AMERICAN SOCIETY FOR TESTING AND MATERIALS et al v. PUBLIC.RESOURCE.ORG, INC.

Filing 204

LARGE ADDITIONAL ATTACHMENT(S) to Public Resource's Second Motion for Summary Judgment by PUBLIC.RESOURCE.ORG, INC. 202 MOTION for Summary Judgment filed by PUBLIC.RESOURCE.ORG, INC., 203 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by PUBLIC.RESOURCE.ORG, INC. (This document is SEALED and only available to authorized persons.) filed by PUBLIC.RESOURCE.ORG, INC.. (Attachments: # 1 Public Resources Statement of Disputed Facts, # 2 Public Resources Evidentiary Objections, # 3 Public Resources Request for Judicial Notice, # 4 Declaration Carl Malamud, # 5 Declaration Matthew Becker, # 6 Consolidated Index of Exhibits, # 7 Exhibit 1, # 8 Exhibit 2, # 9 Exhibit 3, # 10 Exhibit 4, # 11 Exhibit 5, # 12 Exhibit 6, # 13 Exhibit 7, # 14 Exhibit 8, # 15 Exhibit 9, # 16 Exhibit 10, # 17 Exhibit 11, # 18 Exhibit 12, # 19 Exhibit 13, # 20 Exhibit 14, # 21 Exhibit 15, # 22 Exhibit 16, # 23 Exhibit 17, # 24 Exhibit 18, # 25 Exhibit 19, # 26 Exhibit 20, # 27 Exhibit 21, # 28 Exhibit 22, # 29 Exhibit 23, # 30 Exhibit 24, # 31 Exhibit 25, # 32 Exhibit 26, # 33 Exhibit 27, # 34 Exhibit 28, # 35 Exhibit 29, # 36 Exhibit 30, # 37 Exhibit 31, # 38 Exhibit 32, # 39 Exhibit 33, # 40 Exhibit 34, # 41 Exhibit 35, # 42 Exhibit 36, # 43 Exhibit 37, # 44 Exhibit 38, # 45 Exhibit 39, # 46 Exhibit 40, # 47 Exhibit 41, # 48 Exhibit 42, # 49 Exhibit 43, # 50 Exhibit 44, # 51 Exhibit 45, # 52 Exhibit 46, # 53 Exhibit 47, # 54 Exhibit 48, # 55 Exhibit 49, # 56 Exhibit 50, # 57 Exhibit 51, # 58 Exhibit 52, # 59 Exhibit 53, # 60 Exhibit 54, # 61 Exhibit 55, # 62 Exhibit 56, # 63 Exhibit 57, # 64 Exhibit 58, # 65 Exhibit 59, # 66 Exhibit 60, # 67 Exhibit 61, # 68 Exhibit 62, # 69 Exhibit 63, # 70 Exhibit 64, # 71 Exhibit 65, # 72 Exhibit 66, # 73 Exhibit 67, # 74 Exhibit 68, # 75 Exhibit 69, # 76 Exhibit 70, # 77 Exhibit 71, # 78 Exhibit 72, # 79 Exhibit 73, # 80 Exhibit 74, # 81 Exhibit 75, # 82 Exhibit 76, # 83 Exhibit 77, # 84 Exhibit 78, # 85 Exhibit 79, # 86 Exhibit 80, # 87 Exhibit 81, # 88 Exhibit 82, # 89 Exhibit 83, # 90 Exhibit 84, # 91 Exhibit 85, # 92 Exhibit 86, # 93 Exhibit 87, # 94 Exhibit 88, # 95 Exhibit 89, # 96 Exhibit 90, # 97 Exhibit 91, # 98 Exhibit 92, # 99 Exhibit 93, # 100 Exhibit 94, # 101 Exhibit 95, # 102 Exhibit 96, # 103 Exhibit 97, # 104 Certificate of Service)(Bridges, Andrew)

EXHIBIT 60

From:
Sent:
To:
Cc:

Saunders, Mary H.
Fri 4/27/2012 6:11 AM (GMT -7)
Carl Malamud

Bee:
Subject: RE: Downloading the SIBR database contents

Carl, thanks again for sharing your comments on the data in our SIBR database. What follows is a somewhat long
response, but one that I hope is valuable to you. I would be happy to organize a phone discussion for you with SCO staff
about the SIBR database. Would also be happy to chat separately with you at your convenience.
As you noted in your review, the database contains various types of references contained in the CFR, not only
nongovernment standards. More about this below.
With respect to the currency of the infonnation compared to the latest version of the CFR, the database is not intended to
be a real-time index of what is in the CFR. It does not represent any specific CFR citation as it may be on a particular day
other than the day that a specific record was "verified" as identified in the database. To date, the database contains
around 14,000 data records that have been identified as an incorporation by reference at some point in time. The range
of review of data to be incorporated into the database runs from 2001 through 2011. The most recent complete review, in
2011 , focused on correcting and updating earlier data entries. Currently, the focus is on updating the database when new
rulemaklng activities change the CFR. The review process is dynamic and the database's content changes almost daily
as the review/audit process proceeds.
You noted that several entries in the SIBR database contain the letters "NDG", or No Date Given, in the "Edition" column.
NIST uses the acronym in the database when the text found in a specific paragraph of the CFR references a voluntary
consensus standard {VCS) without citing a specific edition of !he standard. Some confusion may occur when NIST uses
the acronym "NDG" for a specific standard in one SIBR record while it cites the specific edition of the standard in another
related record from the same agency, such as in the case identified in your Public.Resources.org comments to the OFR.
Thls Is not an error. It is and has been NIST's practice to cite regulatory language exactly as it appears in the text of each
specific CFR citation and to not make assumptions about what a regulatory agency intended in its regulation.
For example, when NIST compiled the initial inventory of standards incorporated by reference, the Mine Safety and Health
Administration (MSHA) referenced the National Fire Protection Association's (NFPA) National Electric Code (NFPA 70) in
30 CFR 57.12048 without citing a specific edition. "NDG" appears in the "Edition" column for that record. However, NIST
also found other MSHA references to NFPA 70 that identified a specific edition. For example, in paragraph 30 CFR
75.513-1 , MSHA references the 1968 edition of NFPA 70. In this record, "1968" appears in the edition column. NIST
cannot speculate that the non-dated incorporation refers to, or is intended to refer to, the 1968 edition of NFPA 70
referenced in the dated incorporation. That intent, or interpretation, Is up to the regulatory agency promulgating the
regulation. The format and manner in which SIBRs are identified in the CFR is an individual agency decision.
One purpose of the SIBR database is to help agencies identify inconsistencies or other incorporation by reference issues
so that each agency can address such issues through its standards management program. NIST conducted its initial
inventory in 2002 and identified many inconsistencies. At that time, agency standards executives were provided with
Excel spreadsheets containing the reference records for their review. As agencies continue to review and update their
regulations in the CFR, NIST will continue to review and update its SIBR database. In doing so, NIST will cite regulatory
language exactly as it appears in a specific CFR citation and will leave the interpretation of specific regulatory language
and the choice of presentation format up to each agency incorporating a VCS or other document by reference.
You also noted that there are entries in the SIBR database that cite agency incorporations of other sections of the CFR.
These are not errors. The four examples that you cited refer to FCC and FEMA regulations that are referenced (used) by
FCC and HUD. These references, and many others like them, are listed in the database to identify where government
unique standards (an agency's own or other agency regulations) are incorporated. In one of examples that you cited,
HUD makes reference in 24 CFR 200.926d(c)(4) to FEMA's National Flood Insurance Program standards found at 44
CFR Part 60. Here, HUD is "using" a government unique FEMA standard for a purpose specific to its regulatory authority.

In addition to cross-references or incorporations in the CFR such as those above, there are many Federal Specifications,
Military Specifications, and other Federal GSA Standard documents cited in the CFR by various agencies. Many of these

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PRO_00167221

have been withdrawn, replaced, or updated by the issuing agency BUT NOT by the "using" agency. The references will
be retained in the database until the using agency reviews and revises its regulations in the CFR.
Finally, you note that you identified five BSI standards referenced in the CFR while the SIBR database only identified two.
This is likely due to the fact that NIST's periodic review has not yet captured the additional three references. We'll take a
closer look at this specific case and update the database.
Best, Mary

----Original Message--From: Carl Malamud [mailto:[e-mail]]
Sent: Saturday, April 21, 2012 3:55 PM
To: Saunders, Mary H.
Subject: Re: Downloading the SIBR database contents
Hi MaryI've postponed my trip to DCC until June. Happy to do a phone call before then if you'd like to chat.
I was wondering when the last time you did an audit of your SIBR database? I'm finding an awful lot of errors. Some of
them are really obvious. For example, your database includes a lot of entries where sections of the CFR are purportedly
incorporated by reference into the CFR. A few examples:
Federal Communications Commission

NDG

FCC

47 CFR 80.1061

Special requirements for 406.0-406.1 MHz EPIRB stations

47 CFR 80.1101(c)(5)(iv)

Federal Communications Commission 47 CFR 80.1063 Special requirements for INMARSAT-E EPIRB stations
NDG FCC 47CFR80.1101(c)(11)(v)
Federal Emergency Management Agency 44 CFR 60 National Flood Insurance Program NDG HUD/HC 24
CFR 200.926d(c)(4)
Federal Emergency Management Agency 44 CFR 60 National Flood Insurance Program NDG HUD/HG 24
CFR 200.926d(c)(4)(iv)(A)(3)
I'm also finding a lot of references to FedSpec and FedStd documents. Amazingly enough, the government doesn't
appear to have many of these documents available anyplace and in quite a few cases, they don't appear to be available
anywhere.
A third set of errors have to do with how current the database is. I found two standards from British Standards Institute
listed in your database, but I've found 5 standards from that body that are incorporated into the CFR. Is it possible you're a
couple years out of date?
Keeping the database scrubbed and up-to-date doesn't seem like that hard a task. Maybe I'm underestimating the amount
of work involved.
Let me know if you'd like to chat.
Best regards,
Carl

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