Preview
1 KELLY M. KLAUS (State Bar No. 161091)
kelly.klaus@mto.com
2 BRYAN H. HECKENLIVELY (State Bar No. 279140)
bryan.heckeitiively@mto.com
3 ROSE LEDA EHLER (State Bar No. 296523)
Rose.Ehler@mto.com
4 MUNGER, TOLLES & OLSON LLP HLED/ENDORSED
560 Mission Street
5 Twenty-Seventh Floor
San Francisco, Califomia 94105-2907 DEC 2 7 2021
6 Telephone: (415)512-4000 By:. 1 Romo
Facsimile: (415) 512-4077 Deputy Clerk
7
Attomeys for Proposed Intervenor
8 National Fire Protection Association, Inc.
9
LOUIS Y. LEE (State BarNo. 315753)
10 louis.lee@morgaitiewis.com
MORGAN, LEWIS & BOCKIUS LLP
11 One Market, Spear Street Tovver
San Francisco, CA 94105-1596
12
J. KEVIN FEE (admitted pro hac vice)
13 kevin. fee@morganlewds .com
JANE W. WISE (admitted pro hac vice)
14 jane.wise@morganlewis.com
MORGAN, LEWIS & BOCKIUS LLP
15 1111 Permsylvania Ave. NW
Washington, DC 20004-2541
16
Attomeys for Proposed Intervenor
17 Intemational Code Council, Inc.
18 SUPERIOR COURT OF THE STATE OF CALIFORNIA
19 COUNTY OF SACRAMENTO
20
21 Public.Resource.Org., Inc., Case No. 34-2021-80003612
22 Petitioner, Second Declaration of Christian Dubay
23 vs. Filed In Support of Interveners' Brief in
Opposition to the Petition for a Writ of
24 Califomia Office of Administrative Law, and Mandate
the California Building Standards
25 Commission, Date: January 21,2022
Time: 1:30 p.m. D3
26 Respondents. Dept.: 27
Judge: Hon. Steven M. Gevercer
27
Action Filed: March 17. 2021
28
Second Declaration of Christian Dubay
1
SECOND DECLARATION OF CHRISTIAN DUBAY
2
I, Christian Dubay, declare as follows:
3
1. I am the Vice President, Codes & Standards and Chief Engineer for the National
4
Fire Protection Association ("NFPA"). I have been employed by NFPA for 25 years. I previously
5
submitted a declaration in cormection with NFPA's motion to intervene in this matter and have
6
included some of the information fr-om that declaration below for the conveiuence of the Court.
7
The contents of this declaration are within my personal knowledge or, if they are not, I am
8
informed as to them by individuals with personal knowledge and believe them to be true. If called
9
as a witness in this action, I could and would testify competently to the contents of this
10
declaration.
11
NFPA and Its Standards Development Process
12
2. NFPA is a non-profit organization whose mission is to eliminate death, injury, and
13
property and economic loss due to fire, electrical, and related hazards. NFPA was founded in
14
1896 to address the need for consistent installation standards across industry for fire prevention.
15
Our organization has evolved to develop and publish more than 300 voluntary consensus standards
16
in a wide range of areas, including electrical installation and fire prevention and safety. NFPA's
17
standards provide guidance, instmctions, and best practices to prevent the occurrence of disasters,
18
manage their impact, and protect human life and property.
19
3. NFPA'sflagshipstandard, the National Electrical Code ("NEC"), is tiie worid's
20
leading standard for electrical safety. The 2020 edition of the NEC is over 900 pages long, and
21
new editions are released on a three-year cycle. Because of its quality and the confidence of
22
private and public stakeholders in the processes we use to develop it, the NEC provides the
23
benchmark for safe electrical design, installation, and inspection to protect people and property
24
fi'om electrical hazards.
25
4. NFPA is accredited by the American National Standards Institute ("ANSI"), a non-
26
profit, non-governmental membership organization. ANSI's mission, as stated on its website,
27
. is to enhance both the global competitiveness of U.S. business and quality of life
28
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Second Declaration of Christian Dubay
1 in the U.S. by promoting and facilitating voluntary consensus standards and conformity
2 assessment systems, and safeguarding the integrity of those standards and systems. I am familiar
3 with ANSI's goals and operations through my work developing NFPA's accredited standards.
4 5. The ANSI accreditation process furthers the public interest by requiring standard
5 development organizations like NFPA to meet openness, balance, consensus, and due process
6 requirements and adhere to ANSI's neutral oversight. To achieve accreditation, an orgaiuzation's
7 standards development committees must contain balanced membership, taking into account the
8 views of a variety of groups, including technical experts on the subject matter of the standard,
9 consumer representatives, govemment representatives, and industry representatives. The
10 organization must also maintain open proceedings, provide public notice of standards
11 development activity, allow opportimity for public comment; give consideration and response to
12 public comments; and provide an opportunity to appeal committee decisions.
13 6. As an ANSI-accredited standards developer, NFPA is held to the highest
14 expectations for collecting the best available research and input from a wide variety of
15 stakeholders to produce top-quality standards.
16 7. ANSI fiirther classifies NFPA as an Audited Designator because it submits to more
17 in-depth ANSI auditing of its standards process (even morerigorousthan the typical ANSI
18 accreditation).
19 8. I have been familiar with NFPA standards and the NFPA standards development
20 process for more than two decades. Each NFPA standard goes through two fiill rounds of public
21 and committee input, comments, review, and drafts before beingfinalized—aroughly two-year
22 process.
23 9. NFPA's Technical Committees are comprised of a wide range of stakeholders and
24 are the principal consensus bodies responsible for the development and revision of the standards.
25 As a general matter, any member ofthe public may participate in the meetings or provide
26 comments or proposals, which are considered by the Technical Committees. NFPA technical staff
27 assist and advise the Technical Committees, and NFPA technical and editorial staff revise and
28 finalize the wording of the standard. NFPA staff liaisons work together with the Techiucal
-3-
Second Declaration of Christian Dubay
1 Committees to craft wording that accurately captures the intent and purpose of Committee
2 decisions. The techrucal staff are also responsible for ensuring that revisions to the standard are
3 drafted in a way that maintains techiucal and editorial consistency across the different sections of
4 the standard. The end result is a highly creative, sophisticated, original work of authorship.
5 10. The final versions of the standard also go through arigorousquality control process
6 by NFPA staff to ensure that the final document is as accurate as possible. This painstaking
7 review adds additional costs to the standards-development process, but NFPA commits the
8 resources because techiucal accuracy of NFPA standards is essential for NFPA's mission of
9 promoting public safety.
10 11. For example, creating the first draft report ofthe 2020 NEC involved consideration
11 of over 3,800 proposed language changes, including those from the public. A total of 515
12 Technical Committee members on 18 Code-Making Panels and a Correlating Committee, who
13 were supported by more than 35 NFPA staff members, held concunent, multi-day committee
14 meetings for a total of 74 meeting days. The first draft was finalized by a four-day meeting of the
15 Correlating Committee, assisted by three NFPA staff members. The preparation of the second
16 draft report involved consideration of over 1,900 public comments, and 64 Committee meeting
17 days over a two-week period, assisted by at least 35 NFPA staff members. There were two more
18 multi-day Conelating Committee meetings prior to the issuance ofthe NEC. In addition, there
19 have been numerous conference calls, task group meetings, online seminars, and other interactions
20 among Committee Members and NFPA staff.
21 12. Development of the 2023 NEC is ongoing, with much of it being conducted online
22 due to the pandemic. NFPA was well-prepared to take itsrigorousand intensive process online
23 after investing close to $3 million to ensure that anyone in the world with an intemet connection
24 has the ability to provide input.
25 13. NFPA, like other copyright owners, is able to invest in the creation of new works
26 through the revenue from selling and licensing copies of its works. In 2019, NFPA spent more
27 than $15.3 million on developing and revising its standards. This investment is then recouped
28 through charging the businesses and tradespeople who use the copyrighted standards' content in
-4-
Second Declaration of Christian Dubay
1 the course of their work. Historically, sales of NFPA's copyrighted publications, in particular its
2 copyrighted standards, has accounted for over 70 percent of NFPA's revenues.
3 14. NFPA's ability to protect its copyright and generate revenue through licensing and
4 selling its work is cmcial to ensuring we can continue to develop and update standards to reflect
5 the state of the art in industry and technology.
6 Public Access to the California Electrical Code
7 15. The Califorma Electrical Code ("CEC") incorporates by reference portions of the
8 NEC. The CEC also has Califomia-specific provisions, which are authored by the Building
9 Standards Commission ("BSC"). The Califomia-specific provisions of the CEC include
10 amendments the BSC has made to the NEC. After BSC provides those amendments to NFPA,
II NFPA does the work to publish and distribute the CEC at no additional charge to BSC. The cost
12 of this work is fimded by purchasers of the CEC.
13 16. NFPA owns the copyright to the NEC. Pursuant to agreement, NFPA has granted
14 BSC a license to the NEC to cover the work involved in BSC incorporating portions of the NEC
15 into the CEC. As part ofthe same agreement, BSC has granted NFPA a license to the Califomia-
16 specific portions of the CEC for NFPA to copy dxvd distribute copies of the entire CEC to members
17 of the public. In NFPA's experience, the purchasers of such copies are professionals who use the
18 CEC in the conduct of professional services they provide in the State of Califomia.
19 17. Since 2006, NFPA has provided free online access to all its standards.
20 18. Additionally, when state governments plan to incorporate a NFPA standard by
21 reference, NFPA creates a "Free Access Widget" to link from the state's Web site to the relevant
22 standard.
23 19. NFPA also offers accommodations for those who are visually impaired, and we
24 grant academics and researchers access to reproduce the standards at no cost for reasonable, non-
25 commercial purposes.
26 20. NFPA posts the CEC on its Web site's "Free Access" Web page forfreeviewing
27 by anyone who is interested in reading any portion of the CEC. It can also be accessed through a
28
-5-
Second Declaration of Christian Dubay
1 link on the BSC's Web site: . NFPA also provides printed
2 copies of the CEC to over 100 specified depository libraries throughout California.
3 I declare under penalty of perjury under the laws of the State Of Califomia that the
4 foregoing is true and correct.
5 Executed on this 27th day of December, 2021, at RayrJiam, Massachusetts.
6
7 'ii*r
Christian Dubay
8
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Second Declaration of Christian Dubay
iM DI'-^Oi? RC.).;
202!OE'C27 PH 7= 1
SUFEROfi COURT OF CAiirCi»
Preview
1 KELLY M. KLAUS (State Bar No. 161091) kelly.klaus@mto.com 2 BRYAN H. HECKENLIVELY (State Bar No. 279140) bryan.heckeitiively@mto.com 3 ROSE LEDA EHLER (State Bar No. 296523) Rose.Ehler@mto.com 4 MUNGER, TOLLES & OLSON LLP HLED/ENDORSED 560 Mission Street 5 Twenty-Seventh Floor San Francisco, Califomia 94105-2907 DEC 2 7 2021 6 Telephone: (415)512-4000 By:. 1 Romo Facsimile: (415) 512-4077 Deputy Clerk 7 Attomeys for Proposed Intervenor 8 National Fire Protection Association, Inc. 9 LOUIS Y. LEE (State BarNo. 315753) 10 louis.lee@morgaitiewis.com MORGAN, LEWIS & BOCKIUS LLP 11 One Market, Spear Street Tovver San Francisco, CA 94105-1596 12 J. KEVIN FEE (admitted pro hac vice) 13 kevin. fee@morganlewds .com JANE W. WISE (admitted pro hac vice) 14 jane.wise@morganlewis.com MORGAN, LEWIS & BOCKIUS LLP 15 1111 Permsylvania Ave. NW Washington, DC 20004-2541 16 Attomeys for Proposed Intervenor 17 Intemational Code Council, Inc. 18 SUPERIOR COURT OF THE STATE OF CALIFORNIA 19 COUNTY OF SACRAMENTO 20 21 Public.Resource.Org., Inc., Case No. 34-2021-80003612 22 Petitioner, Second Declaration of Christian Dubay 23 vs. Filed In Support of Interveners' Brief in Opposition to the Petition for a Writ of 24 Califomia Office of Administrative Law, and Mandate the California Building Standards 25 Commission, Date: January 21,2022 Time: 1:30 p.m. D3 26 Respondents. Dept.: 27 Judge: Hon. Steven M. Gevercer 27 Action Filed: March 17. 2021 28 Second Declaration of Christian Dubay 1 SECOND DECLARATION OF CHRISTIAN DUBAY 2 I, Christian Dubay, declare as follows: 3 1. I am the Vice President, Codes & Standards and Chief Engineer for the National 4 Fire Protection Association ("NFPA"). I have been employed by NFPA for 25 years. I previously 5 submitted a declaration in cormection with NFPA's motion to intervene in this matter and have 6 included some of the information fr-om that declaration below for the conveiuence of the Court. 7 The contents of this declaration are within my personal knowledge or, if they are not, I am 8 informed as to them by individuals with personal knowledge and believe them to be true. If called 9 as a witness in this action, I could and would testify competently to the contents of this 10 declaration. 11 NFPA and Its Standards Development Process 12 2. NFPA is a non-profit organization whose mission is to eliminate death, injury, and 13 property and economic loss due to fire, electrical, and related hazards. NFPA was founded in 14 1896 to address the need for consistent installation standards across industry for fire prevention. 15 Our organization has evolved to develop and publish more than 300 voluntary consensus standards 16 in a wide range of areas, including electrical installation and fire prevention and safety. NFPA's 17 standards provide guidance, instmctions, and best practices to prevent the occurrence of disasters, 18 manage their impact, and protect human life and property. 19 3. NFPA'sflagshipstandard, the National Electrical Code ("NEC"), is tiie worid's 20 leading standard for electrical safety. The 2020 edition of the NEC is over 900 pages long, and 21 new editions are released on a three-year cycle. Because of its quality and the confidence of 22 private and public stakeholders in the processes we use to develop it, the NEC provides the 23 benchmark for safe electrical design, installation, and inspection to protect people and property 24 fi'om electrical hazards. 25 4. NFPA is accredited by the American National Standards Institute ("ANSI"), a non- 26 profit, non-governmental membership organization. ANSI's mission, as stated on its website, 27 . is to enhance both the global competitiveness of U.S. business and quality of life 28 -2- Second Declaration of Christian Dubay 1 in the U.S. by promoting and facilitating voluntary consensus standards and conformity 2 assessment systems, and safeguarding the integrity of those standards and systems. I am familiar 3 with ANSI's goals and operations through my work developing NFPA's accredited standards. 4 5. The ANSI accreditation process furthers the public interest by requiring standard 5 development organizations like NFPA to meet openness, balance, consensus, and due process 6 requirements and adhere to ANSI's neutral oversight. To achieve accreditation, an orgaiuzation's 7 standards development committees must contain balanced membership, taking into account the 8 views of a variety of groups, including technical experts on the subject matter of the standard, 9 consumer representatives, govemment representatives, and industry representatives. The 10 organization must also maintain open proceedings, provide public notice of standards 11 development activity, allow opportimity for public comment; give consideration and response to 12 public comments; and provide an opportunity to appeal committee decisions. 13 6. As an ANSI-accredited standards developer, NFPA is held to the highest 14 expectations for collecting the best available research and input from a wide variety of 15 stakeholders to produce top-quality standards. 16 7. ANSI fiirther classifies NFPA as an Audited Designator because it submits to more 17 in-depth ANSI auditing of its standards process (even morerigorousthan the typical ANSI 18 accreditation). 19 8. I have been familiar with NFPA standards and the NFPA standards development 20 process for more than two decades. Each NFPA standard goes through two fiill rounds of public 21 and committee input, comments, review, and drafts before beingfinalized—aroughly two-year 22 process. 23 9. NFPA's Technical Committees are comprised of a wide range of stakeholders and 24 are the principal consensus bodies responsible for the development and revision of the standards. 25 As a general matter, any member ofthe public may participate in the meetings or provide 26 comments or proposals, which are considered by the Technical Committees. NFPA technical staff 27 assist and advise the Technical Committees, and NFPA technical and editorial staff revise and 28 finalize the wording of the standard. NFPA staff liaisons work together with the Techiucal -3- Second Declaration of Christian Dubay 1 Committees to craft wording that accurately captures the intent and purpose of Committee 2 decisions. The techrucal staff are also responsible for ensuring that revisions to the standard are 3 drafted in a way that maintains techiucal and editorial consistency across the different sections of 4 the standard. The end result is a highly creative, sophisticated, original work of authorship. 5 10. The final versions of the standard also go through arigorousquality control process 6 by NFPA staff to ensure that the final document is as accurate as possible. This painstaking 7 review adds additional costs to the standards-development process, but NFPA commits the 8 resources because techiucal accuracy of NFPA standards is essential for NFPA's mission of 9 promoting public safety. 10 11. For example, creating the first draft report ofthe 2020 NEC involved consideration 11 of over 3,800 proposed language changes, including those from the public. A total of 515 12 Technical Committee members on 18 Code-Making Panels and a Correlating Committee, who 13 were supported by more than 35 NFPA staff members, held concunent, multi-day committee 14 meetings for a total of 74 meeting days. The first draft was finalized by a four-day meeting of the 15 Correlating Committee, assisted by three NFPA staff members. The preparation of the second 16 draft report involved consideration of over 1,900 public comments, and 64 Committee meeting 17 days over a two-week period, assisted by at least 35 NFPA staff members. There were two more 18 multi-day Conelating Committee meetings prior to the issuance ofthe NEC. In addition, there 19 have been numerous conference calls, task group meetings, online seminars, and other interactions 20 among Committee Members and NFPA staff. 21 12. Development of the 2023 NEC is ongoing, with much of it being conducted online 22 due to the pandemic. NFPA was well-prepared to take itsrigorousand intensive process online 23 after investing close to $3 million to ensure that anyone in the world with an intemet connection 24 has the ability to provide input. 25 13. NFPA, like other copyright owners, is able to invest in the creation of new works 26 through the revenue from selling and licensing copies of its works. In 2019, NFPA spent more 27 than $15.3 million on developing and revising its standards. This investment is then recouped 28 through charging the businesses and tradespeople who use the copyrighted standards' content in -4- Second Declaration of Christian Dubay 1 the course of their work. Historically, sales of NFPA's copyrighted publications, in particular its 2 copyrighted standards, has accounted for over 70 percent of NFPA's revenues. 3 14. NFPA's ability to protect its copyright and generate revenue through licensing and 4 selling its work is cmcial to ensuring we can continue to develop and update standards to reflect 5 the state of the art in industry and technology. 6 Public Access to the California Electrical Code 7 15. The Califorma Electrical Code ("CEC") incorporates by reference portions of the 8 NEC. The CEC also has Califomia-specific provisions, which are authored by the Building 9 Standards Commission ("BSC"). The Califomia-specific provisions of the CEC include 10 amendments the BSC has made to the NEC. After BSC provides those amendments to NFPA, II NFPA does the work to publish and distribute the CEC at no additional charge to BSC. The cost 12 of this work is fimded by purchasers of the CEC. 13 16. NFPA owns the copyright to the NEC. Pursuant to agreement, NFPA has granted 14 BSC a license to the NEC to cover the work involved in BSC incorporating portions of the NEC 15 into the CEC. As part ofthe same agreement, BSC has granted NFPA a license to the Califomia- 16 specific portions of the CEC for NFPA to copy dxvd distribute copies of the entire CEC to members 17 of the public. In NFPA's experience, the purchasers of such copies are professionals who use the 18 CEC in the conduct of professional services they provide in the State of Califomia. 19 17. Since 2006, NFPA has provided free online access to all its standards. 20 18. Additionally, when state governments plan to incorporate a NFPA standard by 21 reference, NFPA creates a "Free Access Widget" to link from the state's Web site to the relevant 22 standard. 23 19. NFPA also offers accommodations for those who are visually impaired, and we 24 grant academics and researchers access to reproduce the standards at no cost for reasonable, non- 25 commercial purposes. 26 20. NFPA posts the CEC on its Web site's "Free Access" Web page forfreeviewing 27 by anyone who is interested in reading any portion of the CEC. It can also be accessed through a 28 -5- Second Declaration of Christian Dubay 1 link on the BSC's Web site: . NFPA also provides printed 2 copies of the CEC to over 100 specified depository libraries throughout California. 3 I declare under penalty of perjury under the laws of the State Of Califomia that the 4 foregoing is true and correct. 5 Executed on this 27th day of December, 2021, at RayrJiam, Massachusetts. 6 7 'ii*r Christian Dubay 8 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6- Second Declaration of Christian Dubay iM DI'-^Oi? RC.).; 202!OE'C27 PH 7= 1 SUFEROfi COURT OF CAiirCi»