OSHA Ignoring Principle of “Equal Treatment” for its NRTL Recognition Program

OSHA Ignoring Principle of “Equal Treatment” for its NRTL Recognition Program

No one disputes that OSHA’s Nationally Recognized Testing Laboratory (NRTL) Recognition Program for assuring the safety of electrical products used in the workplace performs remarkably well.  When compared to our largest trading partner, the NRTL program, which is based on premarket approval and follow-up factory surveillance, cost less, provides greater national coordination and results in a higher level of assurance than the European model which is based on unfunded post market surveillance, leaving enforcement to the diligence to its member and affiliated countries.

In order to be recognized by OSHA as an NRTL, a private sector testing organization must have its  capabilities to test and certify specific types of products for workplace safety assessed by OSHA.  The rules governing the NRTL Recognition Program allow any testing organization, regardless if it’s U.S. or foreign based, to apply for recognition as a NRTL.  Once approved, the NRTL license the use of its NRTL mark to the manufacturer who in turns places the mark on its electrical product or packaging, certifying the manufacturer’s attestation that the product meets the requirements of the specified product safety standard(s).

If regards to foreign-based testing organizations, the NRTL Recognition Program rules requires that a determination be made as to whether the foreign county abides by OSHA’s principle of “equal treatment.”  The principle was put into effect to ensure that there is no discrimination whatsoever of U.S. based testing organizations to participate in the foreign country’s national electrical product assurance program.  Of the 15 testing organizations recognized by OSHA as NRTLs, there are three which are foreign-based organizations…two in Canada and one in Germany.  And as you would expect under the principle of “equal treatment”, Canada has recognized three U.S. based NRTLs.  Germany on the other hand has never recognized a single U.S. based NRTL to participate in its national electrical product safety program, and with recent legislative changes is prohibited for doing so today.

Germany’s electrical product safety program is known as the GS Safety Mark.  The program is based on premarket approval with follow-up factory inspection services, similar to the OSHA NRTL Recognition Program.  A substantive difference is that participation in the GS Safety Mark program expressly prohibits U.S. based NRTLs from participating and any other foreign-based testing organization that resides outside the EU and its affiliated countries.  A recent EU legislative change has exasperated the situation.  EU Regulation 765/2008 addresses requirements for accreditation and market surveillance.  The regulation was approved in 2008 and requires each EU member country to have a single national accreditation body and prohibits those bodies from operating outside their national boundary.  Then in November 2011, Germany revised its Product Safety Act.  The act created the German Safety Mark, known as the GS Mark.  And as you may surmise, the act did not address foreign-based organizations, including U.S. NRTLs, to be recognized as a German certification body.  Zentralstelle Der Länder Für Sicherheitstechnik (ZLS) is the recognized authorizing authority in Germany for authorizing a conformity assessment body to award the GS Mark.  It strict adherence to the Product Safety Act as well as to EU Regulation 765/2008, it has made clear in its guidance document regarding the “Acceptability of Test Reports for EC type testing issued by laboratories located outside EEA” that German law prohibits it from accrediting a foreign-based certification body residing outside of the EU and affiliated countries as a GS Body.

Recently  TÜV SÜD Product Services GmbH (Germany) petitioned OSHA to recognize and additional test facility and certification body located in Germany.  OSHA has assessed the new facility, resulting in the issuance of a Federal Register Notice (OSHA FRDOC 001-0543).  The notice provides the public an opportunity to comment on OSHA’s decision to grant recognition of the new test facility.  Hopefully during this comment period OSHA can be persuaded to reexamine its determination on whether Germany fulfills OSHA requirement for “equal treatment” based on recent legislative changes to Germany’s Product Safety Act.

It should be mentioned that the U.S. National Committee of the IECEE has been meeting with its German counterpart to solicit its help on a related conformity assessment matter regarding the limited acceptance by GS Bodies to accept IECEE CB test reports and certificates and any that are based on manufacturer generated test data.  Specifically, the German National Committee of the IEC was asked to bring U.S. concerns to Germany’s Product Safety Commission which operates under the Federal Ministry of Labour and Social Affairs.  The Product Safety Commission is responsible for establishing the specifications for a GS body to award the GS mark.  The Commission is made up of 21 experts, including the Institute for Standardisation (DIN) which represents Germany at IEC.  Unfortunately the request has fallen on deaf ears.

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