He said that, under the rules, a panel statement need not be either technical or comprehensive. He also noted that the council decision pointing to panel action "totally restricting the use of such race-ways in assembly occupancies" was factually incorrect, since nonmetallic raceways were and are allowed in nonfire-rated construction and where embedded in concrete. He felt that holding the panel responsible for the burden of proof was standing the entire process on its head.
Arthur E. Cote, NFPA Vice-President responded, arguing that all NFPA procedures had been followed, strictly in accordance with the Regulations Governing Committee Projects. He noted that those regulations had been approved by ANSI in the context of its accreditation of NFPA as a standards developer. He argued that according to ANSI rules, consensus within a panel (which he granted was the "consensus developing group") is not enough; there must be public input, which NFPA seeks in two ways. The principal method is the public comment process, but the membership meetings provide additional input after comments.
In addition, ANSI requires standards developers to have a meaningful appeals process, which for NFPA is the Standards Council. Under ANSI rules, the appellate body must be impartial, and it must have the ability to review substantive as well as procedural issues. Furthermore, ANSI procedures require rejection of "unfair provisions," which is a substantive, not a procedural requirement. Cote argued that the Standards Council action was based on a decision that the degree of exclusion of non-metallic wiring methods from places of assembly was unfair based on the total record.
Cote agreed that reversing the decision of the principal consensus developing group, in this case the panel, based on a lack of substantive basis for the group's action, was and should always be extremely unusual. Nevertheless, the ability to make such a review "acts as an important safeguard against unfair provisions that may, on occasion, make their way through a consensus-developing group, which frequently may include financially interested market participants." He cited antitrust decisions in support of this viewpoint.
He contrasted the Standards Council procedures, where any member with an interest in the outcome declares that fact and withdraws from the meeting, with Technical Committee proceedings. The membership of these committees is balanced among potentially competing interests, and the members are expected to argue the views of their interests.
Cote said that granting the Standards Council full appellate authority allows opposing economic interests to battle within the panels and yet be shielded from some of the liability that might otherwise attach to the final outcome of the code development process. Cote concluded that were Bravin to succeed it would "deprive the NFPA ... of the means to police their standards development activities as the antitrust laws require."
Bravin severely criticized the Board of Directors decision for "not listening to a single word I said," and therefore had been denied due process. Specifically, he felt that the board decision utterly failed to address the issue of what constituted consensus, which was central to his case. He also noted that the board combined another appeal, from Patricia Horton of Allied Tube and Conduit, with his. Her appeal was on the technical merits of the product whereas his appeal was on the nature of consensus.
To contrast the distinction between the two appeals, Bravin said "I never opposed the use of the product ... I argued that the panel had the right to arrive at their own decision, and that they were required to issue a statement, which they did and that the Standards Council had no basis to supersede or preempt them." He said he "was at a total loss to understand how a consensus body, as CMP 15 is acknowledged, does not determine the consensus, without any determination of wrongdoing." In his opinion, ANSI requirements did not support this type of procedure. He also felt that antitrust law had no place in this appeal and no bearing on the technical validity of consensus standards.
The BSR supported NFPA, noting that there was no lack of procedural compliance and there wasn't sufficient evidence that the 1996 NEC was contrary to the public interest. On the crucial matter of consensus, the BSR decided the NFPA process met the ANSI definition:
"Consensus" means substantial agreement has been reached by directly and materially affected interest categories. This signifies the concurrence of more than a simple majority, but not necessarily unanimity. Consensus requires that all views and objections be considered, and that an effort be made toward their resolution.
The BSR also agreed the authority conferred upon the Standards Council met ANSI policy on appellate mechanisms.