitted comments, contact the Docket Office, Room N–2625, Occupational Safety and Health Administration, U.S. Department of Labor, at the above address; these materials also are available online at http:// www.regulations.gov under Docket No. OSHA–2010–0013. The NRTL Program staff will review all comments to the docket submitted in a timely manner, and, after addressing the issues raised by these comments, will recommend whether to grant NRTL recognition to TUVPTL. The Assistant Secretary will make the final decision on granting NRTL recognition, and, in making this decision, may undertake other proceedings prescribed in Appendix A to 29 CFR 1910.7. OSHA will publish a public notice of this final decision in the Federal Register. Authority and Signature David Michaels, Ph.D., 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 this 15th day of November 2010. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health. [FR Doc. 2010–29127 Filed 11–17–10; 8:45 am] BILLING CODE 4510–26–P mstockstill on DSKH9S0YB1PROD with NOTICES DEPARTMENT OF LABOR Occupational Safety and Health Administration [Docket No. OSHA–2010–0046] QPS Evaluation Services Inc.; Application for Recognition Occupational Safety and Health Administration (OSHA), Labor. AGENCY: VerDate Mar<15>2010 16:56 Nov 17, 2010 Jkt 223001 ACTION: Notice. This notice announces the application of QPS Evaluation Services Inc. for recognition as a Nationally Recognized Testing Laboratory, and presents the Agency’s preliminary finding to grant this recognition. DATES: Submit information or comments, or a request for an extension of the time to comment, on or before December 20, 2010. All submissions must bear a postmark or provide other evidence of the submission date. ADDRESSES: Submit comments by any of the following methods: Electronically: Submit comments electronically at http:// www.regulations.gov, which is the Federal eRulemaking Portal. Follow the instructions online for making electronic submissions. Fax: If submissions, including attachments, are no longer than 10 pages, commenters may fax them to the OSHA Docket Office at (202) 693–1648. Mail, hand delivery, express mail, or messenger or courier service: Submit one copy of the comments to the OSHA Docket Office, Docket No. OSHA–2010– 0046, U.S. Department of Labor, Room N–2625, 200 Constitution Avenue, NW., Washington, DC 20210. Deliveries (hand, express mail, and messenger and courier service) are accepted during the Department of Labor’s and Docket Office’s normal business hours, 8:15 a.m.–4:45 p.m., e.t. Instructions: All submissions must include the Agency name and the OSHA docket number (i.e., OSHA–2010–0046). OSHA will place all submissions, including any personal information provided, in the public docket without revision, and these submissions will be made available online at http:// www.regulations.gov. Docket: To read or download submissions or other material in the docket (e.g., exhibits listed below), go to http://www.regulations.gov or the OSHA Docket Office at the address above. All documents in the docket are listed in the http://www.regulations.gov index; however, some information (e.g., copyrighted material) is not publicly available to read or download through the Web site. All submissions, including copyrighted material, are available for inspection and copying at the OSHA Docket Office. Extension of comment period: Submit requests for an extension of the comment period on or before December 20, 2010 to the Office of Technical Programs and Coordination Activities, NRTL Program, Occupational Safety and Health Administration, U.S. Department of Labor, 200 Constitution Avenue, SUMMARY: PO 00000 Frm 00025 Fmt 4703 Sfmt 4703 NW., Room N–3655, Washington, DC 20210, or by fax to (202) 693–1644. FOR FURTHER INFORMATION CONTACT: MaryAnn Garrahan, Director, 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; telephone: (202) 693–2110. For information about the NRTL Program, go to http:// www.osha.gov, and select ‘‘N’’ in the site index. SUPPLEMENTARY INFORMATION: I. Notice of Application for Recognition The Occupational Safety and Health Administration (OSHA) is providing notice that QPS Evaluation Services Inc. (QPS) applied for recognition as a Nationally Recognized Testing Laboratory (NRTL). (See Ex. 2—QPS recognition application dated 1/27/ 2006.) 1 The application covers testing and certification of the equipment or materials, and use of the supplemental programs, listed below. OSHA recognition of a 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 a 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 can be accessed from OSHA’s Web site at 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. E:\FR\FM\18NON1.SGM 18NON1

Agencies

[Federal Register Volume 75, Number 222 (Thursday, November 18, 2010)]
[Notices]
[Pages 70692-70696]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-29127]


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 DEPARTMENT OF LABOR

Occupational Safety and Health Administration

[Docket No. OSHA-2010-0013]


TUV Rheinland PTL, LLC; Application for Recognition

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

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: This notice announces the application of TUV Rheinland PTL, 
LLC, for recognition as a Nationally Recognized Testing Laboratory, and 
presents the Agency's preliminary finding to grant this recognition.

DATES: Submit information or comments, or a request for an extension of 
the time to comment, on or before December 20, 2010. All submissions 
must bear a postmark or provide other evidence of the submission date.

ADDRESSES: Submit comments by any of the following methods:
    Electronically: Submit comments electronically at http://www.regulations.gov, which is the Federal eRulemaking Portal. Follow 
the instructions online for making electronic submissions.
    Fax: If submissions, including attachments, are no longer than 10 
pages, commenters may fax them to the OSHA Docket Office at (202) 693-
1648.
    Mail, hand delivery, express mail, or messenger or courier service: 
Submit one copy of the comments to the OSHA Docket Office, Docket No. 
OSHA-2010-0013, U.S. Department of Labor, Room N-2625, 200 Constitution 
Avenue, NW., Washington, DC 20210. Deliveries (hand, express mail, and 
messenger and courier service) are accepted during the Department of 
Labor's and Docket Office's normal business hours, 8:15 a.m.-4:45 p.m., 
e.t.
    Instructions: All submissions must include the Agency name and the 
OSHA docket number (i.e., OSHA-2010-0013). OSHA will place all 
submissions, including any personal information provided, in the public 
docket without revision, and these submissions will be made available 
online at http://www.regulations.gov.
    Docket: To read or download submissions or other material in the 
docket (e.g., exhibits listed below), go to http://www.regulations.gov 
or the OSHA Docket Office at the address above. All documents in the 
docket are listed in the http://www.regulations.gov index; however, 
some information (e.g., copyrighted material) is not publicly available 
to read or download through the Web site. All submissions, including 
copyrighted material, are available for inspection and copying at the 
OSHA Docket Office.
    Extension of comment period: Submit requests for an extension of 
the comment period on or before December 20, 2010 to the 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 by fax to (202) 693-1644.

FOR FURTHER INFORMATION CONTACT: MaryAnn Garrahan, Director, 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; 
telephone: (202) 693-2110. For information about the Nationally 
Recognized Testing Laboratory (NRTL) Program, go to http://www.osha.gov, and select ``N'' in the site index.

SUPPLEMENTARY INFORMATION:

I. Notice of Application for Recognition

    The Occupational Safety and Health Administration (OSHA) is 
providing notice that TUV Rheinland PTL, LLC, (TUVPTL) applied for 
recognition as a NRTL. (See Ex. 2--TUVPTL recognition application dated 
7/29/2008.) \1\ The application covers testing and certification of the 
equipment or materials, and use of the supplemental programs, listed 
below.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    OSHA recognition of a 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 a 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 can be 
accessed 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.

II. General Background on the Application

    In its application, TUVPTL lists the current address of the 
laboratory facility covered by the application as: TUV Rheinland PTL, 
2210 South Roosevelt Street, Tempe, Arizona 85282. 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.

[[Page 70693]]

(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 a 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 
a 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 a 
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 states that 
TUVPTL's facility has equipment for monitoring, controlling, and 
recording environmental conditions during tests, and for handling test 
samples. It also states 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, and 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 for 
testing 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 
proposes to impose a condition to this effect. 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 
proposing a condition to ensure that inspections are conducted 
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

[[Page 70694]]

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, each owning less than 10% of TUVPTL. 
One owner is an individual, and OSHA found no information showing any 
affiliation 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 has 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 non-profit, 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). 
However, the State of Arizona Corporate Commission, which registered 
Biosense as a corporation, administratively dissolved Biosense on June 
14, 2010, and Biosense remained administratively dissolved as of the 
date of this notice. 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 would 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 a 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.

Standard Requested for Recognition

    TUVPTL seeks recognition for testing and certifying products to the 
following test standard: \2\

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

Supplemental Programs

    Should OSHA approve this application for NRTL recognition, it also 
will grant approval for TUVPTL to use the following supplemental 
program because TUVPTL uses outside parties to perform its equipment 
calibration and, therefore, must properly qualify these parties for 
this purpose following the criteria in the program:

    Program 9: Acceptance of services other than testing or 
evaluation performed by subcontractors or agents

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 proposes to impose the 
following conditions to avoid conflicts or possible conflicts:
    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 exceeds 2% 
of the total ownership of the company, and (ii) for each of these 
companies, a description of its 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,

[[Page 70695]]

``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:
---------------------------------------------------------------------------

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

    a. Not test or certify any product under the NRTL Program made 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 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 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 2c 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% within 60 days, OSHA will initiate the process to 
revoke TUVPTL's NRTL recognition.
    c. For purposes of condition 2b 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, either annually or upon request, 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).
    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 also must review the 
effectiveness of TUVPTL's factory-inspection program should OSHA grant 
NRTL recognition to TUVPTL, and do so within a reasonable period after 
granting recognition. Consequently, OSHA proposes to recognize TUVPTL 
conditionally, i.e., subject to a later determination of the 
effectiveness of these procedures. In addition, because TUVPTL will use 
the mark of its affiliate, OSHA is imposing a condition to ensure that 
TUVPTL personnel perform the critical steps involved in certification. 
Therefore, the following conditions also would apply should OSHA 
recognize TUVPTL under the NRTL Program:
    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, and, 
for inspections, did so 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 mark 
for those products TUVPTL certifies under the NRTL Program.
    OSHA would include all of the conditions proposed above in the 
final notice should OSHA recognize TUVPTL as an NRTL. These conditions 
apply solely to TUVPTL's operations as an NRTL, and solely to those 
products that it certifies for purposes of enabling employers to meet 
OSHA product-approval requirements. These conditions would be 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). Given the applicant's current activities in testing 
and certification, OSHA is confident that TUVPTL will conform to the 
requirements for recognition noted above.

Preliminary Finding on the Application

    TUVPTL submitted an acceptable application for recognition as an 
NRTL. OSHA's review of the application file, and the results of the on-
site review, indicate that TUVPTL can meet the requirements prescribed 
by 29 CFR 1910.7 for recognition to use the test standard listed above. 
This preliminary finding does not constitute an interim or temporary 
approval of the application. TUVPTL corrected the discrepancies noted 
by OSHA during the on-site review, and the on-site review report 
describes these corrections (Ex. 5).
    Following examination of the application file and the on-site 
review report, the NRTL Program staff concluded that OSHA can grant the 
applicant recognition as an NRTL for its Tempe, Arizona facility, 
subject to the conditions described above. The staff, therefore, 
recommended preliminarily that the Assistant Secretary approve the 
application.
    OSHA welcomes public comment as to whether TUVPTL meets the 
requirements of 29 CFR 1910.7 for recognition as an NRTL. Comments 
should consist of pertinent written documents and exhibits. Commenters 
needing more time to comment must

[[Page 70696]]

submit a request in writing, stating the reasons for the request. OSHA 
must receive the written request for an extension by the due date for 
comments. OSHA will limit any extension to 30 days unless the requester 
justifies a longer period. OSHA may deny a request for an extension if 
it is not adequately justified. To obtain or review copies of the 
publicly available information in TUVPTL's application and other 
pertinent documents (including exhibits), as well as all submitted 
comments, contact the Docket Office, Room N-2625, Occupational Safety 
and Health Administration, U.S. Department of Labor, at the above 
address; these materials also are available online at http://www.regulations.gov under Docket No. OSHA-2010-0013.
    The NRTL Program staff will review all comments to the docket 
submitted in a timely manner, and, after addressing the issues raised 
by these comments, will recommend whether to grant NRTL recognition to 
TUVPTL. The Assistant Secretary will make the final decision on 
granting NRTL recognition, and, in making this decision, may undertake 
other proceedings prescribed in Appendix A to 29 CFR 1910.7. OSHA will 
publish a public notice of this final decision in the Federal Register.

Authority and Signature

    David Michaels, Ph.D., 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 this 15th day of November 2010.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 2010-29127 Filed 11-17-10; 8:45 am]
BILLING CODE 4510-26-P