GTW Associates Comments

March 7, 2011 

Effectiveness of Federal Agency Participation in Standardization 

in Select Technology Sectors for the

National Science and Technology Council Technology Committee  Subcommittee on Standardization

 

GTW Associates  submitted  recommendations and substantive comments  in  March 7,  2011  Standardization feedback to the  Sub-Committee on Standards  Docket No. 0909100442–0563–02 93 replies to the request for information are posted at this NIST  Web site 

 

Many of the comments  at  the Web site  are consistent with those GTW  offered.  

 

 

 

GTW Associates addressed: 

 

Introduction  The  implications  of competition policy, international trade, and Intellectual property as a new paradigm and combination of factors impacting technical standards. 

 

Role of government in  standards  related  to Regulation & Procurement  The  lessons, legislation and guidance applicable to  government using standards to support regulation and procurement.   The relevance of  January   18, 2011 Executive Order 13563, Improving Regulation and Regulatory Review.

 

Role of government in national standards policy and trade  Key impacts on the competitiveness in the global marketplace

 

Role of  government  as  “convener” of  stakeholders  Importance of working closely with the private sector and to not  unnecessarily  expand and expend government resources when there are  private sector alternative

 

Consideration of  Intellectual Property questions Response to questions and key impact of Intellectual property issues in standards setting in the global marketplace

and the 13  recommendations below:

 

Recommendation One:  Continue to base US federal government support of and participation in private sector standards activity consistent with the NTTAA and the Trade Agreements Act of 1979

 

Recommendation Two :  Continue to base US federal government support of and participation in private sector standards activity consistent with the NTTAA and the  (OMB) Circular A-119, Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities

 

Recommendation Three:  Increase attention to and publication about  the role of private sector standards activity to support   Sec. 4.  Flexible Approaches.  of the 

January  18th 2011  Executive Order 13563, Improving Regulation and Regulatory Review Appendix Two And the paragraph Flexible Regulatory Tools in the MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES, AND OF INDEPENDENT REGULATORY AGENCIES M-11-10 MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES, AND OF INDEPENDENT REGULATORY AGENCIES  FROM: Cass R. Sunstein  Administrator  SUBJECT: Executive Order 13563, “Improving Regulation and Regulatory Review”  Appendix Three   

 

Recommendation Four:  Every  regulatory agency should include a description of its activity related to the NTTAA in proposals for new regulations or in regulatory reviews .  The activity should be described in Federal Register notices similar to manner in which the EPA describes its compliance with the NTTAA  the example at Appendix Four.

 

Recommendation Five:  Every  regulatory agency should include a description of its activity related to the OMB Circular A-119 and  TAA  in proposals for new regulations or in regulatory reviews .    The activity should be described in Federal Register notices similar to manner in which the EPA describes its compliance with the NTTAA in the example at Appendix Four

 

Recommendation Six:  The Office of Information and Regulatory Affairs at the Office of Management and Budget in its review of  proposals from regulatory agencies should require  information about  the extent to which the proposing agency has included an investigation of the potential role of private sector standards activity in achieving the intended objectives.  The review should include at a minimum the agency’s  explanation of the reason voluntary standards activities were found not possible to use in light of the OMB  Circular A-119 instruction  to:  use voluntary consensus standards, both domestic and international, in its regulatory and procurement activities in lieu of government-unique standards unless use of such standards would be inconsistent with applicable law or otherwise impractical.  Further the OMB  should review the extent to which the proposed regulatory  activity is consistent with the relevant standards text  contained in Circular A-4  September 17, 2003  TO THE HEADS OF EXECUTIVE AGENCIES AND ESTABLISHMENTS Subject: Regulatory Analysis The Presumption Against Economic Regulation   and the standards related legislative obligations of the    NTTAA and the Trade Agreements Act of 1979.

 

Recommendation Seven  :  All United States agencies preparing procurement technical specifications and standards should assure compliance their  with the provisions of   the OMB Circular A-119 Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities  including:

“Your agency must use voluntary consensus standards, both domestic and international, in its regulatory and procurement activities in lieu of government-unique standards, unless use of such standards would be inconsistent with applicable law or otherwise impractical.

Further such agencies should  be informed about the expectations and relevance of  Article X Technical Specifications and Tender Documentation  in  GPA/W/297  11 December 2006  Revision of the agreement on government procurement as at 8 December 2006

 

Recommendation Eight:  The US government should continue international efforts to help prevent  use of  standards, regulations and legal systems to impede the acceptance of both US Goods and services in many markets.  The US government should prepare an interagency plan how it will translate the goals from the   February 3 2011  the third edition of the United States   Standards Strategy     into specific projects and dedication of government resources to help achieve the goals.

 

Recommendation Nine: The US government should review the National Conformity Assessment Principles for the United States and contemplate  its relevance as a basis for  advice to federal agencies comtemplating conformity assessment programs. The NIST 2000 era    Guidance on Federal Conformity Assessment Activities should be revised accordingly. Since conformity assessment carried out by third-party private sector organizations is  well established and recognized by important industrial sectors  and federal agencies, when there is a US government identified need to provide a formal assurance of the competence of conformity assessment bodies, accreditation by internationally recognized accreditation bodies should be the preferred means of assurance.  Additionally  the Office of Information and Regulatory Affairs at the Office of Management and Budget should contemplate  advice to government agencies similar to the guidance in OMB A-119 to contemplate the role of  private sector conformity assessment bodies in lieu of government activities.

 

Recommendation Ten: The US government should  review the 12th goal of  the third edition of the United States   Standards Strategy  indicating its   Support for  U.S. Competitiveness and International Trade      to  address the need for standards in support of emerging national priorities   and   formally state    support for the role of the private sector American National Standards Institute  in the 12th goal to:

 

 provide active coordination, where necessary, in areas relating to emerging national priorities to promote information sharing across all affected interest areas and minimize overlap and duplication of standards-related efforts.

 

Recommendation Eleven: The US government should stimulate and encourage sharing of experiences, practices and policies regarding patents in regulation and procurements  by agencies with such experience such as the FCC and procurement agencies such as GSA and DOD. 

 

Recommendation Twelve: The US government should  assist owners of  intellectual property resist and overturn  foreign government’s procurement or regulatory policies  relating to incorporation of patents  in standards  that unfairly compromise  the abilities of the US owners of patents  to obtain a  fair return on their investments.

 

Recommendation Thirteen : The US government should represent its interests in the setting of responsive patent policies by active participation in the activities of   the diverse population of  standards developing organizations.  The US government should  strong resist policy decisions that would have the effect to  favor the patent policy of one standards developing organization compared to another excepting any  cases that may entail antitrust or competition irregularities.

 


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