A few weeks ago, the White House Office of Management and Budget’s (OMB)  proposed revisions to Circular A-119 entitled “Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities.”  In this post we provide an overview of OMB’s proposed 60+-page revised Circular A-119.

Last revised in 1998, Circular A-119 provides instructions and information to various federal agencies that are involved or participate in developing and using standards and standardization systems.  OMB proposed revisions to Circular A-119 “in light of changes that have taken place in the world of regulation, standards, and conformity assessment since the Circular was last revised”, under the general goal of promoting economic growth, innovation, and competition in addition to facilitating international trade.

The proposed changes to Circular A-119 fall into four major categories:

  1. SDO (Standards Developing Organizations) Process Related Issues
  2. IPR (Intellectual Property Rights) Related Issues
  3. Conformity Assessment Related Issues
  4. Agency Related Issues

The OMB’s request for comments on the proposed revisions were published in the Federal Register on February 11, 2014, seeking responses by May 12, 2014.

SDO Process Related Issues

Keeping with the current version, the revised circular expresses preference for voluntary consensus standards (VCSs) over standards developed by federal agencies.  The revised circular acknowledges that several types of voluntary standards could be relevant to a federal agency’s mission, including non-consensus standards under certain circumstances, but expresses preference for consensus standards over non-consensus standards where practicable. The proposed revisions also encourage agencies to participate in the activities of intergovernmental organizations and voluntary non-consensus bodies, providing guidance on how Federal representatives should participate in standards development activities.

The revised circular also offers a modified definition of a VCS Development Process as characterized by openness, balance of representation (previously “balance of interest”), due process, an appeals process, and consensus.  During a recent webinar, ANSI noted that, whereas the definitions provided by the original circular were in line with the ANSI Essential Requirements, this may no longer be the case because OMB’s revisions are slightly less inclusive than the Essential Requirements.  In other words, if one complies with the ANSI Essential Requirements, one complies with OMB, though one can comply with OMB and still not comply with ANSI Essential Requirements.

IPR Related Issues

As the 1998 version of Circular A-119 addresses IPR policies only briefly, OMB is seeking public comment on “whether it should consider providing more specific guidance for agencies with respect to intellectual property rights (IPR)-related considerations with regard to standards”. OMB’s current proposal includes the following language:

This evaluation [of using a voluntary standard] should include consideration of the economic effect of the IPR policies of the VCS bodies on standards implementers, such as the extent to which entities practicing the standards may obtain licenses to patented technology incorporated into the standard on a non-discriminatory and reasonable royalty or royalty-fee basis. This evaluation should also include consideration of whether such IPR policies bind subsequent transfers of patented technology incorporated into the standard.

The revised circular also indicates that an SDO’s IPR policies “should be easily accessible and the rules governing the disclosure and licensing of IPR should be clear and unambiguous.”

As noted at pages 5-6 of the proposed revisions, OMB is particularly interested in receiving public comment on whether the circular should provide more specific guidance on IPR-related considerations with respect to standards, including what factors an agency should consider regarding the interests of intellectual property holders whose intellectual property is incorporated in the standard and the interests of parties seeking to implement that standard.

The revised circular also addresses and reaffirms the rights of IP holders whose IP is incorporated into a voluntary standard published in an agency document, indicating federal agencies must observe and protect the underlying intellectual property right and meet all obligations required to comply with the standard.  Where an agency incorporates material that is protected or otherwise not freely available, the revised circular directs agencies to work with relevant standards developers to promote the availability of the materials while respecting the IP owner’s interest in protecting its IP.

Agency Related Issues

The revised circular also provides advice on how federal agencies should participate in standards development, including serving on the board or in a leadership position of a SDO, noting that participation does not equate to endorsement of a particular standard.  The revised circular also advises agencies to ensure timely updating of standards and provides additional guidance on complying with international obligations, indicating the agencies should consult with USTR and State Department on how to comply with international trade (including WTO Agreements) and other international obligations.