OFFICE OF MANAGEMENT AND BUDGET
OMB Circular A-119
Federal Participation in the Development and Use of Voluntary Consensus
Standards and in
Conformity Assessment Activities.
AGENCY: Office of Management and Budget, EOP.
ACTION: Final Revision of Circular A-119.
SUMMARY: The Office of Management and Budget (OMB) has revised Circular
A-119 on federal
use and development of voluntary standards. OMB has revised this Circular
in order to make
the terminology of the Circular consistent with the National Technology
Advancement Act of 1995, to issue guidance to the agencies on making
their reports to OMB,
to direct the Secretary of Commerce to issue policy guidance for
and to make changes for clarity.
DATES: Effective February 19, 1998.
ADDRESSES: Direct any comments or inquiries to the Office of Information
Affairs, Office of Management and Budget, NEOB Room 10236, Washington,
Available at /OMB or at (202)
FOR FURTHER INFORMATION CONTACT: Virginia Huth (202) 395-3785.
I. Existing OMB Circular A-119.
III. Notice and Request for Comments on Proposed Revision of
OMB Circular A-119.
IV. Discussion of Significant Comments and Changes.
I. Existing OMB Circular A-119.
Standards developed by voluntary consensus standards bodies are often
appropriate for use
in achieving federal policy objectives and in conducting federal
procurement and regulation. The policies of OMB Circular A-119 are
intended to: (1)
encourage federal agencies to benefit from the expertise of the private
promote federal agency participation in such bodies to ensure creation of
are useable by federal agencies; and (3) reduce reliance on
where an existing voluntary standard would suffice.
OMB Circular A-119 was last revised on October 20, 1993. This revision
stated that the
policy of the federal government, in its procurement and regulatory
activities, is to: (1)
"[r]ely on voluntary standards, both domestic and international,
and consistent with law and regulation;" (2) "[p]articipate in
standards bodies when such participation is in the public interest and is
agencies' missions, authorities, priorities, and budget resources;"
"[c]oordinate agency participation in voluntary standards bodies so
that . . . the
most effective use is made of agency resources . . . and [that] the views
such representatives are in the public interest and . . . do not conflict
interests and established views of the agencies." [See section 6
Authority for this Circular is based on 31 U.S.C. 1111, which gives OMB
broad authority to
establish policies for the improved management of the Executive Branch.
In February 1996, Section 12(d) of Pub. L. 104-113, the "National
and Advancement Act of 1995," (or "the Act") was passed by
the Congress in
order to establish the policies of the existing OMB Circular A-119 in
law. [See 142 Cong.
Rec. H1264-1267 (daily ed. February 27, 1996) (statement of Rep.
Morella); 142 Cong. Rec.
S1078-1082 (daily ed. February 7, 1996) (statement of Sen. Rockefeller);
141 Cong. Rec.
H14333-34 (daily ed. December 12, 1995) (statements of Reps. Brown and
purposes of Section 12(d) of the Act are: 1) to direct "federal
agencies to focus
upon increasing their use of [voluntary consensus] standards whenever
thus, reducing federal procurement and operating costs; and 2) to
authorize the National
Institute of Standards and Technology (NIST) as the "federal
government entities responsible for the development of technical
standards and conformity
assessment activities," thus eliminating "unnecessary
duplication of conformity
assessment activities." [See Cong. Rec. H1262 (daily ed. February
(statements of Rep. Morella)].
The Act gives the agencies discretion to use other standards in lieu of
consensus standards where use of the latter would be "inconsistent
law or otherwise impractical." However, in such cases, the head of
an agency or
department must send to OMB, through NIST, "an explanation of the
reasons for using
such standards." The Act states that beginning with fiscal year
1997, OMB will
transmit to Congress and its committees an annual report summarizing all
received in the preceding year.
III. Notice and Request for Comments on Proposed
Revision of OMB Circular A-119.
On December 27, 1996, OMB published a "Notice and Request for
Comments on Proposed
Revision of OMB Circular A-119" (61 FR 68312). The purpose of the
was to provide policy guidance to the agencies, to provide instructions
on the new
reporting requirements, to conform the Circular's terminology to the Act,
and to improve
the Circular's clarity and effectiveness.
On February 10, 1997, OMB conducted a public meeting to receive comments
In response to the proposed revision, OMB received comments from over 50
including voluntary consensus standards bodies or standards development
(SDOs), industry organizations, private companies, federal agencies, and
IV. Discussion of Significant Comments and
Although some commentators were critical of specific aspects of the
proposed revision, the
majority of commentators expressed support for the overall policies of
the Circular and
the approaches taken. The more substantive comments are summarized below,
along with OMB's
The Circular has also been converted into "Plain English"
the following changes were made. We placed definitions where the term is
replaced the term "must" with "shall" where the
intent was to
establish a requirement; created a question and answer format using
"I"; and added a Table of Contents.
We replaced proposed sections 6, 7 and 10 ("Policy,"
"Conformity Assessment") with sections 6, 7, and 8, which
material. We reorganized the definitions for "standard,"
standard," and "voluntary consensus standard." We
section 8 on "Procedures" into sections 9, 10, 11, 12. For
clarity, we have
referenced provisions by their location both in the proposed Circular and
in the final
Proposed Section 1 -- Purpose. Final Section 1.
1. Several commentators suggested that this section should be modified to
make clear that
the primary purpose of the revision of the Circular is to interpret the
section 12(d) of P.L. 104-113 so that federal agencies can properly
statutory requirements. We revised the wording of this
section to reflect
Proposed Section 2 -- Rescissions. Final Section 1.
2. We moved this section to Final Section 1.
Proposed Section 3 -- Background. Final Section 2.
3. Several commentators suggested substituting "use" for
this section to conform to the new set of definitions. We agree, and we
modified the final
Proposed Section 4 -- Applicability. Final Section 5.
4. Several commentators found this section unclear. One commentator
"international standardization agreements," suggesting this
section could be
interpreted as conflicting with proposed section 7a(1) which encouraged
international standards developed by voluntary consensus standards. We
agree, and we
modified the final Circular.
Proposed Section 5a -- Definition of Agency. Final Section 5.
5. A commentator suggested defining the term "agency
consideration, we have decided that this term is sufficiently well
understood as to not
require further elaboration; it refers to the particular statutes and
by the agencies, which vary from one agency to the next. Thus, we did not
6. A commentator questioned whether federal contractors are intended to
be included within
the definition of "agency." Federal contractors do not fall
definition of "agency." However, if a federal contractor
participates in a
voluntary consensus standards body on behalf of an agency (i.e., as an agency
representative or liaison), then the contractor must comply with the
"participation" policies in section 7 of this Circular (i.e.,
it may not
dominate the proceedings of a voluntary consensus standards body.).
Proposed Section 5b -- Conformity Assessment.
Final Section 8.
7. In response to the large number of commentators with concerns over the
conformity assessment, we have decided to not define the term in this
Circular but to
defer to NIST when it issues its guidance on the subject. The Circular's
on conformity assessment is limited to the statutory language.
Proposed Section 5c -- Definition of Impractical. Final Section
8. A commentator suggested that if an agency determines the use of a
impractical, the agency must develop an explanation of the reasons for
the steps necessary to overcome the use of the impractical reason. We
decided that no
change is necessary. The Act and the Circular already require agencies to
"explanation of the reasons." Requiring agencies to describe
the steps necessary
"to overcome the use of the impractical reason" is
unnecessarily burdensome and
not required by the Act.
9. A commentator suggested that the definition of "impractical"
is too broad and
proposed deleting words such as "infeasible" or
"inadequate." We have
decided that the definition is appropriate, because things that are
inadequate are commonly considered to be impractical. Thus, we made no
10. A commentator suggested eliminating the phrase "unnecessarily
because it is unlikely that a voluntary consensus standard that was
"impractical" would also be "unnecessarily
duplicative." We agree, and
the final Circular is modified accordingly.
11. A few commentators suggested adding "ineffectual" to the
definition. A few
other commentators suggested adding the phrase "too costly or
burdensome to the
agency or regulated community." Another commentator suggested the
same phrase but
substituted the term "affected" for "regulated." We
have decided that
concerns for regulatory cost and burden fall under the term
contained in this definition. Thus, we made no change.
12. A few commentators suggested deleting the term
"demonstrably" as it implies
a greater level of proof than that required in the Act. Upon
consideration, we have
decided that the term "demonstrably" is unnecessary, as the Act
an explanation, and it may be reasonably inferred that an explanation can
Thus, we deleted the term.
Proposed Section 5d -- Definition of
Standard. Final Section 3c.
13. A commentator suggested deleting the "and" in the
definition. We have
decided that this suggestion would distort the meaning. Therefore, no
change is made.
14. A few commentators suggested substituting the term
"design" because of the multiple connotations associated with
"design." In addition, several commentators suggested related
language. We agree, and we modified the final Circular.
Proposed Section 5f -- Definition
Final Section 3.
15. Several commentators suggested overall clarification of this section,
commentators endorsed the proposed section. One commentator suggested that
"clarification is necessary to distinguish the appropriate use of
different types of
standards for different purposes (i.e., acquisition, procurement,
commentator proposed that, "For example, regulatory Agencies should
only rely upon
national voluntary consensus standards (as defined in Section 5j) for use
criteria in regulations but a federal agency may want to use
(without a full consensus process) for certain acquisition purposes if
there are no
comparable consensus standards." We do not agree with this proposal.
The same general
principles apply in the procurement context as in the regulatory context.
16. A commentator suggested that the definition of "standard"
be limited to
ensure that agencies are only required to consider adopting voluntary
"technical" standards. The final Circular clarifies this by
"standard" with "technical standard."
17. One commentator recommended adding to the definition of
exclusion for State and local statutes, codes, and ordinances, because
often require contractors to meet State and local building codes, which
standards which may not be consensus-based. For example, the Department
of Energy builds
facilities that must be compliant with local building codes, which may be
more strict than
nationally accepted codes. It is not the intent of this policy to
preclude agencies from
complying with State and local statutes, codes, and ordinances. No change
because the Act already states that, "If compliance . . . is
applicable law . . . a Federal agency may elect to use technical
standards that are not
developed or adopted by voluntary consensus standards bodies."
Proposed Section 5f -- Definition of Standard. Final Section 4.
18. Several commentators had concerns with this section, believing that
the final sentence
in the proposed version might imply that other-than-consensus standards
may qualify as
consensus processes. This is not the case. We have clarified this point
reorganization of final sections 3 and 4 and through minor clarifying
addition, we note that the subject of the Circular is
standards," which are a subset of "standards." Consistent
with the 1993
version, the final Circular defines "standard" generally to
describe all the
different types of standards, whether or not they are consensus-based, or
company-based. Accordingly, we have inserted the phrase
final section 4b(2) in order to provide a complete picture of the
different sources of
standards, while also adding a reference to "company standards"
in final section
4b(1), previously found in the definition of "standard."
Proposed Section 5g -- Definition of Technical Standard. Final Section
19. Several commentators suggested combining this term with the
definition of standard. We
agree, and the terms have been merged.
20. Another commentator suggested adding the phrase "and related
practices" because this phrase appears in Section 12(d)(4) of the
Act. We agree, and
we modified the final Circular.
Proposed Section 5h -- Definition of Use. Final Section 6a(1).
21. Several commentators suggested that limiting an agency's use to the
latest edition of
a voluntary consensus standard was unnecessarily restrictive. We agree,
and we modified
the final Circular.
Proposed Section 5i -- Definition of Voluntary Consensus
22. Several commentators objected to the phrase regarding making
property available on a non-discriminatory, royalty-free or reasonable
royalty basis to
all interested parties." Several commentators also supported this
section does not limit the ability of copyright holders to receive
reasonable and fair
royalties. Accordingly, we made no change.
Proposed Section 5j -- Voluntary Consensus Standards Bodies. Final
23. Several commentators proposed that the words "but not
be inserted for clarification. We agree, and we modified the final
24. A commentator suggested deleting the examples of voluntary consensus
We agree that the examples were unnecessary and confusing, and we
modified the final
25. A few commentators suggested that the Circular acknowledge the
Standards Institute (ANSI) as the means of identifying voluntary
bodies. Since the purpose of the Circular is to provide general
principles, rather than
make determinations about specific organizations or guides, these
determinations will be
made by agencies in their implementation of the Act. Thus, we made no
26. A commentator suggested that the definition be modified so "that
organizations that permit an acceptable level of participation and
approval by U.S.
interests can be considered to qualify." We have decided that no
change is necessary,
because the requirements of consensus -- openness, balance of interests,
and due process
-- likewise apply to international organizations.
27. The same commentator suggested adding the phrase "the absence of
opposition" to the definition of "consensus." Although we
did not make this
change, we added other language that improves the definition.
28. Several commentators proposed that the Circular further clarify
aspects of this
section, including further definitions of "balance of interest,"
"openness," and "due process." We have decided that
provided is sufficient at this time, and no change is made.
29. Several commentators proposed that this definition should be
"clarified to state
the Federal agencies considering the use of voluntary consensus
standards, not the
organizations themselves, are to decide whether particular organizations
voluntary consensus standards bodies by meeting the operational
requirements set out in
the definition." For purposes of complying with the policies of this
agencies may determine, according to criteria enumerated in final section
4, whether a
standards body qualifies. However, it is the domain of the private sector
voluntary consensus standards organizations, and accordingly, we have
language in final section 6l.
Proposed Section 6a. Final Section 6c.
30. A commentator proposed deleting in section 6a "procurement
suggesting it was confusing and inappropriate to mandate use of voluntary
standards for "procurement guidelines or procedures." We have
decided to delete
the reference to "procurement guidelines." The Circular says
31. The same commentator suggested adding in section 6a "monitoring
as part of an agency's regulatory authorities and responsibilities. We
have decided that,
under the Act and the Circular, agencies already have sufficient
discretion regarding the
use and non-use of standards relating to such authorities and
responsibilities. Thus, we
have made no change.
Proposed Section 6a. Final Section 6f.
32. Some commentators expressed concern that once a standard was
determined to be a
voluntary consensus standard, an agency might incorporate such standard
into a regulation
without performing the proper regulatory analysis. To address this
commentator suggested adding language referencing "The Principles of
enumerated in Section 1(b) of Executive Order 12866. We agree, and we
modified the final
Proposed Section 6b. Final Section 7.
33. In the proposed revision of the Circular, sections 6b and
strengthened by adding language that directed agency representatives to
actively participating in voluntary consensus standards bodies or their
participating did not relate to the mission of the agency.
Several commentators were not satisfied with these changes and remain
concerned that an
agency member might dominate a voluntary consensus standards body as a
result of the
agency member chairing and/or providing funding to such body, thus making
the process not
truly consensus. These commentators urged additional limitations on
in voluntary consensus standards bodies, including: prohibiting federal
representatives from chairing committees or voting (or if chairing a
denying them the authority to select committee members); having only an
participating only if directly related to an agency's mission or
statutory authority; and
participating only if there is an opportunity for a third party challenge
participation through a public hearing.
On the other hand, most commentators supported the proposed changes and
federal participation in voluntary consensus standards bodies should not
limited, because federal participation benefited both the government and
sector. These commentators noted that agencies must be involved in the
development process to provide a true consensus and to help support the
standards for agency use. These purposes are consistent with the intent
of the Act.
In the final Circular, we have added language to clarify the authorities
in the Circular.
We have also strengthened the final Circular by adding language in final
section 7f that
directs agency employees to avoid the practice or the appearance of undue
relating to their agency representation in voluntary consensus standards
We would also like to underscore the importance of close
cooperation with the
private sector, including standards accreditors, in ensuring that federal
fair and appropriate.
With respect to imposing specific limitations on agency participation in
which would result in unequal participation relative to other members, we
that such limitations would (1) not further the purposes of the Act and
interfere with the internal operations of voluntary consensus standards
First, the Act requires agencies to consult with voluntary consensus
standards bodies and
to participate with such bodies in the development of technical standards
participation is in the public interest and is compatible with agency and
missions, authorities, and budget resources." The legislative
history indicates that
one of the purposes of the Act is to promote federal participation. [See
141 Cong. Rec.
H14334 (daily ed. December 12, 1995) (Statement of Rep. Morella.)]
Moreover, neither the
Act nor its legislative history indicate that federal agency
representatives are to have
less than full and equal representation in such bodies. Given the
explicit requirement to
consult and participate and no concomitant statement as to any limitation
participation, we believe the Act was intended to promote full and equal
voluntary consensus standards bodies by federal agencies.
Second, although an agency is ultimately responsible for ensuring that
its members are not
participating in voluntary consensus standards bodies in a manner
inconsistent with the
Circular and the Act, it would be inappropriate for the federal
government to direct the
internal operations of private sector voluntary consensus standards
bodies or standards
development organizations (SDOs) by proscribing the activities of any of
its members. The
membership of an SDO is free to choose a chair, to establish voting
procedures, and to
accept funding as deemed appropriate. We expect that the SDO itself or a
related parent or
accrediting organization would act to ensure that the organization's
fair and balanced. An SDO has a vested interest in ensuring that its
and policies are followed in order maintain its credibility.
Proposed Section 6b. Final Sections 7e, 7f, and 7h.
34. Other commentators were concerned that an agency representative could
the proceedings of a voluntary consensus standards body for which the
agency has no
mission-related or statutorily-based rationale to become involved. For
situation might exist in which a technical standard developed by the
private sector could
be so widely adopted as to result in the emergence of a de facto
albeit one endorsed by the private sector rather than by the government.
For example, a
construction standard for buildings could become so widely accepted in
the private sector
that the result is that the construction community acts as if it is
regulated by such
standards. The commentator suggested that if an agency were to
participate in the
development of such a technical standard, in an area for which it has no
statutory authority to regulate, that agency could be perceived as
attempting to regulate
the private sector "through the back door." A perception of
whether or not based in fact, would be detrimental to the interests of
government, and agencies should avoid such involvement.
In response to this concern, we feel that changes initiated in the
proposed revision and
continued in the final Circular sufficiently strengthened the Circular in
this regard. In
particular, section 7 expressly limits agency support (e.g., funding,
to "that which clearly furthers agency and departmental missions,
priorities, and budget resources." Moreover, this language is
consistent with the
Act. Thus, if an agency has no mission-related or statutory-related
participation, then its participation would be contrary to the Circular.
An agency is ultimately responsible for ensuring that its employees are
in such bodies in a manner inconsistent with the Act or this Circular.
monitor their participation in voluntary consensus standards bodies to
in which the agency could dominate proceedings or have the appearance of
Agencies should also work closely with private sector oversight
organizations to ensure
that no abuses occur. Comments provided by ANSI described the extensive
mechanisms it maintains in order to ensure that such abuses do not occur.
this kind of active oversight on the part of the private sector, and we
hope to promote
cooperation between the agencies and the private sector to ensure that
participation remains fair and equal.
Proposed Section 7 -- Policy Guidelines. Final Section 6c.
35. A few commentators inquired whether the Circular applies to
standards." In response, the final Circular distinguishes between a
standard," which may be referenced in a regulation, and a
standard," which establishes overall regulatory goals or outcomes.
The Act and the
Circular apply to the former, but not to the latter. As described in the
history, technical standards pertain to "products and processes,
such as the size,
strength, or technical performance of a product, process or
material" and as such may
be incorporated into a regulation. [See 142 Cong. Rec. S1080 (daily ed.
February 7, 1996)
(Statement of Sen. Rockefeller.)] Neither the Act nor the Circular
require any agency to
use private sector standards which would set regulatory standards or
Proposed Section 7. Final Section 6g.
36. A commentator inquired whether the use of non-voluntary consensus
standards meant use
of any standards developed outside the voluntary consensus process, or
just use of
government-unique standards. The intent of the Circular over the years
has been to
discourage the government's reliance on government-unique standards and
agencies to instead rely on voluntary consensus standards. It is has not
been the intent
of the Circular to create the basis for discrimination among standards
developed in the
private sector, whether consensus-based or, alternatively, industry-based or
company-based. Accordingly, we added language to clarify this point.
Proposed Section 7. Final Section 6f.
37. One commentator inquired how OMB planned to carry out the "full
the impact of this policy on the economy, applicable federal laws,
policies, and national
objectives. This language is from the current Circular and refers to the
agencies should make when considering using a standard. No change is
Proposed Section 7. Final Section 17.
38. Several commentators noted that the proposed revision eliminated
language from the
current Circular which stated that its provisions "are intended for
management purposes only and are not intended to (1) create delay in the
process, (2) provide new grounds for judicial review, or (3) create legal
enforceable against agencies or their officers." We have decided
that, while some
sections of the Circular incorporate statutory requirements, other
internal Executive Branch management policy. Accordingly, we have
retained the language,
with minor revisions.
Proposed Section 7a.
39. One commentator inquired as to whether the use of a voluntary
consensus standard by
one agency would mandate that another agency must use such standard.
Implementation of the
policies of the Circular are on an agency by agency basis, and in fact,
on a case by case
basis. Agencies may have different needs and requirements, and the use of
consensus standard by one agency does not require that another agency
must use the same
standard. Each agency has the authority to decide whether, for a program,
use of a
voluntary consensus standard would be contrary to law or otherwise
40. Another comment suggested that the Circular did not contain
sufficient assurance that
the standards chosen would be true consensus standards. We have expanded
the guidance in
the Circular to address this concern by first expanding the definition of
"consensus" in final section 4a(1)(v). Second, we have
described in final
section 6l how agencies may identify voluntary consensus standards.
Third, we have
developed reporting procedures that allow for public comment.
Proposed Section 7a(1). Final Section 6h.
41. Several commentators suggested that "international voluntary
body" be defined in proposed section 5. We have decided that this
definition is not
necessary, as the term "international" is sufficiently well
understood in the
standards community, and the term "voluntary consensus standards
already been defined. Moreover, the distinction between "international
standards" and "domestic standards" is not relevant to the
policies of the Circular, and this point is clarified in this section.
42. Several commentators also noted that two trade agreements
("TBT" and the
"Procurement Code") of the World Trade Organization were
mentioned but inquired
as to why other international agreements like the World Trade
Organization Agreement on
Sanitary and Phytosanitary Measures or the North American Free Trade
Agreement were not
mentioned. We did not intend this list to be exhaustive. Therefore, we
deleted this phrase
to emphasize the main point of this section.
43. Several commentators questioned why the Circular included language
developed by international voluntary consensus standards bodies
"should be considered
in procurement and regulatory applications." We recognize that both
international voluntary consensus standards may exist, sometimes in
harmony, sometimes in
competition. This language, which is unchanged from the current version
of the Circular,
states only that such international standards should be
"considered," not that
they are mandated or that they should be given any preference. In
addition, some confusion
has emerged based on a perceived conflict between the commitments of the
with respect to international treaties and this Circular. No part of this
intended to preempt international treaties. Nor is this Circular intended
to create the
basis for discrimination between an international and a domestic
standard. However, wherever possible, agencies should consider the use of
voluntary consensus standards.
Proposed Section 7a(2). Final Section 6i.
44. One commentator suggested that the Circular promote the concept of
requirements when regulating the conduct of work for safety or health
safety standards). Where performance standards can be used in lieu of
other types of
standards (or technical standards), the Circular already accomplishes
this by stating in
final section 6i that "preference should be given to standards based
Proposed Section 7a(3). Final Section 6j.
45. One commentator suggested using stronger language to protect the
rights of copyright
holders when referenced in a regulation. Others thought the language too
strong. We have
decided that the language is just right.
Proposed Section 7a(4). Final Section 6k, 7j.
46. One commentator suggested that legal obligations that supersede the
Circular and cost
and time burdens need to be emphasized as factors supporting agencies'
using their own government-unique standards. Another commentator
untimeliness or unavailability of voluntary consensus standards
development should be a
reasonable justification for creation of a government standard. On the
first point, these
specific changes are not necessary, because the Act and the Circular
already state that
agencies may choose their own standard "where inconsistent with
applicable law or
otherwise impractical." On the second point, we did clarify the
language in final
sections 6k and 7j.
47. Another commentator suggested that the Circular should define in this
that are considered to be "impractical." See comments on
proposed section 5c. We
made no change.
Proposed Section 7a(5). Final Section 6l.
48. This section is intended to give agencies guidance on where they may
go to identify
voluntary consensus standards. One commentator proposed language to
indicate that, in
addition to NIST, voluntary consensus standards may also be identified
federal agencies. Another commentator proposed language that such
standards may also be
identified through standards publishing companies. We agree, and the
Circular is changed.
Proposed Section 7b.
49. Other commentators proposed that Federal Register notices be
published whenever a
federal employee is to participate in a voluntary consensus standards
body. We have
decided that this would be overly burdensome for the agencies and would
comparatively little benefit for the public. Moreover, each agency is
already required in
section 15b(5) to publish a directory of federal participants in
We made no change.
Proposed Section 7b(2). Final Section 7d.
50. Some commentators noted that the current Circular's language, which
states that agency
employees who "at government expense" participate in voluntary
standards bodies shall do so as specifically authorized agency
representatives, has been
deleted from the proposed revision. These commentators opposed this
deletion. This phrase
has been reinstated. Federal employees who are representing their agency
must do so at
federal expense. (On the other hand, employees are free to maintain
in outside organizations, unless the employee's agency has a requirement
approval.) We expect that, as a general rule, federal participation in
committees will not
be a problem, while participation at higher levels, such as officers or
as directors on
boards, will require additional scrutiny. Employees should consult with
ethics officer to identify what restrictions may apply.
Proposed Section 7b(2). Final Section 7.
51. Several commentators suggested changing the language in this section from
"permitting agency participation when relating to agency
"permitting agency participation when compatible with agency and
missions, authorities, priorities, and budget resources," as stated
in the Act. We
have decided to accept this suggestion, and the Circular is changed.
Proposed Section 7b(4). Final Sections 7d, 7g.
52. One commentator suggested that the Circular should prohibit agency
serving as chairs or board members of voluntary consensus standards
bodies. We have not
amended the Circular to prohibit agency employees from serving as chairs
or board members
of voluntary consensus standards bodies. However, we have modified final
section 7g to
clarify that agency employees, whether or not in a position of leadership
in a voluntary
consensus standards body, must avoid the practice or appearance of undue
relating to the agency's representation and activities in the voluntary
standards bodies. In addition, we added language in final section 7d to
remind agencies to
involve their agency ethics officers, as appropriate, prior to
authorizing support for or
participation in a voluntary consensus standards body.
Proposed Section 7b(5). Final Section 7h.
53. One commentator suggested changing the word "should" to
regarding keeping the number of individual agency participants to a
minimum. We decided
that this change is unnecessary and made no change.
Proposed Section 7b(6).
54. A few commentators suggested requiring that the amount of federal
support should be
made public or at least made known to the supported committee of the
standards body or SDO. We have decided that this is unnecessary because
we expect that the
amount of federal support will already be known to a committee receiving
Proposed Section 7b(7). Final Section 7g.
55. A comment suggested either deleting "and administrative
inserting "internal" before "administrative policies"
to clarify that
the prohibition is intended to apply to the internal management of a
standard body. This phrase is parenthetical to the words "internal
thus, the suggested revision is unnecessary.
Proposed Section 7b(8). Final Section 7i.
56. One commentator questioned the relationship of the
Circular to the
Federal Advisory Committee Act (FACA). Federal participation in standards
not ordinarily be subject to FACA, because FACA applies to circumstances
in which private
individuals would be advising the government. The private sector members
organizations are not advising the government, but are developing
issues may arise in which agencies should be aware of FACA.
Proposed Section 7b. Final Sections 7e, 7f.
57. Several commentators, fearing agency dominance, criticized the
proposed revision of
the Circular for promoting increased agency participation. We have
decided that the
revisions to the Circular are balanced, in that they encourage agency
also discouraging agency dominance. Moreover, legislative history states,
it is my hope that this section will help convince the Federal Government
more fully in these organizations' standards developing activities."
[See 141 Cong.
Rec. H14334 (daily ed. December 12, 1995) (Statement of Rep. Morella.)]
Proposed 7c (4). Final Section 15b.
58. A commentator suggested changing "standards developing
"voluntary consensus standards bodies" for consistency. We
agree, and we
modified the final Circular.
Proposed 7c(6). Final Section 15b(7).
59. The current and proposed versions of the Circular required agencies
to review their
existing standards every five years and to replace through applicable
standards that can be replaced with voluntary consensus standards.
suggested adding language that either requires agencies to review
standards referenced in
regulations on an annual basis or an ongoing basis. Other commentators
the review period to ten years (in order to mirror the review cycle of
Flexibility Act) or to eliminate the review entirely because it was
We decided to change this requirement to one in which agencies are
"establishing a process for ongoing review of the agency's use of
purposes of updating such use." We decided that this approach will
to review the large numbers of regulations which may reference obsolete
standards in a timely manner. Agencies are encouraged to undertake a
review of their uses
of obsolete or government-unique standards as soon as practicable.
60. A commentator proposed language to require agencies to respond to
voluntary consensus standards bodies to replace existing federal standards,
specifications, or regulations with voluntary consensus standards. This
change is not
necessary, because the Circular already requires agencies to establish a
reviewing standards. (See comment 59.) We made no change.
Proposed Section 8. Final Section 11.
61. Several commentators suggested eliminating the requirement in the
for an analysis of the use and non-use of voluntary consensus standards
in both the Notice
of Proposed Rulemaking (NPRM) and the final rule in order to simplify and
Register notices. As an alternative, these commentators proposed
including such analysis
in a separate document that accompanies the NPRM and the subsequent final
We have decided that, rather than simplifying the rulemaking process,
this change would
make it more difficult for the public to comment on the rule and would
process by adding another source of information in a separate location.
However, we did
make some minor changes to this section to clarify that agencies are not
provide an extensive report with each NPRM, Interim Final Rulemaking, or
Final Rule. The
section was also modified to improve the ability of agencies to identify
consensus standards that could be used in their regulations, to ensure
public notice, and
to minimize burden. First, the notice required in the NPRM may merely
a few sentences to identify the proposed standard, if any; and, if
applicable, (2) a
simple explanation of why the agency proposes to use a government-unique
standard in lieu
of a voluntary consensus standard. This step places the public on notice
and gives them an
opportunity to comment formally. Second, we expect that the majority of
not reference standards at all. In these cases, the agency is not
required to make a
statement or to file a report. In those instances where an agency
government-unique standard, the public, through the public comment
process, will have an
opportunity to identify a voluntary consensus standard (when the agency
was not aware of
it) or to argue that the agency should have used the voluntary consensus
the agency had identified one, but rejected it).
62. Several commentators suggested adding a new section entitled
Agency Search." The purpose of this new section would be to limit an
obligation to search for existing voluntary consensus standards under the
this section. We have decided that this section is
unnecessary in light
of the requirements elsewhere in the Circular for identifying voluntary
standards. Accordingly, we made no change.
63. One commentator suggested that agencies be required to fully
investigate and review
the intent and capabilities of a standard before making a decision to use
voluntary consensus standard. We have decided that the effort an agency
would have to
undertake to conduct its own scientific review of a voluntary, consensus
unnecessary, as SDOs adhere to lengthy and complex procedures which
scrutinize the uses and capabilities of a standard. However, in adopting
a standard for
use, whether in procurement or in regulation, agencies are already
required to undertake
the review under the Act and the Circular, as well as the review and
in other sources, such as the Federal Acquisition Regulation or the
Executive Order 12866
on Regulatory Planning and Review. Accordingly, we made no change.
64. A few commentators suggested that the Circular should ensure prompt
interested parties when voluntary consensus standards activities are
about to begin and
should encourage greater public participation in such activities. Another
noted a lack of clear procedures on how voluntary consensus standards
bodies handle public
comments and whether those comments are available to interested persons
OMB has determined that these responsibilities fall within the
jurisdiction of voluntary
consensus standards bodies and are outside the scope of the Act and the
Accordingly, we made no change.
Proposed Section 8. Final Sections 6g and 12c.
65. A few commentators requested clarification on the use of
"commercial-off-the-shelf" ("COTS") products as they
voluntary consensus standards. In response, we have clarified final
section 6g to state
that this policy does not establish preferences between products
developed in the private
sector. Final section 12c clarified that there is no reporting
requirement for such
Proposed Section 9 -- Responsibilities. Final Sections 13, 14, 15.
66. Several commentators proposed that OMB have more defined oversight
determining whether an agency's participation in a voluntary consensus
standards body is
consistent with the Circular. We did not make this change. Agency
with the advice of the Chair of the ICSP, are responsible for ensuring
that agencies are
in compliance with the requirements of this Circular.
With respect to the issue of "agency dominance" of SDOs, we
expect that SDOs
will likewise ensure that members abide by their rules of conduct and
working closely with Standards Executives where necessary and
appropriate. We inserted
minor clarifying language in new sections 13, 14, and 15.
Proposed 9b(2). Final Section 14c.
67. A commentator suggested broadening the category of agencies that must
standards executive, from designating those agencies with a "significant
interest" in the use of standards, to those agencies having either
or procurement" responsibilities. We decided that this proposed
change was vague and
would only confuse the scope of the Circular. Accordingly, we made no
Proposed Section 10. Final Sections 9 and 10.
68. One commentator expressed concern that the reporting requirements
agencies to report reliance on commercial-off-the-shelf (COTS) products
as a decision not
to rely on voluntary consensus standards. The Act and the Circular do not
abilities to purchase COTS or other products or services containing
standards. The Circular specifically excludes reporting of COTS
procurements in final
section 12, and final sections 9a and 12 require agencies to report only
when an agency
uses a government-unique standard in lieu of an existing voluntary
Accordingly, we made no change.
Proposed 10b --Agency Reports on Standards Policy Activities. Final
69. One commentator suggested that agencies also report the identity of
development bodies whose standards the agency relies on and the
identities of all the
standards developed or used by such bodies. We have decided that it would
duplicative, and burdensome to require agencies to identify this level of
detail in the
annual report. The identity of individual standards developed by a
standards body may be
obtained either through the standards body or through a standards
publishing company. In
addition, agencies are already required to provide in their annual
report, under section
9b(1), the number of voluntary consensus standards bodies in which an
Moreover, each agency is required under section 15b(5) to identify the
standards bodies in
which it is involved. Accordingly, we made no change.
Proposed 10b(3). Final Section 9b.
70. A commentator suggested that agencies should be required to identify
regulations and procurement specifications in which the standards were
"withdrawn" and replaced with voluntary consensus standards. We
that this requirement is unnecessary, because information is already
provided in the
annual report described in final section 9b(3). Accordingly, we made no
Proposed 11 -- Conformity Assessment. Final
71. A commentator expressed concern that the coordination by the National
Standards and Technology (NIST) of standards activities between the
public and private
sector will undermine the coordination that ANSI has performed for many
years for the
private sector. In addition, the commentator expressed concern that
NIST's involvement in
such coordination will undermine the United States' ability to compete
two organizations are coordinating standards developing activities
instead of one. The Act
states that NIST is to "coordinate Federal, State, and local
activities and conformity assessment activities with private sector
activities and conformity assessment activities." This language
makes clear that NIST
will have responsibility for coordinating only the public sector and for
working with the
private sector. In addition, ANSI's role is affirmed in the Memorandum Of
(MOU) issued on July 24, 1995, between NIST and ANSI.
The MOU states
"[t]his MOU is intended to facilitate and strengthen the influence
of ANSI and the
entire U.S. standards community at the international level...and ensure
representation of U.S. interests is respected by the other players on the
scene." Thus, we made no change.
Accordingly, OMB Circular A-119 is revised as set forth below.
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