A group of academics have petitioned the National Archives and Records Administration to amend its regulations governing the approval of agency requests to incorporate materials by reference (IBR) into the Code of Federal Regulations. Amending regulations governing the incorporation of materials such as voluntary standards by reference and forcing organizations to make available – for free – those voluntary consensus standards, could threaten the standards-setting process at ANSI and NFPA, as well as other organizations.

At issue is how such voluntary consensus standards are made available and whether these consensus standards should be made available at no cost if they have been incorporated by reference into a federal regulation.

“This issue impacts the standards community in a number of key ways, especially with respect to defining the reasonable availability of voluntary consensus standards that have been incorporated into regulation,” explained S. Joe Bhatia, ANSI president and CEO.

The Office of the Federal Register (OFR) asked shareholders for comments pertaining to:

  1. Does “reasonably available” mean that the material should be available for free and to anyone online and if standards only are available for free online, does that create a digital divide by excluding people without Internet access?
  2. Does “class of persons affected” need to be defined? If so, how should it be defined?
  3. Should agencies bear the cost of making the material available for free online?
  4. How would this impact agencies’ budgets and infrastructures, for example?
  5. How would OFR review of proposed rules for IBR impact agency rulemaking and policy, given the additional time and possibility of denial of an IBR approval request at the final stage of the rulemaking?
  6. Should OFR have the authority to deny IBR approval requests if the material is not available online for free?
  7. The Administrative Conference of the United States recently issued a Recommendation on IBR. 77 FR 2257 (January 17, 2012). In light of this recommendation, should OFR update its guidance on this topic instead of amending its regulations?
  8. Given that the petition raises policy rather than procedural issues, would the Office of Management and Budget be better placed to determine reasonable availability?
  9. How would an extended IBR review period at both the proposed rule and final rule stages impact agencies?

In its comments to OFR, ANSI noted that it often is asked about why it charges for standards. “The answer is that every standard is a work of authorship and, under U.S. and international law, is copyright protected, giving the owner certain rights of control and remuneration that cannot be taken away without just compensation,” wrote ANSI. "Although many people working on standards development are volunteers, [groups such as ANSI] incur significant expenses in the coordination of these voluntary efforts. From the time a new project is commenced until the final balloting and adoption of a standard, the drafting process draws heavily on [ANSI's] administrative, technical and support services. Tens of thousands of staff employed by [groups like ANSI] across the nation provide direct support for the technical development activities of the volunteers."

According to ANSI, "the U.S. standardization system is a democratic process that thrives on the active participation and engagement of all affected stakeholders. The open, market-driven and private sector–led nature of the system is critical to achieving the widely shared policy goals of expanded U.S. leadership and innovation on the global stage."

The document goes on to state that decisions made about the U.S. standardization system and its priorities for action reach far beyond our borders, especially when it comes to the continued success of U.S. products, services and work force on the global stage.

ASSE Also Opposes the Proposal

ANSI is not alone in its opposition of requiring consensus standards to be available for free. Citing the negative impact it could have on occupational safety and health, the American Society of Safety Engineers (ASSE) said it strongly opposes such an action, stating that it could harm the future development of timely and effective voluntary national consensus safety and health standards.

ASSE remains concerned the proposal overlooks the value consensus standards play in protecting workers, ignores the positive conversation among key stakeholders that already is changing how voluntary consensus standards are being made available, and, ultimately, threatens the ability of standards development organizations (SDO) like ASSE from hosting the development of such standards.

ASSE is the secretariat for nine American National Standards Institute (ANSI) committees responsible for more than 100 occupational safety and health standards, including those for motor vehicle operations, fall protection, risk management, construction and demolition, confined spaces and much more.

"Through the well-established ANSI consensus standard development process, our members, other safety and health professionals, industry, trade groups and other stakeholders are able to come together to develop standards that can readily incorporate the latest knowledge about how to protect workers," wrote ASSE President Terrie S. Norris, CSP, ARM. "These standards are able to reflect current knowledge far beyond OSHA’s ability to do so."

ISEA Following the Issue

The International Safety Equipment Association (ISEA) has been following the issue closely, said ISEA President Dan Shipp. The organization is the secretariat for the ANSI/ISEA standards for eye and face protection (Z87.1) and head protection (Z89.1) that are incorporated by reference in OSHA regulations, as well as the high visibility standards (107 and 207) that are required by the Federal Highway Administration.

“ISEA believes it is important for federal agencies to continue to rely on voluntary consensus standards in rulemaking,” said Shipp. “This is especially important for product standards, which are revised on a regular basis to keep up with the state of the art in materials, manufacturing, testing and evaluation. ANSI standards have a 5-year lifetime; there is no way the regulatory process can keep up, and adoption of consensus standards is a solution that works for the regulators and the regulated community.”

Shipp notes that the organization and its members and staff devote considerable resources to its role as secretariat, and would take a financial hit if ISEA no longer could charge for the standards. That won’t stop ISEA from participating in the process of developing consensus standards, he added.

“ISEA members devote many hours to drafting these standards, and dedicated staff administer the process in compliance with accredited procedures, but in the final tally the association has one vote. If ISEA were forced to give up the revenues for its standards that incorporated by reference, it would be a hit to the association’s bottom line, but ISEA would not abandon its standards development programs, because they are essential to the industries we serve,” said Shipp.