OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov.

August 19, 1982

Mr. J. Dan Shaver
President
Ionizer, S.E.
10 Southern Place Lake
Wylie, South Carolina 29710

Dear Mr. Shaver:

I am responding to your letter addressed to the Assistant Secretary for Occupational Safety and Health, concerning OSHA practices in recognizing electrical testing laboratories, and their impact on electrical product vendors and manufacturers. I apologize for the delay in responding.

Let me assure you that my staff and I clearly recognize the situation your firm may encounter as you begin marketing your new product. Unfortunately, we are unable to provide you with an immediate or easy solution at this time. We can only request your forbearance as we try to resolve the current situation as quickly as possible.

Through its electrical standard, OSHA is trying to provide for a reasonable level of safety protection for workers when they are exposed to, or are using, electrical products and installations. Our standard also states that employer utilization of certain electrical products and materials--those which have been successfully tested against National Electrical Code (NEC) requirements (and which are also being monitored in their production) by nationally recognized testing laboratories-- would be an acceptable means of compliance with our requirements. We believe that this approach greatly facilitates employer compliance with the standard, while protecting the integrity of the NEC and avoiding the problems and costs inherent in workplace testing, both by employers (product acceptance) and by OSHA (compliance inspection). For these reasons, these laboratories are to be nationally recognized by OSHA (under the terms of our regulation at 29 CFR 1907).

However, since OSHA to date has recognized only two of these electrical testing laboratories, and since your new product bears the approval/certification of a non-OSHA-recognized organization, i.e., Canadian Standards Association (CSA), the marketability of your product may be somewhat less than you had anticipated.

While this may be so, it is important to recognize that OSHA does not seek, in any way, to control the manufacture or sale of your product. You and any purchaser (employer) should proceed as you wish in the marketplace. In this situation, however, you can give no assurance, a priori, that an employer using your product will not be cited--after inspection by OSHA--for using unacceptable/unapproved electrical equipment.

In addition, and perhaps more importantly, none of the above should be interpreted to mean that we believe your product is not safe; we simple do not know, one way or the other. Should you decide not to seek a determination by an OSHA- recognized organization, or until such time that CSA would become nationally recognized by OSHA, the acceptability of your product can only be determined by OSHA on the basis of observed workplace operation in the future, combined with a review of the specifications and test results related to your product which you and CSA have developed.

I am asking my Deputy, Bill Higgins, with whom you have already spoken, to contact you to explain this situation further and to pursue these ideas as they relate to your product.

You may be interested to know that, while addressing your questions, my staff and I have also been working on the question of how to change our current regulatory procedures for laboratory recognition. We hope to rejuvenate the previously established recognition process, so that applications from additional organizations, such as CSA, may more easily and quickly be processed. This Agency definitely intends to develop proposals for change which, after policy decisionmaking is completed, will be pursued through regular, public, government rulemaking procedures.

In addition, it is also possible that additional related proposals and actions will develop in the course of resolving a formal legal challenge against our laboratory recognition process in the Federal courts by another non-recognized laboratory.

As both of these activities unfold, we will contact you directly if we see that they would impact favorably upon your current situation.

I hope that a solution to your problem will develop quickly. As we proceed, please feel free to contact us directly if we can be of additional assistance. I am enclosing a copy of a short staff report on laboratory recognition (as it relates to CSA) for your information.

Sincerely,



Barry J. White
Director
Directorate of Safety Standards Programs