Should standards that become a part of a law be free to the public?

[ramblinrod]

Originally Posted by hallejj

Not sure I know what this discussion is about but here are some facts about laws and regulations in the US: (I was a lawyer for 40 years)

1 . All laws and regulations that are effective, i.e. legally binding on the public, are published. If they are not, they are not effective. Federal laws are published in the United States Code; regulations in the United States Code of Regulations (CFR). Both are available online and in hard copy at various libraries and on numerous websites, many of which are free. States, Cities and other governmental bodies with the power to enact laws and regulations also publish them in some form that is publicly available.

2. To be enforceable, a law or regulation must not only be publicly available but it must also be worded in a way that permits a member of the public to understand what behavior is required or prohibited. Some courts have held that regulations can be subject to copyright in the sense that the body issuing them can charge for copies. That said, the regulation is not binding on anyone unless it is available to him or her. I can only add that, in more than 40 years, I have never been unable to find and read a regulation and I have never had to pay for the privilege.

Thank you for your post.

Can you tell us if your practice was involved with safety standards?

If so, is there is any law that prohibits a law from referencing a standard that is available for sale from a non-profit organization?

[transmitterdan]

Originally Posted by Steve DAntonio

I have been a member of ABYC, either through my own company or as an employee of another, for over 25 years. I also sit on three project technical committees (PTCs), Hull Piping, Engine and Power Train and Electrical, PTC's essentially write the standards. So, perhaps I can address some of the comments made here. I'll preface them by making it clear I am not an ABYC apologist, there is much the organization could improve upon, and I am a regular critic. While it's imperfect, it beats the alternative, which is no standard setting body, or a mandatory, government mandated standard setting body.

Steve,

It’s great to hear from you on this subject. I have learned a lot in a short time. Thanks for all you do in supporting safe boating and education on same.

I don’t know ABYC’s financial structure. I could not find a public annual financial report. Apparently revenue from sales is very important which is typical of similar organizations pressured to keep the membership annual dues as low as possible.

[Ya Ubetcha]

One needs to weigh the immense value of standards versus the tyranny of expertise.

[GordMay]

Originally Posted by sailingharry

... Recently, Maryland tried to legally mandate that boats install ABYC compliant CO detectors. I actually have that ABYC standard, so I looked it up. It requires a UL compliant detector -- and not only is that standard "invisible," but it takes a great deal of looking to understand that the stamp on a Home Depot detector is not compliant. To this day, I don't know why not...

ABYC A-24 Carbon Monoxide Detection Systems
24.5 DESIGN AND CONSTRUCTION
24.5.1 Detectors shall be certified by an independent third party to meet the requirements of UL 2034, Single and Multiple Station Carbon Monoxide Detectors including the applicable sections pertaining for use on recreational boats.
24.9 MARKINGS
24.9.1 Detectors shall be marked with the following:
24.9.1.1 Name of certifying body,
24.9.1.2 “Marine Carbon Monoxide Alarm” or equivalent as tested to A-24,
24.9.1.3 Replace by date – MM/YYYY
or
24.9.1.3.1 Replace by: XX months after retail sale as determined by the manufacturer.
24.9.2 The markings shall be clearly visible as installed. NOTE: These markings are in addition to markings required under UL 2034, Single and Multiple Station Carbon Monoxide Detectors including the applicable sections pertaining to use on recreational boats.
➥ https://cdn.ymaws.com/abycinc.org/re...t/A-24_Pub.pdf

See also ABYC TH-22, Educational Information About Carbon Monoxide
➥ https://cdn.ymaws.com/abycinc.org/re...ment/TH-22.pdf

...A 5.5 kW generator can produce CO at rates nominally between 450 to 1,000 times that of the rate of CO production of various idling cars meeting current EPA automotive emissions standards. Technical approaches to limit CO production by large spark-ignition engines have been successful with automotive engines and marine generator engines. The technologies used on these engines, catalytic exhaust after-treatment and he1 injection, are also currently used on motorcycles in the U.S. and catalytic converters alone, without fuel injection, are used on small displacement 2-stroke and 4-stroke engines on motorscooters in countries such as China and India...
... There were 274 deaths, which occurred in 203 separate fatal incidents, reported to CPSC by that date for that fifteen-year period...
Page 11 & 12 ➥ https://www.cpsc.gov/s3fs-public/pdf...Generators.pdf

Excerpted from a United States CONSUMER PRODUCT SAFETY COMMISSION (CPSC) report
Page 36 ➥ https://www.cpsc.gov/s3fs-public/pdf...ical%20Reports
10/12/06
A 43 year old male died and a 35 year old male was hospitalized from carbon monoxide poisoning caused by a small portable gas generator that was being used to run a window mounted air conditioning unit aboard a 42 foot commercial fishing boat. The generator was on deck but its exhaust side was pointed towards the cabin in the same area where the air conditioner took its supply air. This apparently caused the exhaust (CO) to be drawn through the air conditioning unit and into the cabin where the two victims were sleeping.
1/10/2010
A 60 year-old male died from carbon monoxide poisoning while aboard a sail boat he was using as his permanent residence. The victim used a portable generator to supply power to a space heater aboard the vessel as well as to supply power to the vessel itself. A flexible hose had been connected to the generator exhaust port and vented outside the vessel. However, the exhaust hose developed a leak and carbon monoxide vapors entered the sleeping area of the cabin.

[Dsanduril]

Originally Posted by hallejj

Not sure I know what this discussion is about but here are some facts about laws and regulations in the US: (I was a lawyer for 40 years)

1 . All laws and regulations that are effective, i.e. legally binding on the public, are published. If they are not, they are not effective. Federal laws are published in the United States Code; regulations in the United States Code of Regulations (CFR). Both are available online and in hard copy at various libraries and on numerous websites, many of which are free. States, Cities and other governmental bodies with the power to enact laws and regulations also publish them in some form that is publicly available.

2. To be enforceable, a law or regulation must not only be publicly available but it must also be worded in a way that permits a member of the public to understand what behavior is required or prohibited. Some courts have held that regulations can be subject to copyright in the sense that the body issuing them can charge for copies. That said, the regulation is not binding on anyone unless it is available to him or her. I can only add that, in more than 40 years, I have never been unable to find and read a regulation and I have never had to pay for the privilege.

I would suggest you review the CFR with regard to Incorporation-by-Reference (IBR) the entire topic of this thread. The federal government has an IBR handbook that you can review for a synopsis.

Incorporation by reference (IBR) allows Federal agencies to comply with the requirement to publish rules in the Federal Register and the Code of Federal Regulations (CFR) by referring to material already published elsewhere.

The legal effect of IBR is that the referenced material is treated as if it were published in the Federal Register and the CFR. When IBRed, this material has the force and effect of law, just like all regulations published in the Federal Register and the CFR.

Thus IBR material is NOT published in the CFR but is treated as if it was. As already noted in this thread, the whole point of this discussion is the "reasonable access" to this IBRed material, and the FACT that some of it is hidden behind a paywall unless you decide to visit the National Archives in Washington DC to view the single legal record copy.

[sailingharry]

Originally Posted by boatpoker

How about mandated ABYC membership of all boaters ? The costs would be well spread out so would be minimal and the non-boater is not forced to support an endeavour in which they have no interest.

I can't imagine ABYC voluntarily reducing their fees just because they have 1000 times more members. However, ABYC is only part of the problem -- they in turn reference (without providing the text) other standards, like UL.

[sailingharry]

Originally Posted by GordMay

ABYC A-24 Carbon Monoxide Detection Systems
24.5 DESIGN AND CONSTRUCTION
24.5.1 Detectors shall be certified by an independent third party to meet the requirements of UL 2034, Single and Multiple Station Carbon Monoxide Detectors including the applicable sections pertaining for use on recreational boats.
24.9 MARKINGS
24.9.1 Detectors shall be marked with the following:
24.9.1.1 Name of certifying body,
24.9.1.2 “Marine Carbon Monoxide Alarm” or equivalent as tested to A-24,
24.9.1.3 Replace by date – MM/YYYY
or
24.9.1.3.1 Replace by: XX months after retail sale as determined by the manufacturer.
24.9.2 The markings shall be clearly visible as installed. NOTE: These markings are in addition to markings required under UL 2034, Single and Multiple Station Carbon Monoxide Detectors including the applicable sections pertaining to use on recreational boats.
➥ https://cdn.ymaws.com/abycinc.org/re...t/A-24_Pub.pdf

Gord,


First, I have no doubt that CO is an important safety consideration. It's why I have an alarm on my boat. Although, to be honest, diesel is comparatively benign with regard to CO -- several orders of magnitude safer than gasoline.


I have the ABYC standard, and have read it carefully. Here's what it means:
* The detector has to say "marine detector" -- Huh? Really? That's all?
* The detector has to meet UL 2034 and applicable marine sections. How is that even marked, and what do I look for? Not like an RV unit, which has to meet 2034RV.


But try an experiment.
* Go to Google and search "A-24 CO detector" and see how many pages you have to go to get one.
* Go to Amazon and search "Marine CO Detector" and see if you get one on the first page. This one, https://www.amazon.com/Marine-Techno.../dp/B00F6EWHEM, by "Marine Technologies" doesn't meet the criteria (it doesn't have a label saying "Marine Detector"). In fact, it doesn't say "marine" anywhere, and the description doesn't mention the UL "applicable marine sections"
* Defender doesn't sell any that show the word "marine" on the device.


My point is that it is exceptionally difficult to figure out what meets the standard. Can you find me a link to a SINGLE detector that, on the listing, clearly meets the standard? I can't.

[garyfrankovich]

Once a standard becomes into law, it becomes a part of the CFR (Code of Federal Regulations) which anyone can access for free online.

[Steve DAntonio]

Originally Posted by sailingharry

Wow. You opened a can of worms, Thinwater! 193 posts in under a week!


It is also a pet peeve of mine. Recently, Maryland tried to legally mandate that boats install ABYC compliant CO detectors. I actually have that ABYC standard, so I looked it up. It requires a UL compliant detector -- and not only is that standard "invisible," but it takes a great deal of looking to understand that the stamp on a Home Depot detector is not compliant. To this day, I don't know why not. I do know that detectors that are ABYC compliant do not necessary clearly state such, are 10 times the price of a Home Depot detector, and are made by a very small handful of manufacturers. I am about 1,000% sure that the average USCG or LEO wouldn't be able to determine the difference.



Fortunately, MD did not pass the law. And so I continue to happily use my Home Depot detector, mounted in a well protected location in my cabin. I do wish I knew exactly what ABYC doesn't like about that.

While I'm not in favor of additional state oversight of boating, UL compliant units aren't 10x the price of non-compliant units, this meets UL 2034 https://www.fireboy-xintex.com/marin...tector-cmd5-m/ It's $90. Cheaper First Alert units are about $25.

I agree, you are unlikely to get a ticket for a non-compliant detector, and no Coastie or LEO would be able to tell the difference, if there is a CO-related injury or fatality aboard the vessel, then the CO detector would be scrutinized carefully. The same is true for nighttime collisions, nav lights are closely scrutinized for compliance.

While any CO detector is better than no CO detector, ABYC/UL compliance, for something like a CO detector is almost certainly worth the additional price. If you had to install your own seat belts or air bags, would you a) want one that meets a third party, rather than simply a manufacturer's, quality standards? and b) buy based on price regardless of performance? The thing with CO detectors, and seat belts, is you hope you'll never need them, but when you do, there is no margin for failure.

For Smoke, and CO detectors, fire extinguishers and PFDs, buy the best and preferably those that meet 3rd party standards.

More on CO poisoning here https://stevedmarineconsulting.com/co-poisoning/

[ramblinrod]

Originally Posted by Dsanduril

I would suggest you review the CFR with regard to Incorporation-by-Reference (IBR) the entire topic of this thread. The federal government has an IBR handbook that you can review for a synopsis.



Thus IBR material is NOT published in the CFR but is treated as if it was. As already noted in this thread, the whole point of this discussion is the "reasonable access" to this IBRed material, and the FACT that some of it is hidden behind a paywall unless you decide to visit the National Archives in Washington DC to view the single legal record copy.

Thank you for posting a law indicating that a law can reference copyright protected standards published by others, and available for sale.

Seeing that no/one had been able to cite a contradictory law, I conclude that all those declaring the reference standard “must” be free are stating their “wishes” or “opinion that is not supported by facts”.

Not trying to be a jerk; these are important distinctions in this type of discussion.

[Dsanduril]

Originally Posted by ramblinrod

Thank you for posting a law indicating that a law can reference copyright protected standards published by others, and available for sale.

Seeing that no/one had been able to cite a contradictory law, I conclude that all those declaring the reference standard “must” be free are stating their “wishes” or “opinion that is not supported by facts”.

Not trying to be a jerk; these are important distinctions in this type of discussion.

You are absolutely correct. I'm pretty sure I am one of those who has said "must". I believe that the term "reasonably available" in the IBR regulations themselves (1 CFR 51.7), and the general principles of law in a democratic republic require the level of disclosure we are talking about and that these rules warrant the use of "must".

Obviously others do not agree and interpret existing laws differently. Since this is the subject of ongoing litigation, and various courts have ruled in conflicting ways this will only be settled (in the US) by higher courts or Congress. The EU will have similar conflicts (where there is less discretion about a CE certification than in the US with ABYC).

[Wotname]

Originally Posted by ramblinrod

.........

Why do people believe they are entitled to something for nothing?

Of course everyone likes to be on the beneficial side of this, but why would the organization producing the standards want to be on the disadvantaged side of this?
.........

This is a perfectly reasonable opinion and one I also share.

Yet should it apply to the law, should we pay for our liberty to be restricted? Of course we all do pay to have laws enacted - at least the taxpayers amongst do.

The question arises when the law wants to leverage off the efforts of private enterprise - who should pay for the standards developed by non government parties to be enacted as a law.

The law applies to all citizens, shouldn't then all citizens collectively pay, not just the ones affected by any given activity?

One may never speed yet one has paid (by the way of taxes) to have a such laws enacted and enforced.

[ramblinrod]

Originally Posted by Wotname

This is a perfectly reasonable opinion and one I also share.

Yet should it apply to the law, should we pay for our liberty to be restricted? Of course we all do pay to have laws enacted - at least the taxpayers amongst do.

The question arises when the law wants to leverage off the efforts of private enterprise - who should pay for the standards developed by non government parties to be enacted as a law.

The law applies to all citizens, shouldn't then all citizens collectively pay, not just the ones affected by any given activity?

One may never speed yet one has paid (by the way of taxes) to have a such laws enacted and enforced.

Completely different scenarios.

If there is a law that a used car must be safety checked when changing registration, the safety check is not free.

[sailingharry]

Originally Posted by ramblinrod

Completely different scenarios.

If there is a law that a used car must be safety checked when changing registration, the safety check is not free.

But, to be closer to the point of the thread, should the items of the safety check be "pay to know?" Should you take a mechanically nice car in, and have the mechanic say "you know, we keep this secret, but you really should have cleaned the carpet. You didn't and we have to fail you. Try again tomorrow."


Or have the cop pull you over, run his hands over your paint job, and say "it's kind of an industry secret, but you should have known it's a 2-point violation to use silicone wax -- in this state, carnuba is the only legal wax."


And going back to my rant on CO detectors, I testified at the State Senate hearing where they wanted to make them mandatory, and not a single person I spoke to in the Legislature could cite the reason why they were pushing for the ABYC specified $100+ detector, and not the $30 UL 2034 version -- yet they were debating making it the law of the land because, well, it sounds good.


I should mention that I *think* the difference is that the home detectors alarm on first detection, and the marine units use a time-weighted average to keep them from alarming on one stray whiff of CO. So, home detectors are too sensitive for marine use and so are prohibited. Go figure.

[Lake-Effect]

Originally Posted by sailingharry

But, to be closer to the point of the thread, should the items of the safety check be "pay to know?" Should you take a mechanically nice car in, and have the mechanic say "you know, we keep this secret, but you really should have cleaned the carpet. You didn't and we have to fail you. Try again tomorrow."

Or have the cop pull you over, run his hands over your paint job, and say "it's kind of an industry secret, but you should have known it's a 2-point violation to use silicone wax -- in this state, carnuba is the only legal wax."

Two points (which were generally agreed-upon a few pages back)

• The laws which reference those marine standards are things that apply to the boat manufacturers and other professionals doing boat work; an owner won't be the one responsible for meeting it.
  
• For the boat owner who wants to do their own work, all the good maintenance books already describe the standards generally and provide advice and directions for meeting them. Many marine vendors also provide info on the ABYC specs, sometimes even portions of the actual spec.

So in the case of most ABYC specs, the information is available to the owner already in useful forms.

And going back to my rant on CO detectors, I testified at the State Senate hearing where they wanted to make them mandatory, and not a single person I spoke to in the Legislature could cite the reason why they were pushing for the ABYC specified $100+ detector, and not the $30 UL 2034 version -- yet they were debating making it the law of the land because, well, it sounds good.

Out of interest, could you give us the make/model or a link to the $100 approved detector?