A Partnership in the Public Interest
On Jan. 3, a Congressional bill entitled "The Pipeline Safety, Regulatory Certainty and Job Creation Act of 2011," H.R. 2845, was signed into law by President Obama.
Section 24 of the bill says that the secretary of transportation "may not issue guidance or a regulation… that incorporates by reference any documents or portions thereof unless the documents or portions thereof are made available to the public, free of charge, on an Internet website." At present, approximately 60 ASTM International standards are referenced by PHMSA,1 as are standards from other standards developing organizations.
This legislation sets a troublesome precedent for ASTM International and others in the private sector standardization community. It is based on the old, uninformed, but persistent clamor for free standards, a production feat that requires a certain set of circumstances. But we'll get to that in a moment.
Our plan of action right now in response to this legislation is to develop online, read-only access to ASTM standards referenced in the legislation. At the same time, ASTM International is encouraging agencies to reference voluntary consensus standards under the direction of the U.S. Office of Management and Budget Circular A-119,2 which requires that federal agencies "must observe and protect the rights of the copyright holder and any other similar obligations." ASTM's policy is that when a federal agency demonstrates a need for access to the intellectual property contained in an ASTM standard, it will work with that agency to meet reasonable needs, in line with the recommendations of the Administrative Conference of the United States and the National Science and Technology Council.3
But the concept in Section 24 of this piece of legislation goes to the heart of a larger matter. In the NTTAA4 annual report for fiscal year 2009, NIST5 identified over 8,400 citations of standards incorporated by reference in regulatory documents. More than 80 percent of these standards were developed by the private sector. In the Code of Federal Regulations, ASTM standards are listed nearly 3,000 times.6 ASTM International is the single most federally referenced SDO in the United States.
The U.S. federal government uses ASTM International standards prolifically for one simple reason: they are the best of their kind. ASTM standards are developed by a brain trust and a pool of experts that is broad, diverse and international. Small- and medium-sized enterprises make up about 50 percent of the ASTM membership. Consumers, engineers and scientists from countries large and small, government employees, researchers, academics and multinational company experts are all part of the talent bank. This, plus the statistical validation of test methods and the full consensus of all interested parties, gives the ASTM standard its inimitable quality and relevance.
Years ago, ASTM and other U.S.-based SDOs engaged in an agreement with the federal government7 that contained two important provisos: 1) in rulemaking and procurement activities, government agencies would rely on standards developed by private-sector standards developing organizations;8 and 2) government workers would participate in voluntary standards organizations when such participation is in the public interest. This partnership is the best of its kind in the world, a unique model of public-private cooperation and collaboration. It's efficient, it's transparent, it's enormously cost-effective and it works.
For its part, ASTM was determined to make the standards developing process available and accessible, and by so doing, captured the world's greatest talents, including those working within the federal government. It made a conscious decision not to charge large up-front fees and in so doing, keep its membership and participation affordable.9
To support itself and its process, ASTM decided to sell its standards. Not all standards developing organizations in the United States do it this way. Not all standards developers are full consensus organizations. Some are trade associations, and some are professional organizations whose members pay substantial fees for memberships, registrations and projects - fees that are large enough to support their organizations. They can, therefore, give their standards away for free.
The United States is a diverse mixture of SDOs. We don't all fit in the same basket. But government participants are vital and necessary to the ASTM full consensus process and to the partnership. Our commitment was to make that partnership work by not erecting financial barriers to participation. Today, government employees are active in 93 percent of ASTM International's technical committees.
This legislation is, therefore, a slippery slope, and perilous. The idea of free standards across the board is not in the public interest, nor is it based in reality, because nobody's standards are free. The making of a standard is a complex process that involves, among other things, a professional staff, the housing and administration of the process, and cutting edge technology for broad participation and for the publishing and distribution of the documents. Standardization requires resources; it costs money. The U.S. system, recognizing that the standards community is diverse, leaves it to the individual organization to choose the method by which it will pay for the production of its standards.
What is in the public interest is a forum where standardization is available and accessible to all interested parties, a forum in which the U.S. government can sit alongside those it will regulate and those it will protect, and develop affordable standards10 for health and safety and a better environment. Our system grants everyone the opportunity to participate without barriers, without prerequisites and regardless of wealth or nationality. It mirrors this country's most cherished ideals. Our government depends on it. It is part of it. Let us not see this kind of legislation repeated again and again until (as one government friend said to me) ASTM International, and organizations like it, succumbs to death by a thousand cuts.
1. Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation.
2. OMB Circular A-119, Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities.
3. For more information, contact Jeff Grove, vice president, global policy and industry affairs, ASTM International, at firstname.lastname@example.org.
4. National Technology Transfer and Advancement Act.
5. National Institute of Standards and Technology.
6. This figure includes procurement requirements.
7. See OMB Circular A-119.
8. Whenever feasible and consistent with law and regulation.
9. ASTM International membership is $75 a year for an individual. It often waives the fee for consumers and general interest participants. Technical experts who join ASTM through the national standards bodies with which ASTM has memorandums of understanding, as well as students, pay nothing.
10. For example, the ASTM toy safety standard, F963, Consumer Safety Specification for Toy Safety, a 68-page document, sells for $69.
James A. Thomas
President, ASTM International