GTW Associates 2006 Comments on OMB proposal for polices and procedures for agencies to develop, issue and use guidance documents

 

GTW Associates supports the OMB proposal for Good Guidance Practices applicable to policies and procedures for agencies to develop, issue and use guidance documents. 

Good Guidance Practices 

Draft Office of Management and Budget Good Guidance Practices Bulletin and Request for Comment (November 23, 2005) 

Extension of Comment Period to January 9, 2006
    (December 19, 2005) 

Public Comments on the Proposed Bulletin on Good Guidance Practices
 

----- Original Message -----

Sent: Tuesday, January 17, 2006 12:58 PM
Subject: Proposed Bulletin for Good Guidance Practices

GTW Associates supports the OMB proposal for policies and procedures for agencies to develop, issue and use guidance documents.  The OMB proposal with  respect to promoting transparency for  agency  developing, issuing and using guidelines the OMB proposal is consistent with the thrust of (if not the specific)  transparency requirements in a "Code of good practice for the preparation, adoption and application of standards"  applicable to the setting of non mandatory "standards" (including guidelines) by signatories to the WTO Agreement on Technical Barriers to Trade (TBT) .  This Code is appended below and may also be found at http://www.gtwassociates.com/answers/TBTCodeofGoodPractice.htm
 
GTW Associates observes  parallels between the proposed definition of "guidance document" 
 
    2. The term “guidance document” means a document, other than a document issued pursuant to 5 U.S.C. § 553 or § 554, prepared by an agency and available to the public to describe the agency’s interpretation of or policy on a regulatory or technical issue.
 
and the definition of  "standard" in USC Title 19 section   2571 Definitions   ( http://www.gtwassociates.com/answers/us%20code%20title%2019.htm)
 
    (13) Standard The term ''standard'' means a document approved by a recognized body, that provides, for  common and repeated use, rules, guidelines, or characteristics for products or related processes and  production methods, with which compliance is not mandatory. Such term may also include or deal  exclusively with terminology, symbols, packaging, marking, or labeling requirements as they apply to a  product, process, or production method.
 
USC Title 19 Section 2571 derives from US implementation of the Agreement on Technical Barriers to Trade (TBT)  ( see http://www.wto.org/english/docs_e/legal_e/17-tbt_e.htm  ) The definition for "standard" above is consistent with the comparable wording for the definition of standard in Annex 1 to the TBT:

    2.        Standard:  Document approved by a recognized body, that provides, for common and repeated use, rules, guidelines or characteristics for products or related processes and production methods, with   which compliance is not mandatory.  It may also include or deal exclusively with terminology, symbols, packaging, marking or labelling requirements as they apply to a product, process or production method.

There is no corresponding USC text to that of  Section 4.1 of the TBT
 
     4.1 Members shall ensure that their central government standardizing bodies accept and comply with  the Code of Good Practice for the Preparation, Adoption and Application of Standards… 
 
The term "central government standardizing bodies" might be interpreted to apply to any government body setting "non mandatory" standards.  Examples of such non mandatory standards setting by US agencies include the Voluntary Standards Program of   the National Institute of Standards and Technology  (see  http://ts.nist.gov/ts/htdocs/210/sccg/vps.htm ); the Energy Star programs of the Department of Energy and Environmental Protection Agency (see  http://www.energystar.gov/  ) ; and Federal procurement standards activities of the Department of Defense (see  http://www.dsp.dla.mil/ ) and General Services Administration  (see  http://www.gsa.gov/Portal/gsa/ep/home.do?tabId=2 ).   Any agency setting of "guidelines," compliance with which is not "mandatory," could also be interpreted to be the setting of "standards" in the sense of the definition of "standard" in USC Title 19 section   2571 and within the expectations of the TBT for  "central government standardizing bodies"
 
The elements of the Code most directly addressing transparency are paragraphs J. and K.
 
    J.       At least once every six months, the standardizing body shall publish a work programme containing     its name and address, the standards it is currently preparing and the standards which it has adopted in the     preceding period. A standard is under preparation from the moment a decision has been taken to develop a standard until that standard has been adopted. The titles of specific draft standards shall, upon request, be provided in English, French or Spanish. A notice of the existence of the work programme  shall  be published in a national or, as the case may be, regional publication of standardization activities.
 
    L.       Before adopting a standard, the standardizing body shall allow a period of at least 60 days for the  submission of comments on the draft standard by interested parties within the territory of a Member of  the WTO. This period may, however, be shortened in cases where urgent problems of safety, health or environment arise or threaten to arise. No later than at the start of the comment period, the standardizing  body shall publish a notice announcing the period for commenting in the publication  referred to in paragraph J. Such notification shall include, as far as practicable, whether the draft standard deviates from relevant international standards.
 
GTW Associates thanks OMB for the opportunity to comment on the proposal.  GTW Associates is an International standards and trade policy consultancy
 
Sincerely,
 
 
George T. Willingmyre, P.E.
GTW Associates
1012 Parrs Ridge Drive
Spencerville, MD 20868
301 421 4138 facsimile 301 421 0977
www.gtwassociates.com
 
Submitted January 17, 2005
 
 
Code of Good Practice Annex to the Agreement on Technical Barriers to Trade http://www.gtwassociates.com/answers/TBTCodeofGoodPractice.htm
 
Annex 3: Code of good practice for the preparation, adoption and application of standards

General Provisions

A.       For the purposes of this Code the definitions in Annex 1 of this Agreement shall apply.

B.       This Code is open to acceptance by any standardizing body within the territory of a Member of the WTO, whether a central government body, a local government body, or a non-governmental body; to any governmental regional standardizing body one or more members of which are Members of the WTO; and to any non-governmental regional standardizing body one or more members of which are situated within the territory of a Member of the WTO (referred to in this Code collectively as “standardizing bodies” and individually as “the standardizing body”).

C.       Standardizing bodies that have accepted or withdrawn from this Code shall notify this fact to the ISO/IEC Information Centre in Geneva. The notification shall include the name and address of the body concerned and the scope of its current and expected standardization activities. The notification may be sent either directly to the ISO/IEC Information Centre, or through the national member body of ISO/IEC or, preferably, through the relevant national member or international affiliate of ISONET, as appropriate.

Substantive Provisions

D.       In respect of standards, the standardizing body shall accord treatment to products originating in the territory of any other Member of the WTO no less favourable than that accorded to like products of national origin and to like products originating in any other country.

E.        The standardizing body shall ensure that standards are not prepared, adopted or applied with a view to, or with the effect of, creating unnecessary obstacles to international trade.

F.       Where international standards exist or their completion is imminent, the standardizing body shall use them, or the relevant parts of them, as a basis for the standards it develops, except where such international standards or relevant parts would be ineffective or inappropriate, for instance, because of an insufficient level of protection or fundamental climatic or geographical factors or fundamental technological problems.

G.       With a view to harmonizing standards on as wide a basis as possible, the standardizing body shall, in an appropriate way, play a full part, within the limits of its resources, in the preparation by relevant international standardizing bodies of international standards regarding subject matter for which it either has adopted, or expects to adopt, standards. For standardizing bodies within the territory of a Member, participation in a particular international standardization activity shall, whenever possible, take place through one delegation representing all standardizing bodies in the territory that have adopted, or expect to adopt, standards for the subject matter to which the international standardization activity relates.

H.       The standardizing body within the territory of a Member shall make every effort to avoid duplication of, or overlap with, the work of other standardizing bodies in the national territory or with the work of relevant international or regional standardizing bodies. They shall also make every effort to achieve a national consensus on the standards they develop. Likewise the regional standardizing body shall make every effort to avoid duplication of, or overlap with, the work of relevant international standardizing bodies.

I.       Wherever appropriate, the standardizing body shall specify standards based on product requirements in terms of performance rather than design or descriptive characteristics.

J.       At least once every six months, the standardizing body shall publish a work programme containing its name and address, the standards it is currently preparing and the standards which it has adopted in the preceding period. A standard is under preparation from the moment a decision has been taken to develop a standard until that standard has been adopted. The titles of specific draft standards shall, upon request, be provided in English, French or Spanish. A notice of the existence of the work programme shall be published in a national or, as the case may be, regional publication of standardization activities.product requirements in terms of performance rather than design or descriptive characteristics.

          The work programme shall for each standard indicate, in accordance with any ISONET rules, the classification relevant to the subject matter, the stage attained in the standard’s development, and the references of any international standards taken as a basis. No later than at the time of publication of its work programme, the standardizing body shall notify the existence thereof to the ISO/IEC Information Centre in Geneva.

          The notification shall contain the name and address of the standardizing body, the name and issue of the publication in which the work programme is published, the period to which the work programme applies, its price (if any), and how and where it can be obtained. The notification may be sent directly to the ISO/IEC Information Centre, or, preferably, through the relevant national member or international affiliate of ISONET, as appropriate.

K.       The national member of ISO/IEC shall make every effort to become a member of ISONET or to appoint another body to become a member as well as to acquire the most advanced membership type possible for the ISONET member. Other standardizing bodies shall make every effort to associate themselves with the ISONET member.

L.       Before adopting a standard, the standardizing body shall allow a period of at least 60 days for the submission of comments on the draft standard by interested parties within the territory of a Member of the WTO. This period may, however, be shortened in cases where urgent problems of safety, health or environment arise or threaten to arise. No later than at the start of the comment period, the standardizing body shall publish a notice announcing the period for commenting in the publication referred to in paragraph J. Such notification shall include, as far as practicable, whether the draft standard deviates from relevant international standards.

M.       On the request of any interested party within the territory of a Member of the WTO, the standardizing body shall promptly provide, or arrange to provide, a copy of a draft standard which it has submitted for comments. Any fees charged for this service shall, apart from the real cost of delivery, be the same for foreign and domestic parties.

N.       The standardizing body shall take into account, in the further processing of the standard, the comments received during the period for commenting. Comments received through standardizing bodies that have accepted this Code of Good Practice shall, if so requested, be replied to as promptly as possible. The reply shall include an explanation why a deviation from relevant international standards is necessary.

O.       Once the standard has been adopted, it shall be promptly published.

P.       On the request of any interested party within the territory of a Member of the WTO, the standardizing body shall promptly provide, or arrange to provide, a copy of its most recent work programme or of a standard which it produced. Any fees charged for this service shall, apart from the real cost of delivery, be the same for foreign and domestic parties.

Q.       The standardizing body shall afford sympathetic consideration to, and adequate opportunity for, consultation regarding representations with respect to the operation of this Code presented by standardizing bodies that have accepted this Code of Good Practice. It shall make an objective effort to solve any complaints.

G/TBT/1/Rev.7 28 November 2000

DECISIONS AND RECOMMENDATIONS ADOPTED BY THE COMMITTEE SINCE 1 JANUARY 1995

I. NOTIFICATION PROCEDURE UNDER THE CODE OF GOOD PRACTICE for the preparation, adoption and application of standards

1.            Paragraph J   Decision

The communication of the work programmes of standardizing bodies via the Internet would be another possibility to fulfil paragraph J obligations on transparency.  Hard copies of such work programmes would, nevertheless, always be made available on request in accordance with paragraph P of the Code of Code of Good Practice.

 
 

 

 

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