现行NRTL体系的由来
本帖最后由 chenlf 于 2012-1-30 22:51 编辑拜读了Fasten的“电器类产品美国安全认证（NRTL）的法律依据概述”（参见：http://bbs.angui.org/thread-90219-1-1.html），想起了2000年左右，当时听TUV-R北美同事介绍NRTL时，提到了OSHA因为几场官司而变更NRTL体系的故事，由此几大机构可以在NRTL的体系下，开展原来基本上由UL垄断的电气产品安全认证（虽然严格地说，其有效性限于工作场所workplace）。但由于种种原因，一直无法看到其详细介绍。承蒙好友阿关发来了《ComplianceEngineering》上一篇介绍的复印件，终于比较清晰地了解了相关的历史渊源，可惜该期刊已经停刊，网上没有相应的电子版，阅读比较困难；春节期间爬了一下网，找到了比较清晰的PDF版，可惜仍然是扫描版。于是借助OCR软件，将其整理如本帖的文本，方便诸君分享。
原文由作者GlenDash，发表在专业期刊《Compliance Engineering》1995年SEP/OCT期，可以从作者网站下载。（http://glendash.com）
免责申明:1．推荐此文，只是为了让大家更好地了解现行NRTL体系的由来，无意推荐、谴责或褒贬任何机构。2．所添加的注解只是为了方便英文不熟练的网友阅读方便，并非原文的构成，也无意成为文章的解读。此外，原文文笔流畅，写作手法娴熟（苦了翻译软件;-））；故事娓娓道来，颇具可读性，但作者作为当事一方，个别用词可能存在强烈的感情色彩；原文中的个别比喻可能会令一些敏感的穆斯林感到不安，敬请留意。
第一部分：背景介绍
讲述NRTL设立之初，OSHA的政府法规如何造成UL和FM的市场垄断地位（红色部分），以及其他政府部门对此的批评。原文标题中的Lenny应当是LenFrier先生的昵称，可能也暗指美国一个比较著名的卡通小狮子，Goliath是圣经中被打败的巨人，暗指LenFrier所面临的对手（你知道的）。（通常，比喻以小胜大，常见比喻是David& Goliath）其他单词：Exodus:n. 逃离；(圣经)出埃及Agency:n. 指政府机构
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Lenny and Goliath: A Modern Fable
作者：GlenDash
The potential for competition has come to product safety,says MET’s Len Frier. It took only three lawsuits, two court orders, and 25years.
In the beginning there was Underwriters Laboratories,and not much else.
Today, an exodus from that era may have begun.More than 10 laboratories can now claim the mantle "Nationally Recognized TestingLaboratory," having been authorized by the federal government to certifyat least some electrical products for use in the nation's workplaces.Underwriters Laboratories remains the industry's giant, holding at least 80% ofthe market for "listings" (that is, certifications) of electricalappliances and utilization equipment, and well over 90% of the market forcomponents. Nonetheless, applicants for certification now enjoy advantages theyhave rarely seen before: they can get quotes from multiple certificationvendors, costs have come down, and lead times have dramatically improved.
All this is thanks in part to product safety'smost enduring iconoclast, MET of Baltimore, Md., and its champion, LeonardFrier. The now 60-year-old Frier had not even graduated from high school whenhe started as an electrician's helper at the age of 16. Self-educated, hebecame a registered Professional Engineer and founded MET in October 1959. The companyhad one employee: Leonard Frier. Frier went to work "field-testing"electrical power equipment, mostly at the behest of the state of Maryland.
The 1970s: OSHA Requires Approval of Electrical Equipment
In 1970 Frier decided to move into the businessof certification, where he would have to compete with Underwriters Laboratories. But it was tough going even to get started.
That same year, Congress had created theOccupational Safety and Health Administration (OSHA) to "assure so far aspossible even working man and woman in the nation safe and healthful workingconditions." Assuming jurisdiction over the nation's workplaces fromstates and localities, the new agency claimed a vast constituency, as a"workplace" was deemed to exist virtually wherever there was an employer/employeerelationship. Soon after its creation, OSHA published its regulation 1910.308(d), which providedthat electrical equipment would be held acceptable "if it is accepted orcertified, or listed, or labelled or otherwise determined to be safe, by aNationally Recognized Testing Laboratory, such as, but not limited to,Underwriters Laboratories Inc. and Factory Mutual Corporation."MET thus had the burden of proving that it was an entity "such as" UL,though as Frier and others pointed out, OSHA had provided no means by which itcould do so.
In 1973, OSHA published its regulation 1907,specifying a method by which organizations such as MET could become NationallyRecognized Testing Laboratories. But before MET could get OSHA to act on itsrequest, the agency reversed itself and called for 1907's revocation: it hadreceived more than 130 comments on the regulation, many of them critical. Anadvisory committee was to be formed to consider drafting new rules, but none wasever appointed.
OSHA's failure to act didn't sit well withanother arm of the federal government. In 1976 the Federal Trade Commissioncomplained about the situation to Morton Corn, then OSHA’s man in charge. Cornresponded be saving that "clearly, OSHA has no interest in limitingcompetition." He closed his letter by stating that OSHA was committed tomaking a careful and thorough study of the problem.
A year went by with no further action on OSHA'spart. The FTC complained again, this time to Eula Bingham, the agency's newchief. Referring to the fact that only UnderwritersLaboratories and Factory Mutual were authorized to certify electrical equipment foruse in the nation's workplaces, the FTC insisted, "some action to open themarket to all competent testing laboratories ... should be takenimmediately." Bingham wrote back to assure the Commission that an"equitable solution can be reached in a matter of months." But stillnothing happened, nor would it for five more years.
本帖最后由 chenlf 于 2012-1-30 22:18 编辑
第二部分：MET与OSHA第一场诉讼和解的结果，是OSHA答应修订相应的法规。
1982: A Suit and a Settlement
In 1982 MET sued, and OSHA settled. In asettlement agreement dated April 22, 1983, OSHA stated that it "believesthat it is necessary to eliminate the anti-competitive effects unintentionallycreated by references ... to UL and FM and by the agency's failure to implement... 1907." Further, OSHA professed itself to be "greatly concernedabout the special status given to UL and FM." To remedy the situation, the agency agreed to developa rule deleting the terms "UL" and "FM" wherever they appearedin applicable regulations and to "create a workable procedure for thedesignation of enterprises whose approval of products will be acceptable byOSHA." A schedule drawn up aspan of the settlement called for the Final rule to be published by March 9, 1984.OSHA agreed that once published, the rule would be “expeditiously implementedby OSHA without unreasonable delay.”
OSHA then began the complex process of creatingnew regulations. In January 1984 it published a "regulatory analysis"in which it admitted that 1907 had not been implemented in part because itwould have cost OSHA too much. UL and FM had also been given a special status,and that was wrong. “Requiring that certain equipment be tested certifiedby ‘a Nationally Recognized Testing Laboratory' such as Underwriters Laboratories, Factory Mutual ResearchCorporation." OSHA conceded, had "effectively established anOSHA-sponsored equipment testing duopoly for UL and FM. In fact, this duopolymay be a monopoly because some of the equipment is tested by only one of thesetwo labs."
From that time until mid-1984 all seemed toproceed smoothly. Then, inexplicably, everything stopped. March 9, 1984, thedate on which OSHA had promised to have new regulations in place, came and wentwith no further activity.
本帖最后由 chenlf 于 2012-1-30 22:38 编辑
第三部分：由于OSHA没有如约按期修改法规，引发MET与OSHA第二场诉讼。根据法庭令，OSHA修改了相应法规，但是新的法规对新申请机构设置了许多限制，而赋予UL和FM特权直至1993年；MET如愿获得NRTL认可，从一人公司变成了拥有25名员工的公司。
本部分比较有趣的有两个地方：第一，是OSHA辩护律师的辩护理由，如解释OSHA的爽约是因为有其他更重要的事务要处理；采取以退为进的方法力图使法庭取消对OSHA的时间限制。文中Mr.Bernstein: “I’m sorry, Judge?”不是道歉，而是说“不好意思，您说啥？”（意译）。第二，概括了UL取得市场垄断的3大要素：1．历史原因，源于技术积累和历史缘由。2. 政府关系。3. 代理模式。通过代理评级方式(虽然与当时NRTL规定不一致)，锁定代理机构，通过它们来推广UL。
1987: MET's Day in Court
MET filed suit for the second time in 1987. Thegovernment moved to dismiss the suit and wound up in front of an angry JudgeJoseph Young of the FederalDistrict Court for the District of Maryland.
TheCourt: "I am sure OSHA would take the next fiveyears, given the chance to do so, to litigate this case. They are not going todo it in my court anyhow. I'm really a bit irritated at position inthis case of first having been dragging their feet in 1982, then having agreedto a settlement in 1983, having delayed it until 1984, and here we are in 1987,almost 1988, and they have done nothing about it. They will get noconsideration out of this Court, as far as I am concerned …"
Mr.Bernstein (attorney for the government):"Well, with all due respect to the Court. I can't say has done absolutely nothing duringthis time period. There are priorities …"
TheCourt: "It hasn'tbeen resolved, the issuesthat were required to be resolved by the ."
Mr.Bernstein: "That's correct. And . . . the Court'soriginal response was has donesomething and has attempted to promulgate this standard.
"Your Honor, keep in mind that what OSHAhas to do is promulgate standards to protect workers in the workplace. There areother issues that need to be resolved that, with all due respect to , area little more important than protecting some competitive interest in thebusiness community."
TheCourt: "I understand that. But then why notresolve those issues? Why keep hanging, twisting in the wind for - well,actually, it goes back to '74. ... Doesn't there have to come an end to this, something to resolve the issue?"
Mr.Bernstein: "Absolutely, your Honor."
TheCourt: "Well, where are the equities in thiscase'?"
Mr.Bernstein: "Well, your Honor, the equities in thecase are that is entitled to a standard to allow to attempt to beaccredited in order to approve this electrical equipment …"
TheCourt: "And when are they entitled to it? Afterthey go out of business because they have not been able to do it? ... I amsimply criticizing for taking every step they can to thwart theimplementation of an agreement they agreed upon five, three, tour years ago. Asfar as I am concerned, they have no equities in this case.”
Mr.Bernstein: “I’m sorry, Judge?”
TheCourt: They have no equities in this case. … The continuingprocess of foot dragging has to stop. …and if anybody has to stop it, I'll bewilling to do it."
Finally getting the message, the OSHA lawyersoffered up a new agreement according to which the regulation was to be promulgatedwithin 120 days. Then Mr. Bernstein, attorney for the government, did somethingremarkable: he indicated to the Court that his client, OSHA, might continue todrag its feet if it was able to see any way to get around the Court’s neworder.
Mr.Bernstein: "Your Honor, I'm just told that the Order should state specifically the rule-making process must be completedin 120 days."
The Court:"That's all I'm saying.”
Mr. Bernstein: "No, it's a languageproblem. Counsel advised me we'll have a much easier time getting our client to complete it within the scheduled time period if, number one, it's an order,and, number two, it says the rule-making process must be completed"(emphasis added).
TheCourt: "The Order would say the Defendant be and herebyis ordered to complete the rule-making process within 120 days." This time,OSHA complied: on April 12, 1988, it promulgated its new rules for therecognition of Nationally Recognized Testing Laboratories.
1988: New Rules of the Game
OSHA's new Rule 29 CFR 1910.7 specified that"third party (or independent) testing for safety necessary"in order for certain equipment and materials to be deemed acceptable forworkplace use, with that testing having to be performed "in dulyaccredited laboratories."
The new rules set out four "specific andexacting" requirements that every NRTL had to meet. First, it had to becapable of performing testing: NRTLs were expected to do most of their testingin-house, subcontracting work out only in the case of "unique or specialneeds." Second, a control procedure must be implemented for the listing orlabeling of products, including production-line inspection during manufacturing.The third requirement called for organizational independence: historically,OSHA said, electrical authorities "have required the use of third party orindependent testing laboratories for fire/electrical safety testing." Finally,the NRTL had to have an appeals procedure in place.
This left the problem of how to deal with UL andFM,. For their benefit, OSHA adopted the following provision in the appendix toits new rules: "Notwithstanding all the other requirements and provisionsof 1910.7 and this Appendix. are recognized temporarily as Nationally RecognizedTesting Laboratories by for a period of five years beginning June 13,1988, and ending July 13, 1993.”
As expected, MET was the first organization toapply for recognition as an NRTL. OSHA conducted a stringent review, whichdetermined that, among other things, no officer of MET owned stock in anycompany whose products MET listed. MET’s application for recognition was grantedunder the terms of a "Letter of Recognition" from OSHA. Among theconditions were the laboratory's obligation to notify the agency of "anychange of ownership or key personnel" and its proscription from operatingany product-safety certification program in which quality-systems registrationsunder ISO 9000 replaced factory inspections. Other laboratories soonfollowed MET's lead, including UL's chief competitor in the United States,ETL of Cortland, N.Y.
本帖最后由 chenlf 于 2012-1-30 22:43 编辑
第三部分续
UL's "Special Status"
Its new status as an NRTL allowed MET to growquickly, from one product-safety-certification employee to 25 by 1992. But thepossibility of any real competition with UL now seemed to lie beyond its reach,due in large measure, claimed MET, to the unfortunate period of "temporaryrecognition” afforded UL and FM by OSHA.
The main problem was that UL and FM wereexempted from all of the requirements that applied to the other, duly recognizedNRTLs. For example, MET's OSHA recognition was limited to a few dozenspecifically enumerated standards, whereas UL could use any standards it liked.If MET wanted to expand the scope of its recognition by adding new standards orchanging old ones, it had to apply to OSHA and wait for approval, a processthat could take months, even years, as OSHA attempted to determine whether thenew standard was "substantially equivalent" to the old. UL, for itspart, was not bound to notify OSHA of standards changes, and could begin usinga new standard immediately. Since a number of product liability cases have heldthat manufacturers have a duty to use the most current standards, MET fearedthat the delays it was experiencing in getting new standards approved mightdrive customers back to UL.
MET chafed under other restrictions as well.Because its recognition covered only its Baltimorefacility, it couldn’t transfer any of its increased business to itsBurlington or Pittsburgh operationswithout first going through the lengthy OSHA approval process. UL, in contrast,was free to expand at will and opened up new facilities in Hong Kong, Taiwan, Japan, andCamas, Wash.
Then, too, UL could and did institute new andinnovative programs, among then the Client Agent Program (CAP), which allowedcertified agents to perform testing on products for UL's review and possibleacceptance. That these agents did not have to be NRTL, seemed to MET to fly inthe face of OSHA's requirement that testing be performed only in "dulyaccredited laboratories" except where "unique and special needs"existed. UL's Client Test Data Program went so far as to suggest that UL wouldagree to accept test data generated by the manufacturers themselves - apractice that for MET raised questions regarding independence. The ComplianceManagement and Product Assurance Program (COMPASS) further delegated testingand evaluation to UL's customers. Finally, there was the Total CertificationProgram (TCP), whereby customers could "work with UL to jointly evaluateproduct construction conformance, test products and analyze test results,prepare UL style reports and with UL's authorization, distribute updated to the company's manufacturing facilities." A UL press releaseboasted that "through TCP, now administers a significantportion of the compliance evaluation process internally and can thereforeexpedite obtaining UL authorization."
MET did not complain about any of this; it allseemed to be part of the deal. UL and FM were grandfathered in for temporaryrecognition, and while they enjoyed that status, they could do things otherscould not. The grace period was scheduled to end on July 13 1993: the shockcame when four days prior to that date. OSHA announced that the temporary recognitionmight he extended indefinitely. The rules provided for the grandfathering tocontinue until OSHA took final action on UL's and FM’s applications to becomeformally recognized NRTLs. How long that process would take, nobody knew, butMET had a feeling it could be a very lone time indeed - after all, MET itselfhad first filed for accreditation on May 1, 1974, and had not been recognizedfor 15 years.
本帖最后由 chenlf 于 2012-1-30 22:27 编辑
第四部分：由于OSHA没有按期在法规中消除UL和FM的特权位置，导致MET与OSHA第三场诉讼。OSHA采取多种手段，力图维持现有法规。
比较有趣的部分是，OSHA先是以程序不合进行辩解，随后辩解平等竞争不关己事，不平等不代表产品不安全；其他如辩解UL会很在意自己的声誉、以保密原因不公开文件等等，读来都很熟悉、很有趣。（单词motion:动议）
1994: The Third Case of MET v. OSHA
For MET, OSHA's July 1993 backpedaling was toomuch' to take, and it filed suit for a third time in January 1994. The suitcharged, in part, that a period of indefinite “temporary recognition"favoring UL and FM was a continuation of the “Special status" that thesettlement agreement had bound OSHA to eliminate. OSHA, said MET, was in breachof is agreement.
In response, the government filed its usualmotion to dismiss, which ran to 23 pages this time. It insisted it had compliedwith all the terms of the settlement agreement, and besides, it claimed, METwas in the wrong court at the wrong time. The new NRTL rules were not really rulesat all but rather "standards" adopted under Section 6 of the OccupationalSafety and Health Act of 1970, and as such could be challenged only in theFederal Court of Appeals, not in Judge Young's Federal District Court.Furthermore, "standards"had to be challenged within 60 days of their issuance, and the 60-day period inthis instance had expired in 1988.
Judge Young, speaking for the Federal District Court, threw out the government'smotion to dismiss. In its settlement agreement, he said, OSHA had pledged toundo the "anti-Competitive effects" created by its regulations.Although a year had now passed since the scheduled expiration of theirtemporary recognition, UL and FM continued to function as NRTLs, but withoutthe constraints that applied to the others. "Unlike the other NRTLs,"Judge Young said, "UL and FMRC are not subject to OSHA on-site reviews norpublication of their capabilities, in the Federal Register …This differential treatment of UL and FMRCperpetuates the same governmentally prescribed competitive advantages that thisCourt's Ordersandthe Settlement Agreement were intended toeliminate." As to the government's claim that MET was in the wrong court,the judge replied that the company was challenging the government's breach ofthe settlement agreement, not the "standards" themselves, and heldthat the District Court had jurisdiction over such breaches.
Confident that OSHA would now act expeditiously on UL's and FM'sapplications, MET proposed settlement talks, but to no avail: the governmentfiled a motion for the Court to reconsider its decision on the motion todismiss, on the new grounds that OSHA had never had the authority in the firstplace to agree to remove UL's competitive advantage. Judge Young gave the matterlittle thought, dismissing the government's arguments by writing "Motion denied. . ." in the margin.
Having once more beaten back the government’sefforts to have the case thrown out, MET now pressed for a quick resolution.Perhaps anticipating an unwelcome outcome, UL intervened. Now there were three parties:MET, OSHA and UL. UL swiftly seized on the government’s most recent argumentthat OSHA had overstepped its hounds in promising to eliminate the competitiveadvantage enjoyed by UL and FM: OSHA's authority, it said, was limited to the provisionof a safe and healthful workplace. Its brief read, in part, "OSHA has noauthority to repair general unfairness . Simply stated, MET'salleged unfair situation' has nothing to do with achievement of a safe andhealthful working environment."
MET countered that while OSHA was not generallyresponsible for ensuring equitable competition, it did have an obligation torectify any problem that it either caused or perpetuated. UL's position, MET maintained,was comparable to that taken by a corporation that "negligently injured aperson and then claimed that to compensate the injured party would be an ."
Key Issue: Did UL Comply?
For its part, OSHA now argued that whatever themerits of MET's legal claims, UL and FM were not in fact using the rules totheir advantage: "It is not true, as MET asserts, that UL and FM can gaincompetitive advantage by failing to maintain proper equipment and facilities ...This assertionignores the reality of the product testing business and assumes that UL not care about reputation." MET was incensed: why was ULdeemed to “care about its reputation” and MET not? To support the government's argument,UL filed an affidavit stating that it operated within OSHA regulations, leavingit to MET to prove otherwise.
MET attempted to obtain documents relating to OSHA's inspections ofUL, but the government initially refused to release them, claiming"deliberative process privilege". One ofthese "privileged" documents turned out to be a memo from Lead AuditorKenneth P. Klouse to OSHA, in which Klouse states that following a review ofUL's Client Test Data Program (CTDP), Compliance Management and Product AssuranceProgram (COMPASS), and Total Certification Program (TCP), he was forced toconclude that "UL Inc. operates organizational programs that appear to bebeyond the scope of the October 22, 1993 'Interpretations Used in Evaluating anNRTL's Capabilities' and may require review by OSHA legal personnel."Thus, even as the government was insisting that UL would not dare operateoutside OSHA's rules, the agency's lead auditor was confiding something verydifferent to his superiors.
In announcing its decision on February 3, 1995, theCourt reiterated its authority to enforce settlement agreements, notwithstandingthe variable classification of 1910.7 as a "regulation" or a "standard." The Courtordered OSHA expeditiously tocomplete its review of UL's and FM’s applications.
本帖最后由 chenlf 于 2012-1-30 22:29 编辑
第五部分：鉴于UL不大可能按NRTL规则来运行，并且很难证明UL的运作方式真的就会影响产品安全，于是，OSHA通过修改法规迁就现状（主要是UL的现状）的方式，满足法庭令的要求，也最终赋予所有机构原则上平等的地位。(单词：Solicitorn. 代表律师；Mohammed n. 穆罕默德)
OSHA's Capitol Dilemma
Now the government had a real problem on itslands, since its own audits had established that many of UL's programs,affecting billions of dollars worth of commerce, might not meet OSHA's rules. Shutting down ULwas hardly an option,however, and inany case, there was no proof that any of UL's programs actually endangered thehealth or safety either of workers or of the public. Under a Courtorder to act expeditiously, OSHA could see only one solution. If Mohammed can'tcome to the mountain, bring the mountain to Mohammed: if UL couldn't complywith the rules, the answer was simple: change the rules.
But that wasn't as easy as it sounded. TheAdministrative Procedure Act required a complicated rulemaking process thatoften took years to complete - and years was a lot longer than Judge Young waslikely to be willing to wait. Fortunately for OSHA, it had seen this onecoming. In September 1994, five months before the Court's decision, the agencyhad put one of its best, Solicitor Dan Jacoby, on the case. Jacoby had interviewed the various parties and felt he couldprepare an "interpretation" that would expand the rule's envelope toencompass what UL was already doing. That interpretation was released onMarch 9, 1995, just about a month after the entry of the Court's order. In itOSHA cited the four elements that defined an NRTL. As to the first of these,the "capability to test and evaluate equipment," OSHA explained thatthe fact that the capacity existed didn't mean it had to be used in all cases.As to the third requirement, "independence" likewise didn't precludetesting's being carried out by a manufacturer: "As long as an NRTL, whichis not economically affiliated with the manufacturer, had the ultimate authorityand responsibility for approval …the needs of independence would be satisfied.” True,the 1988 rules stated that testing was to he performed only in "duly accredited laboratories” except in thepresence of “uniqueor special needs,” but, said OSHA, those rules also judged it "reasonablethat product testing systems already in place should he able to continue theiroperations without Agency rulemaking on the testing standards, methods and proceduresthat they are now using and have successfully used in the past.”
OSHA further defined the scope of what NRTLscould do: they could - but were not required to - accept data from other NRTLs,and under specified circumstances could sign off on testing data and productevaluations supplied by other entities, including manufacturers. Still, certainother procedures were pronounced unacceptable, among them "manutacturers’sself-declaration, client self-certification,and similar procedures that permit non-NRTLs todetermine conformance with product standards, i.e., certify the product.”
本帖最后由 chenlf 于 2012-1-30 22:30 编辑
第六部分：结果最终，UL的所有运作都符合OSHA法规，现在，所有机构原则上都处于平等的地位，基本形成了现有的NRTL体系。作者感慨为取得这样的平等，"But even in a free country … such things take time, and money. "，并称赞MET的创始人Len Frier先生的贡献和勇气。 Goliath Complies
The way was now cleared for OSHA’s accreditationof UL, which was announced in the Federal Register on June 29, 1995. By that date, more than 20 years had passedsince MET filed its first application to become an NRTL. Now, at (very) longlast, the federal government had put in place procedures that not onlypermitted the accreditation of laboratories but treatedall of them equally. That was all Len Frier had wanted from the beginning.But even in a free country, he had learned, such thingstake time, and money.
Nonetheless, due in large part MET’s founder’s efforts,manufacturers and others seeking product-safety certification will now find thegoing easier. More choice will mean lower prices and faster access to themarket. For thatwe have many to thank, including Len Frier. It was he who cast the first stone.(The end)
大会上收到的MET宣传资料也微量提到了这些历史。我们也期待国内也有一位类似Len Frier式的人物。CQC的性质就是企业，那么我们政府管理部们也是在造就其垄断地位，这是倒施逆行的。
支持这个说法，虽然可能无能为力 哇，MET原来还是功臣，厉害
