by Paul Gill, William W. Vaughan, and Stephen Lowell

Five years after passage of the National Technology Transfer and Advancement Act, some confusion remains about key government policies regarding federal agency participation in private-sector standards development activities. In this helpful article, the authors, experienced in federal participation in standards development, explain these policies.

Introduction

The information presented in this paper is based on the contents of the Office of Management and Budget’s Circular A-119 “Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities,” February 10, 1998.(1,2) The Circular establishes policies consistent with Section 12(d) of Public Law 104-113, the “National Technology Transfer and Advancement Act of 1995.”(3) The policies address, among other matters, federal participation in non-government voluntary consensus standards bodies. Participation includes activities involving all non-government voluntary consensus bodies even if they do not develop standards, such as the American National Standards Institute or American National Metric Council, which influence standards but do not actively develop them.

The federal government policies given in the referenced documents are intended to reduce to a minimum the reliance on government unique standards. Many non-government voluntary consensus standards are appropriate or adaptable for government purposes. The use of such standards in procurement (and regulatory) activities, when feasible and appropriate, is intended to achieve the following goals:
a. Eliminate the cost to government of developing its own standards and decrease the cost of goods procured and the burden of complying with agency regulations.
b. Provide incentives and opportunities to establish standards that serve national needs.
c. Encourage long-term growth for U.S. enterprises and promote efficiency and economic competition through harmonization of standards.
d. Further the policy of reliance upon the private sector to supply government needs for goods and services.

It has been asked to what degree agency actions should be taken to achieve these results. Each agency must develop and promote these federal government policies in accordance with the agency’s mission relative to the use of standards in its regulatory or procurement responsibilities. While OMB Circular A-119 establishes the basic policies and guidance for agencies, each agency is responsible for implementing the intent of PL 104-113 and OMB Circular A-119 within the scope of applicable laws or unless otherwise impractical relative to the agency’s mission, authorities, priorities, and budget resources.

The motivation for this paper is the authors’ experiences in awareness presentations to agency employees (including management), contractors, and other professional groups plus discussions with non-government voluntary consensus standards body members. During these presentations and discussions, it became apparent that federal employees and contractors do not clearly understand or have an awareness of the key policies concerning their participation in non-government voluntary consensus standards bodies that are expressed in OMB Circular A-119. The purpose of this paper is to highlight those key policies, and where appropriate, provide some additional guidance based on experiences from the past two years of trying to implement the OMB Circular A-119.

The numbers in parenthesis at the end of some paragraphs identifies the section of OMB Circular A-119 that addresses the point(s) made, except where otherwise noted. Italic type is by the authors, and numbered sections are paraphrased by the authors for purposes of clarity. The examples given are from the authors’ experiences during interactions with colleagues and associates.

Summary of Some Key Federal Government Agency, Employee, and Contractor Responsibilities

Agencies are required to consult with non-government voluntary consensus standards bodies and participate in their activities to eliminate the development or maintenance of separate government-unique standards. Thus, the initiative for communicating with these non-government standards bodies exists with the agency desiring to develop a new standards product or maintain an existing agency standards product.

Federal employees who accept an invitation to participate at government expense in a non-government voluntary consensus standards body standards activity must do so as a specifically authorized agency representative. In other words, the employee represents the agency and its view when participating and not the employee’s own personal view. Employees are required to ascertain the views of the agency on matters of paramount interest and express views consistent with established agency positions. This is a point not fully recognized by either the federal government employee, agency, or the non-government voluntary consensus standards body.

Federal government employees must refrain from involvement in the internal management of such non-government standards bodies and must not dominate such bodies or present the appearance of undue influence relating to the agency representation and activities in such bodies. This can be a difficult responsibility for an employee whose agency is contributing financially or “in-kind” support of a non-government voluntary consensus standards body.

While federal contractors do not fall within the definition of an agency, if a federal contractor participates in a non-government voluntary consensus standards body on behalf of an agency (i.e. the contractor’s participation is being paid for by the agency contract), then the contractor must comply with the “participation” policies of the OMB Circular A-119 applicable to federal employee participation in such bodies. This is a fact not entirely recognized by agencies or their contractors or by the non-government standards bodies involved.

Policy for Participation in Non-Government Voluntary Consensus Standards Bodies

Agencies must consult with non-government voluntary consensus standards bodies, both domestic and international, and must participate with such bodies in the development of voluntary consensus standards when consultation and participation is in the public interest and is compatible with the agency’s mission, authorities, priorities, and budget resources.(7)

Consultation by agencies with non-government voluntary consensus bodies, while improving, appears to have been limited by budget resources more so than any other reason. This consultation and participation responsibility does not place more preference on participation at the international level versus the national level. The key regarding participation is the “public interest” and employee’s “agency mission.” Also, there is nothing within OMB Circular A-119 that specifically prohibits federal employees from participation in consortia standards development organizations such as the Internet Society. This question has been raised in discussions with federal employees.

Purposes of Agency Employee Participation

Agency representatives should participate in non-government voluntary consensus standards activities to accomplish the following purposes:
a. Eliminate the necessity for development or maintenance of separate government-unique standards.
b. Further such national goals and objectives as increased use of the metric system of measurement; use of environmentally sound and energy efficient materials, products, systems services, or practices; and improvement of public health and safety. (7a)

The question has come up as to whether a federal employee should refrain from participation in a non-government voluntary consensus standards body activity that does not support national goals, such as use of the metric system or environmentally sound materials. The answer is, “it depends.” Some national goals and objectives are more guidelines than firm requirements. If they can be achieved while meeting the public interest and the agency’s mission, then the federal employee should encourage supporting these goals and objectives during the committee meetings, but not make compliance a condition of participation.

For example, it is a goal of the federal government to increase usage of the metric system of measurement. While the agency representative should seize opportunities to promote metric, many U.S. industrial sectors, such as aerospace, are almost entirely inch-pound. In this case, it would not be sensible for a federal employee to insist upon conversion of an entire industry to the metric system before the agency would participate in the standards development activity. On the other hand, there are sometimes environmental, health, or safety issues, where national goals and objectives cannot or should not be compromised. In these cases, a federal employee’s participation may be contingent upon a non-government voluntary consensus standards body agreeing to support these goals and objectives.

Obviously, there is no single or easy answer to this question. The only guidance that can be offered is that federal employees must make participation decisions based on a “sound” business and technical evaluation of whether participation supports the public interest and the agency’s mission.

General Principles That Apply to Agency Support

Agency support provided to a non-government voluntary consensus standards activity must be limited to that which clearly furthers the agency’s missions, authorities, priorities, and is consistent with budget resources. Agency support must not be contingent upon the outcome of the standards activity. Normally, the total amount of federal support should be no greater than that of other participants in that activity, except when it is in the direct and predominant interest of the government to develop or revise a standard, and its timely development or revision appears unlikely in the absence of such support. (7b)

Types of Support That May Be Provided
Agency support may include the following:
a. Direct financial support, e.g., grants, memberships, and contracts.
b. Administrative support, e.g., travel costs, hosting of meetings, and secretarial functions.
c. Technical support, e.g., cooperative testing for standards evaluation and participation of agency personnel in the activities of voluntary consensus standards bodies.
d. Joint planning with voluntary consensus standards bodies to promote the identification and development of needed standards.
e. Participation of agency personnel. (7c)

Authorization for Participation of Agency Personnel

Agency employees who, at government expense, participate in standards activities of non-government voluntary consensus standards bodies on behalf of the government must do so as specifically authorized agency representatives. Agency support for, and participation by agency personnel in, non-government voluntary consensus standards bodies must be in compliance with applicable laws and regulations. For example, agency support is subject to legal and budgetary authority and availability of funds. Similarly, participation by government employees (whether or not on behalf of the agency) in the activities of voluntary consensus standards bodies is subject to the laws and regulations that apply to participation by federal employees in the activities of outside organizations. (7d)

While it is anticipated that participation in a committee that is developing a standard would generally not raise significant issues; participation as an officer, director, or trustee of an organization would raise more significant issues. Federal employees who are representing their agency must do so at federal expense. The agency should involve its agency ethics officer, as appropriate, before authorizing support for or participation in a voluntary consensus standards body. (7d)

The question has also been raised whether to be on the safe side as a federal employee, should the employee always involve his or her agency’s ethics officer before agreeing to participate in a non-government voluntary consensus standards body? It is the authors’ opinion that such consultation is not necessary provided the federal employee understands the letter and spirit of OMB Circular A-119. As long as federal employees are only involved in the technical activities of a non-government voluntary consensus standards body, they are on safe ground. They should not become involved in boards or groups that direct such functions as budget, personnel, and other administrative functions, unless they clear such participation through their agency’s ethics office or general counsel to ensure there is no real or perceived conflict of interest.

Agency Participation in and Endorsement of Decisions Reached by Non-Government Voluntary Consensus Standards Bodies

Agency participation in voluntary consensus standards bodies does not necessarily imply agency agreement with, or endorsement of, decisions reached by such organizations. (7e)

It should also be noted that a federal employee’s (and thus agency’s) participation does not constitute assurance that the employee’s agency will adopt the resulting standard developed by a non-government voluntary consensus standards body.

Agency Participation Relative to That of Other Members

Agency representatives serving as members of non-government voluntary consensus standards bodies should participate actively and on an equal basis with other members. This participation should be consistent with the procedures of those bodies, particularly in matters such as establishing priorities, developing procedures for preparing, reviewing, and approving standards, and developing or adopting new standards. Active participation includes full involvement in discussions and technical debates, registering opinions, and, if selected, serving as chairpersons or in other official capacities. Agency representatives may vote, in accordance with the procedures of the voluntary consensus standards body, at each stage of the standards development process unless prohibited from doing so by law or by the agency. (7f)

Limitations of Participation by Agency Representatives

In order to maintain the independence of non-government voluntary consensus standards bodies, agency representatives must refrain from involvement in the internal management of such organizations (e.g., selection of salaried officers and employees, establishment of staff salaries, and administrative policies). Agency representatives must not dominate such bodies, and are bound by voluntary consensus standards bodies’ rules and procedures, including those regarding domination of proceedings by any individual. Regardless, federal employees must avoid the practice or the appearance of undue influence relating to the agency representation and activities in voluntary consensus standards bodies. (7g)

What constitutes “domination” of a non-government voluntary consensus standards body within the meaning of OMB Circular A-119? The OMB Circular A-119 is not very clear on this point. Indeed, there are sections of the Circular that encourage federal employees or their agencies to take the lead, and by definition, “taking the lead” would seem to imply some dominance. For example, paragraph 7b states that it is acceptable for federal support to exceed that of other participants when the government has a predominant interest to develop or revise a standard. Doesn’t primary support and predominant interest constitute domination, whether direct or indirect? Paragraph 7f encourages federal employees to chair committees within non-government voluntary consensus standards bodies. Since the chair controls discussion and can set agendas, doesn’t this constitute domination? What if a federal employee indicates during technical discussions that if a particular requirement is not changed or added to a standard, then his agency will not adopt the standard? Wouldn’t this threat of non-use constitute domination and undue influence?

These are all fundamental issues concerning a federal employee’s actions while participating in a non-government voluntary consensus standards body’s activities. While the OMB Circular A-119 has created a number of questions about what constitutes dominance, the best advice for federal employees is to use some common sense. Every participant—whether from the private or public sectors—is expected to express and try to garner support for the views of their organization when participating on a non-government voluntary consensus standards committee. Trying to persuade others to share your views and assuming positions of leadership is not dominance. That is part of being a responsible and active participant in the standards development process. Dominance is when you use the clout of your agency to force standards decisions when it is clear that there is little or no support, and perhaps even resistance, from the private sector. Such efforts undermine the goal of the OMB Circular A-119 to encourage the development of standards that will benefit and will be used by both the private and public sectors. If a situation arises where there is some question about dominance, the federal employee should consult their agency’s Ethics Office.

Limits on the Number of Agency Participants in Non-Government Voluntary Consensus Standards Bodies

The number of individual agency participants in a given non-government voluntary standards activity should be kept to the minimum required for effective representation of the various program, technical, or other concerns of the agency. (7h)

Action If a Non-Government Voluntary Consensus Standards Body Is Likely to Develop an Acceptable, Needed Standard in a Timely Fashion

If a non-government voluntary consensus standards body is in the process of developing or adopting a voluntary consensus standard that would likely be lawful and practical for the agency to use, and would likely be developed or adopted on a timely basis, the agency should not develop its own government-unique standard. Instead, the government should participate in the activities of the voluntary consensus standards body. (7j)

While this is a key point, from experience it has been difficult for an agency to be knowledgeable of all the standards under development by the some 600 domestic non-government voluntary consensus standards bodies nationally, much less on an international basis. Therefore, some responsibility must exist for these bodies to inform those agencies most likely to have interest in the new standards being developed. Just how this can be achieved is not completely evident except by notification to the respective agency’s Standards Executive as established per OMB Circular A-119.

Other Guidance

The OMB Circular A-119 policies do not provide guidance concerning the internal operating procedures that may be applicable to non-government voluntary consensus standards bodies because of their relationships to the agency. Agency participants should, however, carefully consider what laws or rules apply in a particular instance because of these relationships. For example, these relationships may involve the Federal Advisory Committee Act, as amended (5 U.S.C. App.I), or a provision of an authorizing statute for the agency. (7l)

The agency representative who participates in a voluntary consensus standards body will, to the maximum extent possible, ascertain the views of the agency on matters of paramount interest, and will, as a minimum, express views that are consistent with established agency views. The representative will also ensure that participation in voluntary consensus standards bodies is consistent with the agency’s missions, authorities, priorities, and budget resources. [15.b(1) of Ref. 2]

Questions have developed on this point and, in the authors’ opinion, probably reflect one of the responsibilities least understood or known by federal employees, or by non-government voluntary consensus standards bodies. Federal employees participate at government expense as representatives of their agency, not just as individual technical experts.

In compliance with the policies of OMB Circular A-119, the agency will develop and implement an agency-wide directory identifying agency employees participating in voluntary consensus standards bodies and the identification of voluntary consensus standards bodies. [15,b(5) of Ref. 2]

Federal contractors do not fall within the definition of an 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 (What Is the Policy for Federal Participation in Voluntary Consensus Standards Bodies?) of OMB Circular A-119. (Sec IV, 6 of Ref. 2)

As with federal employees as noted above, federal contractor employees are lacking in their awareness and understanding that they also, when funded by a federal contract, participate on behalf of the agency according to OMB Circular A-119. //

Acknowledgement: The authors would like to acknowledge the review and constructive comments provided by Joseph Jones, Pace and Waite, Inc. regarding this paper.

References
1 Office of Management and Budget Circular A-119 “Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities”, February 10, 1998.
2 Federal Register/Vol. 63, No. 33/Notices/Part IV , Executive Office of the President, 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; Notice, Thursday, February 19, 1998.
3 Public Law 104-113 “National Technology Transfer and Advancement Act of 1995”, May 7, 1996.