MEMORANDUM FOR STANDARDS EXECUTIVES

SUBJECT: Guidance on Reporting the Use of Voluntary Consensus Standards

FROM: Mary H. Saunders, Chair Interagency Committee on Standards Policy

This memorandum provides additional guidance from the National Institute of Standards and Technology (NIST) to Federal agencies on how to report their use of voluntary consensus standards to NIST under the requirements in the National Technology Transfer and Advancement Act of 1995 (NTTAA) and the Office of Management and Budget's (OMB) Circular A-119 (the Circular). This guidance is intended to facilitate both reporting by individual agencies and consistency of reporting across agencies.

According to Paragraph 9 of the Circular:

1. As required by the Act, your agency must report to NIST, no laterthan December 31 of each year, the decisions by your agency in the previousfiscal year to use government-unique standards in lieu of voluntaryconsensus standards. If no voluntary consensus standard exists, youragency does not need to report its use of government-unique standards.In addition, an agency is not required to report on its use of otherstandards. Your agency must include an explanation of the reason(s)why use of such voluntary consensus standard would be inconsistent withapplicable law or otherwise impractical, as described in Sections 11b(2),12a(3), and 12b(2) of OMB Circular A-119 (Circular). Your agency mustreport in accordance with format instructions issued by NIST.
   
   
2. Your agency must report to NIST, no later than December 31 of eachyear, information on the nature and extent of agency participation inthe development and use of voluntary consensus standards from the previousfiscal year. Your agency must report in accordance with format instructionsissued by NIST. Such reporting must include the following:
   

   (2) The number of voluntary consensus standards the agency has used since the last report, based on the procedures set forth in sections 11 and 12 of this Circular."

Guidance from NIST

1. The Use of Voluntary Consensus Standards in Regulatory and ProcurementDocuments.
   
   
1. What Federal regulatory agencies must report:
   
   Federal regulatory agencies must report the use of voluntary consensusstandards in regulatory documents when such standards are used as follows:
   
   
1. The first time a specific voluntary consensus standard is incorporated by referenceinto a regulatory document.
   

   EXAMPLE:
   A particular Federal agency requires, for the first time, in section 100 of its regulations thatflashpoints for flammable liquids must be determined in accordance with American Society forTesting and Materials (ASTM) Standard D93-71, Standard Test Methods for Flash Point by Pensky-MartensClosed Cup Tester. This first reference to a specific standard must be reported to NIST as a use ofa voluntary consensus standard.

2. Each subsequent time a specific voluntary consensus standard is incorporated by reference into aregulatory document.
   

   EXAMPLE:
   Later in its regulations, the same agency requires in section 200 of its regulations that flashpointsfor flammable liquids must be determined in accordance with the same American Society for Testing andMaterials (ASTM) Standard D93-71, Standard Test Methods for Flash Point by Pensky-Martens Closed CupTester. This second, subsequent use of the same standard is also to be reported to NIST as a use ofa voluntary consensus standard.

3. Each time a specific edition of a voluntary consensus standard is incorporated by reference intoa regulatory document.
   

   EXAMPLE:
   Later in its regulations, the same agency requires in section 300 that the flashpoint for a certain,specific flammable liquid may only be determined in accordance with American Society for Testing andMaterials (ASTM) Standard D93-85, Test Methods for Flash Point by Pensky-Martens Closed Cup Tester,a newer edition of the same standard used previously. This third use of the same but newer editionof the standard is also counted as a use of a voluntary consensus standard to be reported to NIST.

2. What Federal regulatory agencies need not report.
   
   Federal regulatory agencies do not need to report the use of voluntaryconsensus standards when they are used in regulatory documents in thefollowing manners:
   
   
1. Indirect references to a specific standard.
   

   EXAMPLE:
   A particular Federal agency requires in section 100 of its regulations that certain boilers orpressure vessels must meet the American Society of Mechanical Engineers (ASME) Boiler and PressureVessel Code. Later in section 101 of its regulations the agency requires compliance with "the Code"for a particular component of a pressure vessel. The second indirect reference to "the Code" isconsidered the same use of a voluntary consensus standard as the previous reference; therefore itis not to be reported to NIST.

2. General reference in enforcement documents.
   

   EXAMPLE:
   In writing up an enforcement action citation, a particular agency may cite a petroleum facility bysaying in the citation that, "Adequate environmental protection was not provided by the owner in thatthe owner failed to provide environmental protection from evaporation loss similar to that recommendedin American Petroleum Institute (API) Standard API 2517, The Evaporation Loss From External Floating-roof Tanks, Second Edition. The use of voluntary consensus standards by agency personnel to provideguidance in compliance is not considered a use of voluntary consensus standards to be reported to NIST.

   The basis for the guidance in I.B.2 above is that agencies should report only standards used for broad application affecting more than one entity. Such cases involve standards incorporated by reference into federal regulations and standards referenced via other means for the purpose of affecting an entire class of regulated entities.
   
   
3. What Federal agencies conducting procurement activities must report.
   
   Federal agencies conducting procurement activities must report the use of voluntary consensus standards as follows:
   
   
1. The first time a specific voluntary consensus standard is added to any inventory of standardsacceptable for use in procurement activities.
   

   EXAMPLE:
   A particular agency wants to ensure that all drinking fountains purchased by the agency meet particularrequirements. Therefore, the agency, for the first time, places the Air Conditioning and RefrigerationInstitute's (ARI) Standard, ARI 1010-78, Drinking-Fountains and Self-Contained, Mechanically-RefrigeratedDrinking-Water Coolers, into its inventory of standards acceptable for the purchase of goods and serviceswithin the agency. This first reference to a specific standard must be reported to NIST as a use of avoluntary consensus standard.

2. Each specific edition of a voluntary consensus standard that has been added to any inventory ofstandards acceptable for use in procurement activities.
   

   EXAMPLE:
   Later, the same agency recognizes that a newer edition of the Air Conditioning and RefrigerationInstitute's (ARI) Standard, ARI 1010, has been published and that drinking fountains are no longerbeing manufactured to meet the older, reference standard. The agency then replaces the older editionof the referenced standard in its inventory with the newer standard. This new use of the same butnewer edition of the standard is also counted as a use of a voluntary consensus standard to be reportedto NIST.

4. What Federal agencies conducting procurement activities need not report.
   
   Federal agencies conducting procurement activities do not have to report the use of voluntary consensus standards used as follows:
   
   
   1. In individual contracting documents.
      

      EXAMPLE:
      A unit within a particular agency decides to purchase a drinking fountain. The purchasing officergoes to the agency's inventory of acceptable procurement standards and finds the Air Conditioningand Refrigeration Institute's (ARI) Standard ARI 1010, Drinking-Fountains and Self-Contained,Mechanically-Refrigerated Drinking-Water Coolers listed as the standard acceptable for the purchaseof drinking fountains. The purchasing official then draws up a contract specifying that the vendormust provide a drinking fountain manufactured in accordance with the specifications found in the AirConditioning and Refrigeration Institute's (ARI) Standard ARI 1010, Drinking-Fountains andSelf-Contained, Mechanically-Refrigerated Drinking-Water Coolers. This subsequent use of a voluntaryconsensus standard already listed in the agency's inventory of acceptable procurement standards is notconsidered a use of voluntary consensus standards to be reported to NIST.

2. The Use of Voluntary Consensus Standards in the Management of Agency Programs.
   
   Federal agencies do not have to report the use of voluntary consensus standards used in the management of individual agency programs.

   EXAMPLE:
   A particular Federal agency may develop an internal emergency action plan to address agency personnel actions to be taken during a workplace emergency event. The plan may address the construction and maintenance of various means of egress, the way those means of egress will be used, the use of portable fire protection equipment, the acceptable types and use of personal protective equipment, or the manner in which workers would be trained to follow the requirements of the plan. An agency requirement in the emergency action plan that portable fire extinguishers will be provided in accordance with the National Fire Protection Association's (NFPA) Standard No.10, Portable Fire Extinguishers, is not considered a use of voluntary consensus standards to be reported to NIST.

   NOTE: The basis for the preceding guidance is that agencies should report onlythose standards that are used in ways that affect external activitiesconducted by the agency. Standards used by agencies to manage theirinternal operations and which have no direct effect on activities outsidethe agency are left to the agencies' discretion.
   
   
3. The Use of Voluntary Consensus Standards in Conformity Assessment Activities.
   
   Federal agencies do not have to report the use of voluntary consensus standards used conformity assessment activities.

   EXAMPLE:
   Federal agency personnel may have to refer to voluntary consensus standards as a means to ensure conformance to certain voluntary product standards. The use of voluntary consensus standards in such cases in not considered a use of voluntary consensus standards to be reported to NIST.