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Significant Federal Laws and Policies

OMB A-119 and the NTTAA

In recent years, Congress has responded to a growing need to strengthen OMB Circular A-119 and has passed several laws making it clear that federal agencies rely upon private voluntary standards whenever feasible.

Foremost among these laws is the National Technology Transfer and Advancement Act (Public Law 104-113). Signed into law in early 1996, this landmark legislation contains the following key provisions pertaining to standards and conformity assessment:

All Federal agencies and departments shall use technical standards that are developed or adopted by voluntary consensus standards bodies, using such technical standards as a means to carry out policy objectives or activities determined by the agencies and departments;

Federal agencies and departments shall consult with voluntary, private sector, consensus standards bodies and shall, when such participation is in the public interest and is compatible with agency and departmental missions, authorities, priorities, and budget resources, participate with such bodies in the development of technical standards;

Exception - If compliance is inconsistent with applicable law or otherwise impractical, a Federal agency or department may elect to use technical standards that are not developed or adopted by voluntary consensus standards bodies if the head of each such agency or department transmits to the Office of Management and Budget an explanation of the reasons for using such standards. Each year, beginning with fiscal year 1997, the Office of Management and Budget shall transmit to Congress and its committees a report summarizing all explanations received in the preceding year under this paragraph.

This legislation is having a dramatic impact upon the way federal agencies do business in the standardization area.


Impact of U.S. Sanctions on International Standardization

On August 15, 2012, the Office of Foreign Assets Control (OFAC) issued guidance regarding the applicability of U.S. sanctions regulations to international standards development activities through ISO and IEC. In its guidance, OFAC advised ANSI that international standards development activities do not violate OFAC's sanctions regulations. Such activities were deemed to fall within the "informational materials" exemption to the sanctions regulations or are authorized under a general license which allows for collaboration on the creation and enhancement of written publications, such as international standards. Thus, recognizing that ISO and IEC standards are created with input from member bodies in embargoed countries and adopted as national standards by member bodies in those countries, OFAC determined that participation in development of such standards by ANSI and its members is permissible under current OFAC regulations. (ANSI Request | OFAC-ANSI Response.)

On March 4, 2014, OFAC responded to two specific additional questions raised in a second request for guidance from the American Petroleum Institute (API).

The first question related to negotiations between API and ISO of a licensing agreement for petroleum and natural gas equipment and operating standards. The licensing arrangement contemplated that ISO would make such standards available to all ISO members, including U.S.-embargoed countries, “with the right to revise and create derivative works from the standards.”  OFAC determined that under these circumstances, API must request a specific license from OFAC.

The second question related to standards development committees and working groups (which API described as “closed”) that may include participants from sanctioned countries where the information exchanged may be non-public. For its part, ANSI believes and advised OFAC in its earlier submission that information shared in the development of ISO standards is public as there are no restrictions to keep it confidential by those participating. In response to the different scenario API hypothesized, however, OFAC advised API that sharing “non-public technical data” with persons ordinarily resident in Iran, Cuba, Syria, or Sudan would similarly require a specific license from OFAC. (API Request | OFAC-API Response.)

ANSI believes that the 2014 guidance OFAC provided to API is limited to the specific scenarios API presented in its request for guidance and does not change OFAC’s earlier guidance authorizing international standards development activities described in the 2012 guidance provided to ANSI.

The foregoing represents ANSI’s interpretation. This information is not intended to be legal advice and readers should consult an attorney for advice regarding their individual situation.


Reliance upon the Public-Private Partnership

Other laws and policies that reinforce the strong public-private partnership approach to standards and conformity assessment in specific sectors or areas of interest include the following:

* Standards Development Organization Advancement Act of 2004 (H.R. 1086)
HR 1086 provides qualified standards developers with an opportunity to file for, and obtain, a limited exclusion from antitrust liability for treble damages. This protection is identical to the protection which has been available to joint venturers under the National Cooperative Research and Production Act since 1993, which also remains available to those utilizing a consortium, or other informal process to develop standards.
As a large number of ANSI-accredited SDOs were raising questions about the impact of H.R. 1086 on their standardization activities, a list of FAQs were developed by ANSI staff following conversations with House and Senate staff, and with some of those people working with the Department of Justice on implementation issues

* Download a .pdf version of the FAQ document here.

* The Consumer Product Safety Act.
Under the Consumer Product Safety Act, the Consumer Product Safety Commission is specifically to rely upon voluntary consensus consumer product safety standards rather than promulgate its own standards. The relevant portion of the law is set forth below:
"…The Commission shall rely upon voluntary consumer product safety standards rather than promulgate a consumer product safety standard prescribing requirements described in Subsection (a) whenever compliance with such voluntary standards would eliminate or adequately reduce the risk of injury addressed and it is likely that there will be substantial compliance with such voluntary standards." (Source: Section 7(b)(1) of the Consumer Product Safety Act (15 USC 2056; PL 92-573; 86 Stat. 1207, Oct. 27, 1972, as amended in 1981.)


* The Health Insurance Portability and Accountability Act of 1995.
This Act requires the Secretary of Health and Human Services to adopt standards developed by ANSI-accredited standards developers whenever possible.


*  The Telecommunications Act of 1996.
The first major overhaul of U.S. telecommunications law in almost 62 years, the act contains several provisions that propel the Federal Communications Commission (FCC) toward reliance upon private sector standards. In particular, the FCC is seeking to ensure that the standards development process in the telecommunications area is open and consensus-based - the very things provided for by ANSI accreditation requirements.


* The Food and Drug Administration (FDA) Modernization Act of 1997.
This act contains provisions which allow the FDA in some instances to accept manufacturers’ declarations of compliance to certain standards during the evaluation of premarket submissions for electrical medical devices. This is expected to result in a substantial reduction of time-to-market for some medical devices, while still ensuring that fundamental regulatory health and safety responsibilities are met.


Milspec Reform.
In 1994, Secretary of Defense William Perry announced that one of the Department of Defense’s (DoD’s) top priorities would be to move away from military-unique specifications and standards (milspecs) and toward reliance upon private sector standards. "Moving to greater use of performance and commercial specifications and standards is one of the most important actions that DoD must take to ensure we are able to meet our military, economic, and policy objectives in the future," Perry said. The so-called "Perry initiative" is transforming the way the Defense Department does business.


Looking to ANSI and American National Standards

Federal, state and local governments and agencies have formally adopted thousands of voluntary standards produced by the ANSI Federation, and the process appears to be accelerating. As an example, the Occupational Safety and Health Administration (OSHA) works closely with ANSI and its accredited standards developers, referencing over 200 American National Standards for safety and health.

* Learn more about why agencies rely on American National Standards

In addition, there are several examples of federal laws that specifically cite the American National Standards Institute (ANSI):
The Higher Education Programs Authorization Extension Bill (P.L. 105-244)
This bill, signed in 1998, extended for an additional five years the authorization of programs under the Higher Education Act of 1965, which is the basic framework for federal policies in higher education including massive federal programs of student financial assistance. The bill also retained other current programs, providing some modest new initiatives, lowering borrowing costs to students and authorizing small improvements in program funding.


* The Compactors and Balers Safety Standard Modernization Act of 1996 (P.L. 104-174)
This act amended section 13(c) of the Fair Labor Standards Act of 1938, modifying Hazardous Occupations Order (HO) No. 12. The amendment changes HO 12 to authorize minors 16 years of age and older, under the child labor provisions, to load materials into balers and compacters that meet appropriate American National Standards Institute design safety standards.


* The Safe Water Drinking Act Amendment (P.L. 104-182)
This amendment, signed in 1996, revised title XIV of the Public Health Service Act of 1974, and focused on establishing a new groundwater protection program, abolishing unnecessary testing and monitoring requirements , and establishing a new procedure for identifying contaminants for regulation. The reauthorization process also provided Congress a vehicle to examine drinking water treatment and supply infrastructure needs.

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