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

[Lake-Effect]

Originally Posted by Dsanduril

The argument has been made (many times) that the information is available in other places. Articles, books, magazines... But that is not the law, it is someone’s distillation of their understanding of the standard that is the law. How many times have we seen those be wrong? “Your honor, I read Joe’s article in XYZ, and it said....”

Are you addressing a real problem here? How many boaters have been charged with non-compliance of a spec that's been referenced in law? Even in tort law, how many boaters have lost cases and been found liable for something not in compliance with a cited standard? I'm guessing, but I'll bet it's very rare, and in those cases it was just a contributing factor, and the non-compliance was gross or negligence.

Even in T-Dan's examples (electrician or surveyor claiming non-compliance), there are many ways to challenge those findings. How about: just ask that person to show you the spec, and describe how your boat doesn't comply?

And “trust the manufacturer”? Philip Morris, Juul, Johns-Manville, USG?

Red herring. Those are cases of health hazards from normal use of their products. There's no comparable situation with boats and boat specs.

[ramblinrod]

All the whintching about the cost and flawed legal arguments about “free access”
are oh so tiring.

If one wishes to change to make access to standards free this is not the correct venue.

For anyone planning significant DIY work on a boat, I recommend becoming an ABYC member, accessing, reading, learning, and applying the standards.

The $285 membership will be one of the smallest dollar amount but highest value purchases made.

By applying the standards from the beginning of the project, it will assist you with modification design, product selection, and application.

The resultant savings by “doing it right the first time” will likely save the standard purchaser tenfold.

For anyone truly interested in “getting it right” following the standards is really the only way.

While I concur that a library of “marine how to” books by respected authors is extremely valuable and a step in the right direction vs MacGyver (redneck) solutions, they contain a lot of pedantic material, (which is good for someone who doesn’t know how to do stuff or how stuff works already), and though they may have collaborated with others to some extent, it is still just one persons opinion.

In contrast, the standards are very clear and concise, detailing exactly what is needed to make the system in question safe, based on the opinions of a large panel of the industries top experts.

It is far more important to make a system “work safely” than to just “work”.

[Dsanduril]

Originally Posted by Lake-Effect

...Even in T-Dan's examples (electrician or surveyor claiming non-compliance), there are many ways to challenge those findings. How about: just ask that person to show you the spec, and describe how your boat doesn't comply?...

This entire discussion is moot in that scenario. If I hire a surveyor (or an electrician) to survey my boat for compliance with ABYC standards (or to wire in accordance with same) then I fully expect that professional to have legal access to the standards in question. If the professional finds a problem then I expect them to be able to quote the exact text of the standard to me so I can see where the problem lies. And I fully expect to pay them for their service, and I expect that part of my payment funds their subscription to the standards and their training in applying the standards under real world conditions.

On the other hand, if they tell me the installation is illegal, and the illegality is based on compliance with a standard that is in law, then I expect them to quote me the law, and show me exactly why it is not in compliance. And I don't expect to pay to see the law, including the text of any standard incorporated into the law. I have already paid for the law, it's called taxes, and the law in mine (and yours).

Originally Posted by Lake-Effect

Red herring. Those are cases of health hazards from normal use of their products. There's no comparable situation with boats and boat specs.

No, those are cases where a corporation manufactured a product, knew that the product did not comply with regulations, and deliberately hid that information and evidence from both the population and the government.

[Dsanduril]

Originally Posted by ramblinrod

...For anyone planning significant DIY work on a boat, I recommend becoming an ABYC member, accessing, reading, learning, and applying the standards.

The $285 membership will be one of the smallest dollar amount but highest value purchases made....

Despite the name calling, couldn't agree with you more.

[Maine Sail]

Originally Posted by ramblinrod

For anyone planning significant DIY work on a boat, I recommend becoming an ABYC member, accessing, reading, learning, and applying the standards.

The $285 membership will be one of the smallest dollar amount but highest value purchases made.

It's $185.00 for a recreational boat owner membership and this gives 100% access to the standards.
https://abycinc.org/mpage/becomeamember




.

[ramblinrod]

Originally Posted by Maine Sail

It's $185.00 for a recreational boat owner membership and this gives 100% access to the standards.
https://abycinc.org/mpage/becomeamember




.

Whoops! Typo. Correct $185, even a better bargain! ;-)

Thanks Rod.

[Steve DAntonio]

I'll confess, I haven't read each of the 260 posts in this worthy thread, but is the assertion that an ABYC Standard has been adopted as law, and it is unavailable to anyone who is expected to follow that law? If so can someone cite a specific example? If it's a law then it must be in the CFR, which is publicly available (and available with you ABYC membership too, btw).

As for the evolving Standards process, there are indeed many conflicts between outdated and current ABYC Standards, the differences between E-8/E-9 (there were deleted and morphed into E-11 over a decade ago) and E-11 are numerous, with the ELCI requirement being one of them. The only way for there to be no conflicts would be if the Standards remained unchanged. Boat builders and repairers can only be expected to comply with the Standards at the time the vessel was built or repaired, however, when I encounter violations of the current Standard aboard a vessel, which may have been compliant when the vessel was built, it's still a violation, and I say, "The leaking AC current, overheated exhaust or carbon monoxide doesn't care what the Standard said 5 years ago, or today, it remains a hazard". It is for this reason that industry professionals must remain abreast of changes and updates to the Standards. Archive Standards are available to members online.

On the subject of ABYC Standards vs. how-to books and articles, as indispensable as the Standards are, they are anything but a how-to manual, in fact the language is notoriously clunky and often difficult to understand even for pro's much less DIYers. Thus, while there's no substitute for the Standards, they prescribe a result rather than the process one might use to achieve that result, i.e. 'tapping screws shall not be used for electrical connections", so what does one use, machine screws, but not screwed into fiberglass, so a bus bar, what ampacity, tinned or bare copper, etc.

As far as ABYC Standards and the law, including tort law, are concerned, the Standards are used in court on a regular basis. While I avoid expert witness work as much as possible, on the occasions I've been called upon to testify, been deposed, or had to provide evidence, it frequently involves ABYC Standards. I receive on average a call a month from an attorney who has read an article I've written, in which I cite an ABYC Standard, looking to retain me for a personal injury or property loss suit, many of which also involve, in one way or another, a violation of an ABYC Standard. Fire is the most common.

Even though it may not be the law, here's how it often goes in court, with a boat builder or repairer on the witness stand; attorney "You built/repaired the boat in question?" BB, "Yes". ATTY, "Are you familiar with an organization called ABYC?", BB, "Yes", ATTY, "And you know they produce a series of standards designed to guide boat builder?", BB, "Yes", ATTY, "Do you follow those standards?", BB, "Sometimes, but our membership ran out", ATTY, "But not always? And what's the cost of membership", BB, "Right. I'm not sure, a few hundred dollars", ATTY, "Why don't you keep your membership up to date and why don't you follow the Standards?", BB, "(looking at navel) Um, well, we, ah, it's not required, I mean it isn't the law, and if we follow them it will make the boat more expensive", ATTY, "The fuse you omitted in this case, that was responsible for the fire that cost the life of my client's 7 year old daughter, the jury will look at exhibit LL showing the charred remains of the vessel, and exhibit XX showing the overheated wire that has been determined as the cause of the fire, how much do you think that would have cost, all up, parts and labor?", BB, "(Looking at shoes) Ah, I'm not sure, I guess, about $70, maybe a little less". ATTY, "I have no further questions".

I use that scenario when educating boat builders and technicians about ABYC Standards, and I warn them, 'you never want to be that person on the witness stand, explaining how you saved the customer $49.16 (nearly always without even giving the customer the option), but the boat sank, blew up, electrocuted someone etc'.

You see, even if it's not the law, ABYC Standards are so well-known, written about so often (this thread is an example), so widely available to the industry for a nominal fee, and so widely recognized as 'best practice', that anyone in the industry who knowingly chooses to disregard them does so at their peril.

Once again, I'm all in favor of making Standards more readily accessible to boat owners, I believe doing so will drive up compliance, if a boat buyer is able to walk into a dealership and cite a Standard, saying, "If this boat doesn't comply I'm not buying it", or if a boat owner could say to a yard, "Look, what you are proposing for the repair doesn't comply with ABYC so until you can do that I'm not having you do the work", it would be hugely beneficial to the entire industry.

Just this morning I helped an owner's group obtain information for membership, to afford access to the Standards for all of their members.

[Dsanduril]

Originally Posted by Steve DAntonio

I'll confess, I haven't read each of the 260 posts in this worthy thread, but is the assertion that an ABYC Standard has been adopted as law, and it is unavailable to anyone who is expected to follow that law? If so can someone cite a specific example? If it's a law then it must be in the CFR, which is publicly available (and available with you ABYC membership too, btw).

As for the evolving Standards process, there are indeed many conflicts between outdated and current ABYC Standards, the differences between E-8/E-9 (there were deleted and morphed into E-11 over a decade ago) and E-11 are numerous, with the ELCI requirement being one of them. ...

Steve, this post has a link to 46 CFR 175.600 where ABYC E-8 and E-9 (yes, old standards) are incorporated by reference in the CFR and become a part of the CFR by that incorporation. But the standards themselves are not published as part of the CFR even though they have effectively become law by incorporation.

As for availability to someone who is expected to follow the law? That is the whole point of this thread. Under current law/regulation these standards are considered "available" if you can see/read a paper copy either at the USCG Engineering Office in Washington DC or at the National Archive Office of the Federal Register, also in Washington DC.

That's a brief summary of this thread, the whole thing revolving around the word "available", with additional content about whether or not a copyright ought to be valid if the standard becomes the law.

[Steve DAntonio]

Originally Posted by Dsanduril

Steve, this post has a link to 46 CFR 175.600 where ABYC E-8 and E-9 (yes, old standards) are incorporated by reference in the CFR and become a part of the CFR by that incorporation. But the standards themselves are not published as part of the CFR even though they have effectively become law by incorporation.

As for availability to someone who is expected to follow the law? That is the whole point of this thread. Under current law/regulation these standards are considered "available" if you can see/read a paper copy either at the USCG Engineering Office in Washington DC or at the National Archive Office of the Federal Register, also in Washington DC.

That's a brief summary of this thread, the whole thing revolving around the word "available", with additional content about whether or not a copyright ought to be valid if the standard becomes the law.

Got it, thanks, and perhaps this is the source of my confusion. Unless I'm missing something, if that's typical of the examples, then I'm afraid I must question its validity for this argument, if you are building (or operating) inspected vessels, Sub Chapter T Small Passenger Vessels, it's reasonable to expect that you'd belong to ABYC/have access to the Standards, along with membership likely in several other professional organizations. The lack of conformity between E8/9 and E11 where the CFR/CG is concerned is a problem, I agree, but it does not affect recreational vessels. Which brings me to the next salient point, while they are frequently applied to commercial craft, ABYC Standards are written for recreational craft, from the organization's mission statement, "The American Boat & Yacht Council (ABYC) is a non-profit, member organization that develops voluntary global safety standards for the design, construction, maintenance, and repair of recreational boats."

Is there an example wherein an ABYC Standard has been adopted as law, and is not available to the the recreational boat owning public? There are very few laws governing recreational diesel powered vessels under 65 feet, however, there are a slew of laws governing their gasoline-powered brethren, in that case ABYC and CFR mirror each other, with ABYC Standards including some additional guidelines, however, the portion that's law is available to anyone.

[Dsanduril]

I can't think of specific cases of ABYC standards being applied, by law, to recreational craft and not being available. This thread seems to have devolved to ABYC standards, but it isn't really about that. It's about any standard that is incorporated into law and isn't available. I do lump the USCG requirements for commercial vessels into that - the law is the law and ought to be available to everyone regardless of their reason for interest. For instance, the fire aboard the Conception is a pretty big deal and the suspicion is that it was electrical. I, for one, would like to be able to read all parts of the standards (the ones that are part of law) in force at the time she was put in service and/or updated. In this specific case I probably even can, as the vessel is that old. But even now, the law, as written for commercial vessels does not include the latest thinking regarding ELCIs. I'd like to be able to actually read the standard that is in law and decide if I need to lobby my congressperson to get the law updated.

A more specific standards case is UL 2034 (only because it has been brought up here). California HSC 17926 requires the owner of any (so it applies to a lot of otherwise non-technical "normal" people) residential building (that includes your own house) to have an operational CO detector.

17926.
(a) An owner of a dwelling unit intended for human occupancy shall install a carbon monoxide device, approved and listed by the State Fire Marshal pursuant to Section 13263, in each existing dwelling unit having a fossil fuel burning heater or appliance, fireplace, or an attached garage, within the earliest applicable time period as follows:

If you follow that to HSC 13263 and the follow that to HSC 13262 you find:

(a) “Carbon monoxide device” means a device that meets all of the following requirements:...
(4) The device has been tested and certified, pursuant to the requirements of the American National Standards Institute (ANSI) and Underwriters Laboratories Inc. (UL) as set forth in either ANSI/UL 2034 or ANSI/UL 2075, or successor standards, by a nationally recognized testing laboratory listed in the directory of approved testing laboratories established by the Building Materials Listing Program of the Fire Engineering Division of the Office of the State Fire Marshal of the Department of Forestry and Fire Protection....

That's a good law, and we hope will save lives. On the other hand UL 2034 has been cast into law and I ought to be able to read it. UL's own poor track record with regard to the testing of ionization style smoke detectors and smoldering fires is enough to not just blindly trust UL. If it were just a private business then no worries, but since their standard is now law....

For the ABYC, they seem quite proud that Transport Canada will now accept ABYC standards as an alternate for the current legal standards. That's all well and good, and as an alternate it's just fine. But the TCMSS press release (linked on the ABYC website) says:

6.8 In a second phase, proposed amendments to the Small Vessel Regulations will be developed to incorporate the ABYC standards by reference in the Regulations in replacement of the requirements set out in the standards TP1332.

And that part bothers me, unless when they get incorporated by reference as a replacement for the current regulations they become available to the Canadian taxpayer for free. I'm all for harmonized standards, and solid standards that are well thought out and comprehensive. But once the SDOs essentially write law then they need to become a lot more transparent.

You said it yourself:

You see, even if it's not the law, ABYC Standards are so well-known, written about so often (this thread is an example), so widely available to the industry for a nominal fee, and so widely recognized as 'best practice', that anyone in the industry who knowingly chooses to disregard them does so at their peril.

If the ABYC stuck to that business model then there'd be no argument.

[Exile]

Originally Posted by Steve DAntonio

Got it, thanks, and perhaps this is the source of my confusion. Unless I'm missing something, if that's typical of the examples, then I'm afraid I must question its validity for this argument, if you are building (or operating) inspected vessels, Sub Chapter T Small Passenger Vessels, it's reasonable to expect that you'd belong to ABYC/have access to the Standards, along with membership likely in several other professional organizations. The lack of conformity between E8/9 and E11 where the CFR/CG is concerned is a problem, I agree, but it does not affect recreational vessels. Which brings me to the next salient point, while they are frequently applied to commercial craft, ABYC Standards are written for recreational craft, from the organization's mission statement, "The American Boat & Yacht Council (ABYC) is a non-profit, member organization that develops voluntary global safety standards for the design, construction, maintenance, and repair of recreational boats."

Is there an example wherein an ABYC Standard has been adopted as law, and is not available to the the recreational boat owning public? There are very few laws governing recreational diesel powered vessels under 65 feet, however, there are a slew of laws governing their gasoline-powered brethren, in that case ABYC and CFR mirror each other, with ABYC Standards including some additional guidelines, however, the portion that's law is available to anyone.

Your confusion over the parameters of the thread topic is shared by many, and is due to the fact that the thread topic has often become . . . well . . . confused by many of the (off-topic) comments.

Someone will surely correct me if I'm wrong, but the concern expressed by the OP and others is not whether the ABYC standards incorporated by reference under US federal law (CFR's) are "available" or "accessible" in the generic sense since they surely are. Rather, it's whether they should be freely available or accessible as a result of their adoption into federal law. So the issue revolves around more of a due process/fair notice/taxpayer rights sort of theme. That is, since a law is generally required to be published and freely available to render a citizen responsible for it, industry standards that are merely incorporated by reference into the law are not by definition accessible directly in the CFR's, but in this case must be accessed through a non-governmental organization that requires payment for access. (except in the very limited scenario for viewing noted by Dsanduril above).

So while other tangential issues have been discussed here that are also worthwhile, the actual thread topic mainly centers around a rather narrow issue. I think it's fair to say that everyone understands the critical importance of the ABYC when it comes to an industry (recreational marine) that is already known to have a relative absence of standardization, and nobody wants to see its demise because it may be required to make its published standards freely accessible (thereby losing what may be an important source of its revenues). On the other hand, is it fair for a private organization to charge a fee to access standards which have been adopted into the public law, are not expressly contained therein, and require payment to a private organization to access? This is apparently the issue now before the courts (not involving the ABYC as a party afaik but who's outcome could affect it).

[Lake-Effect]

Originally Posted by Exile

...the concern expressed by the OP and others is not whether the ABYC standards incorporated by reference under US federal law (CFR's) are "available" or "accessible" in the generic sense since they surely are. Rather, it's whether they should be freely available or accessible as a result of their adoption into federal law. So the issue revolves around more of a due process/fair notice/taxpayer rights sort of theme. That is, since a law is generally required to be published and freely available to render a citizen responsible for it, industry standards that are merely incorporated by reference into the law are not by definition accessible directly in the CFR's, but in this case must be accessed through a non-governmental organization that requires payment for access. (except in the very limited scenario for viewing noted by Dsanduril above).

I think that's a reasonable summary of the thread.

I would add the following:

• I don't think that anywhere in this thread has anyone identified a law that references a non-free standard, that applies to the owner of a recreational boat. It's the boat manufacturers and marine professionals who bear the obligation to know and follow the standard.
• Where a standard is behind a law for something like a CO detector, there's reams of information available about the requirement, not least in the installation instructions furnished with a compliant device. In fact that's a big part of such a standard: that the end user is supplied with enough information to install the device in a compliant manner.

To restate my argument, I don't believe that not having every boating standard referenced in law provided for "free" is a significant barrier to the widest possible compliance, or is a source of harm to the recreational boater, and that forcing such "freeing" of standards would create much more harm than benefit, because it would force useful organizations like the ABYC out of operation.

[transmitterdan]

Either the industry standards incorporated into law are freely available to the general public or they are not. Free as in “free beer”.

Many standards organizations allow the public to freely access their standards. Many others do not. Some of the not free standards are in US laws.

This question is not about ABYC, recreational boaters or any other red herrings. It’s a simple question and ought to have a simple answer.

My guess is that the courts will not change things. Only a law passed by US Congress is likely to change the situation in the US.

And for those who say “just join ABYC” there are many reasons other than cost that may stand in the way of doing that. For example, what rules does one have to follow as a member? Most organizations have rules or behavioral norms which non-members are not required to honor. So you can’t just say “$185 is cheap and you are a cheapskate for not paying it”. That’s wrong on multiple counts.

[Steve DAntonio]

Originally Posted by Dsanduril

I can't think of specific cases of ABYC standards being applied, by law, to recreational craft and not being available. This thread seems to have devolved to ABYC standards, but it isn't really about that. It's about any standard that is incorporated into law and isn't available. I do lump the USCG requirements for commercial vessels into that - the law is the law and ought to be available to everyone regardless of their reason for interest. For instance, the fire aboard the Conception is a pretty big deal and the suspicion is that it was electrical. I, for one, would like to be able to read all parts of the standards (the ones that are part of law) in force at the time she was put in service and/or updated. In this specific case I probably even can, as the vessel is that old. But even now, the law, as written for commercial vessels does not include the latest thinking regarding ELCIs. I'd like to be able to actually read the standard that is in law and decide if I need to lobby my congressperson to get the law updated.

A more specific standards case is UL 2034 (only because it has been brought up here). California HSC 17926 requires the owner of any (so it applies to a lot of otherwise non-technical "normal" people) residential building (that includes your own house) to have an operational CO detector.



If you follow that to HSC 13263 and the follow that to HSC 13262 you find:



That's a good law, and we hope will save lives. On the other hand UL 2034 has been cast into law and I ought to be able to read it. UL's own poor track record with regard to the testing of ionization style smoke detectors and smoldering fires is enough to not just blindly trust UL. If it were just a private business then no worries, but since their standard is now law....

For the ABYC, they seem quite proud that Transport Canada will now accept ABYC standards as an alternate for the current legal standards. That's all well and good, and as an alternate it's just fine. But the TCMSS press release (linked on the ABYC website) says:



And that part bothers me, unless when they get incorporated by reference as a replacement for the current regulations they become available to the Canadian taxpayer for free. I'm all for harmonized standards, and solid standards that are well thought out and comprehensive. But once the SDOs essentially write law then they need to become a lot more transparent.



You said it yourself:



If the ABYC stuck to that business model then there'd be no argument.

Dsanduril, all good points and again this is a worthy discussion, so please don't take my dissension as tacit approval of the current state of affairs.

I figured ABYC was the 600 lb gorilla in the room, so I zeroed in on that, and that's where I have experience. As to other standards, UL, CSA, ISO, CE, indeed it would be nice to have access to these, free of charge, but again, there's that pesky cost thing, and just because taxpayers subsidize some part of ABYC's operating costs via non-profit status, that's not revenue for ABYC, just (legal) tax avoidance.

You said "And that part bothers me, unless when they get incorporated by reference as a replacement for the current regulations they become available to the Canadian taxpayer for free. I'm all for harmonized standards, and solid standards that are well thought out and comprehensive. But once the SDOs essentially write law then they need to become a lot more transparent."

Let's wait until that happens to condemn ABYC and TC for not making the Standard available, to Canadians. I anxiously await the outcome.

Re. the UL Standard, I have lobbied ABYC for years to make standards to which they refer within ABYC Standards, available to ABYC members, at least the sections they are referencing. There is talk that this is in the works.

The UL ionization smoke alarm oversight is deeply troubling to me as well, I've warned users off them since 2012, more on that here https://stevedmarineconsulting.com/s...oke-detectors/

"---Quote---
You see, even if it's not the law, ABYC Standards are so well-known, written about so often (this thread is an example), so widely available to the industry for a nominal fee, and so widely recognized as 'best practice', that anyone in the industry who knowingly chooses to disregard them does so at their peril.
---End Quote---
If the ABYC stuck to that business model then there'd be no argument."

That's not ABYC's business model, that's my assessment of how the standard is viewed within the the industry and around its periphery.

[Exile]

Originally Posted by Lake-Effect

I think that's a reasonable summary of the thread.

I would add the following:

• I don't think that anywhere in this thread has anyone identified a law that references a non-free standard, that applies to the owner of a recreational boat. It's the boat manufacturers and marine professionals who bear the obligation to know and follow the standard.
  
  I think this may be a correct statement. At least as far as anything that's been presented in this thread. There is, however, an obvious impact on recreational boatowners, albeit indirectly for most.
  
  
• Where a standard is behind a law for something like a CO detector, there's reams of information available about the requirement, not least in the installation instructions furnished with a compliant device. In fact that's a big part of such a standard: that the end user is supplied with enough information to install the device in a compliant manner.

Probably right. Even if access became free it may not significantly change the number of boatowners accessing the standards directly. As you've been pointing out and Steve D. just commented on, the standards themselves are not generally as useful as the well-known secondary sources boatowners often use to be compliant.

To restate my argument, I don't believe that not having every boating standard referenced in law provided for "free" is a significant barrier to the widest possible compliance, or is a source of harm to the recreational boater, and that forcing such "freeing" of standards would create much more harm than benefit, because it would force useful organizations like the ABYC out of operation.

This has been the lynchpin of your position but I don't think we know that. IOW, how much of their revenues derive from the general public paying to access their standards. Gord recently posted some information indicating that it's a significant source of revenue for many standards organizations, but in the same post showed UL and maybe others allowing free access. If it is significant and may cause these organizations to close their doors, then this may be an important consideration for a court to consider. Then again, I don't know if the legal analysis is even subject to the sort of balancing test your argument (justifiably) raises.