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

Filing 213

RESPONSE re 202 MOTION for Summary Judgment filed by AMERICAN SOCIETY FOR TESTING AND MATERIALS, AMERICAN SOCIETY OF HEATING, REFRIGERATING, AND AIR-CONDITIONING ENGINEERS, INC., NATIONAL FIRE PROTECTION ASSOCIATION, INC.. (Attachments: # 1 Plaintiffs' Third Supplemental Statement of Material Facts, # 2 Declaration of Thomas O'Brien, # 3 Declaration of Jane W. Wise, # 4 Exhibit 174, # 5 Exhibit 175, # 6 Exhibit 176, # 7 Exhibit 177 (Part 1), # 8 Exhibit 177 (Part 2), # 9 Exhibit 177 (Part 3), # 10 Exhibit 178, # 11 Exhibit 179, # 12 Exhibit 180, # 13 Exhibit 181, # 14 Exhibit 182, # 15 Exhibit 183, # 16 Exhibit 184, # 17 Exhibit 185, # 18 Exhibit 186, # 19 Plaintiffs' Response to Defendant's Statement of Disputed Facts (Redacted), # 20 Plaintiffs' Statement of Disputed Facts and Objections, # 21 Plaintiffs' Response to Defendant's Evidentiary Objections, # 22 Plaintiffs' Opposition to Defendant's Request for Judicial Notice)(Fee, J.)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICAN SOCIETY FOR TESTING
AND MATERIALS d/b/a ASTM
INTERNATIONAL;
Case No. 1:13-cv-01215-TSC

NATIONAL FIRE PROTECTION
ASSOCIATION, INC.; and
AMERICAN SOCIETY OF HEATING,
REFRIGERATING, AND AIR
CONDITIONING ENGINEERS,
Plaintiffs/
Counter-Defendants,
v.
PUBLIC.RESOURCE.ORG, INC.,
Defendant/
Counter-Plaintiff.

PLAINTIFFS’ RESPONSE TO DEFENDANT’S STATEMENT OF DISPUTED FACTS
[REDACTED]
Plaintiffs submit, in support of their Second Motion for Summary Judgment and
Permanent Injunction, these responses to Defendant’s Statement of Disputed Facts, Dkt. 204.
PRO must establish that there are genuine disputes as to material facts through citations
to evidence that reveal a genuine dispute or by showing that there is no admissible evidence
regarding a material fact. Fed. R. Civ. P. 56(c)(1)(A)-(B); see also Hedgeye Risk Mgmt., LLC v.
Heldman, No. CV 16-935 (RDM), 2019 WL 4750243, at *4 (D.D.C. Sept. 29, 2019) (“The nonmovant’s opposition, however, must consist of more than mere denials and must be supported by
affidavits, declarations, or other competent evidence, setting forth specific facts showing that
there is a genuine issue for trial.” (citing Fed. R. Civ. P. 56(c) and Laningham v. U.S. Navy, 813

1

F.2d 1236, 1241 (D.C. Cir. 1987))). On those issues where PRO “will bear the burden of proof
at trial on a dispositive issue”—here PRO’s affirmative defenses—it must “go beyond the
pleadings and . . . designate ‘specific facts showing that there is a genuine issue for trial.’”
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (citations omitted).
PRO does not carry its burden. Each of PRO’s purported disputes can be explained as (1)
PRO’s characterization of a dispute of the application of law to undisputed facts as a disputed
fact (McDermott Int’l, Inc. v. Wilander, 498 U.S. 337, 356 (1991) (“summary judgment . . . is
mandated where the facts and the law will reasonably support only one conclusion.”)); or (2)
PRO’s failure to create a genuine dispute of fact material to Plaintiffs’ Second Motion for
Summary Judgment (Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. 475 U.S. 574, 58687 (1986) (party opposing summary judgment must do more than simply show that there is some
metaphysical doubt as to the material facts)). Neither of these is a reason to deny Summary
Judgment in favor of Plaintiffs.
Notably, the vast majority of PRO’s purported disputes go to a single issue: PRO has
presented a theory of incorporation by reference under which any time a federal agency states
that it is incorporating a standard, without specifying a particular portion of the standard, the
entire standard becomes binding law. For the reasons explained in Plaintiffs’ briefing, PRO has
not presented factual support to show that agencies actually operate in this way. Plaintiffs’
Combined Memorandum of Law in Opposition to PRO’s Second Motion for Summary Judgment
and Reply in Support of Plaintiffs’ Second Motion for Summary Judgment and for a Permanent
Injunction, filed concurrently (“Reply”) at Part I.A.1.a. And, as Plaintiffs’ briefing explains, as a
legal matter, this theory of incorporation is irreconcilable with the D.C. Circuit’s decision. Id.

2

I.

THIS MOTION

PLAINTIFFS’ OWN COPYRIGHTS IN
THE 217 STANDARDS AT ISSUE IN

Plaintiffs’ Statement of Material Facts

3

Disputed. Plaintiffs do not own
copyrights in the 217 standards at
issue in Plaintiffs’ motion.
Plaintiffs did not draft the
standards—volunteers did.
SSSMF ¶ 184. The standards are
not works made for hire, refuting
the basis for ownership asserted
in Plaintiffs’ copyright
registrations. Plaintiffs did not
obtain valid copyright
assignments for the standards.
And although Plaintiffs now
attempt to assert that the
standards are joint works and that
they are joint owners of the
copyrights, federal government
employees drafted the standards
in the scope of their duties, and so
no copyright ownership can exist
in the standards due to 17 U.S.C.
105. Moreover, the standards at
issue are not subject to copyright.
SSSMF ¶ 196-224.

Defendant Public Resource’s
Response

Furthermore, each Plaintiff submitted undisputed evidence that
its own employees drafted language for the Works. ECF No.
118-2 (“SMF”) ¶ 35 (citing O’Brien Decl. ¶¶ 15-39 and Exs.
5-9) (ASTM); id. ¶ 117 (citing Pauley Decl. ¶¶ 38-40 and

PRO has submitted no evidence that any specific language in
any of the Works was prepared by an officer or employee of
the United States government as part of that person’s official
duties. PRO continues to raise a legal issue whether the
involvement of persons from interested constituencies has any
effect on Plaintiffs’ ownership of the copyrights. For the
reasons explained in Plaintiffs’ briefing, it does not. ECF No.
200 (“Pls. Mem.”) 10-12; Reply at Part I.B.

There is no factual dispute and the legal question is law of the
case. As the District Court previously explained, merely citing
to the participation of volunteers or federal government
employees in the drafting process does not raise a genuine
issue of material fact for trial. Am. Soc’y for Testing &
Materials v. Public.Resource.org, Inc., No. 13-CV-1215
(TSC), 2017 WL 473822, at *7 (D.D.C. Feb. 2, 2017) (“ASTM
I”), rev’d in part, vacated in part, 896 F.3d 437 (D.C. Cir.
2018) (“Defendant has not identified any evidence that either
the ASTM Plaintiffs or AERA Plaintiffs do not own the
copyrights of the standards, in whole or in part. The court
therefore concludes that the ASTM Plaintiffs and AERA
Plaintiffs are the owners of the copyrights at issue and have
standing to bring their claims.”). PRO further failed to
“adduce any additional evidence disproving Plaintiffs’
authorship. . . . Because Plaintiffs may have standing to bring
this infringement suit even as part owners of the copyrights, it
is not clear why Defendant asserts that Plaintiffs must prove
outright ownership of their copyrights.” Id.

Plaintiffs’ Response

2

Disputed. Plaintiffs do not own
copyrights in the 217 standards at
issue in Plaintiffs’ motion.
Plaintiffs did not draft the
standards—volunteers did.
SSSMF ¶ 184. The standards are
not works made for hire, refuting
the basis for ownership asserted
in Plaintiffs’ copyright
registrations. Plaintiffs did not

1. Plaintiffs Own Copyrights In The 217
Standards At Issue In This Motion.2 ASTM
has obtained copyright registration
certificates that cover its 191 standards at
issue in this motion. Declaration of Jane W.
Wise, filed concurrently herewith, (“Wise
Decl.”) ¶¶ 2, 31-149, Exs. 30-148;
Declaration of Thomas O’Brien, previously
filed at Dkt. 118-7, (“O’Brien Decl.”) ¶¶ 512, Exs. 1-4.

There is no factual dispute and the legal question is law of the
case. As the District Court previously explained, merely citing
to the participation of volunteers or federal government
employees in the drafting process does not raise a genuine
issue of material fact for trial. ASTM I at *7 (“Defendant has
not identified any evidence that either the ASTM Plaintiffs or
AERA Plaintiffs do not own the copyrights of the standards, in
whole or in part. The court therefore concludes that the
ASTM Plaintiffs and AERA Plaintiffs are the owners of the
copyrights at issue and have standing to bring their claims.”).
PRO further failed to “adduce any additional evidence

PRO’s statement “the standards at issue are not subject to
copyright” is a legal argument and the citations to SSSMF
¶¶ 196-224 does not support that argument.

Dubay Dep. 54:19-56:12; 66:20-67:12; 69:2-18) (NFPA); and
id. ¶¶ 138-41 (citing Reiniche Decl. ¶¶ 10-11 and Reiniche
Dep. 35:23-38:2; 97:13-98:19) (ASHRAE). It is also
undisputed that Plaintiffs oversee, coordinate, and manage the
standards development process in accordance with Plaintiffs’
policies, and that the persons from various interested
constituencies who contribute to the standard-development
process do so for Plaintiffs and within Plaintiffs’ standardsdevelopment procedures. SMF ¶¶ 28-37, 39, 109-19, 135-41.
Not one of those persons or anyone they work for or with
whom they are affiliated contends that they, rather than
Plaintiffs, owns all or any part of one of the Works at issue.
E.g., Declaration of Thomas O’Brien dated Dec. 20, 2019
(“O’Brien Decl. III”) ¶¶ 6-7; Pauley Decl. ¶ 28; Reiniche Decl.
¶ 12.

Plaintiffs’ Response

4

The 217 standards at issue in Plaintiffs’ motion for summary judgment are collectively referred to herein as the “Works” or “Plaintiffs’ Works.”

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

Plaintiffs’ Statement of Material Facts

5

disproving Plaintiffs’ authorship. . . . Because Plaintiffs may
have standing to bring this infringement suit even as part
owners of the copyrights, it is not clear why Defendant asserts
that Plaintiffs must prove outright ownership of their
copyrights.” Id.

obtain valid copyright
assignments for the standards.
And although Plaintiffs now
attempt to assert that the
standards are joint works and that
they are joint owners of the
copyrights, federal government
employees drafted the standards
in the scope of their duties, and so
no copyright ownership can exist
in the standards due to 17 U.S.C.
105. Moreover, the standards at
issue are not subject to copyright.
SSSMF ¶ 196-224.

Furthermore, each Plaintiff submitted undisputed evidence that
its own employees drafted language for the Works. SMF ¶ 35
(citing O’Brien Decl. ¶¶ 15-39 and Exs. 5-9) (ASTM); id.
¶ 117 (citing Pauley Decl. ¶¶ 38-40 and Dubay Dep. 54:1956:12; 66:20-67:12; 69:2-18) (NFPA); and id. ¶¶ 138-41
(citing Reiniche Decl. ¶¶ 10-11 and Reiniche Dep. 35:23-38:2;
97:13-98:19) (ASHRAE). It is also undisputed that Plaintiffs
oversee, coordinate, and manage the standards development
process in accordance with Plaintiffs’ policies, and that the
persons from various interested constituencies who contribute
to the standard-development process do so for Plaintiffs and
within Plaintiffs’ standards-development procedures. SMF ¶¶
28-37, 39, 109-19, 135-41. Not one of those persons or
anyone they work for or with whom they are affiliated
contends that they, rather than Plaintiffs, owns all or any part
of one of the Works at issue. E.g., O’Brien Decl. III ¶¶ 6-7;
Pauley Decl. ¶ 28; Reiniche Decl. ¶ 12.

PRO has submitted no evidence that any specific language in
any of the Works was prepared by an officer or employee of
the United States government as part of that person’s official
duties. PRO continues to raise a legal issue whether the
involvement of persons from interested constituencies has any
effect on Plaintiffs’ ownership of the copyrights. For the
reasons explained in Plaintiffs’ briefing, it does not. Pls.
Mem. 10-12; Reply at Part I.B.

Plaintiffs’ Response

Defendant Public Resource’s
Response

2. Specifically, ASTM is the claimant for
the works appearing in Annex A
(collectively, the “ASTM Standards”).
Wise Decl. ¶¶ 2, 31-150, Exs. 30-149;
O’Brien Decl. ¶¶ 5- 12, Exs. 1-4.

Plaintiffs’ Statement of Material Facts

6

Defendant Public Resource’s
Response

Undisputed.

PRO’s cited evidence relies on ASTM standards that Plaintiffs
did not move on, including D323-58, which are irrelevant to
the motion. Compare Appendix A with ECF No. 203-2
(Def.’s SSSMF) ¶¶ 197, 205.

Defendant does not dispute that the copyright registrations for
the standards appearing in bold in Annex A were effective
within 5 years of the date of first publication and thus, under
17 U.S.C. 410(c), constitute prima facie evidence of the valid
copyright in ASTM’s standards and its work for hire
authorship and ownership of the Standards at Issue. ECF No.
201 (“Pls. 2d. Supp. SMF”) ¶ 7. The record also reflects that
ASTM employees are involved in drafting certain components
of “every ASTM standard,” Declaration of Thomas O’Brien,
previously filed at Dkt. 118-7, (“O’Brien Decl.”) ¶¶ 15-39,
Exs. 5-9, and that ASTM members assign and have
retroactively assigned their copyrights in the standards to
ASTM and ASTM is not aware of any third party that claims
copyright in any of the Standards at Issue, O’Brien Decl. ¶¶
12, 40-49, Exs. 10-13.

PRO’s statement “the standards at issue are not subject to
copyright” is a legal argument and the citations to SSSMF
¶¶ 196-224 does not support that argument.

Plaintiffs’ Response

Undisputed.

For the reasons addressed in response to Paragraph 1, PRO’s
response fails to raise a genuine issue of material fact.

Four of the ASTM Works are registered as individual
standards that are also works made for hire. ECF No. 198-7,
Wise Decl. ¶ 34, Ex. 33 (A106/A106M-04b); ECF No. 198-8,
Wise Decl. ¶ 58, Ex. 57 (C150-99a); ECF No. 118-7, O’Brien
Decl. ¶ 5, Ex.1 (D87-07); ECF No. 118-7, O’Brien Decl. ¶ 6,
Ex. 2 (D975-07).

5. Each BOS identified in Annex A is the
subject of the copyright registration
identified in the corresponding row of
Annex A. Wise Decl. ¶¶ 2-33, 35-57, 59137, 139-150, Exs. 1-32, 34-56, 58-136,
138-149; O’Brien Decl. ¶¶ 7-12, Exs. 3-4.
7

Plaintiffs’ Response

PRO’s reliance on non-responsive and irrelevant evidence fails
to establish a genuine dispute as to a material fact. PRO’s
legal argument regarding the import and content of ASTM’s
copyright registrations does not identify any error in any
standard, edition, title, year of the Annual ASTM Book of
Standards (BOS), or copyright registration number listed by
ASTM in Annex A.

Undisputed.

Disputed to the extent that
ASTM’s copyright registrations
falsely state that it owns the
copyright to anything other than a
thin compilation of the standards,
and disputed to the extent that
ASTM’s copyright registrations
otherwise falsely assert that the
standards are works made for
hire. SSSMF ¶ 196-224.

3. Each and every standard, edition, title,
year of the Annual ASTM Book of
Standards (“BOS”), and copyright
registration number appearing in Annex A
is true and correct as shown in the
corresponding exhibits. Wise Decl. ¶¶ 2150, Exs.1-149; O’Brien Decl. ¶¶ 5-12, Exs.
1-4.

4. The specified edition of each ASTM
Standard identified in Annex A was
originally published in the BOS (identified
by year) in the corresponding row of Annex
A. Wise Decl. ¶¶ 2- 33, 35-57, 59-137, 139150, Exs. 1-32, 34-56, 58-136, 138-149;
O’Brien Decl. ¶¶ 7-12, Exs. 3-4.

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

8. The published version of each ASTM
Standard includes a copyright notice
alerting the public to the fact that the
copyright is owned by ASTM. O’Brien
Decl. ¶ 11.

8

Disputed. The majority of
standards that ASTM published
do not bear copyright notices on
each standard. See, e.g., ASTM
A36-1977ae; ASTM D396-1998
(Exhibit 8 to the O’Brien
Declaration, ECF No. 118-7);
ASTM D4329-1999. The exhibits
attached to the O’Brien
declaration appear to be more
recent printings of previous
ASTM standards that have
subsequently had an ASTM

Disputed to the extent that
ASTM’s copyright registrations
falsely assert that the standards
are works made for hire or that
ASTM owns any copyright in the
standards at issue. SSSMF ¶ 196224.

6. For each ASTM Standard where no
BOS is identified, the standard is the subject
of the copyright registration identified in
the corresponding row of Annex A. Wise
Decl. ¶¶ 34, 58, 138, Exs. 33, 57, 137;
O’Brien Decl. ¶¶ 5-6, Exs. 1-2.

7. The registrations whose numbers
appear in bold Annex A were effective
within 5 years of the date of first publication
identified in the registration certificate.
Wise Decl. ¶¶ 2-33, 35-57, 59-65, 67-149,
Exs. 1-32, 34-56, 58-148; O’Brien ¶¶ 7-11,
Exs. 3-4.

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

ASTM’s BOS from 1990—after the Copyright Notice
requirement was elimintated as a condition of registration—bears
a copyright notice in favor of ASTM. See Wise Decl. ¶ 19,
Ex. 18 at 3 (shown below).

PRO cites to non-responsive and irrelevant evidence, which is
insufficient to create a genuine issue of material fact. Dating
back to at least 1967 ASTM Book of Standards bore a
copyright notice in favor of ASTM. See ECF No. 198-6, Wise
Decl. ¶ 2, Ex. 1 at 3 (shown below).

Undisputed.

For the reasons addressed in response to Paragraph 1, PRO’s
response fails to raise a genuine issue of material fact.

PRO’s reliance on non-responsive and irrelevant evidence fails
to establish a genuine dispute as to a material fact. PRO’s
legal argument regarding the import and content of ASTM’s
copyright registrations does not identify any error in any
copyright registration listed in Annex A for any ASTM
standard where no BOS is identified.

Plaintiffs’ Response

Plaintiffs’ Statement of Material Facts

9

copyright notice affixed, when no
such copyright notice appeared
on earlier publications of the
standard. Compare O’Brien
Exhibit 9 (ASTM D12171993(1998)) with the version of
ASTM D1217-1993(1998) that
Public Resource purchased,
scanned, and produced in
discovery. M. Becker Decl. ¶ 149
Ex. 151. Only in recent years has
ASTM affixed a copyright notice
to each ASTM standard. This
copyright notice does not alert the
public (or individuals who
participated in the creation of the
standards) what material ASTM
claims copyright over, such as the
entire standard, versus component
parts of the standard, or simply
the formatting used for the final
print version. Moreover, this is
not a fact, it is an opinion. Mr.
O’Brien lacks personal
knowledge of what information
the public derives from the
existence of copyright notices on
ASTM standards, and he is not
qualified as an expert.

Defendant Public Resource’s
Response

Regardless, PRO fails to cite specific facts showing that there is
a genuine issue for trial because does not dispute that the
copyright registrations for the standards appearing in bold in
Annex A were effective within 5 years of the date of first
publication and thus, under 17 U.S.C. 410(c), constitute prima
facie evidence of the valid copyright in ASTM’s standards and
its work for hire authorship and ownership of the ASTM
Works. The only copyright registrations without a prima facie
presumption of validity under 17 U.S.C. § 410(c) pertain to
standards first published after March 1, 1989, for which the
presence or absence of a copyright notice has no bearing on

See also Wise Decl. II ¶ 7, Ex. 179 (showing Copyright Notice
from the 1978 Annual Book of ASTM Standards in which
ASTM A36-1977ae appears) (shown below).

Moreover, PRO incorrectly states that ASTM D4329-99 and
ASTM A36-1977ae do not bear a copyright notice. See Wise
Decl. ¶ 150, Ex. 149 (D4329-99 at ASTM001066) (shown
below).

That such a copyright notice does not appear at the bottom
page of each standard included within a particular book is
irrelevant. Plaintiffs object to ECF No. 122-9, Becker Decl. ¶
149, Exhibit 151 as incomplete to the extent relies on pages
from an ASTM Book of Standards (pages 441-445) to assert
that the Book of Standards did not contain a copyright notice.

Plaintiffs’ Response

Disputed. The NFPA standards at
issue are not subject to copyright.

Disputed to the extent that
NFPA’s copyright registrations
falsely state that the standards are
works made for hire or that

NFPA’s Copyrighted Works

9. NFPA has obtained copyright
registration certificates for its 23 standards
at issue in this motion, each within five
years of publication. Declaration of Dennis

10

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

There is no factual dispute. It is undisputed that Plaintiffs
oversee, coordinate, and manage the standards development
process in accordance with Plaintiffs’ policies, and that the
persons from various interested constituencies who contribute

There is no factual dispute. PRO has raised a legal challenge
to Plaintiffs’ ownership of the copyrights. For the reasons
explained in Plaintiffs’ briefing, that challenge is meritless.
Pls. Mem. 10-12; Reply at Part I.B.

Defendant mischaracterizes the statement in Tom O’Brien’s
declaration that “each of ASTM’s standards includes a
copyright notice alerting the public . . . to the fact that the
copyright is owned by ASTM” as “an opinion.” O’Brien Decl.
¶ 11. The witness is knowledgeable about the copyright
practices of ASTM because of his position as General Counsel
for over 10 years. ASTM incorporates its response to PRO’s
Objections to Plaintiff’s Evidence in Support of Plaintiffs’
Motion for Summary Judgment and Permanent Injunction.
Previously filed at ECF No. 155-4 ¶ 11.

Defendant has no basis for opining on what percentage of
ASTM standards overall bear copyright notices or when
ASTM began placing copyright notices on its standards.
Moreover, Defendant mischaracterizes discrete examples
(from years after the United States eliminated a notice
requirement) to draw an overly broad—and inaccurate
statement—that “[o]nly in recent years has ASTM affixed a
copyright notice to each ASTM standard.”

whether the standard is protected by copyright. See Annex A;
see also 17 U.S.C. § 405.

Plaintiffs’ Response

Defendant Public Resource’s
Response

Disputed. Public Resource has
not infringed any works owned

II.

11

Disputed to the extent that
ASHRAE’s copyright
registrations falsely state that the
standards are works made for hire
or that ASHRAE properly owns
any copyright in the standards at
issue. SSSMF ¶ 196-224.

10. ASHRAE has obtained copyright
registration certificates for its 3 standards at
issue in this motion, each within five years
of publication. Declaration of Stephanie
Reiniche, previously filed at Dkt. 118-10,
(“Reiniche Decl.”) ¶ 15, Exs. 3-5.

PRO’S ONGOING INFRINGEMENT
OF PLAINTIFFS’ WORKS

Disputed. The ASTM standards
at issue are not subject to
copyright.

ASHRAE’s Copyrighted Works

J. Berry, previously filed at Dkt. 118-3, NFPA owns any copyright in the
(“Berry Decl.”) ¶¶ 2-3, Exs. A-B; standards at issue. SSSMF ¶ 196Supplemental Declaration of James Pauley 224.
Declaration, filed concurrently herewith,
(“Supp. Pauley Decl.”) ¶¶ 6-24, Exs. W-OO
(certificates of registration).

Plaintiffs’ Statement of Material Facts

There is no factual dispute. PRO has raised a legal challenge
to Plaintiffs’ ownership and a legal defense of fair use. For the

For the reasons addressed in response to Paragraph 1, PRO’s
response fails to raise a genuine issue of material fact.

There is no factual dispute. It is undisputed that Plaintiffs
oversee, coordinate, and manage the standards development
process in accordance with Plaintiffs’ policies, and that the
persons from various interested constituencies who contribute
to the standard-development process do so for Plaintiffs and
within Plaintiffs’ standards-development procedures. SMF ¶¶
28-37, 39, 109-119, 135-141. Not one of those persons or
anyone they work for or with whom they are affiliated
contends that they, rather than the Plaintiff in issue, owns all
or any part of one of the Works at issue. E.g., O’Brien Decl.
III ¶¶ 6-7; Pauley Decl. ¶ 28; Reiniche Decl. ¶ 12.

There is no factual dispute. PRO has raised a legal challenge
to Plaintiffs’ ownership of the copyrights. For the reasons
explained in Plaintiffs’ briefing, that challenge is meritless.
Pls. Mem. 10-12; Reply at Part I.B.

For the reasons addressed in response to Paragraph 1, PRO’s
response fails to raise a genuine issue of material fact.

to the standard-development process do so for Plaintiffs and
within Plaintiffs’ standards-development procedures. SMF ¶¶
28-37, 39, 109-119, 135-141. Not one of those persons or
anyone they work for or with whom they are affiliated
contends that they, rather than the Plaintiff in issue, owns all
or any part of one of the Works at issue. E.g., O’Brien Decl.
III ¶¶ 6-7; Pauley Decl. ¶ 28; Reiniche Decl. ¶ 12.

Plaintiffs’ Response

13. During his deposition, Mr. Malamud
claimed that if he were notified of any
mistakes, he would do a rigorous quality
assurance check and correct any mistakes.
SMF ¶ 217 (citing Declaration of Jordana
Rubel, previously filed at Dkt. 118-12,

A. PRO Did Not Fix The Errors In Its Disputed for the reasons
Versions of Plaintiffs’ Standards
addressed below.

12

Undisputed.

PRO fails to establish a genuine dispute as to a material fact
for the reasons addressed below.

There is no factual dispute. PRO has not disputed the
accuracy of the statement.

12. PRO had previously, at the Court’s
suggestion (and prior to the injunction),
removed Plaintiffs’ standards from its
website and the Internet Archive website in
November 2015. SMF ¶ 186.

Disputed but not material. Public
Resource removed the standards
at issue because if it did not, the
Court would have instituted a
summary judgment filing
schedule in both this litigation
and the sister AERA et al.
litigation that would have made it
impossible for Public Resource to
defend itself, relying on pro bono
counsel while the plaintiffs in
both cases were represented by
five law firms.

Undisputed.

11. Following the D.C. Circuit remand in
July 2018, Defendant Public.Resource.Org
(“PRO”) “reposted the standards at issue . .
. to the Internet Archive” website. Wise
Decl. ¶ 165, Ex. 164 at Interrog. 22.

Plaintiffs’ Response

reasons explained in Plaintiffs’ briefing, those legal arguments
are meritless. Pls. Mem. 10-37; Reply at Parts I to II.

Defendant Public Resource’s
Response

PRO’s Postings To Internet Archive After by Plaintiffs.
Remand From the D.C. Circuit

Plaintiffs’ Statement of Material Facts

PRO fails to establish a genuine dispute as to a material fact.
Plaintiffs have attached as an exhibit what a sighted person
would see if she viewed the version of the standard that PRO
posted. Wise Decl. ¶ 166, Ex. 165. That exhibit shows that
most of the same errors that were identified at Mr. Malamud’s
deposition would still be seen by a sighted person who viewed
the standard that is currently posted.

16. PRO has not fixed those errors to its Disputed to the extent that these
HTML version of ASTM D86-07. Wise are not errors in the image that a
Decl. ¶ 166, Ex. 165.
person reads. These are instances
where the optical character
recognition software that scanned
the text failed to recognize certain
characters correctly. When a
13

PRO fails to establish a genuine dispute as to a material fact.
Plaintiffs have attached as an exhibit what a sighted person
would see if she viewed the version of the standard that PRO
posted. Wise Decl. ¶ 166, Ex. 165. That exhibit shows that
most of the same errors that were identified at Mr. Malamud’s
deposition would still be seen by a sighted person who viewed
the standard that is currently posted.

Disputed to the extent that these
are not errors in the image that a
person reads. These are instances
where the optical character
recognition software that scanned
the text failed to recognize certain
characters correctly. When a
sighted person pulls up the page,
he or she will see the correct text,
but a computer may not read it
correctly.

15. For example, during Mr. Malamud’s
deposition, Plaintiffs notified him that the
HTML version of ASTM D86-07 he had
posted contained a number of errors,
including text and numbers that differ from
the information in the authentic versions of
Plaintiffs’ standards. SMF ¶ 215 (citing
Rubel Decl. ¶ 6, Ex. 3 (C. Malamud Dep. at
127:4-139:8)).

PRO fails to establish a genuine dispute as to a material fact.
Plaintiffs have attached an exhibit that shows that most of the
same errors that were identified at Mr. Malamud’s deposition
would still be seen by a sighted person who viewed the
standard that is currently posted. Wise Decl. ¶ 166, Ex. 165.
PRO’s reliance on Mr. Malamud’s statement that “Errors can
also be introduced in the process of transformation to HTML,”
ECF No. 121-5 ¶ 33, does not support the statement that PRO
“corrected each of the errors identified at his deposition.”

Plaintiffs’ Response

Disputed. Mr. Malamud
corrected each of the errors
identified at his deposition and at
the deposition of Public
Resource. SSSMF ¶ 178.

Defendant Public Resource’s
Response

14. Well over three years have passed
since Plaintiffs notified Mr. Malamud of
errors in his postings. Nonetheless, PRO
never corrected most of these mistakes,
instead reposting versions of standards
which he previously admitted were not
acceptable. SMF ¶ 216 (citing Rubel Decl.
¶ 6, Ex. 3 (C. Malamud Dep. at 140:19141:6)).

(“Rubel Decl.”). ¶ 6, Ex. 3 (C. Malamud
Dep. at 140:19-25).

Plaintiffs’ Statement of Material Facts

Disputed to the extent that these
are not errors in the image that a
person reads. These are instances
where the optical character
recognition software that scanned
the text failed to recognize certain
characters correctly. When a
sighted person pulls up the page,
he or she will see the correct text,
but a computer may not read it
correctly.

18. PRO has not reposted its version of the
2011 NEC in HTML form, but almost all of
those precise errors remain in its Full Text
posting of the 2011 NEC. Supp. Pauley
Decl. ¶ 39; Wise Decl. ¶ 167, Ex. 166.

14

Disputed to the extent that these
are not errors in the image that a
person reads. These are instances
where the optical character
recognition software that scanned
the text failed to recognize certain
characters correctly. When a
sighted person pulls up the page,
he or she will see the correct text,
but a computer may not read it
correctly.

sighted person pulls up the page,
he or she will see the correct text,
but a computer may not read it
correctly.

Defendant Public Resource’s
Response

17. Plaintiffs also alerted PRO to a
number of errors in the HTML posting of
the 2011 edition of the National Electrical
Code (“NEC”) that distort the meaning of
substantive provisions of the standard that
were written to protect human safety and
prevent property damage, including but not
limited to erroneously using the letter “M”
(an abbreviation for meters) rather than the
letters “I” and “N” (an abbreviation for
inches). SMF ¶ 219 (citing Declaration of
James Pauley filed at Dkt. 118-8, (“Pauley
Decl.”) ¶ 54).

Plaintiffs’ Statement of Material Facts

PRO fails to establish a genuine dispute as to a material fact.
Plaintiffs have attached as an exhibit what a sighted person
would see if she viewed the version of the standard that PRO
posted. Wise Decl. ¶ 167, Ex. 166. That exhibit shows that
the same errors Plaintiffs previously identified in PRO’s
HTML posting of the 2011 NEC would still be seen by a
sighted person who viewed the Full Text posting of the 2011
NEC that is currently posted.

PRO fails to establish a genuine dispute as to a material fact.
Plaintiffs have attached as an exhibit what a sighted person
would see if she viewed the version of the standard that PRO
posted. Wise Decl. ¶ 167, Ex. 166. That exhibit shows that
the same errors Plaintiffs previously identified in PRO’s
HTML posting of the 2011 NEC would still be seen by a
sighted person who viewed the Full Text posting of the 2011
NEC that is currently posted.

Plaintiffs’ Response

Disputed. Public Resource
provided a five-page response to
Plaintiffs’ interrogatory no. 22,
detailing all of the changes that
Public Resource has made to its
process and the documents that it
posts online, and linking to three
documents that Public Resource
produced that discuss the process
it now uses for documents it posts
online. Dkt. 198-48 at p. 27-32.
Among several issues, Public
Resource described its use of
cryptographic signatures for
verification, and its use of errata
for correcting errors that were in
the versions of standards as
published by NFPA. Id.

Disputed: Public Resource
acknowledges that Plaintiffs are
the definitive source of the
standards, but to the extent the
standards have been corrected or
amended without the corrections
or amendments being

19. PRO has not made meaningful
changes to the process it previously used to
rekey text, convert graphics, reset
mathematical formulas or otherwise make
change its quality control measures. Wise
Decl. ¶ 165, Ex. 164 at Interrog. 22.

20. PRO acknowledges that Plaintiffs (or
governmental authorities), not PRO, are the
definitive source for accurate copies of the
Plaintiffs’ standards by directing readers “to
check with the standards organizations or
governmental authorities for further
information and access to definitive

15

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

There is no factual dispute. PRO has not disputed the
accuracy of the statement.

PRO also notes that it posts copies of errata that Plaintiffs
issue to amend their standards. Id. at 31. This is not part of
PRO’s process of converting standards, nor a mechanism PRO
uses to ensure the standards it posts do not contain errors.

PRO also identifies Internet Archive’s use of cryptographic
digital signatures, but this is a measure that Internet Archive
offers to “allow a user to verify that the document has not been
altered since Public Resource posted it.” Id. at p. 30. These
signatures are not part of PRO’s process of converting
standards, nor a mechanism PRO uses to ensure the standards
it posts do not contain errors.

PRO points to three comments it submitted in connection with
administrative rulemakings, but these were all submitted in
2015, id. at p. 30—i.e., they do not describe “changes” PRO
has made since the Court’s previous summary judgment order.

PRO fails to establish a genuine dispute as to a material fact.
The bulk of PRO’s interrogatory response was directed to
issues unrelated to its process of rekeying text, converting
graphics, resetting mathematical formulas, or other quality
control measures. E.g., Wise Decl. ¶ 165, Ex. 164 at Interrog.
22, pp. 26-28 (objecting to interrogatory); id. at pp. 28-29
(describing disclaimers).

Plaintiffs’ Response

Defendant Public Resource’s
Response

Wise Decl. Wise Decl. 153, Ex. 152 at 180.

16

Disputed to the extent that
Plaintiffs suggest that this
constitutes a “logo,” or that
Public Resource has engaged in
anything other than nominative
fair use by referring to the fact
that it redacted the ASTM logo.

ASTM’s A502-76 bears the ASTM logo in the upper left
corner of the first page. Wise Decl. ¶ 150, Ex. 149 at

For example, Wise Decl. ¶ 153, Ex. 152 shows the version of
A502-76 that PRO modified, reproduced and displayed.

To the extent Defendant’s argument is that it what it removed
does not constitute a “logo,” that is contradicted by the
language that it typed over the redacted material, i.e., “ASTM
Logo Removed” (emphasis added).

Defendant’s response is vague and ambiguous and appears to
misunderstand the evidence (Plaintiffs are not arguing that
PRO’s “blacking out” of the logo is itself a logo). Defendant
points to no evidence that contradicts the evidence cited in
Wise Decl. ¶ 153, Ex. 152 at 180.

There is no factual dispute. PRO does not dispute that it uses
Plaintiffs’ word marks typed over the redacted logo.

There is no factual dispute. PRO has raised a legal defense of
nominative fair use. For the reasons explained in Plaintiffs’
briefing, that legal argument is meritless. Pls. Mem. 31-37;
Reply at Part II.

22. As depicted below, PRO has in some
instances “blacked out” Plaintiffs’ logos,
but has typed Plaintiffs’ word marks,
combined with the phrase “Logo
Removed,” over the redacted area.

Disputed to the extent that
Plaintiffs refer to any use other
than nominative fair use.
Undisputed.

PRO Continues To Use
Plaintiffs’ Marks

Plaintiffs’ Response

21. PRO stated that it removed all of
Plaintiffs’ logos from PRO’s copies of
Plaintiffs’ Works. Wise Decl. ¶ 165, Ex.
164 at Interrog. 22.

A.

versions of these important laws.” See, e.g., incorporated by reference into
Wise Decl. ¶ 168, Ex. 167.
law they are not definitive
versions of the laws.

Plaintiffs’ Statement of Material Facts

Disputed to the extent that the
NEC logo is not a logo of
Plaintiffs’ name, and the
instances Plaintiffs complain of
are instances where the logo is
used in decorative fashion, not as
a source identifier.

23. However, Internet Archive postings
show that not all of Plaintiffs’ logos have
been removed, and PRO has not removed
Plaintiffs’ word marks. For example, PRO
has not removed the NEC logo for at least
the 2011 and 2014 editions of the NEC or
any of the word marks:

17

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

There is no factual dispute. PRO does not dispute that its
postings include the NEC logo, which is trademarked
intellectual property of NFPA. See Berry Decl. ¶ 9, Ex. I
(attaching trademark registration). PRO’s “decorative
fashion” explanation is not supported by any facts.

PRO has raised a legal defense of whether its redactions
constitute nominative fair use. For the reasons explained in
Plaintiffs’ briefing, that legal argument is meritless. Pls. Mem.
31-37; Reply at Part II.

ASTM000304 (shown below). PRO fails to explain why this
does not constitute a logo.

Plaintiffs’ Response

Plaintiffs’ Response

PRO fails to establish a genuine dispute as to a material fact.
Plaintiffs identified one of PRO’s postings that continues to
display the ASTM logo as an example, and PRO has not
disputed that this posting continues to display the posting.
Defendant points to no evidence that contradicts the evidence
showing PRO’s wholesale reproduction of ASTM’s logo as
cited in Wise Decl. ¶ 166, Ex. 165. PRO misleadingly
suggests that because ASTM only included one example that
there was only a “single incident.” This is not the case. 3d
Supp. SMF ¶ 8, Ex. 177 (showing ASTM’s logo on the HTML
version of ten other ASTM Works). Additionally, PRO has
not taken down HTML versions bearing the ASTM Logo since
ASTM filed its brief in October. 3d Supp. Id. (showing the
ASTM logo still unredacted and displayed in connection with
ASTM D86-07 on December 11, 2019).

Defendant Public Resource’s
Response

B.

PRO Changes To Its
“Disclaimers” Are
Insufficient

18

Disputed for the reasons
addressed below; moreover, this
is argument and not a statement
of fact.

PRO fails to establish a genuine dispute as to a material fact
for the reasons addressed below.

There is no factual dispute. PRO has not disputed the
accuracy of the statement. Defendant points to no evidence
that contradicts the evidence cited in Wise Decl. ¶ 153, Ex.
152.

Disputed to the extent that
Plaintiffs incorrectly imply that
Public Resource had said it had
redacted ASTM’s name from the
incorporated documents.

25. And even where PRO has redacted the
ASTM logo, PRO has not in any instance
redacted the ASTM word mark. Wise Decl.
¶ 153, Ex. 152.

Wise Decl. ¶ 166, Ex. 165

24. Similarly, PRO’s Internet Archive Disputed to the extent that
postings continue in some instances to Plaintiffs have only identified a
display the ASTM Logo, as depicted below. single incident where Public
Resource overlooked an ASTM
logo.

Wise Decl. ¶ 169, Ex. 168; Supp. Pauley
Decl. ¶ 32.

Plaintiffs’ Statement of Material Facts

26. PRO’s “disclaimers” take three forms.
The first appears on the cover page of PDF
copies of Plaintiffs’ Works posted by PRO,
as depicted below.

Plaintiffs’ Statement of Material Facts

19

Defendant Public Resource’s
Response
Undisputed

Plaintiffs’ Response

Undisputed.

PRO fails to establish a genuine dispute as to a material fact.
Defendants offers unsupported testimony about the page load
size. Defendant points to no evidence that contradicts the
evidence cited in Wise Decl. ¶ 168, Ex. 167 at 6.

Plaintiffs’ Response

Undisputed.

Disputed. Plaintiffs’ statement is
argumentative and dismisses the
work that Public Resource
performed after the Court of
Appeals’ decision.

Disputed to the extent that the
portion of the second disclaimer
that is visible as soon as the page
is loaded depends on the size of
the viewer’s computer screen and
the dimensions of the browser
window.

Defendant Public Resource’s
Response

20

PRO fails to establish a genuine factual dispute for the reasons
addressed below.

III.

PRO’S FAILURE TO FOLLOW THE
D.C. CIRCUIT’S DECISION
PRO’s Essentially Did Nothing In
Response To The D.C. Circuit Decision

29. This
“disclaimer”
appears
in
approximately the same typeface and size as
the rest of the document. Id.

Wise Decl. ¶ 166, Ex. 165.

28. Finally, PRO’s HTML-format copies
of Plaintiffs’ standards—which are
available for download on the Internet
Archive Website—contain the following
“disclaimer,” in the form of a “PREAMBLE
(NOT PART OF THE STANDARD)”:

27. The second disclaimer appears “below
the fold” of the Internet Archive webpage;
a reader must scroll past the PDF copy of
the standard to see the disclaimer at all.
Wise Decl. ¶ 168, Ex. 167 at 6.

Wise Decl. Wise Decl. ¶ 153, Ex. 152 at
180; Wise Decl. ¶ 168, Ex. 167 at 6.

Plaintiffs’ Statement of Material Facts

Disputed. Public Resource
identified where in federal or
state regulations each standard at
issue had been incorporated into
law in their entirety (as opposed
to incorporations of parts of those
documents), and the complete
document is therefore binding
law. Plaintiffs’ interrogatory
requests called for legal
conclusions, and although
Plaintiffs may disagree with
Public Resource on the scope and
effect of the law, that does not
mean that Public Resource “did
not do any analysis.”

30. Plaintiffs’ interrogatories asked PRO
to identify the authority and portions of
standards that it contended impose binding
legal obligations; but PRO did not do any
analysis to determine “with specificity each
portion(s) of the Standard at Issue that PRO
asserts imposes a legal obligation on an
individual or entity.” See generally Wise
Decl. ¶ 165, Ex. 164 at Interrogs. 17-21.

21

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

Whether PRO has done some analysis is not material because
the analysis PRO asserts it has completed does not address the
legal test mandated by the D.C. Circuit.

PRO does not dispute that Plaintiffs’ interrogatories asked it to
identify “with specificity each portion” of the Standards at
Issue that it contended impose binding legal obligations. PRO
disputes only the assertion that it “did not do any analysis” to
determine which portions of the Standards at Issue impose a
legal obligation, but, at a minimum, PRO’s interrogatory
responses did not disclose any such analysis. Moreover, as
explained in further detail below, PRO’s position that each
Standard at Issue has been “incorporated into law in [its]
entirety,” is contrary to the undisputed record evidence.

PRO has not presented a similar theory—or factual or legal
support for one—with respect to state incorporation by
reference.

PRO fails to establish a genuine dispute as to a material fact.
PRO has presented a theory of incorporation by reference
under which any time a federal agency IBR’s a standard,
without specifying a particular portion of the standard, each
and every word of that standard is binding and necessary to
comply with the law. As explained in Plaintiffs’ briefing,
PRO has not presented factual support to show that agencies
actually operate in this way or that the regulations have that
legal effect (they do not). Reply at Part I.A.1.a. And, as
Plaintiffs’ briefing explains, as a legal matter, this theory of
incorporation is irreconcilable with the D.C. Circuit’s decision.
Reply at Part I.A.1.a.

Plaintiffs’ Response

Disputed. Public Resource
performed an analysis and
determined that where the entire
standard document had been
made law through incorporation,
unlike instances where just a
portion of a standard document is
made law, then providing the
entirety of the law is warranted.

31. PRO disavowed any obligation to do
any analysis of the standards to support its
fair use defense: “The entirety of each
standard listed [at issue in this litigation] is
incorporated by reference into the law.
Public Resource is not an attorney and does
not provide legal advice, and cannot
provide advice regarding what legal
obligations an individual or entity may face
as a result of hundreds of different federal,
state, and local laws.” Wise Decl. ¶ 165, Ex.
164 at Interrog. 19.

22

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

Whether PRO has done some analysis is not material because
the analysis PRO asserts it has completed does not address the
legal test mandated by the D.C. Circuit.

Defendant does not dispute that its response to Plaintiffs’
interrogatories requesting it to identify “with specificity each
portion(s) of the Standard at Issue that PRO asserts imposes a
legal obligation” was to assert that it “does not provide legal
advice” and could not “provide advice regarding what legal
obligations an individual or entity may face.” PRO disputes
only whether it “performed an analysis,” but it indisputably
did not disclose any such analysis in its interrogatory
responses. Moreover, as explained in further detail below,
PRO’s contention that “the entire standard document” for each
Standard at Issue was made law is contrary to the undisputed
record evidence.

PRO has not presented a similar theory—or factual or legal
support for one—with respect to state incorporation by
reference.

PRO fails to establish a genuine dispute as to a material fact.
PRO has presented a theory of incorporation by reference
under which any time a federal agency IBR’s a standard,
without specifying a particular portion of the standard, each
and every word of that standard is binding and necessary to
comply with the law. As explained in Plaintiffs’ briefing,
PRO has not presented factual support to show that agencies
actually operate in this way or that the regulations have that
legal effect (they do not). Reply at Part I.A.1.a. And, as
Plaintiffs’ briefing explains, as a legal matter, this theory of
incorporation is irreconcilable with the D.C. Circuit’s decision.
Reply at Part I.A.1.a.

Plaintiffs’ Response

Disputed. Plaintiffs’ statement is
argumentative and dismisses the
work that Public Resource
performed to identify the
incorporations.
Undisputed.

There is no factual dispute. PRO has not disputed the
accuracy of the statement.

There is no factual dispute. PRO has not disputed the
accuracy of the statement.

Plaintiffs’ Response

23

Standards often incorporate other standards by reference. See infra ¶ 69. PRO’s answer does not explain how it would distinguish between standards
that are incorporated by reference directly by a regulation and the numerous additional standards that are incorporated by reference within the standards
of other related standards.

3

33. ASTM standards are reviewed on a 5
year schedule. Declaration of James
Thomas, previously filed at Dkt. 118-11,
(“James Thomas Decl.”) ¶ 33. ASTM
publishes an Annual Book of ASTM
Standards that is composed of a number of
volumes and includes the then-current
version of each of its standards. O’Brien
Decl. ¶ 7.

PRO Has Failed to
Identify Correct Citations
That Incorporate The
Works By Reference
Incorrect Citations re: ASTM’s Standards

Disputed to the extent that
Plaintiffs footnote no. 3 raises an
issue that is not before this Court.
Plaintiffs never asked Public
Resource whether it would post a
standard that is referenced within
a standard that is made law
through incorporation, and Public
Resource has never posted a
standard on this basis or asserted
that it would.

32. In
response
to
Plaintiffs’
interrogatories regarding PRO’s basis for
copying and distributing every portion of
Plaintiffs’ standards “verbatim,” PRO
explained that “[t]he entirety of each
standard [at issue in this litigation] is
incorporated by reference into the law, and
it is therefore necessary to reproduce the
entire standard verbatim in order to
accurately state what the law is.” Wise
Decl. ¶ 165, Ex. 164 at Interrog. 21.3

A.

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

Undisputed.

24

Undisputed.

35. In each serial designation, the number
following the dash indicates the year of
original adoption as a standard, or the year
of the standard’s last revision. Id. Standards
that have been reapproved without change
are indicated by the year of last reapproval
in parentheses as part of the designation
number (e.g., C5-79 (1997) indicates that
C5 was reapproved in 1997). Id. A letter
following this number indicates more than
one revision during that year (e.g., A10604b indicates the second revision in 2004 to
A106). Id. A superscript epsilon indicates
an editorial change since the last revision or
reapproval (e.g., A36-97ae1 indicates the
first editorial revision of the 1997 version of
A36). Id. If a standard is written in
acceptable metric units, the metric version is
indicated by the letter M (e.g., A369M-92
indicates that this version of A389 contains
metric units). Id. When ASTM publishes
standards in metric and inch-pound units it
identifies the standard with a dual
designation (e.g., ASTM A369/A369M-92

Defendant Public Resource’s
Response

34. Each ASTM standard has a unique
designation comprised of a capital letter
classification A-G which designates the
general classification of the standard (e.g.,
standards beginning with “A” address
ferrous metals). O’Brien Decl. Ex. 3 at
1349.

Plaintiffs’ Statement of Material Facts

Plaintiffs’ Response

36. As discussed in detail below, PRO has
reproduced and displayed at least 92
standards that have not been incorporated
by the regulation(s) it identifies in its cover
sheets:

identifies a dual standard). Id. Regulations
like the Code of Federal Regulations
typically identify ASTM standards
according to this specific designation
number. For example, 40 C.F.R. § 114.600
specifies the edition of the ASTM standards
incorporated by reference in 46 C.F.R. §
119.440, including B122/B122M- 95 and
B96-93. See 40 C.F.R. § 114.600.

Plaintiffs’ Statement of Material Facts

25

Plaintiffs appear to be using a
sleight of hand. Because the
standards at issue were posted
years ago, before this lawsuit
began in 2013, the citations
Public Resource listed on its
cover sheets at the time that it
posted the standards were to

Disputed. For 75 of the 92
ASTM standards identified
below, Plaintiffs previously
admitted in their response to
Public Resource’s Interrogatory
No. 1 that these editions of these
standards were incorporated by
reference into law. Plaintiffs
cannot now deny their prior
sworn statement. Incorporations
for the standards at issue can be
found at the IBR Reference
Tables at Becker Decl. ¶¶ 56-58,
Exs. 89-91.

Defendant Public Resource’s
Response

Furthermore, Defendant’s assertion that the citations it
identified as the incorporated by reference regulations are to

PRO mischaracterizes ASTM’s response to PRO’s
Interrogatory No. 1 to assert that ASTM admitted that certain
standards were incorporated by reference into law. However,
ASTM stated that it had “reason to believe” certain ASTM
standards identified in a chart attached as Exhibit A to
ASTM’s response to Interrogatory No. 1 were “incorporated
by reference by a Legal Authority.” ECF No. 204-60 at 7-8
(Response to Interrog. 1). ASTM did not admit that the
standards referenced in the chart were in fact incorporated by
reference into law nor did it concede that the standards were
incorporated by the regulation(s) PRO identified in its cover
sheets.

PRO fails to establish a genuine dispute as to a material fact.
It is undisputed that PRO has reproduced and displayed at least
92 standards that are not incorporated by the regulations(s) it
identified in its cover sheets. PRO’s reference to its IBR
Reference Tables does not dispute the accuracy of Plaintiffs’
statement.

Plaintiffs’ Response

a. ASTM A36 (1977ae): PRO
identifies 24 C.F.R. § 200 as the
incorporating by reference regulation.
Wise Decl. ¶ 153, Ex. 152 at 1. However,
24 C.F.R. § 200 does not reference this
standard.

Plaintiffs’ Statement of Material Facts

26

PRO’s assertion that its inability to identify the correct version
of the standard incorporated by reference in the C.F.R. is

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 24 C.F.R. § 200 as the
incorporating by reference regulation or that 24 C.F.R. § 200
does not reference ASTM 36 (1977ae). Defendant’s sole
“dispute” is to mischaracterize ASTM’s response to PRO’s
Interrogatory No. 1 to assert that ASTM admitted a fact that
(1) it did not admit, and (2) is unsupported by the record
evidence.

an earlier version of the C.F.R. neglects that 56 of these had
been amended or superceded before PRO posted the standards,
undermining its fair use argument under the D.C. Circuit’s
guidance to look to the “direct legal effect on any private
party’s conduct.” ASTM II, 896 F.3d at 443. Moreover,
numerous regulations PRO identified do not identify the
edition of the ASTM Work that PRO reproduced and
displayed. As addressed in Paragraph 36.a., PRO’s assertion
that its inability to identify the correct version of the standard
incorporated by reference in the C.F.R. is immaterial ignores
the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450, and
PRO’s burden to prove each standard has been IBR’d.
PRO’s statement that the standards were incorporated into law
at the time PRO posted them in 2012 is also unsupported by
the record evidence. See Becker Decl. Ex. 90 (showing more
than 20% of the citations to the C.F.R. that PRO identifies as
the incorporating reference were not promulgated until after
the lawsuit; see also Wise Decl. II ¶ 4, Ex. 176 (showing that
56 of the cited regulations were amended prior to PRO’s
postings).

earlier versions of the Code of
Federal Regulations. Although
those citations may no longer
reflect the current C.F.R., this
does not change the fact that the
standards were incorporated by
reference into law. However,
Plaintiffs’ phrasing (“have not
been incorporated”) falsely
suggests that these standards were
not incorporated into law, or that
they are not currently
incorporated into law elsewhere.

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair

Plaintiffs’ Response

Defendant Public Resource’s
Response

b. ASTM A36/A36M (1997ae1):
PRO identifies 46 C.F.R. § 160.035-3(b)(2)
as the incorporating by reference
regulations. Wise Decl. ¶ 153, Ex. 152 at
However, 46 C.F.R.§ 160.035 was removed
and reserved. See 76 FR 62962, 62975, Oct.
11, 2011.

Plaintiffs’ Statement of Material Facts

27

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:

use.

Defendant Public Resource’s
Response

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 46 C.F.R. § 160.0353(b)(2) as the incorporating by reference regulation or that 46
C.F.R. § 160.035-3(b)(2) was removed and reserved, such that
it cannot serve as the incorporating by reference regulation for
ASTM A36/A36M (1997ae1). Defendant’s sole “dispute” is to
mischaracterize ASTM’s response to PRO’s Interrogatory No.
1 to assert that ASTM admitted a fact that (1) it did not admit,

The suggestion that such an error is immaterial further ignores
the fact that PRO’s claims that it “aims to do one simple,
important thing: to provide a complete database of laws and
regulations.” ECF No. 202-2 (“Opp.”) 1. When faced with
the undisputed and material fact that it failed to cite any law
that referenced many ASTM standards at issue in this case,
PRO’s response is that its error is “very close” or almost
“relevant law,” Opp. 6 n.3. PRO’s assertion that almost
relevant law justifies wholesale copying of the Works is
likewise unacceptable and insufficient to meet PRO’s burden
that the ASTM Works have been incorporated by reference.

immaterial ignores the D.C. Circuit’s statement that: “Homing
in on this inquiry may also illuminate which particular version
of a standard may fairly be reproduced. Recall that a
qualifying power source for tank barges must meet “[National
Electrical Code], Articles 406.9 and 501-145.” This
incorporation might justify reproducing that portion of the
2011 National Electrical Code, the one incorporated in the
power source regulation . . . but not the 2014 edition, also at
issue in this appeal but not so incorporated.” Am. Soc’y for
Testing & Materials, v. Public.Resource.Org, Inc., 896 F.3d
437, 450 (D.C. Cir. 2018) (“ASTM II”) (internal citations
omitted) (emphasis added).

Plaintiffs’ Response

Disputed. ASTM A106/A106 M
(2004b) is incorporated by
reference at 49 C.F.R. § 192.7
(2010). Immaterial: whether
Public Resource has accurately
identified the incorporating
provision does not affect whether
it engages in fair use.

d. ASTM A106/A106 M (2004b):
PRO identifies 49 C.F.R §. 192.113 as the
incorporating by reference regulation. Wise
Decl. ¶ 151, Ex. 150 at PRO_ 00079099;
Wise Decl. ¶ 165, Ex. 164 at Interrog. 19.
However, 49 C.F.R. § 192.113 references
ASTM A106, not ASTM A106/A106 M
(2004b). And 49 C.F.R. § 192.7, which
identifies standards incorpotaed by
reference, references the 2010 version of

28

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

Defendant Public Resource’s
Response

c. ASTM A82 (1979): PRO
identifies 24 C.F.R. § 200, Subpart S as the
incorporating by reference regulation. Wise
Decl. ¶ 151, Ex. 150 at PRO_ 00092094;
Wise Decl. ¶ 165, Ex. 164 at Interrog. 19;
Wise Decl. ¶ 153, Ex. 152 at 12. However,
24 C.F.R. § 200, Subpart S does not
reference this standard.

Plaintiffs’ Statement of Material Facts

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 49 C.F.R §. 192.113 as
the incorporating by reference regulation, that 49 C.F.R §.
192.113 does not reference ASTM A106/A106 M (2004b), or
that 49 C.F.R. § 192.7 references the 2010 version, not the
2004b version.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 24 C.F.R. § 200,
Subpart S as the incorporating by reference regulation or that
24 C.F.R. § 200, Subpart S does not reference ASTM A82
(1979). Defendant’s sole “dispute” is to mischaracterize
ASTM’s response to PRO’s Interrogatory No. 1 to assert that
ASTM admitted a fact that (1) it did not admit, and (2) is
unsupported by the record evidence.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

and (2) is unsupported by the record evidence.

Plaintiffs’ Response

29

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

f.
ASTM A185 (1979): PRO
identifies 24 C.F.R. § 200, Subpart S as the
incorporating by reference regulation. Wise
Decl. ¶ 151, Ex. 150 at PRO_ 00080317;
Wise Decl. ¶ 165, Ex. 164 at Interrog. 19;
Wise Decl. ¶ 153, Ex. 152 at 23. However,
24 C.F.R. § 200, Subpart S does not
reference this standard.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 24 C.F.R. § 200,
Subpart S as the incorporating by reference regulation or that
24 C.F.R. § 200, Subpart S does not reference ASTM A185
(1979). Defendant’s sole “dispute” is to mischaracterize
ASTM’s response to PRO’s Interrogatory No. 1 to assert that
ASTM admitted a fact that (1) it did not admit, and (2) is
unsupported by the record evidence.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 24 C.F.R. § 200,
Subpart S as the incorporating by reference regulation or that
24 C.F.R. § 200, Subpart S does not reference ASTM A184
(1979). Defendant’s sole “dispute” is to mischaracterize
ASTM’s response to PRO’s Interrogatory No. 1 to assert that
ASTM admitted a fact that (1) it did not admit, and (2) is
unsupported by the record evidence.

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

e. ASTM A184 (1979): PRO
identifies 24 C.F.R. § 200, Subpart S as the
incorporating by reference regulation. ¶
153, Ex. 152 at 18. However, 24 C.F.R. §
200, Subpart S does not reference this
standard.

Plaintiffs’ Response

ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

Defendant Public Resource’s
Response

ASTM A106/A106 M, not the 2004b
version.

Plaintiffs’ Statement of Material Facts

30

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

h. ASTM A242 (1979): PRO
identifies 24 C.F.R. § 200, Subpart S as the
incorporating by reference regulation. Wise
Decl. ¶ 151, Ex. 150 at PRO_ 00082342;
Wise Decl. ¶ 165, Ex. 164 at Interrog. 19;
Wise Decl. ¶ 153, Ex. 152 at 36. However,
24 C.F.R. § 200, Subpart S does not
reference this standard.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 24 C.F.R. § 200,
Subpart S as the incorporating by reference regulation or that
24 C.F.R. § 200, Subpart S does not reference ASTM A242
(1979). Defendant’s sole “dispute” is to mischaracterize
ASTM’s response to PRO’s Interrogatory No. 1 to assert that
ASTM admitted a fact that (1) it did not admit, and (2) is
unsupported by the record evidence.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 46 C.F.R. § 54.05-20(b)
as the incorporating by reference regulation or that 46 C.F.R. §
54.05-20(b) references ASTM A 203/A 203M-97 (Reapproved
2007)e1, not ASTM A203/A203 M (1997). Defendant’s sole
“dispute” is to mischaracterize ASTM’s response to PRO’s
Interrogatory No. 1 to assert that ASTM admitted a fact that
(1) it did not admit, and (2) is unsupported by the record
evidence.

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

g. ASTM A203/A203 M (1997):
PRO identifies 46 C.F.R. § 54.05-20(b) as
the incorporating by reference regulation. ¶
153, Ex. 152 at 31. However, 46 C.F.R. §
54.05-20(b) references ASTM A 203/A
203M-97 (Reapproved 2007)e1, not ASTM

A203/A203 M (1997).

Plaintiffs’ Response

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

Disputed. ASTM A307 1978 is
incorporated by reference at 24
C.F.R. (Parts 200 to 499) (2005).
ASTM has stated that an “ e ”
designation after the year means a
minor, non-substantive revision.
Immaterial. Whether Public
Resource has accurately
identified the incorporating
provision does not affect whether
it engages in fair use.

i.
ASTM A285 (1978): PRO
identifies 10 C.F.R. § 440 Appendix A and
24 C.F.R. § 200 Appendix A as the
incorporating by reference regulations.
Wise Decl. ¶ 153, Ex. 152 at 40. However,
10 C.F.R. § 440 Appendix A and 24 C.F.R.
200 Appendix A do not reference this
standard.

j.
ASTM A307 (1978e): PRO
identifies 24 C.F.R. § 200, Subpart S and
46 C.F.R. 56.25-20(b) as the incorporating
by reference regulation. Wise Decl. ¶ 151,
Ex. 150 at PRO_ 00082371; Wise Decl. ¶
165, Ex. 164 at Interrog. 19; Wise Decl. ¶
153, Ex. 152 at 45. However, 24 C.F.R. §
200, Subpart S does not reference this
standard, and 46 C.F.R. § 56.25-20(b)
references the 1997 version of ASTM
A307, not the 1978e version.

31

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

PRO does not dispute that it identified 24 C.F.R. § 200,
Subpart S and 46 C.F.R. 56.25-20(b) as the incorporating by
reference regulations, that 24 C.F.R. § 200, Subpart S does not
reference ASTM A307 (1978e), or that 46 C.F.R. 56.25-20(b)
references the 1997 version, not the 1978e version. Moreover,
Defendant refers to 24 C.F.R. (Parts 200 to 499) (2005), but
the “Material Approved for Incorporation” section, has not
been included in 24 C.F.R. (Parts 200 to 499) since 2008, and
ASTM A307-78 did not appear in 24 C.F.R. § 200, Subpart S
in 2005.

Objection. PRO misstates without support that the use of a “e”
indicates a “minor non-substantive revision. As stated in
paragraph 35 above, a superscript epsilon “indicates an
editorial change since the last revision or reapproval.”
O’Brien Decl. ¶ 9, Ex. 3 at 1349.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 10 C.F.R. § 440
Appendix A and 24 C.F.R. § 200 Appendix A as the
incorporating by reference regulations or that 10 C.F.R. § 440
Appendix A and 24 C.F.R. § 200 Appendix A do not reference
ASTM A285 (1978). Defendant’s sole “dispute” is to
mischaracterize ASTM’s response to PRO’s Interrogatory No.
1 to assert that ASTM admitted a fact that (1) it did not admit,
and (2) is unsupported by the record evidence.

Plaintiffs’ Response

Disputed. ASTM A370-1977 is
incorporated by reference at 46
C.F.R. § 56.01-1 (1997). ASTM
has stated that an “ e ” designation
after the year means a minor,
non-substantive revision.
Immaterial: whether Public
Resource has accurately
identified the incorporating
provision does not affect whether
it engages in fair use.

l.
ASTM
A370-77e2:
PRO
identifies 49 C.F.R. § 179.102-1(a)(1) as
the incorporating by reference regulation.
Wise Decl. ¶ 153, Ex. 152 at 62. However,
49 C.F.R. § 179.102-1(a)(1) incorporates
ASTM A370-94 not ASTM A370-77e2. 49

32

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

k. ASTM A325 (1979): PRO
identifies 24 C.F.R. § 200, Subpart S as the
incorporating by reference regulation. Wise
Decl. ¶ 151, Ex. 150 at PRO_ 00082401;
Wise Decl. ¶ 165, Ex. 164 at Interrog. 19;
Wise Decl. ¶ 153, Ex. 152 at 51. However,
24 C.F.R.§ 200, Subpart S does not
reference this standard.

C.F.R. § 179.102-1(a)(1).

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

PRO does not dispute that it identified 49 C.F.R. § 179.1021(a)(1) as the incorporating by reference regulation or that 49
C.F.R. § 179.102-1(a)(1) references the 1994 version, not
ASTM A370-77e2. Instead, Defendant points to an entirely
different C.F.R. provision, 46 C.F.R. § 56.01-1 (1997), that

Objection. PRO misstates without support that the use of a “e”
indicates a “minor non-substantive revision. As stated in
paragraph 35 above, a superscript epsilon “indicates an
editorial change since the last revision or reapproval.”
O’Brien Decl. ¶ 9, Ex. 3 at 1349.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 24 C.F.R. § 200,
Subpart S as the incorporating by reference regulation or that
24 C.F.R. § 200, Subpart S does not reference ASTM A325
(1979). Defendant’s sole “dispute” is to mischaracterize
ASTM’s response to PRO’s Interrogatory No. 1 to assert that
ASTM admitted a fact that (1) it did not admit, and (2) is
unsupported by the record evidence.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

Plaintiffs’ Response

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.
Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference

m. ASTM A441-79: PRO identifies
24 C.F.R. § 200, Subpart S as the
incorporating by reference regulation. Wise
Decl. ¶ 153, Ex. 152 at 120. However, 24
C.F.R. § 200, Subpart S does not reference
ASTM A441- 79.

n. ASTM
A449-78a:
PRO
identifies 24 C.F.R. § 200, Subpart S as the
incorporating by reference regulation. Wise
Decl. ¶ 153, Ex. 152 at 124. However, 24

33

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 24 C.F.R. § 200,
Subpart S as the incorporating by reference regulation or that
24 C.F.R. § 200, Subpart S does not reference ASTM A44978a. Defendant’s sole “dispute” is to mischaracterize ASTM’s
response to PRO’s Interrogatory No. 1 to assert that ASTM

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 24 C.F.R. § 200,
Subpart S as the incorporating by reference regulation or that
24 C.F.R. § 200, Subpart S does not reference ASTM A44179. Defendant’s sole “dispute” is to mischaracterize ASTM’s
response to PRO’s Interrogatory No. 1 to assert that ASTM
admitted a fact that (1) it did not admit, and (2) is unsupported
by the record evidence.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

also does not incorporate A370-77e2, and argues that the
differences between the incorporated by reference version and
ASTM A370-77e2 are “non-substantive. But absent reference
to contrary materials in the record, Defendant has not created a
genuine dispute of material fact.

Plaintiffs’ Response

Defendant Public Resource’s
Response

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has

p. ASTM A490-79: PRO identifies
24 C.F.R. § 200, Subpart S as the
incorporating by reference regulation. Wise
Decl. ¶ 151, Ex. 150 at PRO_00088099;
Wise Decl. ¶ 165, Ex. 164 at Interrog. 19;
Wise Decl. 153, Ex. 152 at 138. However,
24 C.F.R. § 200, Subpart S does not
reference ASTM A490-79.

34

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

o. ASTMA475-78(1984)e1: PRO
identifies 7 C.F.R. § 1755.370(b) as the
incorporating by reference regulation. Wise
Decl. ¶ 153, Ex. 152 at 131. However, 7
C.F.R. § 1755.370(b) incorporates ASTM
A476-78, not ASTM A475-78(1984)e1.

C.F.R. § 200, Subpart S does not reference into law. Plaintiffs now deny it
ASTM A449- 78a.
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

Plaintiffs’ Statement of Material Facts

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 24 C.F.R. § 200,
Subpart S as the incorporating by reference regulation or that
24 C.F.R. § 200, Subpart S does not reference ASTM A49079. Defendant’s sole “dispute” is to mischaracterize ASTM’s
response to PRO’s Interrogatory No. 1 to assert that ASTM
admitted a fact that (1) it did not admit, and (2) is unsupported
by the record evidence.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 7 C.F.R. § 1755.370(b)
as the incorporating by reference regulation or that 7 C.F.R. §
1755.370(b) references ASTM A476-78, not ASTM A47578(1984)e1. Defendant’s sole “dispute” is to mischaracterize
ASTM’s response to PRO’s Interrogatory No. 1 to assert that
ASTM admitted a fact that (1) it did not admit, and (2) is
unsupported by the record evidence.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

admitted a fact that (1) it did not admit, and (2) is unsupported
by the record evidence.

Plaintiffs’ Response

35

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair

r.
ASTM A497-79: PRO identifies
24 C.F.R. § 200, Subpart S as the
incorporating by reference regulation. Wise
Decl. ¶ 165, Ex. 164 at Interrog. 19; Wise
Decl. ¶ 153, Ex. 152 at 155. However, 24
C.F.R. § 200, Subpart S does not reference
ASTM A497-79.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 24 C.F.R. § 200,
Subpart S as the incorporating by reference regulation or that
24 C.F.R. § 200, Subpart S does not reference ASTM A49779. Defendant’s sole “dispute” is to mischaracterize ASTM’s
response to PRO’s Interrogatory No. 1 to assert that ASTM
admitted a fact that (1) it did not admit, and (2) is unsupported
by the record evidence.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 24 C.F.R. § 200,
Subpart S as the incorporating by reference regulation or that
24 C.F.R. § 200, Subpart S does not reference ASTM A49678. Defendant’s sole “dispute” is to mischaracterize ASTM’s
response to PRO’s Interrogatory No. 1 to assert that ASTM
admitted a fact that (1) it did not admit, and (2) is unsupported
by the record evidence.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

accurately identified the
incorporating provision does not
affect whether it engages in fair
use.
Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

Plaintiffs’ Response

Defendant Public Resource’s
Response

q. ASTM A496-78: PRO identifies
24 C.F.R. § 200, Subpart S as the
incorporating by reference regulation. Wise
Decl. ¶ 165, Ex. 164 at Interrog. 19; Wise
Decl. ¶ 153, Ex. 152 at 148. However, 24
C.F.R. § 200, Subpart S does not reference
ASTM A496-78.

Plaintiffs’ Statement of Material Facts

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

t.
ASTM A501-76: PRO identifies
24 C.F.R. § 200, Subpart S as the
incorporating by reference regulation. Wise
Decl. ¶ 151, Ex. 150 at PRO_00089127;
Wise Decl. ¶ 165, Ex. 164 at Interrog. 19;
Wise Decl. ¶ 153, Ex. 152 at 171. However,
24 C.F.R. § 200, Subpart S does not
reference ASTM A501-76.

36

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

use.

Defendant Public Resource’s
Response

s. ASTM A500-78: PRO identifies
24 C.F.R. § 200, Subpart S as the
incorporating by reference regulation. Wise
Decl. ¶ 165, Ex. 164 at Interrog. 19; Wise
Decl. ¶ 153, Ex. 152 at 163. However, 24
C.F.R. § 200, Subpart S does not reference
ASTM A500-78.

Plaintiffs’ Statement of Material Facts

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 24 C.F.R. § 200,
Subpart S as the incorporating by reference regulation or that
24 C.F.R. § 200, Subpart S does not reference ASTM A50176. Defendant’s sole “dispute” is to mischaracterize ASTM’s
response to PRO’s Interrogatory No. 1 to assert that ASTM
admitted a fact that (1) it did not admit, and (2) is unsupported
by the record evidence.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 24 C.F.R. § 200,
Subpart S as the incorporating by reference regulation or that
24 C.F.R. § 200, Subpart S does not reference ASTM A50078. Defendant’s sole “dispute” is to mischaracterize ASTM’s
response to PRO’s Interrogatory No. 1 to assert that ASTM
admitted a fact that (1) it did not admit, and (2) is unsupported
by the record evidence.

ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

Plaintiffs’ Response

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.
Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

u. ASTM A502-76: PRO identifies
24 C.F.R. § 200, Subpart S as the
incorporating by reference regulation. Wise
Decl. ¶ 151, Ex. 150 at PRO_00090524;
Wise Decl. ¶ 165, Ex. 164 at Interrog. 19;
Wise Decl. ¶ 153, Ex. 152 at 180. However,
24 C.F.R. § 200, Subpart S does not
reference ASTM A502-76.

v. ASTM A514-77: PRO identifies
24 C.F.R. § 200, Subpart S as the
incorporating by reference regulation. Wise
Decl. ¶ 153, Ex. 152 at 186. However, 24
C.F.R. § 200, Subpart S does not reference
ASTM A514- 77.

37

w. ASTM
A539-90a:
PRO Disputed. ASTM A539-1990a is
identifies 24 C.F.R. § 3280.705(b)(4) as the incorporated by reference at 24
incorporating by reference regulation. Wise C.F.R. § 3280.4 (2004).

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 24 C.F.R. §
3280.705(b)(4) as the incorporating by reference regulation or

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 24 C.F.R. § 200,
Subpart S as the incorporating by reference regulation or that
24 C.F.R. § 200, Subpart S does not reference ASTM A51477. Defendant’s sole “dispute” is to mischaracterize ASTM’s
response to PRO’s Interrogatory No. 1 to assert that ASTM
admitted a fact that (1) it did not admit, and (2) is unsupported
by the record evidence.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 24 C.F.R. § 200,
Subpart S as the incorporating by reference regulation or that
24 C.F.R. § 200, Subpart S does not reference ASTM A50276. Defendant’s sole “dispute” is to mischaracterize ASTM’s
response to PRO’s Interrogatory No. 1 to assert that ASTM
admitted a fact that (1) it did not admit, and (2) is unsupported
by the record evidence.

Plaintiffs’ Response

Immaterial. Whether Public
Resource has accurately
identified the incorporating
provision does not affect whether
it engages in fair use.

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

Decl. ¶ 151, Ex. 150 at PRO_00091622;
Wise Decl. ¶ 165, Ex. 164 at Interrog. 19.
However, 24 C.F.R. § 3280.705(b)(4)
incorporates ASTM C539-99 not ASTM
C539- 90a. 24 C.F.R. § 3280.705(b)(4).

x. ASTM A570-79: PRO identifies
24 C.F.R. § 200, Subpart S as the
incorporating by reference regulation. Wise
Decl. ¶ 151, Ex. 150 at PRO_00091642;
Wise Decl. ¶ 165, Ex. 164 at Interrog. 19;
Wise Decl. ¶ 153, Ex. 152 at 197. However,
24 C.F.R. § 200, Subpart S does not
reference ASTM A570-79.

38

y. ASTM A572-79: PRO identifies Disputed. In Exhibit A to their
24 C.F.R. § 200, Subpart S as the response to Public Resource’s
incorporating by reference regulation. Decl. Interrogatory No. 1 on March 24,

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

RO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 24 C.F.R. § 200,
Subpart S as the incorporating by reference regulation or that

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 24 C.F.R. § 200,
Subpart S as the incorporating by reference regulation or that
24 C.F.R. § 200, Subpart S does not reference ASTM A51477. Defendant’s sole “dispute” is to mischaracterize ASTM’s
response to PRO’s Interrogatory No. 1 to assert that ASTM
admitted a fact that (1) it did not admit, and (2) is unsupported
by the record evidence.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

that 24 C.F.R. § 3280.705(b)(4) references ASTM C539-99,
not ASTM C539-90a. Instead, Defendant points to an entirely
different, outdated C.F.R. provision, 24 C.F.R. § 3280.4
(2004) as incorporating ASTM A539-90a. However, the
version of 24 C.F.R. § 3280.4 effective in 2004, also did not
incorporate ASTM A539-90a. Moreover, 24 C.F.R. §
3280.703 (2004) did not reference ASTM A539-90a when
PRO posted the standard, and is not effective at this time.

Plaintiffs’ Response

Defendant Public Resource’s
Response

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this

aa. ASTM A611-72(1979): PRO
identifies 24 C.F.R. § 200, Subpart S as the
incorporating by reference regulation. Wise
Decl. ¶ 153, Ex. 152 at 211. However, 24

39

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

z. ASTM
A588-79a:
PRO
identifies 24 C.F.R. § 200, Subpart S as the
incorporating by reference regulation. Wise
Decl. ¶ 153, Ex. 152 at 207. However, 24
C.F.R. § 200, Subpart S does not reference
ASTM A588- 79a.

¶ 153, Ex. 152 at 202. However, 24 C.F.R. 2014, Plaintiffs identified this
§ 200, Subpart S does not reference ASTM edition of this standard as having
A572- 79.
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

Plaintiffs’ Statement of Material Facts

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 24 C.F.R. § 200,
Subpart S as the incorporating by reference regulation or that
24 C.F.R. § 200, Subpart S does not reference ASTM A61172(1979). Defendant’s sole “dispute” is to mischaracterize

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 24 C.F.R. § 200,
Subpart S as the incorporating by reference regulation or that
24 C.F.R. § 200, Subpart S does not reference ASTM A58879a. Defendant’s sole “dispute” is to mischaracterize ASTM’s
response to PRO’s Interrogatory No. 1 to assert that ASTM
admitted a fact that (1) it did not admit, and (2) is unsupported
by the record evidence.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

24 C.F.R. § 200, Subpart S does not reference ASTM A57279. Defendant’s sole “dispute” is to mischaracterize ASTM’s
response to PRO’s Interrogatory No. 1 to assert that ASTM
admitted a fact that (1) it did not admit, and (2) is unsupported
by the record evidence.

Plaintiffs’ Response

40

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:

cc. ASTM A616-79: PRO identifies
24 C.F.R. § 200, Subpart S as the
incorporating by reference regulation. Wise
Decl. ¶ 153, Ex. 152 at 224. However, 24
C.F.R. § 200, Subpart S does not reference
ASTM A616- 79.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 24 C.F.R. § 200,
Subpart S as the incorporating by reference regulation or that
24 C.F.R. § 200, Subpart S does not reference ASTM A61579. Defendant’s sole “dispute” is to mischaracterize ASTM’s
response to PRO’s Interrogatory No. 1 to assert that ASTM
admitted a fact that (1) it did not admit, and (2) is unsupported
by the record evidence.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 24 C.F.R. § 200,
Subpart S as the incorporating by reference regulation or that
24 C.F.R. § 200, Subpart S does not reference ASTM A61579. Defendant’s sole “dispute” is to mischaracterize ASTM’s
response to PRO’s Interrogatory No. 1 to assert that ASTM
admitted a fact that (1) it did not admit, and (2) is unsupported
by the record evidence.

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

bb. ASTM A615-79: PRO identifies
24 C.F.R. § 200, Subpart S as the
incorporating by reference regulation. Wise
Decl. ¶ 151, Ex. 150 at PRO_00091848;
Wise Decl. ¶ 165, Ex. 164 at Interrog. 19;
Wise Decl. ¶ 153, Ex. 152 at 216. However,
24 C.F.R. § 200, Subpart S does not
reference ASTM A615-79.

ASTM’s response to PRO’s Interrogatory No. 1 to assert that
ASTM admitted a fact that (1) it did not admit, and (2) is
unsupported by the record evidence.

Plaintiffs’ Response

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

Defendant Public Resource’s
Response

C.F.R. § 200, Subpart S does not reference edition of this standard as having
ASTM A611- 72(1979).
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

Plaintiffs’ Statement of Material Facts

Disputed. ASTM B21-1983b is
incorporated by reference at 46
C.F.R. § 56.01-2 (1996-2008).
Immaterial. Whether Public
Resource has accurately
identified the incorporating
provision does not affect whether
it engages in fair use.

ee. ASTM B21-83b: PRO identifies
46 C.F.R. § 56.60-2 as the incorporating by
reference regulation. Wise Decl. ¶ 153, Ex.
152 at 246. However, 46 C.F.R. § 56.60-2
incorporates B21-96. Additionally, 46
C.F.R. § 56.60-2 only incorporates this
standard with respect to certain copper
alloys addressed in B21.

41

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

Defendant Public Resource’s
Response

dd. ASTM A617-79: PRO identifies
24 C.F.R. § 200, Subpart S as the
incorporating by reference regulation. Wise
Decl. ¶ 153, Ex. 152 at 232. However, 24
C.F.R. § 200, Subpart S does not reference
ASTM A617- 79.

Plaintiffs’ Statement of Material Facts

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 46 C.F.R. § 56.60-2 as
the incorporating by reference regulation or that 46 C.F.R. §
56.60-2 references ASTM B21-96, not ASTM B21-83b.
Rather, Defendant asserts that 46 C.F.R. § 56.60-2, effective
1996 through 2008, incorporates ASTM B21-83b, but the
outdated version of the regulation likewise references ASTM
B21-96, not ASTM B21-83b.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.
insufficient to meet PRO’s burden that the ASTM Works have
been IBR’d.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 24 C.F.R. § 200,
Subpart S as the incorporating by reference regulation or that
24 C.F.R. § 200, Subpart S does not reference ASTM A61779. Defendant’s sole “dispute” is to mischaracterize ASTM’s
response to PRO’s Interrogatory No. 1 to assert that ASTM
admitted a fact that (1) it did not admit, and (2) is unsupported
by the record evidence.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

Plaintiffs’ Response

Disputed. ASTM B85-84 is
incorporated by reference at 46
C.F.R. § 56.01-2 (1997).
Immaterial. Whether Public
Resource has accurately
identified the incorporating
provision does not affect whether
it engages in fair use.

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it

ff. ASTM B85-84: PRO identifies
46 C.F.R. § 56.60-2 as the incorporating by
reference regulation. Wise Decl. ¶ 153, Ex.
152 at 252. However, 46 C.F.R. § 56.60-2
incorporates B85-96. 46 C.F.R. § 56.60-2.
Additionally, 46 C.F.R. § 56.60-2 only
incorporates one table within ASTM B8596— table X-2—and states that “[t]ension
tests shall be performed to determine tensile
strength, yield strength, and elongation” in
accordance with the minimum value in X-2.
Id. The remainder of the standard is
unnecessary to determine the minimum
value in X-2. Id. Table X-2 also contains
values for sheer strength and fatigue
strength that are unnecessary to understand
the minimum value for the required tension
tests. Id.

gg. ASTM B580-79: PRO identifies
49 C.F.R. § 171.7 as the incorporating by
reference regulation. Wise Decl. ¶ 151, Ex.
150 at PRO_00093063; Wise Decl. ¶ 165,
Ex. 164 at Interrog. 19; Wise Decl. ¶ 153,
Ex. 152 at 318. However, 49 C.F.R. § 171.7
incorporates ASTM B580-79 reapproved in

42

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 49 C.F.R. § 171.7 as the
incorporating by reference regulation or that 49 C.F.R. § 171.7
references ASTM B580-79 reapproved in 2000, not ASTM
B580-79. Defendant’s sole “dispute” is to mischaracterize
ASTM’s response to PRO’s Interrogatory No. 1 to assert that
ASTM admitted a fact that (1) it did not admit, and (2) is
unsupported by the record evidence.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 46 C.F.R. § 56.60-2 as
the incorporating by reference regulation or that 46 C.F.R. §
56.60-2 references ASTM B85-96, not ASTM B85-84.
Rather, Defendant asserts that 46 C.F.R. § 56.60-2, effective in
1997, incorporated ASTM B85-84, but the outdated version
likewise references ASTM B85-96, not ASTM B85-84.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

Plaintiffs’ Response

43

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the

ii. ASTM
C150-99a:
PRO
identifies 30 C.F.R. § 250.198 as the
incorporating by reference regulation. Wise
Decl. ¶ 153, Ex. 152 at 334. However, 30
C.F.R. § 250.198 incorporates ASTM
C150-07, not ASTM C150-99a. 30 C.F.R. §
250.198.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 30 C.F.R. § 250.198 as
the incorporating by reference regulation or that 30 C.F.R. §
250.198 references ASTM C150-07, not ASTM C150-99a.
Defendant’s sole “dispute” is to mischaracterize ASTM’s
response to PRO’s Interrogatory No. 1 to assert that ASTM
admitted a fact that (1) it did not admit, and (2) is unsupported
by the record evidence.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 24 C.F.R. § 200,
Subpart S as the incorporating by reference regulation or that
24 C.F.R. § 200, Subpart S does not reference ASTM C5-79
(1997). Defendant’s sole “dispute” is to mischaracterize
ASTM’s response to PRO’s Interrogatory No. 1 to assert that
ASTM admitted a fact that (1) it did not admit, and (2) is
unsupported by the record evidence.

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

hh. ASTM C5-79(1997): PRO
identifies 24 C.F.R. § 200, Subpart S as the
incorporating by reference regulation. Wise
Decl. ¶ 151, Ex. 150 at PRO_00093990;
Wise Decl. ¶ 165, Ex. 164 at Interrog. 19;
Wise Decl. ¶ 153, Ex. 152 at 330. However,
24 C.F.R. § 200, Subpart S does not
reference ASTM C5-79.

Plaintiffs’ Response

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

Defendant Public Resource’s
Response

2000, not ASTM B580-79. 49 C.F.R. § without explanation. Immaterial:
171.7.
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

Plaintiffs’ Statement of Material Facts

44

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the

kk. ASTM C509-84: PRO identifies
24 C.F.R. § 200, Subpart S as the
incorporating by reference regulation. Wise
Decl. ¶ 153, Ex. 152 at 384. However, 24
C.F.R. § 200, Subpart S does not reference
ASTM C509-84.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 24 C.F.R. § 200,
Subpart S as the incorporating by reference regulation or that
24 C.F.R. § 200, Subpart S does not reference ASTM C50984. Defendant’s sole “dispute” is to mischaracterize ASTM’s
response to PRO’s Interrogatory No. 1 to assert that ASTM
admitted a fact that (1) it did not admit, and (2) is unsupported
by the record evidence.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 30 C.F.R. §
250.901(a)(18) as the incorporating by reference regulation or
that 30 C.F.R. § 250.901(a)(18) references ASTM C330-05, not
ASTM C330-99. Instead, Defendant points to an entirely
different, outdated C.F.R. provision, 30 C.F.R. § 250.198
(2007), as incorporating ASTM C330-99. But 30 C.F.R. §
250.198 (2007) was not effective when PRO posted the
standard, and is not effective at this time.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

incorporating provision does not
affect whether it engages in fair
use.

Disputed. ASTM C330-1999 is
incorporated by reference at 30
C.F.R. § 250.198 (2007).
Immaterial. Whether Public
Resource has accurately
identified the incorporating
provision does not affect whether
it engages in fair use.

Plaintiffs’ Response

Defendant Public Resource’s
Response

jj. ASTM C330-99: PRO identifies
30 C.F.R. § 250.901(a)(18) as the
incorporating by reference regulation. Wise
Decl. ¶ 151, Ex. 150 at PRO_00093937;
Wise Decl. ¶ 165, Ex. 164 at Interrog. 19;
Wise Decl. ¶ 153, Ex. 152 at 378. However,
30 C.F.R. § 250.901(a)(18) incorporates
ASTM C330-05, not ASTM C330-99. 30
C.F.R. § 250.901(a)(18).

Plaintiffs’ Statement of Material Facts

45

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not

mm. ASTM C549-81(1995)e1: PRO
identifies 10 C.F.R. § 440, Appendix A as
the incorporating by reference regulation.
Wise Decl. ¶ 151, Ex. 150 at
PRO_00094157; Wise Decl. ¶ 165, Ex. 164
at Interrog. 19; Wise Decl. ¶ 153, Ex. 152 at
411. However, 10 C.F.R. § 440, Appendix
A incorporates ASTM C549-81 reapproved
in 1986, not ASTM C549-81(1995)e1. 10
C.F.R. § 440, Appendix A.

For the same reasons explained in Paragraph 36.a., PRO’s

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 10 C.F.R. § 440,
Appendix A as the incorporating by reference regulation or
that 10 C.F.R. § 440, Appendix A incorporates ASTM C54981 reapproved in 1986, not ASTM C549-81(1995)e1.
Defendant’s sole “dispute” is to mischaracterize ASTM’s
response to PRO’s Interrogatory No. 1 to assert that ASTM
admitted a fact that (1) it did not admit, and (2) is unsupported
by the record evidence.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 24 C.F.R. § 200,
Subpart S as the incorporating by reference regulation or that
24 C.F.R. § 200, Subpart S does not reference ASTM C51680(1996)e1. Defendant’s sole “dispute” is to mischaracterize
ASTM’s response to PRO’s Interrogatory No. 1 to assert that
ASTM admitted a fact that (1) it did not admit, and (2) is
unsupported by the record evidence.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d. .

incorporating provision does not
affect whether it engages in fair
use.

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

Plaintiffs’ Response

Defendant Public Resource’s
Response

ll. ASTM C516-80(1996)e1: PRO
identifies 24 C.F.R. § 200, Subpart S as the
incorporating by reference regulation. Wise
Decl. ¶ 151, Ex. 150 at PRO_00094023;
Wise Decl. ¶ 165, Ex. 164 at Interrog. 19;
Wise Decl. ¶ 153, Ex. 152 at 392. However,
24 C.F.R. § 200, Subpart S does not
reference ASTM C516-80(1996)e1.

Plaintiffs’ Statement of Material Facts

46

Disputed. ASTM D86-07 is
incorporated by reference at 40
C.F.R. § 80.47(r) (2017).
Immaterial. Whether Public
Resource has accurately
identified the incorporating
provision does not affect whether
it engages in fair use.

oo. ASTM D86-07: PRO identifies
40 C.F.R. § 1065.710 as the incorporating
by reference regulation. Wise Decl. ¶ 151,
Ex. 150 at PRO_00106152; Wise Decl. ¶
165, Ex. 164 at Interrog. 19; Wise Decl. ¶
153, Ex. 152 at 423. However, 40 C.F.R. §
1065.710 incorporates ASTM D86-12, not
ASTM D86-07. 40 C.F.R. § 1065.710.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 40 C.F.R. § 1065.710
as the incorporating by reference regulation or that 40 C.F.R. §
1065.710 incorporates ASTM D86-12, not ASTM D86-07.
Instead, Defendant points to an entirely different C.F.R.
provision, 40 C.F.R. § 80.47(r) (2017), as the incorporating by
reference regulation. Even if portions of ASTM D86-07 are
incorporated by 40 C.F.R. § 80.47(r) (2017), that regulation
did not come into effect until many years after PRO posted the
entire contents of ASTM’s D86-07.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 24 C.F.R. §
3280.611(d)(5)(iv) as the incorporating by reference regulation
or that 24 C.F.R. § 3280.611(d)(5)(iv) incorporates ASTM
C564-88 not ASTM C564-70(1982). Rather, Defendant
asserts without support that yet another version of ASTM
C564, ASTM C564-1970(1976), is incorporated by reference
in yet another provision of the C.F.R., 24 C.F.R. (Parts 200 to
499) (2005), and that ASTM C564-70 (1982) is “identical to
the 1976 version except for the number ‘1982’ in the title.”

assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

affect whether it engages in fair
use.

Disputed. ASTM C5641970(1976) is incorporated by
reference at 24 C.F.R. (Parts 200
to 499) (2005). The (1982)
reissue of that standard is
identical to the 1976 version
except for the number “1982” in
the title. Immaterial. Whether
Public Resource has accurately
identified the incorporating
provision does not affect whether
it engages in fair use.

Plaintiffs’ Response

Defendant Public Resource’s
Response

nn. ASTM C564-70(1982): PRO
identifies 24 C.F.R. § 3280.611(d) (5)(iv)
as the incorporating by reference regulation.
Wise Decl. ¶ 153, Ex. 152 at 417. However,
24 C.F.R. § 3280.611(d)(5)(iv) incorporates
ASTM C564-88 not ASTM C56470(1982). 24 C.F.R. § 3280.611(d)(5)(iv).

Plaintiffs’ Statement of Material Facts

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the

pp. ASTM D512-89(1999): PRO
identifies 40 C.F.R. § 136.3(a) as the
incorporating by reference regulation. Wise
Decl. ¶ 151, Ex. 150 at PRO_00104757;
Wise Decl. ¶ 165, Ex. 164 at Interrog. 19;
Wise Decl. ¶ 153, Ex. 152 at 466. However,
40 C.F.R. § 136.3(a) incorporates ASTM
D512a-04, D512b-04, and D512c-04 not
ASTM D512-89(1999). 40 C.F.R. §
136.3(a).

qq. ASTM D814-95: PRO identifies
40 C.F.R. § 1051.245(e)(1) as the
incorporating by reference regulation. Wise
Decl. ¶ 151, Ex. 150 at PRO_00105881;
Wise Decl. ¶ 165, Ex. 164 at Interrog. 19;
Wise Decl. ¶ 153, Ex. 152 at 493. However,
40 C.F.R. § 1051.245(e)(1) does not
incorporate ASTM D814-95. 40 C.F.R. §
1051.245(e)(1).

47

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

For the same reasons explained in Paragraph 36.a., PRO’s

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 40 C.F.R. §
1051.245(e)(1) as the incorporating by reference regulation or
that 40 C.F.R. § 1051.245(e)(1) does not incorporate ASTM
D814-95. Defendant’s sole “dispute” is to mischaracterize
ASTM’s response to PRO’s Interrogatory No. 1 to assert that
ASTM admitted a fact that (1) it did not admit, and (2) is
unsupported by the record evidence.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 40 C.F.R. § 136.3(a) as
the incorporating by reference regulation or that 40 C.F.R. §
136.3(a) incorporates ASTM D512a-04, D512b-04, and
D512c-04 not ASTM D512-89(1999). Defendant’s sole
“dispute” is to mischaracterize ASTM’s response to PRO’s
Interrogatory No. 1 to assert that ASTM admitted a fact that
(1) it did not admit, and (2) is unsupported by the record
evidence.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d. that
the ASTM Works have been incorporated by reference.

Plaintiffs’ Response

48

tt. ASTM D1481-93(1997): PRO Disputed. In Exhibit A to their
identifies 40 C.F.R. § 136.3(a), Table IC as response to Public Resource’s
the incorporating by reference regulation. Interrogatory No. 1 on March 24,

Immaterial. Whether Public
Resource has accurately
identified the incorporating
provision does not affect whether
it engages in fair use.

ss. ASTM D1246-95(1999): PRO
identifies 40 C.F.R. § 136.3(a), Table IB as
the incorporating by reference regulation.
Wise Decl. ¶ 153, Ex. 152 at 546. However,
40 C.F.R. § 136.3(a), Table IB incorporates
ASTM D1246-05, not ASTM D124695(1999). 40 C.F.R. § 136.3(a), Table IB.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 40 C.F.R. § 136.3(a),
Table IC as the incorporating by reference regulation or that

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

The fact is conceded to be undisputed. PRO cites no authority
that incorporates D1246-95(1999) by reference.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 40 C.F.R. § 1065.710
as the incorporating by reference regulation or that 40 C.F.R. §
1065.710 incorporates ASTM D975-13a, not ASTM D975-07.
Instead, Defendant points to an entirely different, outdated
C.F.R. provision, 40 C.F.R. § 1065.1010 (2011), that also does
not incorporate the correct version of ASTM D975-07. 40
C.F.R. § 1065.1010 (2011) incorporates ASTM D975-07b, not
ASTM D975-07.

assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

incorporating provision does not
affect whether it engages in fair
use.
Disputed. ASTM D975b-2007 is
incorporated by reference at 40
C.F.R. § 1065.1010 (2011).
Immaterial. Whether Public
Resource has accurately
identified the incorporating
provision does not affect whether
it engages in fair use.

Plaintiffs’ Response

Defendant Public Resource’s
Response

rr. ASTM D975-07: PRO identifies
40 C.F.R. § 1065.710 as the incorporating
by reference regulation. Wise Decl. ¶ 153,
Ex. 152 at 517. However, 40 C.F.R. §
1065.710 incorporates ASTM D975-13a,
not ASTM D975-07. 40 C.F.R. § 1065.710.

Plaintiffs’ Statement of Material Facts

2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

Immaterial. Whether Public
Resource has accurately
identified the incorporating
provision does not affect whether

Wise Decl. ¶ 153, Ex. 152 at 599. However,
40 C.F.R. § 136.3(a), Table IC does not
incorporate ASTM D1481-93(1997). 40
C.F.R. § 136.3(a), Table IC.

uu. ASTM D1518-85 (1998)e1:
PRO identifies 46 C.F.R. § 160.174-17(f)
as the incorporating by reference
regulation. Wise Decl. ¶ 151, Ex. 150 at
PRO_00095007; Wise Decl. ¶ 165, Ex. 164
at Interrog. 19; Wise Decl. ¶ 153, Ex. 152 at
606. However, 46 C.F.R. § 160.174-17(f)
incorporates ASTM D1518-85 reapproved
in 1990, not ASTM D1518-85 (1998)e1. 46
C.F.R. § 160.174-17(f).

vv. ASTM
D1785-86:
PRO
identifies 46 C.F.R. § 56.01-2 as the
incorporating by reference regulation. Wise
Decl. ¶ 153, Ex. 152 at 661. However, 46

49

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

The fact is conceded to be undisputed. PRO cites no authority
that incorporates D1785-86 by reference.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 46 C.F.R. § 160.17417(f) as the incorporating by reference regulation or that 46
C.F.R. § 160.174-17(f) incorporates ASTM D1518-85
reapproved in 1990, not ASTM D1518-85 (1998) e1 .
Defendant’s sole “dispute” is to mischaracterize ASTM’s
response to PRO’s Interrogatory No. 1 to assert that ASTM
admitted a fact that (1) it did not admit, and (2) is unsupported
by the record evidence.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

40 C.F.R. § 136.3(a), Table IC does not incorporate ASTM
D1481-93(1997). Defendant’s sole “dispute” is to
mischaracterize ASTM’s response to PRO’s Interrogatory No.
1 to assert that ASTM admitted a fact that (1) it did not admit,
and (2) is unsupported by the record evidence.

Plaintiffs’ Response

50

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair

xx. ASTM
D2036-98:
PRO
identifies 40 C.F.R. § 136.3(a), Table 1B as
the incorporating by reference regulation.
Wise Decl. ¶ 153, Ex. 152 at 742. However,
40 C.F.R. § 136.3(a), Table 1B incorporates
a different version of ASTM D2036. 40
C.F.R. § 136.3(a), Table 1B incorporates
ASTM D2036-09(A) and (B), not ASTM
D2036-98. 40 C.F.R. § 136.3(a), Table 1B.

For the same reasons explained in Paragraph 36.a., PRO’s

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 40 C.F.R. § 136.3(a),
Table 1B as the incorporating by reference regulation or that
40 C.F.R. § 136.3(a), Table 1B incorporates ASTM D203609(A) and (B), not ASTM D2036-98. Defendant’s sole
“dispute” is to mischaracterize ASTM’s response to PRO’s
Interrogatory No. 1 to assert that ASTM admitted a fact that
(1) it did not admit, and (2) is unsupported by the record
evidence.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

PRO does not dispute that it identified 40 C.F.R. § 136.3(a) as
the incorporating by reference regulation or that 40 C.F.R. §
136.3(a) does not incorporate ASTM D1890-96. Defendant’s
sole “dispute” is to mischaracterize ASTM’s response to
PRO’s Interrogatory No. 1 to assert that ASTM admitted a fact
that (1) it did not admit, and (2) is unsupported by the record
evidence.

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

ww. ASTM
D1890-96:
PRO
identifies 40 C.F.R. § 136.3(a) as the
incorporating by reference regulation. Wise
Decl. ¶ 153, Ex. 152 at 678. However, 40
C.F.R. § 136.3(a) does not reference
ASTM D1890-96. 40 C.F.R. § 136.3(a).

Plaintiffs’ Response

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

Defendant Public Resource’s
Response

C.F.R. § 56.01-2 does not reference ASTM it engages in fair use.
D1785-86. 46 C.F.R. § 56.01- 2.

Plaintiffs’ Statement of Material Facts

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not

zz. ASTM D2986-95a (1999):
PRO identifies 40 C.F.R. § 86.1310
2007(b)(7)(i)(A) as the incorporating by
reference regulation. Wise Decl. ¶ 153, Ex.
152 at 861. However, 40 C.F.R. § 86.13102007 is reserved by 79 FR 23704 and does
not reference ASTM D2986-95a (1999). 40
C.F.R. § 86.1310-2007.

51

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

use.

Defendant Public Resource’s
Response

yy. ASTM D2163-91 (1996): PRO
identifies 40 C.F.R. § 86.1313-94(f)(3) as
the incorporating by reference regulation.
Wise Decl. ¶ 153, Ex. 152 at 763. However,
40 C.F.R. § 86.1313-94 is reserved by 79 FR
23704 and does not reference ASTM
D2163-91 (1996). 40 C.F.R. § 86.1313-94.

Plaintiffs’ Statement of Material Facts

For the same reasons explained in Paragraph 36.a., PRO’s

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 40 C.F.R. § 86.1310
2007(b)(7)(i)(A) as the incorporating by reference regulation
or that 40 C.F.R. § 86.1310 2007(b)(7)(i)(A) is reserved by
79 FR 23704, such that it does not reference ASTM D298695a (1999). Defendant’s sole “dispute” is to mischaracterize
ASTM’s response to PRO’s Interrogatory No. 1 to assert that
ASTM admitted a fact that (1) it did not admit, and (2) is
unsupported by the record evidence.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 40 C.F.R. § 86.131394(f)(3) as the incorporating by reference regulation or that 40
C.F.R. § 86.1313-94(f)(3) is reserved by 79 FR 23704, such
that it does not reference ASTM D2163-91 (1996).
Defendant’s sole “dispute” is to mischaracterize ASTM’s
response to PRO’s Interrogatory No. 1 to assert that ASTM
admitted a fact that (1) it did not admit, and (2) is unsupported
by the record evidence.

assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

Plaintiffs’ Response

52

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the

bbb. ASTM
D5257-97:
PRO
identifies 40 C.F.R. § 136.3(a) as the
incorporating by reference regulation. Wise
Decl. ¶ 151, Ex. 150 at PRO_00104786;
Wise Decl. ¶ 165, Ex. 164 at Interrog. 19;
Wise Decl. ¶ 153, Ex. 152 at 1017.
However, 40 C.F.R. § 136.3(a) incorporates
ASTM D5257-11, not ASTM D5257-97. 40
C.F.R. § 136.3(a).

For the same reasons explained in Paragraph 36.a., PRO’s

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 40 C.F.R. § 136.3(a) as
the incorporating by reference regulation or that 40 C.F.R. §
136.3(a) incorporates ASTM D5257-11, not ASTM D5257-97.
Defendant’s sole “dispute” is to mischaracterize ASTM’s
response to PRO’s Interrogatory No. 1 to assert that ASTM
admitted a fact that (1) it did not admit, and (2) is unsupported
by the record evidence.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 40 C.F.R. §
80.46(a)(3)(iii) as the incorporating by reference regulation or
that 40 C.F.R. § 80.46(a)(3)(iii) incorporates ASTM D312008, not ASTM D3120-96. Instead, Defendant points to an
entirely different, outdated C.F.R. provision, 40 C.F.R. §
80.580(b) (2001-2003), that also does not incorporate the
correct version of ASTM D3120-96 and was not in effect
when PRO posted this standard and is not effective at this
time.

assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

affect whether it engages in fair
use.

Disputed. ASTM D3120-1996 is
incorporated by reference at 40
C.F.R. § 80.580(b) (2001-2003).
Immaterial. Whether Public
Resource has accurately
identified the incorporating
provision does not affect whether
it engages in fair use.

Plaintiffs’ Response

Defendant Public Resource’s
Response

aaa. ASTM
D3120-96:
PRO
identifies 40 C.F.R. § 80.46(a)(3)(iii) as the
incorporating by reference regulation. Wise
Decl. ¶ 151, Ex. 150 at PRO_00103410;
Wise Decl. ¶ 165, Ex. 164 at Interrog. 19;
Wise Decl. ¶ 153, Ex. 152 at 868. However,
40 C.F.R. § 80.46 incorporates a different
version of ASTM D3120. 40 C.F.R. § 80.46
incorporates ASTM D3120- 08, not ASTM
D3120-96. 40 C.F.R. § 80.46.

Plaintiffs’ Statement of Material Facts

53

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:

ddd. ASTM
D5489-96a:
PRO
identifies 16 C.F.R. § 423.8(g) as the
incorporating by reference regulation. Wise
Decl. ¶ 153, Ex. 152 at 1031. However, 16
C.F.R. § 423.8(g) incorporates ASTM
D5489-96c, not ASTM D5489-96a. 16
C.F.R. § 423.8(g).

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 16 C.F.R. § 423.8(g) as
the incorporating by reference regulation or that 16 C.F.R. §
423.8(g) incorporates ASTM D5489-96c, not ASTM D548996a. Defendant’s sole “dispute” is to mischaracterize ASTM’s
response to PRO’s Interrogatory No. 1 to assert that ASTM
admitted a fact that (1) it did not admit, and (2) is unsupported
by the record evidence.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 40 C.F.R. § 75,
Appendix G as the incorporating by reference regulation or
that 40 C.F.R. § 75, Appendix G incorporates ASTM D537302 (2007), not ASTM D5373-93 (1997). Instead, Defendant
points to a different, outdated C.F.R. provision, 40 C.F.R. §
75.6 (2004), that (1) is not effective at this time, (2) was not in
effect when PRO posted the standard (40 C.F.R. § 75.6 (2008)
incorporates the D5373-02 (2007) by reference), and (3) does
not incorporate the correct version of ASTM D5373. The
version of 40 C.F.R. § 75.6 that was in effect in 2004
incorporates ASTM D5373-93, not ASTM D5373-93 (1997).

assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

incorporating provision does not
affect whether it engages in fair
use.

Disputed. ASTM D5373-1993 is
incorporated by reference at 40
C.F.R. § 75.6 (2004). The (1997)
reissue that Public Resource
posted is identical except for the
date (1997) in the title.
Immaterial. Whether Public
Resource has accurately
identified the incorporating
provision does not affect whether
it engages in fair use.

Plaintiffs’ Response

Defendant Public Resource’s
Response

ccc. ASTM D5373-93 (1997): PRO
identifies 40 C.F.R. § 75, Appendix G as the
incorporating by reference regulation. Wise
Decl. ¶ 151, Ex. 150 at PRO_00104803;
Wise Decl. ¶ 165, Ex. 164 at Interrog. 19;
Wise Decl. ¶ 153, Ex. 152 at 1025.
However, 40 C.F.R. § 75, Appendix G
incorporates a different version of ASTM
D5373. 40 C.F.R. § 75, Appendix G
incorporates ASTM D5373-02 (2007), not
ASTM D5373-93 (1997). 40 C.F.R. § 75,
Appendix G.

Plaintiffs’ Statement of Material Facts

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:

fff. ASTM
E145-94e1:
PRO
identifies 40 C.F.R. § 63.14 as the
incorporating by reference regulation. Wise
Decl. ¶ 151, Ex. 150 at PRO_00106516;
Wise Decl. ¶ 165, Ex. 164 at Interrog. 19;
Wise Decl. ¶ 153, Ex. 152 at 1182.
However, 40 C.F.R. § 63.14(h)(103)
incorporates ASTM E145-94 (2001), not

54

Disputed. ASTM E23-1982 is
incorporated by reference at 46
C.F.R. § 56.01-2 (1997).
Immaterial. Whether Public
Resource has accurately
identified the incorporating
provision does not affect whether
it engages in fair use.

whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

Defendant Public Resource’s
Response

eee. ASTM E23-82: PRO identifies
46 C.F.R. § 56.50-105(a)(1)(ii) as the
incorporating by reference regulation. Wise
Decl. ¶ 151, Ex. 150 at PRO_00106690;
Wise Decl. ¶ 165, Ex. 164 at Interrog. 19;
Wise Decl. ¶ 153, Ex. 152 at 1122.
However, 46 C.F.R. § 56.50-105(a)(1)(ii)
incorporates a different version of ASTM
E23. 46 C.F.R. § 56.50- 105(a)(1)(ii)
incorporates ASTM E23-96, not ASTM
E23-82. 46 C.F.R. §§ 56.50-105(a)(1)(ii);
56.01-2(e)(68).

Plaintiffs’ Statement of Material Facts

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 40 C.F.R. § 63.14 as the
incorporating by reference regulation or that 40 C.F.R. § 63.14
incorporates ASTM E145-94 (2001), not ASTM E145-94e1.
Defendant’s sole “dispute” is to mischaracterize ASTM’s
response to PRO’s Interrogatory No. 1 to assert that ASTM
admitted a fact that (1) it did not admit, and (2) is unsupported
by the record evidence.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 46 C.F.R. § 56.50105(a)(1)(ii) as the incorporating by reference regulation or
that 46 C.F.R. § 56.50-105(a)(1)(ii) incorporates ASTM E2396, not ASTM E23-82. Instead, Defendant points to a
different, outdated C.F.R. provision, 46 C.F.R. § 56.01-2
(1997), as incorporating ASTM E23-82. But 46 C.F.R. §
56.01-2 did not incorporate E23-82 when PRO posted the
standard, and 46 C.F.R. § 56.01-2 (1997) is not effective at
this time.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

Plaintiffs’ Response

55

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has

§ whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

hhh. ASTM E408-71: PRO identifies
16 C.F.R. § 460.5(b) as the incorporating by
reference regulation. Wise Decl. ¶ 151, Ex.
150 at PRO_00106805; Wise Decl. ¶ 165,
Ex. 164 at Interrog. 19; Wise Decl. ¶ 153,
Ex. 152 at 1230. However, 16 C.F.R. §
460.5(b) incorporates ASTM E408-71,

C.F.R.

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

40

Defendant Public Resource’s
Response

ggg. ASTM E283-91 (1999): PRO
identifies 10 C.F.R. § 434.402.2 and 24
C.F.R. § 200, Appendix A as the
incorporating by reference regulations.
Wise Decl. ¶ 151, Ex. 150 at
PRO_00106751; Wise Decl. ¶ 165, Ex. 164
at Interrog. 19; Wise Decl. ¶ 153, Ex. 152
at 1223. However, 10 C.F.R. § 434.402.2
does not reference ASTM E 283, and 24
C.F.R. § 200, Appendix A incorporates
ASTM E283-91, not ASTM E283-91
(1999).

ASTM
E145-94e1.
63.14(h)(103).

Plaintiffs’ Statement of Material Facts

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 16 C.F.R. § 460.5(b) as
the incorporating by reference regulation or that 16 C.F.R. §
460.5(b) incorporates ASTM E408-71, reapproved in 2002,
not ASTM E408-71. Defendant’s sole “dispute” is to
mischaracterize ASTM’s response to PRO’s Interrogatory No.
1 to assert that ASTM admitted a fact that (1) it did not admit,
and (2) is unsupported by the record evidence.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 10 C.F.R. § 434.402.2
and 24 C.F.R. § 200, Appendix A as the incorporating by
reference regulations or that 10 C.F.R. § 434.402.2 and 24
C.F.R. § 200, Appendix A incorporate ASTM E283-91, not
ASTM E283-91 (1999). Defendant’s sole “dispute” is to
mischaracterize ASTM’s response to PRO’s Interrogatory No.
1 to assert that ASTM admitted a fact that (1) it did not admit,
and (2) is unsupported by the record evidence.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

Plaintiffs’ Response

56

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not

jjj. ASTM E606-80: PRO identifies
24 C.F.R. § 200.946 as the incorporating by
reference regulation. Wise Decl. ¶ 151, Ex.
150 at PRO_00106820; Wise Decl. ¶ 165,
Ex. 164 at Interrog. 19; Wise Decl. ¶ 153,
Ex. 152 at 1244. However, 24 C.F.R. §
200.946 does not reference ASTM E60680. 24 C.F.R. § 200.946.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 24 C.F.R. § 200.946 as
the incorporating by reference regulation or that 24 C.F.R. §
200.946 does not reference ASTM E606-80. Defendant’s sole
“dispute” is to mischaracterize ASTM’s response to PRO’s
Interrogatory No. 1 to assert that ASTM admitted a fact that
(1) it did not admit, and (2) is unsupported by the record
evidence.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 24 C.F.R. § 200,
Subpart S as the incorporating by reference regulation or that
24 C.F.R. § 200, Subpart S does not reference ASTM E42471. Defendant’s sole “dispute” is to mischaracterize ASTM’s
response to PRO’s Interrogatory No. 1 to assert that ASTM
admitted a fact that (1) it did not admit, and (2) is unsupported
by the record evidence.

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

iii. ASTM E424-71: PRO identifies
24 C.F.R. § 200, Subpart S as the
incorporating by reference regulation. Wise
Decl. ¶ 151, Ex. 150 at PRO_00106810;
Wise Decl. ¶ 165, Ex. 164 at Interrog. 19;
Wise Decl. ¶ 153, Ex. 152 at 1235.
However, 24 C.F.R. § 200, Subpart S does
not reference ASTM E424-71. 24 C.F.R. §
200, Subpart S.

Plaintiffs’ Response

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

Defendant Public Resource’s
Response

reapproved in 2002, not ASTM E408-71. accurately identified the
16 C.F.R. § 460.5(b).
incorporating provision does not
affect whether it engages in fair
use.

Plaintiffs’ Statement of Material Facts

57

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair

lll. ASTM E711-87 (1992): PRO
identifies 40 C.F.R. § 63, Subpart DDDDD,
Table 6 as the incorporating by reference
regulation. Wise Decl. ¶ 151, Ex. 150 at
PRO_00106859; Wise Decl. ¶ 165, Ex.
164 at Interrog. 19; Wise Decl. ¶ 153, Ex.
152 at 1279. However, 40 C.F.R. § 63,
Subpart DDDDD cites ASTM E711-87,
reapproved in 2004, not ASTM E711-87
(1992). 40 C.F.R. §§ 63, Subpart DDDDD;
63.14(h)(108).

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 40 C.F.R. § 63, Subpart
DDDDD, Table 6 as the incorporating by reference regulation
or that 40 C.F.R. § 63, Subpart DDDDD, Table 6 incorporates
ASTM E711-87, reapproved in 2004, not ASTM E711-87
(1992). Defendant’s sole “dispute” is to mischaracterize
ASTM’s response to PRO’s Interrogatory No. 1 to assert that
ASTM admitted a fact that (1) it did not admit, and (2) is
unsupported by the record evidence.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 24 C.F.R. §
200.946(a)(1)(viii) as the incorporating by reference regulation
or that 24 C.F.R. § 200.946(a)(1)(viii) incorporates ASTM
E695-79, reapproved in 1991, not ASTM E695-79 (1997)e1.
Defendant’s sole “dispute” is to mischaracterize ASTM’s
response to PRO’s Interrogatory No. 1 to assert that ASTM
admitted a fact that (1) it did not admit, and (2) is unsupported
by the record evidence.

standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

affect whether it engages in fair
use.

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

Plaintiffs’ Response

Defendant Public Resource’s
Response

kkk. ASTM E695-79 (1997)e1: PRO
identifies 24 C.F.R. § 200.946(a)(1)(viii) as
the incorporating by reference regulation.
Wise Decl. ¶ 151, Ex. 150 at
PRO_00106851; Wise Decl. ¶ 165, Ex. 164
at Interrog. 19; Wise Decl. ¶ 153, Ex. 152 at
1273.
However,
24
C.F.R.
§
200.946(a)(1)(viii) incorporates ASTM E
695-79, reapproved in 1991, not ASTM
24
C.F.R.
§
E695-79
(1997)e1.
200.946(a)(1)(viii).

Plaintiffs’ Statement of Material Facts

58

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair

nnn. ASTM E885-88: PRO identifies
40 C.F.R. § 63, Subpart DDDDD, Table 6
as the incorporating by reference
regulation. Wise Decl. ¶ 153, Ex. 152 at
1308. However, 40 C.F.R. § 63, Subpart
DDDDD, Table 6 does not reference ASTM
E885-88. 40 C.F.R. § 63, Subpart DDDDD,
Table 6.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 40 C.F.R. § 63, Subpart
DDDDD, Table 6 as the incorporating by reference regulation
or that 40 C.F.R. § 63, Subpart DDDDD, Table 6 does not
incorporate ASTM E885-88. Defendant’s sole “dispute” is to
mischaracterize ASTM’s response to PRO’s Interrogatory No.
1 to assert that ASTM admitted a fact that (1) it did not admit,
and (2) is unsupported by the record evidence.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 40 C.F.R. § 63, Subpart
DDDDD, Table 6 as the incorporating by reference regulation
or that 40 C.F.R. § 63, Subpart DDDDD, Table 6 incorporates
ASTM E776-87, reapproved in 2009, not ASTM E776-87
(1992). Defendant’s sole “dispute” is to mischaracterize
ASTM’s response to PRO’s Interrogatory No. 1 to assert that
ASTM admitted a fact that (1) it did not admit, and (2) is
unsupported by the record evidence.

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

mmm.
ASTM E776-87 (1992):
PRO identifies 40 C.F.R. § 63, Subpart
DDDDD, Table 6 as the incorporating by
reference regulation. Wise Decl. ¶ 151, Ex.
150 at PRO_00106908; Wise Decl. ¶ 165,
Ex. 164 at Interrog. 19; Wise Decl. ¶ 153,
Ex. 152 at 1300. However, 40 C.F.R. § 63,
Subpart DDDDD, Table 6 incorporates
ASTM E776-87, reapproved in 2009, not
ASTM E776-87 (1992). 40 C.F.R. §§ 63,
Subpart DDDDD; 63.14(h)(109).

Plaintiffs’ Response

standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

Defendant Public Resource’s
Response
use.

Plaintiffs’ Statement of Material Facts

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair

ppp. ASTM F462-79 (1999): PRO
identifies 24 C.F.R. § 200, Subpart S as the
incorporating by reference regulation. Wise
Decl. ¶ 151, Ex. 150 at PRO_00107383;
Wise Decl. ¶ 165, Ex. 164 at Interrog. 19.
However, 24 C.F.R. § 200, Subpart S does
not reference ASTM F462-79 (1999). 24
C.F.R. § 200, Subpart S.

59

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

use.

Defendant Public Resource’s
Response

ooo. ASTM E1337-90 (1996): PRO
identifies 49 C.F.R. §§ 571.105, S6.9.2(a)
as the incorporating by reference
regulations. Wise Decl. ¶ 153, Ex. 152 at
1336. However, 49 C.F.R. §§ 571.105 and
571.5 incorporate ASTM E1337-90,
reapproved in 2008, not ASTM E1337-90
(1996). 49 C.F.R. §§ 571.105(a), (b);
571.5(d)(39).

Plaintiffs’ Statement of Material Facts

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 24 C.F.R. § 200,
Subpart S as the incorporating by reference regulation or that
24 C.F.R. § 200, Subpart S does not reference ASTM F462-79
(1999). Defendant’s sole “dispute” is to mischaracterize
ASTM’s response to PRO’s Interrogatory No. 1 to assert that
ASTM admitted a fact that (1) it did not admit, and (2) is
unsupported by the record evidence.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 49 C.F.R. §§ 571.105,
S6.9.2(a) as the incorporating by reference regulation or that
49 C.F.R. §§ 571.105, S6.9.2(a) incorporates ASTM E133790, reapproved in 2008, not ASTM E1337-90 (1996).
Defendant’s sole “dispute” is to mischaracterize ASTM’s
response to PRO’s Interrogatory No. 1 to assert that ASTM
admitted a fact that (1) it did not admit, and (2) is unsupported
by the record evidence.

standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

Plaintiffs’ Response

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not

rrr. ASTM F631-80 (1985): PRO
identifies 33 C.F.R. § 156.40 as the
incorporating by reference regulation. Wise
Decl. ¶ 153, Ex. 152 at 1349. However, 33
C.F.R. § 156.40 does not exist; 33 C.F.R. §
156.400 does not reference any ASTM
standard, and 33 C.F.R. § 156.106(e)(1)
incorporates a different version of ASTM
F631. 33 C.F.R. § 156.106(e)(1)
incorporates ASTM F631-93, not ASTM
F631-80 (1985).

60

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

use.

Defendant Public Resource’s
Response

qqq. ASTM F478-92 (1999): PRO
identifies 29 C.F.R. § 1910.137(b)(2)(ix) as
the incorporating by reference regulation.
Wise Decl. ¶ 151, Ex. 150 at
PRO_00107415; Wise Decl. ¶ 165, Ex. 164
at Interrog. 19; Wise Decl. ¶ 153, Ex. 152 at
1343.
However, 29 C.F.R. §
1910.137(b)(2)(ix) incorporates a different
version of ASTM F478. 29 C.F.R. §
1910.137(b)(2)(ix) incorporates ASTM
F478-09, not ASTM F478-92 (1999).

Plaintiffs’ Statement of Material Facts

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 33 C.F.R. § 156.40 as
the incorporating by reference regulation or that: 33 C.F.R. §
156.40 does not exist; 33 C.F.R. § 156.400 does not reference
any ASTM standard; and 33 C.F.R. § 156.106(e)(1)
incorporates ASTM F631-93, not ASTM F631-80 (1985).
Defendant’s sole “dispute” is to mischaracterize ASTM’s
response to PRO’s Interrogatory No. 1 to assert that ASTM
admitted a fact that (1) it did not admit, and (2) is unsupported
by the record evidence.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 29 C.F.R. §
1910.137(b)(2)(ix) as the incorporating by reference regulation
or that 29 C.F.R. § 1910.137(b)(2)(ix) incorporates ASTM
F478-09, not ASTM F478-92 (1999). Defendant’s sole
“dispute” is to mischaracterize ASTM’s response to PRO’s
Interrogatory No. 1 to assert that ASTM admitted a fact that
(1) it did not admit, and (2) is unsupported by the record
evidence.

ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.
insufficient to meet PRO’s burden that the ASTM Works have
been incorporated by reference.

Plaintiffs’ Response

Disputed. ASTM F715-1981
(1986) is incorporated by
reference at 33 C.F.R. § 154.106
(1997-2008). Immaterial.
Whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

ttt. ASTM F715-81 (1986): PRO
identifies 33 C.F.R. § 154.106 as the
incorporating by reference regulations.
Wise Decl. ¶ 153, Ex. 152 at 1368.
However, both 33 C.F.R. §§ 155, Appendix
B and 154.106 incorporate a different
version of ASTM F715. 33 C.F.R. §§
155, Appendix B and 154.106 incorporate
ASTM F715-95, not ASTM F715-81

61

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

affect whether it engages in fair
use.

Defendant Public Resource’s
Response

sss. ASTM F682-82a (1988): PRO
identifies 46 C.F.R. § 56.01-2 as the
incorporating by reference regulation. Wise
Decl. ¶ 153, Ex. 152 at 1361. However, 46
C.F.R. § 56.01-2 incorporates ASTM F68282a, reapproved in 2008, not ASTM F68282a (1988). 46 C.F.R. § 56.01-2(e)(69).

Plaintiffs’ Statement of Material Facts

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 33 C.F.R. § 154.106 as
the incorporating by reference regulation or that 33 C.F.R. §
154.106 incorporates ASTM F715-95, not ASTM F715-81
(1986). Instead, Defendant points to 33 C.F.R. § 154.106 in
effect from 1997 to 2008 as the incorporating by reference
regulation. But that version of 33 C.F.R. § 154.106 was not in
effect when PRO posted this standard and is not in effect at
this time.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 46 C.F.R. § 56.01-2 as
the incorporating by reference regulation or that 46 C.F.R. §
56.01-2 incorporates ASTM F682-82a, reapproved in 2008,
not ASTM F682-82a (1988). Defendant’s sole “dispute” is to
mischaracterize ASTM’s response to PRO’s Interrogatory No.
1 to assert that ASTM admitted a fact that (1) it did not admit,
and (2) is unsupported by the record evidence.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

Plaintiffs’ Response

62

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not

vvv. ASTM F808-83 (1988)e1: PRO
identifies 33 C.F.R. § 154, Appendix C,
6.3.1 as the incorporating by reference
regulation. Wise Decl. ¶ 151, Ex. 150 at
PRO_00107483; Wise Decl. ¶ 165, Ex. 164
at Interrog. 19; Wise Decl. ¶ 153, Ex. 152 at
1389. However, 33 C.F.R. § 154, Appendix
C cites, but does not incorporate by
reference, “Item 26 in ASTM F 808.” 33
C.F.R. § 154, Appendix C. ASTM F808-83
is also not included amongst the ASTM

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 33 C.F.R. § 154,
Appendix C, 6.3.1 as the incorporating by reference
regulation. PRO also does not dispute that that 33 C.F.R. §
154, Appendix C cites, but does not incorporate, “Item 26 in
ASTM F 808” or that ASTM F808-83 is not incorporated by
reference in 33 C.F.R. § 154.106. Defendant’s sole “dispute”
is to mischaracterize ASTM’s response to PRO’s Interrogatory
No. 1 to assert that ASTM admitted a fact that (1) it did not
admit, and (2) is unsupported by the record evidence.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 33 C.F.R. § 155.140 as
the incorporating by reference regulation or that 33 C.F.R. §
155.140 does not reference ASTM F722. Defendant’s sole
“dispute” is to mischaracterize ASTM’s response to PRO’s
Interrogatory No. 1 to assert that ASTM admitted a fact that
(1) it did not admit, and (2) is unsupported by the record
evidence.

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

uuu. ASTM F722-82 (1988): PRO
identifies 33 C.F.R. §§ 155.140 as the
incorporating by reference regulations.
Wise Decl. ¶ 151, Ex. 150 at
PRO_00107471; Wise Decl. ¶ 165, Ex. 164
at Interrog. 19; Wise Decl. ¶ 153, Ex. 152 at
1377. However, 33 C.F.R. §§ 155.140 does
not reference ASTM F722, and 33 C.F.R. §
154, Appendixes A and B incorporate
ASTM F722-82, reapproved in 2008, not
ASTM F722-82 (1988). 33 C.F.R. § 154,
Appendix A, B; 154.106(e)(3).

Plaintiffs’ Response

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

Defendant Public Resource’s
Response

(1986). 33 C.F.R. §§ 155.140(c)(2); 155,
Appendix B; 154.106(e)(2).

Plaintiffs’ Statement of Material Facts

Defendant Public Resource’s
Response

63

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has

xxx. ASTM F1007-86 (1996)e1:
PRO identifies 46 C.F.R. § 56.60-1(b) as
the incorporating by reference regulation.
Wise Decl. ¶ 153, Ex. 152 at 1408.
However, 46 C.F.R. § 56.60-1(b)
incorporates ASTM F1007-86, reapproved
in 2007, not ASTM F1007-86 (1996)e1. 46

C.F.R. §§ 56.60- 1(b), 56.60-2(e)(70).

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

www.
ASTM F1006-86 (1997):
PRO identifies 46 C.F.R. § 56.60-1(b) as
the incorporating by reference regulation.
Wise Decl. ¶ 151, Ex. 150 at
PRO_00107009; Wise Decl. ¶ 165, Ex. 164
at Interrog. 19; Wise Decl. ¶ 153, Ex. 152 at
1403. However, 46 C.F.R. § 56.60-1(b)
incorporates ASTM F1006-86, reapproved
in 2008, not ASTM F1006-86 (1997). 46
C.F.R. §§ 56.60-1(b), 56.60-2(e)(70).

standards incorporated by reference in 33 affect whether it engages in fair
C.F.R. § 154.106.
use.

Plaintiffs’ Statement of Material Facts

to mischaracterize ASTM’s response to PRO’s Interrogatory
No. 1 to assert that ASTM admitted a fact that (1) it did not
admit, and (2) is unsupported by the record evidence.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 46 C.F.R. § 56.60-1(b)
as the incorporating by reference regulation or that 46 C.F.R. §
56.60-1(b) incorporates ASTM F1007-86, reapproved in 2007,
not ASTM F1007-86 (1996)e1. Defendant’s sole “dispute” is

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 46 C.F.R. § 56.60-1(b)
as the incorporating by reference regulation or that 46 C.F.R. §
56.60-1(b) incorporates ASTM F1006-86, reapproved in 2008,
not ASTM F1006-86 (1997). Defendant’s sole “dispute” is to
mischaracterize ASTM’s response to PRO’s Interrogatory No.
1 to assert that ASTM admitted a fact that (1) it did not admit,
and (2) is unsupported by the record evidence.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

Plaintiffs’ Response

64

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:

zzz. ASTM F1120-87 (1998): PRO
identifies 46 C.F.R. § 56.60-1(b) as the
incorporating by reference regulation. Wise
Decl. ¶ 153, Ex. 152 at 1424. However, 46
C.F.R. § 56.60-1(b) incorporates ASTM
F1120-87, reapproved in 2010, not ASTM
F1120-87 (1998). 46 C.F.R. §§ 56.60-1(b),
56.01-2(e)(73).

C.F.R. §§ 56.60- 1(b), 56.01-2(e)(72).

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

Defendant Public Resource’s
Response

yyy. ASTM F1020-86 (1996)e1:
PRO identifies 46 C.F.R. § 56.60-1(b) as
the incorporating by reference regulation.
Wise Decl. ¶ 153, Ex. 152 at 1420.
However, 46 C.F.R. § 56.60-1(b)
incorporates ASTM F1020-86, reapproved
in 2011, not ASTM F1020-86 (1996)e1. 46

Plaintiffs’ Statement of Material Facts

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 46 C.F.R. § 56.60-1(b)
as the incorporating by reference regulation or that 46 C.F.R. §
56.60-1(b) incorporates ASTM F1120-87, reapproved in 2010,
not ASTM F1120-87 (1998). Defendant’s sole “dispute” is to
mischaracterize ASTM’s response to PRO’s Interrogatory No.
1 to assert that ASTM admitted a fact that (1) it did not admit,
and (2) is unsupported by the record evidence.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

to mischaracterize ASTM’s response to PRO’s Interrogatory
No. 1 to assert that ASTM admitted a fact that (1) it did not
admit, and (2) is unsupported by the record evidence.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 46 C.F.R. § 56.60-1(b)
as the incorporating by reference regulation or that 46 C.F.R. §
56.60-1(b) incorporates ASTM F1020-86, reapproved in 2011,
not ASTM F1020-86 (1996)e1. Defendant’s sole “dispute” is

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

Plaintiffs’ Response

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it

bbbb. ASTM F1122-87 (1998): PRO
identifies 33 C.F.R. § 154.500(d)(3) as the
incorporating by reference regulation. Wise
Decl. ¶ 151, Ex. 150 at PRO_00107055;
Wise Decl. ¶ 165, Ex. 164 at Interrog. 19;
Wise Decl. ¶ 153, Ex. 152 at 1437.
However, 33 C.F.R. § 154.500(d)(3)

65

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

Defendant Public Resource’s
Response

aaaa. ASTM F1121-87 (1998): PRO
identifies 33 C.F.R. § 126.15(a)(5) as the
incorporating by reference regulation. Wise
Decl. ¶ 151, Ex. 150 at PRO_00107047;
Wise Decl. ¶ 165, Ex. 164 at Interrog. 19;
Wise Decl. ¶ 153, Ex. 152 at 1433.
However, 33 C.F.R. § 126.15(a)(5)
incorporates ASTM F1121-87, reapproved
in 2010, not ASTM F1121-87 (1998). 33
C.F.R. §§ 126.15(a)(5), 126.5(b).

Plaintiffs’ Statement of Material Facts

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 33 C.F.R. §
154.500(d)(3) as the incorporating by reference regulation or
that 33 C.F.R. § 154.500(d)(3) incorporates ASTM F1122-87,
reapproved in 1992, not ASTM F1122-87 (1998). Defendant’s
sole “dispute” is to mischaracterize ASTM’s response to
PRO’s Interrogatory No. 1 to assert that ASTM admitted a fact

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 33 C.F.R. §
126.15(a)(5) as the incorporating by reference regulation or
that 33 C.F.R. § 126.15(a)(5) incorporates ASTM F1121-87,
reapproved in 2010, not ASTM F1121-87 (1998). Defendant’s
sole “dispute” is to mischaracterize ASTM’s response to
PRO’s Interrogatory No. 1 to assert that ASTM admitted a fact
that (1) it did not admit, and (2) is unsupported by the record
evidence.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

Plaintiffs’ Response

Defendant Public Resource’s
Response

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having

dddd. ASTM F1139-88 (1998): PRO
identifies 46 C.F.R. § 56.60-1(b) as the
incorporating by reference regulation. Wise
Decl. ¶ 151, Ex. 150 at PRO_00107074;
Wise Decl. ¶ 165, Ex. 164 at Interrog. 19.

66

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

cccc. ASTM F1123-87 (1998): PRO
identifies 46 C.F.R. § 56.60-1(b) as the
incorporating by reference regulation. Wise
Decl. ¶ 153, Ex. 152 at 1451. However, 46
C.F.R. § 56.60-1(b) incorporates ASTM
F1123-87, reapproved in 2010, not ASTM
F1123-87 (1998). 46 C.F.R. §§ 56.60-1(b),
56.01-2(e)(74).

incorporates ASTM F1122-87, reapproved without explanation. Immaterial:
in 1992, not ASTM F1122-87 (1998). 33 whether Public Resource has
C.F.R. §§ 154.500(d)(3), 154.106(e)(4).
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

Plaintiffs’ Statement of Material Facts

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 46 C.F.R. § 56.60-1(b)
as the incorporating by reference regulation or that 46 C.F.R. §
56.60-1(b) incorporates ASTM F1139-88, reapproved in 2010,
not ASTM F1139-88 (1998). Defendant’s sole “dispute” is to

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 46 C.F.R. § 56.60-1(b)
as the incorporating by reference regulation or that 46 C.F.R. §
56.60-1(b) incorporates ASTM F1123-87, reapproved in 2010,
not ASTM F1123-87 (1998). Defendant’s sole “dispute” is to
mischaracterize ASTM’s response to PRO’s Interrogatory No.
1 to assert that ASTM admitted a fact that (1) it did not admit,
and (2) is unsupported by the record evidence.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

that (1) it did not admit, and (2) is unsupported by the record
evidence.

Plaintiffs’ Response

been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this

However, 46 C.F.R. § 56.60-1(b)
incorporates ASTM F1139-88, reapproved
in 2010, not ASTM F1139-88 (1998). 46
C.F.R. §§ 56.60-1(b), 56.01-2(e)(75).

eeee. ASTM F1172-88 (1998): PRO
identifies 46 C.F.R. § 56.60-1(b) as the
incorporating by reference regulation. Wise
Decl. ¶ 153, Ex. 152 at 1481. However, 46
C.F.R. § 56.60-1(b) incorporates ASTM
F1172-88, reapproved in 2010, not ASTM
F1172-88 (1998). 46 C.F.R. §§ 56.60-1(b),
56.01-2(e)(76).

ffff. ASTM F1199-88 (1998): PRO
identifies 46 C.F.R. § 56.60-1(b) as the
incorporating by reference regulation. Wise
Decl. ¶ 153, Ex. 152 at 1523. However, 46

67

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 46 C.F.R. § 56.60-1(b)
as the incorporating by reference regulation or that 46 C.F.R. §
56.60-1(b) incorporates ASTM F1199-88, reapproved in 2010,

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 46 C.F.R. § 56.60-1(b)
as the incorporating by reference regulation or that 46 C.F.R. §
56.60-1(b) incorporates ASTM F1172-88, reapproved in 2010,
not ASTM F1172-88 (1998). Defendant’s sole “dispute” is to
mischaracterize ASTM’s response to PRO’s Interrogatory No.
1 to assert that ASTM admitted a fact that (1) it did not admit,
and (2) is unsupported by the record evidence.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

mischaracterize ASTM’s response to PRO’s Interrogatory No.
1 to assert that ASTM admitted a fact that (1) it did not admit,
and (2) is unsupported by the record evidence.

Plaintiffs’ Response

edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

C.F.R. § 56.60-1(b) incorporates ASTM
F1199-88, reapproved in 2010, not ASTM
F1199-88 (1998). 46 C.F.R. §§ 56.60-1(b),
56.01-2(e)(78).

gggg. ASTM F1200-88 (1998): PRO
identifies 46 C.F.R. § 56.60-1(b) as the
incorporating by reference regulation. Wise
Decl. ¶ 151, Ex. 150 at PRO_00107162;
Wise Decl. ¶ 165, Ex. 164 at Interrog. 19.
However, 46 C.F.R. § 56.60-1(b)
incorporates ASTM F1200-88, reapproved
in 2010, not ASTM F1200-88 (1998). 46
C.F.R. §§ 56.60-1(b), 56.01-2(e)(79).

68

hhhh. ASTM F1201-88 (1998): PRO Disputed. In Exhibit A to their
identifies 46 C.F.R. § 56.60-1(b) as the response to Public Resource’s
incorporating by reference regulation. Wise Interrogatory No. 1 on March 24,

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 46 C.F.R. § 56.60-1(b)
as the incorporating by reference regulation or that 46 C.F.R. §

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 46 C.F.R. § 56.60-1(b)
as the incorporating by reference regulation or that 46 C.F.R. §
56.60-1(b) incorporates ASTM F1200-88, reapproved in 2010,
not ASTM F1200-88 (1998). Defendant’s sole “dispute” is to
mischaracterize ASTM’s response to PRO’s Interrogatory No.
1 to assert that ASTM admitted a fact that (1) it did not admit,
and (2) is unsupported by the record evidence.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

not ASTM F1199-88 (1998). Defendant’s sole “dispute” is to
mischaracterize ASTM’s response to PRO’s Interrogatory No.
1 to assert that ASTM admitted a fact that (1) it did not admit,
and (2) is unsupported by the record evidence.

Plaintiffs’ Response

2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

Decl. ¶ 153, Ex. 152 at 1528. However, 46
C.F.R. § 56.60-1(b) incorporates ASTM
F1201-88, reapproved in 2010, not ASTM
F1201-88 (1998). 46 C.F.R. §§ 56.60-1(b),
56.01-2(e)(80).

iiii. ASTM F1271-90 (1995)e1:
PRO identifies 46 C.F.R. § 39.20-9(c)(1) as
the incorporating by reference regulation.
Wise Decl. ¶ 151, Ex. 150 at
PRO_00241177; Wise Decl. ¶ 165, Ex. 164
at Interrog. 19; Wise Decl. ¶ 153, Ex. 152 at
1534. However, 46 C.F.R. § 39.20-9(c)(1)
does not exist, and 46 C.F.R. §
39.2009(a)(3) incorporates a different
version of ASTM F1271. 46 C.F.R. §
39.2009(a)(3) incorporates a different
version of ASTM F1271. 46 C.F.R. §
39.2009(a)(3) incorporates ASTM F127189, not ASTM F1271-90 (1995)e1. 46

69

jjjj. ASTM F1273-91 (1996)e1: Disputed. In Exhibit A to their
PRO identifies 46 C.F.R. § 32.20-10 as the response to Public Resource’s

C.F.R. §§ 39.2009(a)(3), 39.1005(d)(2).

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 46 C.F.R. § 32.20-10 as

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 46 C.F.R. § 39.209(c)(1) as the incorporating by reference regulation or that 46
C.F.R. § 39.20-9(c)(1) does not exist, and 46 C.F.R. §
39.2009(a)(3) incorporates ASTM F1271-89, not ASTM
F1271-90 (1995)e1. Defendant’s sole “dispute” is to
mischaracterize ASTM’s response to PRO’s Interrogatory No.
1 to assert that ASTM admitted a fact that (1) it did not admit,
and (2) is unsupported by the record evidence.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

56.60-1(b) incorporates ASTM F1201-88, reapproved in 2010,
not ASTM F1201-88 (1998). Defendant’s sole “dispute” is to
mischaracterize ASTM’s response to PRO’s Interrogatory No.
1 to assert that ASTM admitted a fact that (1) it did not admit,
and (2) is unsupported by the record evidence.

Plaintiffs’ Response

Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

Disputed. ASTM F1323-1998 is
incorporated by reference at 46
C.F.R. § 63.05-1 (2005).
Immaterial. Whether Public
Resource has accurately
identified the incorporating
provision does not affect whether
it engages in fair use.

incorporating by reference regulation. Wise
Decl. ¶ 151, Ex. 150 at PRO_00107183;
Wise Decl. ¶ 165, Ex. 164 at Interrog. 19;
Wise Decl. ¶ 153, Ex. 152 at 1540.
However, 46 C.F.R. § 32.20-10
incorporates ASTM F1273-91, reapproved
in 2007, not ASTM F1273-91 (1996)e1. 46

kkkk. ASTM F1323-98:
PRO
identifies 46 C.F.R. § 63.25-9 as the
incorporating by reference regulation. Wise
Decl. ¶ 151, Ex. 150 at PRO_00107247;
Wise Decl. ¶ 165, Ex. 164 at Interrog. 19;
Wise Decl. ¶ 153, Ex. 152 at 1576.
However, 46 C.F.R. § 63.25-9(a)
incorporates a different version of ASTM
F1323. 46 C.F.R. § 63.25-9(a) incorporates
ASTM F1323-2001, not ASTM F1323-98.
46 C.F.R. §§ 63.25-9(a), 63.05-1(d)(1).

70

llll. ASTM F1471-93:
PRO Disputed. In Exhibit A to their
identifies
40
C.F.R.
§ 86.1310- response to Public Resource’s
2007(b)(1)(iv)(B) as the incorporating by Interrogatory No. 1 on March 24,

C.F.R. §§ 32.20-10, 32.01-1(c)(2).

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 40 C.F.R. § 86.13102007(b)(1)(iv)(B) as the incorporating by reference regulation

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 46 C.F.R. § 63.25-9 as
the incorporating by reference regulation or that 46 C.F.R. §
63.25-9 incorporates ASTM F1323-2001, not ASTM F132398. Instead, Defendant points to a different, outdated C.F.R.
provision, 46 C.F.R. § 63.05-1 (2005), as incorporating ASTM
F1323-98. But 46 C.F.R. § 63.05-1 (2005) was not in effect
when PRO posted this standard and is not in effect at this time.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

to mischaracterize ASTM’s response to PRO’s Interrogatory
No. 1 to assert that ASTM admitted a fact that (1) it did not
admit, and (2) is unsupported by the record evidence.

the incorporating by reference regulation or that 46 C.F.R. §
32.20-10 incorporates ASTM F1273-91, reapproved in 2007,
not ASTM F1273-91 (1996)e1. Defendant’s sole “dispute” is

Plaintiffs’ Response

2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

reference regulation. Wise Decl. ¶ 153, Ex.
152 at 1585. However, 40 C.F.R.
§ 86.1310-2007 is reserved by 79 FR 23704
and does not reference ASTM F1471.
40 C.F.R. § 86.1310-2007.

mmmm. ASTM F1546/F1546M96: PRO identifies 46 C.F.R. § 162.0273(a) as the incorporating by reference
regulation. Wise Decl. ¶ 153, Ex. 152 at
1599. However, 46 C.F.R. § 162.027-3(a)
incorporates ASTM F1546/F1546 M-96,
reapproved in 2012, not ASTM
F1546/F1546M-96. 46 C.F.R. §§ 162.0273(a); 162.027-2(b)(1).

71

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 46 C.F.R. § 162.0273(a) as the incorporating by reference regulation or that 46
C.F.R. § 162.027-3(a) incorporates ASTM F1546/F1546 M96, reapproved in 2012, not ASTM F1546/F1546M-96.
Defendant’s sole “dispute” is to mischaracterize ASTM’s
response to PRO’s Interrogatory No. 1 to assert that ASTM
admitted a fact that (1) it did not admit, and (2) is unsupported
by the record evidence.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

or that 40 C.F.R. § 86.1310-2007(b)(1)(iv)(B) is reserved by
79 FR 23704 and does not reference ASTM F1471-93.
Defendant’s sole “dispute” is to mischaracterize ASTM’s
response to PRO’s Interrogatory No. 1 to assert that ASTM
admitted a fact that (1) it did not admit, and (2) is unsupported
by the record evidence.

Plaintiffs’ Response

Disputed. In Exhibit A to their
response to Public Resource’s
Interrogatory No. 1 on March 24,
2014, Plaintiffs identified this
edition of this standard as having
been incorporated by reference
into law. Plaintiffs now deny it
without explanation. Immaterial:
whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

Disputed for the reasons
addressed below.
Disputed to the extent that,
although Public Resource did
make an error in its citation,
NFPA 101 2000 is incorporated
by reference in several locations,
including 42 C.F.R. § 460.72
(2010), 42 C.F.R. § 483.70
(2011), and 42 C.F.R. § 416.44
(2012). Immaterial. Whether
Public Resource has accurately
identified the incorporating
provision does not affect whether
it engages in fair use.

nnnn. ASTM
G154-00a:
PRO
identifies 49 C.F.R. § 571.106, S12.7(b) as
the incorporating by reference regulation.
Wise Decl. ¶ 153, Ex. 152 at 1631.
However, 49 C.F.R. § 571.106 incorporates
ASTM G154-00, not ASTM G154-00a. 49
C.F.R. §§ 571.106, 571.5(d)(38).

Incorrect Citations re: NFPA’s Standards

37. Additionally, PRO’s posting of the
2000 edition of NFPA 101 states that it is
posted “By Authority of the Code of Federal
Regulations: 59 C.F.R. 130.” Wise Decl. ¶
168, Ex. 167 at 1. The Code of Federal
Regulations, however, currently spans only
Titles 1 to 50; there is no Title 59 See
Codeof Federal Regulations (Annual
Edition),
available
at
https://www.govinfo.gov/app/
collection/C.F.R.

72

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

The fact is material to Plaintiffs’ argument that the inaccurate
and incomplete information PRO provides regarding the way
in which standards have been incorporated undermines its
asserted “transformative” purpose of providing the public with
information regarding the law. Pls. Mem. 15-16; Reply at Part
I.A.1.b.

There is no factual dispute. PRO has not disputed the
accuracy of the statement.

PRO fails to establish a genuine dispute as to a material fact
for the reasons addressed below.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 49 C.F.R. § 571.106,
S12.7(b) as the incorporating by reference regulation or that 49
C.F.R. §§ 571.105, S6.9.2(a) incorporates ASTM G154-00,
not ASTM G154-00a. Defendant’s sole “dispute” is to
mischaracterize ASTM’s response to PRO’s Interrogatory No.
1 to assert that ASTM admitted a fact that (1) it did not admit,
and (2) is unsupported by the record evidence.

Plaintiffs’ Response

Disputed to the extent that
Plaintiffs imply that laws and
regulations that applied in recent
years are no longer relevant, and
disputed to the extent that NFPA
70 2005 is incorporated by
reference at 49 C.F.R. § 192.7
(2009). Immaterial. Whether
Public Resource has accurately
identified the incorporating
provision does not affect whether
it engages in fair use.

Disputed to the extent that NFPA
30 2003 is incorporated by
reference at 49 C.F.R. § 192.7
(2009). Immaterial. Whether
Public Resource has accurately
identified the incorporating
provision does not affect whether
it engages in fair use.
Disputed to the extent that
Plaintiffs imply that the citation is
in error. NFPA 99 2005 is
incorporated by reference at 46
C.F.R. § 110.10-1 (2009).

38. Similarly, PRO’s postings on the
Internet Archive often point to outdated
regulations, with no information that the
regulation has been superseded. For
example, PRO’s posting of the 2005 edition
of NFPA 70 says it is posted “By Authority
of the Code of Federal Regulations: 49
C.F.R. 192.189(c).” Wise Decl. ¶ 168, Ex.
167 at 2. That section provides that
“[e]lectrical equipment in vaults must
conform to the applicable requirements of
Class 1, Group D, of the National Electrical
Code, NFPA-70 (incorporated by reference,
see § 192.7).” Section 192.7(h), however,
incorporates the 2011, not the 2005, edition
of NFPA 70. 49 C.F.R. § 192.7(h)(4).

39. Likewise, PRO’s copy of the 2003
NFPA 30 states that it is posted “By
Authority of the Code of Federal
Regulations: 49 C.F.R. 192.” Wise Decl. ¶
168, Ex. 167 at 3. Section 192.7 of Title 49
incorporates the 2012 edition of NFPA 30,
but not the 2003 edition. 49 C.F.R. §
192.(h)(1).

40. PRO’s posting of the 2005 NFPA 99
contains the same error, telling readers it is
posted “By Authority of the Code of
Federal
Regulations:
38
C.F.R.
51.200(b)(4),” Wise Decl. ¶ 168, Ex. 167 at

73

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

The fact is material to Plaintiffs’ argument that the inaccurate
and incomplete information PRO provides regarding the way
in which standards have been incorporated undermines its

There is no factual dispute. PRO has not disputed the
accuracy of the statement.

The fact is material to Plaintiffs’ argument that the inaccurate
and incomplete information PRO provides regarding the way
in which standards have been incorporated undermines its
asserted “transformative” purpose of providing the public with
information regarding the law. Pls. Mem. 15-16; Reply at Part
I.A.1.b.

There is no factual dispute. PRO has not disputed the
accuracy of the statement.

The fact is material to Plaintiffs’ argument that the inaccurate
and incomplete information PRO provides regarding the way
in which standards have been incorporated undermines its
asserted “transformative” purpose of providing the public with
information regarding the law. Pls. Mem. 15-16; Reply at Part
I.A.1.b.

There is no factual dispute. PRO has not disputed the
accuracy of the statement.

Plaintiffs’ Response

74

Disputed to the extent that
Plaintiffs ignore that ASHRAE
90.1-2004 is incorporated by
reference at 10 C.F.R. § 433.3
(2013). Immaterial. Whether
Public Resource has accurately
identified the incorporating
provision does not affect whether
it engages in fair use.

ASHRAE’s Disputed for the reasons
addressed below. Immaterial.
Whether Public Resource has
accurately identified the
incorporating provision does not
affect whether it engages in fair
use.

41. In addition, PRO’s posting of
ASHRAE Standard 90.1-2004 on the
Internet Archive states that is has been
incorporated by reference in Minnesota,
Maine and Nevada, Wise Decl. ¶ 170, Ex.
169 at 1, but those states’ codes are
actually based on a different standard, the
International Energy Conservation Code
(“IECC”), for which compliance with
ASHRAE 90.1 is just an alternative
compliance option, Wise Decl. ¶ 171, Ex.
170.

re:

The suggestion that such an error is immaterial further ignores
the fact that PRO’s claims that it “aims to do one simple,
important thing: to provide a complete database of laws and
regulations.” Opp. 1. When faced with the undisputed and
material fact that it failed to cite correct laws that referenced

PRO’s assertion that its inability to identify the correct
instances in which the standard at issue was incorporated by
reference is immaterial ignores the D.C. Circuit’s guidance
that the circumstances in which a standard is incorporated by
reference are material to understanding the fair use defense.
ASTM II, 896 F.3d at 453.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that the states it referenced on the
Internet Archive as having incorporated by reference
ASHRAE 90.1-2004 have in fact actually based their codes on
a different standard published by the IECC.

PRO fails to establish a genuine dispute as to a material fact
for the reasons addressed below.

Citations

Incorrect
Standards

Plaintiffs’ Response

asserted “transformative” purpose of providing the public with
information regarding the law. Pls. Mem. 15-16; Reply at Part
I.A.1.b.

Defendant Public Resource’s
Response

4, even though that section references the Immaterial. Whether Public
2012 edition of NFPA 99. 38 C.F.R. § Resource has accurately
51.200(i)(2)(ii).
identified the incorporating
provision does not affect whether
it engages in fair use.

Plaintiffs’ Statement of Material Facts

Disputed to the extent that
Plaintiffs ignore that ASHRAE
90.1-2007 is incorporated by
reference at 10 C.F.R. § 433.3
(2013). Immaterial. Whether
Public Resource has accurately
identified the incorporating
provision does not affect whether
it engages in fair use.

42. The same is true with PRO’s posting
of ASHRAE Standard 90.1-2007, which
asserts that the standard has been
incorporated in Illinois and California, ¶
170, Ex. 169 at 2, which both have adopted
the IECC rather than 90.1 or created their
own codes that are more stringent than even
later versions of 90.1 (that postdate what
PRO has posted), Wise Decl. ¶ 171, Ex.
170.

75

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

The suggestion that such an error is immaterial further ignores
the fact that PRO’s claims that it “aims to do one simple,
important thing: to provide a complete database of laws and
regulations.” Opp. 1. When faced with the undisputed and
material fact that it failed to cite correct laws that referenced
ASHRAE standards at issue in this case, PRO’s response is
that its error is “very close” or almost “relevant law,” Opp. 6
n.3. As PRO explained “very close” language is unacceptable;
PRO’s assertion that almost relevant law justifies wholesale
copying of the Works is likewise unacceptable and insufficient
to meet PRO’s burden that the ASHRAE Works have been
incorporated by reference.

PRO’s assertion that its inability to identify the correct
instances in which the standard at issue was incorporated by
reference is immaterial ignores the D.C. Circuit’s guidance
that the circumstances in which a standard is incorporated by
reference are material to understanding the fair use defense.
ASTM II, 896 F.3d at 453.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that the states it referenced on the
Internet Archive as having incorporated by reference
ASHRAE 90.1-2007 have in fact actually based their codes on
a different standard published by the IECC.

ASHRAE standards at issue in this case, PRO’s response is
that its error is “very close” or almost “relevant law,” Opp. 6
n.3. As PRO explained “very close” language is unacceptable;
PRO’s assertion that almost relevant law justifies wholesale
copying of the Works is likewise unacceptable and insufficient
to meet PRO’s burden that the ASHRAE Works have been
incorporated by reference.

Plaintiffs’ Response

PRO Copies and
Distributes Plaintiffs’
Works, Regardless Of
Whether They Are
Essential To Comply With
Any Legal Duty
ASTM Standards (And Portions Thereof)
That Do Not Impose Legal Duties

76

Disputed. Each standard that
Public Resource posts is
incorporated into law in its
entirety. The Office of the
Federal Register instructs that
material should only be
incorporated by reference into
law “[i]f the material is necessary
to understand or comply with the
regulation.” Becker Decl., ¶ 25,
Ex. 58 (IBR Handbook) at p. 2
(citing 5 U.S.C. § 552(a)). The
decision as to what material to
incorporate by reference,
including the decision as to
whether to incorporate an entire
document or just part of a
document, is a decision made by

Immaterial. Laws that regulate
government actors are equally as
relevant as laws that regulate
private persons. The First
Amendment is an example of a
“law” that regulates only
government actors.

43. PRO’s postings on Internet Archive
also point to instances where the statute or
regulation incorporating the standard
triggers an obligation for a government
actor but not for individuals. For instance,
PRO’s postings of ASHRAE 90.1-2004 and
ASHRAE 90.1-2007 both reference 10
C.F.R. § 433.4, which states “[a]ll Federal
agencies shall design new Federal
buildings” that meet the ASHRAE
standards, but does not impose a similar
requirement on private actors. See Wise
Decl. ¶ 170, Ex. 169.

B.

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

PRO fails to establish a genuine dispute as to a material fact.
PRO has presented a theory of incorporation by reference
under which any time a federal agency states that it is
incorporating a standard, without specifying a particular
portion of the standard, the entire standard becomes binding
law. For the reasons explained in Plaintiffs’ briefing, PRO has
not presented factual support to show that agencies actually
operate in this way (let alone that they did so at the time of
IBR before the handbook was published). Reply at Part
I.A.1.a. And, as Plaintiffs’ briefing explains, as a legal matter,
this theory of incorporation is irreconcilable with the D.C.
Circuit’s decision. ASTM II, 896 F.3d at 450 (“[W]here
knowing the content of an incorporated standard might help
inform one’s understanding of the law but is not essential to
complying with any legal duty, the nature of PRO’s use might

Objection. Plaintiffs object to PRO’s reliance on Becker
Decl., ¶ 25, Ex. 58 (IBR Handbook). The quoted language
does not appear in the exhibit.

Additionally, PRO is wrong that this is immaterial. PRO’s
entire fair use defense is premised on the need of individuals
to access the law, and PRO goes so far as to raise a due
process argument that rests on the possibility that individuals
may be deprived of the ability to access laws they are accused
of violating.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute the fact stated but instead seeks to argue
the legal implications of that fact.

Plaintiffs’ Response

44. Apart from the instances where PRO
has redacted the ASTM logo discussed
above, PRO reproduced and displayed the
full text of each of the ASTM Standards.
Wise Decl. ¶¶ 151, 153, Exs. 150, 152;

Plaintiffs’ Statement of Material Facts

77

be less transformative and its wholesale copying, in turn, less
justified. For instance, ASHRAE Standard 90.1 provides
important context for assessing provisions of state commercial
building codes regarding energy efficiency. At the same time,
unless a particular provision of Standard 90.1 has been
incorporated into state building codes, PRO’s claim that a
paraphrase or summary would always be inadequate to serve
its purposes seems less persuasive.” (internal citations
omitted)); see also Reply at Part I.A.1.a.

the regulatory agency. The
Director of the Federal Register
then reviews the proposed
incorporation, and either
approves or denies the
incorporation. Public Resource
therefore only posted material
that federal agencies had
determined was “necessary to
understand or comply with
[federal regulations].” Id.

Undisputed.

Further, PRO’s assertion that “Each standard that Public
Resource posts is incorporated into law in its entirety” is
unsupported by the record evidence and PRO’s own admission
that “when attempting to post the relevant law, Public
Resource accidentally posted an edition of an ASTM standard
that was not the precise edition listed in the C.F.R.
incorporating language.” Opp. 6 n.3. Additionally, as
explained below, portions of the standards are non-binding by
the terms of the applicable standard and other portions of the
standard are not binding because no provision of the law
requires a party to comply with certain portions of the
standards or merely references the standard but has no direct
legal effect on any private party’s conduct.

ASTM’s discussion of non-mandatory sections addresses
portions of ASTM’s standards that are by definition nonmandatory aids. PRO cites no contrary evidence.

Plaintiffs’ Response

Defendant Public Resource’s
Response

45. PRO posted in their entirety numerous
standards that are incorporated by
regulations in such a manner as to be
optional or references. For example, 40
C.F.R. § 86.113- 04(a)(1) incorporates
ASTM D86-07, the “Standard Test Method
for Distillation of Petroleum Products and
Liquid Fuels at Atmospheric Pressure.” But
the regulation expressly provides that
ASTM D86 is a mere “reference
procedure,” and that a regulated entity can
comply with the codified requirements by
meeting
“substantially
equivalent
specifications approved by the EPA
Administrator.” See 40 C.F.R. § 86.11304(a)(1).

Rubel Decl. ¶ 5, Ex. 2 (Rule 30(b)(6) Dep.
of Public Resource at 158:22- 159:6).

Plaintiffs’ Statement of Material Facts

78

Disputed. Each standard that
Public Resource posts is
incorporated into law in its
entirety. The Office of the
Federal Register instructs that
material should only be
incorporated by reference into
law “[i]f the material is necessary
to understand or comply with the
regulation.” Becker Decl., ¶ 25,
Ex. 58 (IBR Handbook) at p. 2
(citing 5 U.S.C. § 552(a)). The
decision as to what material to
incorporate by reference,
including the decision as to
whether to incorporate an entire
document or just part of a
document, is a decision made by
the regulatory agency. That
regulatory agency’s decision
must be given deference over any
possible quibble Plaintiffs might
have as to whether a portion of an
incorporated document is
absolutely necessary to
understand or comply with the
regulation. After the regulatory
agency determines what material
to propose for incorporation into
law, the Director of the Federal

Defendant Public Resource’s
Response

PRO’s dispute that 40 C.F.R. § 86.113- 04(a)(1) is merely a

PRO fails to establish a genuine dispute as to a material fact.
PRO has presented a theory of incorporation by reference
under which any time a federal agency states that it is
incorporating a standard, without specifying a particular
portion of the standard, the entire standard becomes binding
law. For the reasons explained in Plaintiffs’ briefing, PRO has
not presented factual support to show that agencies actually
operate in this way (let alone that they did so at the time of
IBR before the handbook was published). Reply at Part
I.A.1.a. And, as Plaintiffs’ briefing explains, as a legal matter,
this theory of incorporation is irreconcilable with the D.C.
Circuit’s decision. ASTM II, 896 F.3d at 450 (“[W]here
knowing the content of an incorporated standard might help
inform one’s understanding of the law but is not essential to
complying with any legal duty, the nature of PRO’s use might
be less transformative and its wholesale copying, in turn, less
justified. For instance, ASHRAE Standard 90.1 provides
important context for assessing provisions of state commercial
building codes regarding energy efficiency. At the same time,
unless a particular provision of Standard 90.1 has been
incorporated into state building codes, PRO’s claim that a
paraphrase or summary would always be inadequate to serve
its purposes seems less persuasive.” (internal citations
omitted)); see also Reply at Part I.A.1.a.

Objection. Plaintiffs object to PRO’s reliance on Becker
Decl., ¶ 25, Ex. 58 (IBR Handbook). The quoted language
does not appear in the exhibit.

Plaintiffs’ Response

Plaintiffs’ Statement of Material Facts

Plaintiffs’ Response

79

Register then reviews the
proposed incorporation, and
either approves or denies the
incorporation. Public Resource
therefore only posted material
that federal agencies had
determined was “necessary to
understand or comply with
[federal regulations].” Id.

reference, directly ignores the D.C. Circuit’s opinion, which
states:
“At the other end of the spectrum lie standards that serve
as mere references but have no direct legal effect on any
private party’s conduct. One example is the incorporation
of ASTM D86-07, the “Standard Test Method for
Distillation of Petroleum Products and Liquid Fuels at
Atmospheric Pressure,” which a federal regulation
describes as a “[r]eference procedure” used by the
Environmental Protection Agency and regulated motorvehicle manufacturers to determine whether the boiling
Additionally, D86-07 is mandated
point for certain gasoline used for “exhaust and
by law and is neither optional nor
evaporative emission testing” falls within a permissible
is it simply a “reference
range. 40 C.F.R. § 86.113-04(a)(1). The regulation
procedure.” 40 C.F.R. § 80.46(d)
creates only one relevant legal obligation: the regulated
states: "Through December 31,
entity, in testing vehicular emissions, must use gasoline
2015, distillation parameters must
that meets specifications expressly laid out within the
be determined using ASTM D86.
regulation itself. The incorporation of an external
Beginning January 1, 2016, the
standard merely tells the regulated entity how it can
distillation parameters must be
ensure that the gasoline it uses in fact satisfies the
determined by a test method
codified requirements.”
approved under § 80.47."
ASTM II, 896 F.3d at 443.
(emphasis added). Additionally,
§ 80.47 specifically states that the
reproducibility (R) factor equals a PRO cites no record evidence to support the false assertion
specific value which can only be
that each standard it posts “is incorporated into law in its
found in Table 10 of ASTM D86- entirety” or in some cases at all.
07 and the Sc value (average
slope or rate of change) must be
Defendant’s assertion that D86-07 is mandatory because 40
calculated according to section
13.2 of ASTM D86-07. ASTM
D86-07 is incorporated by
reference on page 81, Section

Defendant Public Resource’s
Response

Section 13.2 of ASTM D86-07
concerns Precision and Bias.
Section 13.2 cannot be read or
understood in isolation from the
preceding sections of ASTM
D86-07, including section 3
(terminology), section 5
(significance and use of this test),
section 6 (apparatus), section 7
(sampling, storage, and sample
conditioning), section
8 (preparation of the apparatus),
section 9 (calibration and
standardization), section 10
(procedure), section 11
(calculation), section 12 (reports).

80.47. Elsewhere, § 80.128
requires ASTM D86 or
equivalent.

Defendant Public Resource’s
Response

“Beginning January 1, 2016, for motor vehicle gasoline,
gasoline blendstock, and gasoline fuel additives subject
to the gasoline standards of this part, the maximum
allowable standard deviation computed from the results
of a minimum of 20 tests made over 20 days (tests may
be arranged into no fewer than five batches of four or
fewer tests each, with only one such batch allowed per
day over the minimum of 20 days) on samples using
good laboratory practices taken from a single
homogeneous commercially available gasoline must be
less than or equal to 0.3 times the reproducibility (R),
where “R” equals the ASTM reproducibility in Table 10,
Groups 2, 3 and 4 (Automated) of ASTM D86–07 for
the initial boiling point, E10, E50, E90 and final boiling
point. (Example: A gasoline having an initial boiling
point of 26 °C and a final boiling point of 215 °C:

Additionally, 40 CFR § 80.47 (2017) incorporates only certain
portions of ASTM D86-07, not the standard in its entirety. See
Wise Decl. II ¶ 13, Ex. 185. 40 CFR § 80.47 (2017)
references two discrete sections of ASTM D86-07:

C.F.R. § 80.46(d) (20174) is irrelevant for multiple reasons: (1)
PRO misleadingly implies that this section incorporated by
reference D86-07, when 40 C.F.R. § 80.46(h)(1)(i) defines
“ASTM D86” as D86-12, (2) even if the regulation
incorporated the correct version of this standard, the regulation
did not become effective until years after PRO posted the
standard and is not effective at this time.

Plaintiffs’ Response

80

PRO fails to identify a year. We based this analysis on 40 C.F.R. § 80.46(d) (2017) because PRO identified 40 C.F.R. § 80.47(r)(2017) in Becker
Ex. 58.

4

Plaintiffs’ Statement of Material Facts

Plaintiffs’ Statement of Material Facts

81

Defendant Public Resource’s
Response

Regarding PRO’s assertion that Section 13.2 “cannot be read
or understood in isolation” PRO has no basis for these

Plaintiffs object to PRO’s reliance on 40 C.F.R. § 80.128
(2017), as that section does not reference ASTM D86-07.
Accoridngly PRO’s assertion that compliance with “§ 80.128
requires ASTM D86 or equivalent” is wholly unsupported.
Nevertheless, to the extent PRO identifies a regulation that
requires compliance with “ASTM D86 or equivalent” any
such regulation would indicate that use of D86 is not
mandatory.

As shown above, the tests described refer to only two sections
of D86-07. PRO fails to provide evidentiary support for the
assertion that other portions of the standard not incorporated
by law are necessary.

Maximum allowable standard deviation of 20 tests for
initial boiling point ≤0.3*(8.5 °C) = 2.55 °C, maximum
allowable standard deviation of 20 tests for E10
≤0.3*(3.0+2.64*Sc)°C, maximum allowable standard
deviation of 20 tests for E50 ≤0.3*(2.9+3.97*Sc)°C,
maximum allowable standard deviation of 20 tests for
E90 ≤0.3*(2.0+2.53*Sc) °C, and maximum allowable
standard deviation of 20 tests for final boiling point
≤0.3*(10.5 °C) = 3.15 °C), where Sc is the average slope
(or rate of change) of the gasoline distillation curve as
calculated in accordance with section 13.2 of ASTM
D86–07. The 20 results must be a series of tests with a
sequential record of analysis and no omissions. Note that
the precision criteria described in this paragraph (h)(1)
differ from what is specified in ASTM D86–12.”

Plaintiffs’ Response

Disputed. Eeach standard that
Public Resource posts is
incorporated into law in its
entirety. The Office of the
Federal Register instructs that
material should only be
incorporated by reference into
law “[i]f the material is necessary
to understand or comply with the
regulation.” Becker Decl., ¶ 25,
Ex. 58 (IBR Handbook) at p. 2

46. Similarly, PRO identifies 40 C.F.R.
Appendix D to Part 75, the “Optional S02
Emmissional Data Protocol for Gas-Fired
and Oil-Fired Units” as the regulation
incorporating ASTM standard D1217-93,
the “Standard Test Method for Density and
Relative Density (Specific Gravity) of
Liquids by Bingham Pycnometer.” This
regulation incorporates the standard to be
optional; Subsection 2.2.4.3(d) expressly
provides an alternative procedure for
82

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

PRO fails to establish a genuine dispute as to a material fact.
PRO has presented a theory of incorporation by reference
under which any time a federal agency states that it is
incorporating a standard, without specifying a particular
portion of the standard, the entire standard becomes binding
law. For the reasons explained in Plaintiffs’ briefing, PRO has
not presented factual support to show that agencies actually
operate in this way (let alone that they did so at the time of

Objection. Plaintiffs object to PRO’s reliance on Becker
Decl., ¶ 25, Ex. 58 (IBR Handbook). The quoted language
does not appear in the exhibit.

Further, PRO’s assertion that “Each standard that Public
Resource posts is incorporated into law in its entirety” is
unsupported by the record evidence and PRO’s own admission
that “when attempting to post the relevant law, Public
Resource accidentally posted an edition of an ASTM standard
that was not the precise edition listed in the C.F.R.
incorporating language.” Opp. 6 n.3. Notably, here, the
regulation itself expressly contradicts PRO’s assertion that
using a different version of ASTM D86 would “very close.”
Opp. 6 n.3.

unfounded assertions. D86-07 contains non-mandatory
appendicies including “examples illustrating calculations for
reporting of data,” Wise Decl. ¶ 150, Ex. 149 at
ASTM001208, among other non-mandatory sections which
are—by definition—not mandatory to understand the other
sections. However, at a minimium, PRO’s argument concedes
that Sections 1, 2, 4, 14, the Annexes and Appendices are not
necessary to understand the requirements of Section 13.2.

Plaintiffs’ Response

(citing 5 U.S.C. § 552(a)). The
decision as to what material to
incorporate by reference,
including the decision as to
whether to incorporate an entire
document or just part of a
document, is a decision made by
the regulatory agency. That
regulatory agency’s decision
must be given deference over any
possible quibble Plaintiffs might
have as to whether a portion of an
incorporated document is
absolutely necessary to
understand or comply with the
regulation. After the regulatory
agency determines what material
to propose for incorporation into
law, the Director of the Federal
Register then reviews the
proposed incorporation, and
either approves or denies the
incorporation. Public Resource
therefore only posted material
that federal agencies had
determined was “necessary to
understand or comply with
[federal regulations].”

sampling oil from shipment tanks or
containers and testing samples for density,
of which D1217-93 is just one. See 40
C.F.R. Appendix D to Part 75.

83

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

Further, PRO’s assertion that “Each standard that Public
Resource posts is incorporated into law in its entirety” is
unsupported by the record evidence and PRO’s own admission
that “when attempting to post the relevant law, Public
Resource accidentally posted an edition of an ASTM standard
that was not the precise edition listed in the C.F.R.
incorporating language.” Opp. 6 n.3.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 40 C.F.R. Appendix D
to Part 75, the “Optional S02 Emmissional Data Protocol for
Gas-Fired and Oil-Fired Units” as the regulation incorporating
ASTM standard D1217-93, or that this regulation incorporates
the standard to be optional.

IBR before the handbook was published). Reply at Part
I.A.1.a. And, as Plaintiffs’ briefing explains, as a legal matter,
this theory of incorporation is irreconcilable with the D.C.
Circuit’s decision. ASTM II, 896 F.3d at 450 (“[W]here
knowing the content of an incorporated standard might help
inform one’s understanding of the law but is not essential to
complying with any legal duty, the nature of PRO’s use might
be less transformative and its wholesale copying, in turn, less
justified. For instance, ASHRAE Standard 90.1 provides
important context for assessing provisions of state commercial
building codes regarding energy efficiency. At the same time,
unless a particular provision of Standard 90.1 has been
incorporated into state building codes, PRO’s claim that a
paraphrase or summary would always be inadequate to serve
its purposes seems less persuasive.”) (internal citations
omitted); see also Reply at Part I.A.1.a.

Plaintiffs’ Response

84

Further, PRO’s assertion that “Each standard that Public
Resource posts is incorporated into law in its entirety” is
unsupported by the record evidence and PRO’s own admission

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 33 C.F.R. § 155,
Appendix B, 2.4 as the regulation that incorporates ASTM
F715-95, or that this regulation expressly states that testing
must be in accordance with either ASTM F715 “or other tests
approved by the Coast Guard.”.

PRO fails to establish a genuine dispute as to a material fact.
PRO has presented a theory of incorporation by reference
under which any time a federal agency states that it is
incorporating a standard, without specifying a particular
portion of the standard, the entire standard becomes binding
law. For the reasons explained in Plaintiffs’ briefing, PRO has
not presented factual support to show that agencies actually
operate in this way (let alone that they did so at the time of
IBR before the handbook was published). Reply at Part
I.A.1.a. And, as Plaintiffs’ briefing explains, as a legal matter,
this theory of incorporation is irreconcilable with the D.C.
Circuit’s decision. ASTM II, 896 F.3d at 450; see also Reply
at Part I.A.1.a.

Objection. Plaintiffs object to PRO’s reliance on Becker
Decl., ¶ 25, Ex. 58 (IBR Handbook). The quoted language
does not appear in the exhibit.

Disputed. Each standard that
Public Resource posts is
incorporated into law in its
entirety. The Office of the
Federal Register instructs that
material should only be
incorporated by reference into
law “[i]f the material is necessary
to understand or comply with the
regulation.” Becker Decl., ¶ 25,
Ex. 58 (IBR Handbook) at p. 2
(citing 5 U.S.C. § 552(a)). The
decision as to what material to
incorporate by reference,
including the decision as to
whether to incorporate an entire
document or just part of a
document, is a decision made by
the regulatory agency. That
regulatory agency’s decision
must be given deference over any
possible quibble Plaintiffs might
have as to whether a portion of an
incorporated document is
absolutely necessary to
understand or comply with the
regulation. After the regulatory
agency determines what material
to propose for incorporation into

a. ASTM F715-95: PRO identifies
33 C.F.R. § 155, Appendix B, 2.4 as the
regulation that incorporates ASTM F71595, the “Standard Test Methods for Coated
Fabrics Used for Oil Spill Control and
Storage.” Wise Decl. ¶ 153, Ex. 152 at
1368. This regulation expressly states that
testing must be in accordance with either
ASTM F715 “or other tests approved by the
Coast Guard.”

Plaintiffs’ Response

For the reasons stated below, PRO fails to establish a genuine
dispute as to a material fact for the reasons addressed below.

Defendant Public Resource’s
Response

47. This is true for other ASTM Works as Disputed for the reasons
well. For instance:
addressed below.

Plaintiffs’ Statement of Material Facts

b. ASTM
F1321-92:
PRO
identifies 46 C.F.R. § 28.535(d) as the
regulation that incorporates ASTM F1321,
the “Standard Guide for Conducting a
Stability Test (Lightweight Survey and
Inclining Experiment) to Determine Light
Ship Displacement and Centers of Gravity
of a Vessel.” Wise Decl. ¶ 153, Ex. 152 at
1546. This regulation expressly states that
ASTM F1321 “may be used as guidance for
any inclining test or deadweight survey
conducted under this section.”

Plaintiffs’ Statement of Material Facts

85

Disputed. Each standard that
Public Resource posts is
incorporated into law in its
entirety. The Office of the
Federal Register instructs that
material should only be
incorporated by reference into
law “[i]f the material is necessary
to understand or comply with the
regulation.” IBR Handbook at p.
2 (citing 5 U.S.C. § 552(a)). The
decision as to what material to
incorporate by reference,
including the decision as to
whether to incorporate an entire
document or just part of a

that “when attempting to post the relevant law, Public
Resource accidentally posted an edition of an ASTM standard
that was not the precise edition listed in the C.F.R.
incorporating language.” Opp. 6 n.3. The IBR Handbook cited
by PRO emphasizes that “the agency determines which
version of the standard it will incorporate,” which further
underscores the importance of citing to the correct version. Id.
at 7.

law, the Director of the Federal
Register then reviews the
proposed incorporation, and
either approves or denies the
incorporation. Public Resource
therefore only posted material
that federal agencies had
determined was “necessary to
understand or comply with
[federal regulations].” IBR
Handbook at p. 2 (citing 5 U.S.C.
§ 552(a)). Immaterial. How and
whether Public Resource has
identified an incorporating
provision has no bearing on its
fair use.

PRO fails to establish a genuine dispute as to a material fact.
PRO has presented a theory of incorporation by reference
under which any time a federal agency states that it is
incorporating a standard, without specifying a particular
portion of the standard, the entire standard becomes binding
law. For the reasons explained in Plaintiffs’ briefing, PRO has
not presented factual support to show that agencies actually
operate in this way (let alone that they did so at the time of
IBR before the handbook was published). Reply at Part
I.A.1.a. And, as Plaintiffs’ briefing explains, as a legal matter,
this theory of incorporation is irreconcilable with the D.C.
Circuit’s decision. ASTM II, 896 F.3d at 450; see also Reply

Objection. Plaintiffs object to PRO’s reliance on Becker
Decl., ¶ 25, Ex. 58 (IBR Handbook). The quoted language
does not appear in the exhibit.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

Plaintiffs’ Response

Defendant Public Resource’s
Response

c. ASTM A369-A369M-92, B4296, B68-95, B75-97, B88-96, B111-95,
B315-93, and F1006: PRO identifies 46
C.F.R. § 56.60-1(b), as the incorporating by

Plaintiffs’ Statement of Material Facts

86

Disputed. Each standard that
Public Resource posts is
incorporated into law in its
entirety. The Office of the

document, is a decision made by
the regulatory agency. That
regulatory agency’s decision
must be given deference over any
possible quibble Plaintiffs might
have as to whether a portion of an
incorporated document is
absolutely necessary to
understand or comply with the
regulation. After the regulatory
agency determines what material
to propose for incorporation into
law, the Director of the Federal
Register then reviews the
proposed incorporation, and
either approves or denies the
incorporation. Public Resource
therefore only posted material
that federal agencies had
determined was “necessary to
understand or comply with
[federal regulations].” IBR
Handbook at p. 2 (citing 5 U.S.C.
§ 552(a)). Immaterial. How and
whether Public Resource has
identified an incorporating
provision has no bearing on its
fair use.

Defendant Public Resource’s
Response

Objection. Plaintiffs object to PRO’s reliance on Becker
Decl., ¶ 25, Ex. 58 (IBR Handbook). The quoted language
does not appear in the exhibit.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

Further, PRO’s assertion that “Each standard that Public
Resource posts is incorporated into law in its entirety” is
unsupported by the record evidence and PRO’s own admission
that “when attempting to post the relevant law, Public
Resource accidentally posted an edition of an ASTM standard
that was not the precise edition listed in the C.F.R.
incorporating language.” Opp. 6 n.3.

PRO’s reliance on non-responsive and irrelevant evidence fails
to establish a genuine dispute as to a material fact. PRO does
not dispute that it identified 46 C.F.R. § 28.535(d) as the
regulation that incorporates ASTM F1321-92 or that this
regulation expressly states that ASTM F1321 “may be used as
guidance for any inclining test or deadweight survey
conducted under this section.”

at Part I.A.1.a.

Plaintiffs’ Response

87

PRO fails to establish a genuine dispute as to a material fact.
PRO has presented a theory of incorporation by reference
under which any time a federal agency states that it is
incorporating a standard, without specifying a particular
portion of the standard, the entire standard becomes binding
law. For the reasons explained in Plaintiffs’ briefing, PRO has
not presented factual support to show that agencies actually
operate in this way (let alone that they did so at the time of
IBR before the handbook was published). Reply at Part
I.A.1.a. And, as Plaintiffs’ briefing explains, as a legal matter,
this theory of incorporation is irreconcilable with the D.C.
Circuit’s decision. ASTM II, 896 F.3d at 450; see also Reply
at Part I.A.1.a.

Federal Register instructs that
material should only be
incorporated by reference into
law “[i]f the material is necessary
to understand or comply with the
regulation.” IBR Handbook at p.
2 (citing 5 U.S.C. § 552(a)). The
decision as to what material to
incorporate by reference,
including the decision as to
whether to incorporate an entire
document or just part of a
document, is a decision made by
the regulatory agency. That
regulatory agency’s decision
must be given deference over any
possible quibble Plaintiffs might
have as to whether a portion of an
incorporated document is
absolutely necessary to
understand or comply with the
regulation. After the regulatory
agency determines what material
to propose for incorporation into
law, the Director of the Federal
Register then reviews the
proposed incorporation, and
either approves or denies the
incorporation. Public Resource
therefore only posted material
that federal agencies had
determined was “necessary to
understand or comply with

reference regulation. Wise Decl. ¶ 151, Ex.
150 at PRO_00085147, PRO_00092176,
PRO_00092980,
PRO_00093012,
PRO_00093103,
PRO_00093196,
PRO_00093301,
and PRO_00107009;
Wise Decl. ¶ 165, Ex. 164 at Interrog. 19;
Wise Decl. ¶ 153, Ex. 152 at 1403. The
regulation contains a table of acceptable
commercial standards from American
National Standards Institute, ASTM,
American
Society
for
Mechanical
Engineers, and several other SDOs that are
each considered to comply with the
regulation. 46 C.F.R. § 56.60- 1(b). The
regulation also contains a note indicating
that: “The Coast Guard will consider use of
alternative pipes, tubing, and fittings when
it receives certification of their mechanical
properties.” 46 C.F.R. § 56.60-1(b).

Further, PRO’s assertion that “Each standard that Public
Resource posts is incorporated into law in its entirety” is
unsupported by the record evidence and PRO’s own admission
that “when attempting to post the relevant law, Public
Resource accidentally posted an edition of an ASTM standard
that was not the precise edition listed in the C.F.R.
incorporating language.” Opp. 6 n.3.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 46 C.F.R. § 56.60-1(b)
as the incorporating by reference regulation for ASTM A369,
A369M-92, B42-96, B68-95, B75-97, B88-96, B111-95,
B315-93, and F1006. PRO also does not dispute that the
regulation contains a table of acceptable commercial standards
from American National Standards Institute, ASTM, American
Society for Mechanical Engineers, and several other SDOs
that are each considered to comply with the regulation, such
that no single standard is mandatory.

Plaintiffs’ Response

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 46 C.F.R. § 119.440 as
the incorporating by reference regulation for ASTM
B122/B122M, nor does PRO dispute the fact that 46 C.F.R. §
119.440 incorporates B122/B122M with respect to only “UNS
alloy C71500.” 46 C.F.R. § 119.440.

88

Instead, PRO points to 46 C.F.R. § 58.03-1 (2011) as
incorporating ASTM B122/B122M in its entirety. This
section does not incorporate any standards by reference.
Instead, it notes that other portions of this part of the C.F.R.
(a) Certain material is
incorporated works by reference in accordance with federal
incorporated by reference
law and notes where the incororpated works are available.
into this part with the
PRO has not identified any place in this section or elsewhere
approval of the Director of
in the CFR where the other ten copper alloys addressed in
the Federal Register under 5
U.S.C. 552(a) and 1 CFR part ASTM B122/B122M are incorporated by reference.
51. To enforce any edition
PRO does not didpute that it did not identify 46 C.F.R. § 58.03
other than that specified in

46 C.F.R. § 58.03-1,
"Incorporation by Reference"
(2011):

Disputed. The entire ASTM
B122/B122M-1995 is
incorporated by reference at 46
C.F.R. § 58.03-1 (2011):

a. ASTM B122/B122M: PRO
identifies 46 C.F.R. § 119.440 as the
incorporating by reference regulation, Wise
Decl. ¶ 151, Ex. 150 at PRO_00092264, but
that
regulation
only
incorporates
B122/B122M with respect to copper alloy
C71500, one of eleven copper alloys
addressed in the standard. 46 C.F.R. §
119.440. The portions of the standard
related to the other ten copper alloys are
unnecessary to understand the minimum
thickness for copper alloy C71500. See
Wise Decl. ¶ 151, Ex. 150 at
PRO_00092264.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

Plaintiffs’ Response

For the reasons stated below, PRO fails to establish a genuine
dispute as to a material fact for the reasons addressed below.

[federal regulations].” (IBR
Handbook) at p. 2 (citing 5
U.S.C. § 552(a)). Immaterial.
How and whether Public
Resource has identified an
incorporating provision has no
bearing on its fair use.

Defendant Public Resource’s
Response

48. On numerous occasions, PRO posted Disputed for the reasons
entire ASTM Standards, when only a addressed below.
portion of those standards is actually
incorporated by reference into law. For
instance:

Plaintiffs’ Statement of Material Facts

Plaintiffs’ Statement of Material Facts

89

this section, the Coast Guard
must publish notice
of change in the FEDERAL
REGISTER and the material
must be available to the
public. All approved material
is available for inspection at
the National Archives and
Records Administration
(NARA). For information on
the availability of this
material at NARA, call 202–
741–6030 or go to
http://www.archives.gov/fede
rallregister/codeloflfederallre
gulations/ibrllocations.html.
This material is also
available for inspection at the
U.S. Coast Guard, Office of
Design and Engineering
Standards (CG–521), 2100
2nd St. SW., Stop 7126,
Washington, DC 205937126, and is available from
the sources listed below.
...
(g) ASTM International
(formerly American Society
for Testing and Materials)
(ASTM), 100 Barr Harbor
Drive, West Conshohocken,
PA 19428–2959

Defendant Public Resource’s
Response

The fact is material to Plaintiffs’ argument that the inaccurate
and incomplete information PRO provides regarding the way
in which standards have been incorporated undermines its
asserted “transformative” purpose of providing the public with
information regarding the law. Pls. Mem. 15-16; Reply at Part
I.A.1.b.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

in response to Plaintiffs’ interrogatories. PRO’s identification
of the incorporated by reference regulation is material and
relevant to its fair use defense, as PRO is bound by its
response to Plaintiffs’ interrogatories where it failed to correct
or supplement interrogatories it now claims are inaccurate or
incomplete. See Fed. R. Civ. P. 37(c)(1), 26(e)(1)(A).

Plaintiffs’ Response

b. ASTM B85-96: PRO identifies
46 C.F.R. § 56.60-2 as the incorporating by
reference regulation, Wise Decl. ¶ 153, Ex.
152 at 252, but that regulation only
incorporates one table within ASTM B8596—table X-2— and states that “[t]ension
tests shall be performed to determine tensile
strength, yield strength, and elongation” in
accordance with the minimum value in X-2.
46 C.F.R. § 56.60-2. The remainder of the
standard is unnecessary to determine the
minimum value in X-2. See Wise Decl. ¶
153, Ex. 152 at 252. Table X-2 also contains
values for sheer strength and fatigue
strength that are unnecessary to understand

Plaintiffs’ Statement of Material Facts

90

Disputed. Each standard that
Public Resource posts is
incorporated into law in its
entirety. The Office of the
Federal Register instructs that
material should only be
incorporated by reference into
law “[i]f the material is necessary
to understand or comply with the
regulation.” IBR Handbook at p.
2 (citing 5 U.S.C. § 552(a)). The
decision as to what material to
incorporate by reference,
including the decision as to
whether to incorporate an entire
document or just part of a

Immaterial. How and
whether Public Resource has
identified an incorporating
provision has no bearing on
its fair use.

...
(3) ASTM B 122/B 122M–
95, Standard Specification
for Copper-Nickel-Tin Alloy,
Copper-Nickel-Zinc Alloy
(Nickel Silver), and CopperNickel Alloy Plate, Sheet,
Strip, and Rolled Bar
(‘‘ASTM B 122’’), 58.50–5.

Defendant Public Resource’s
Response

PRO fails to establish a genuine dispute as to a material fact.
PRO has presented a theory of incorporation by reference
under which any time a federal agency states that it is
incorporating a standard, without specifying a particular
portion of the standard, the entire standard becomes binding
law. For the reasons explained in Plaintiffs’ briefing, PRO has
not presented factual support to show that agencies actually
operate in this way (let alone that they did so at the time of
IBR before the handbook was published). Reply at Part
I.A.1.a. And, as Plaintiffs’ briefing explains, as a legal matter,
this theory of incorporation is irreconcilable with the D.C.
Circuit’s decision. ASTM II, 896 F.3d at 450; see also Reply

Objection. Plaintiffs object to PRO’s reliance on Becker
Decl., ¶ 25, Ex. 58 (IBR Handbook). The quoted language
does not appear in the exhibit.

Plaintiffs’ Response

Defendant Public Resource’s
Response

91

c. ASTM B283-96: PRO identifies Disputed. Each standard that
46 C.F.R. § 56.60-2 as the incorporating by Public Resource posts is
reference regulation, Wise Decl. ¶ 151, Ex. incorporated into law in its

the minimum value for the required tension document, is a decision made by
tests. Id.
the regulatory agency. That
regulatory agency’s decision
must be given deference over any
possible quibble Plaintiffs might
have as to whether a portion of an
incorporated document is
absolutely necessary to
understand or comply with the
regulation. After the regulatory
agency determines what material
to propose for incorporation into
law, the Director of the Federal
Register then reviews the
proposed incorporation, and
either approves or denies the
incorporation. Public Resource
therefore only posted material
that federal agencies had
determined was “necessary to
understand or comply with
[federal regulations].” IBR
Handbook at p. 2 (citing 5 U.S.C.
§ 552(a)).
Immaterial. How and whether
Public Resource has identified an
incorporating provision has no
bearing on its fair use.

Plaintiffs’ Statement of Material Facts

Objection. Plaintiffs object to PRO’s reliance on Becker
Decl., ¶ 25, Ex. 58 (IBR Handbook). The quoted language
does not appear in the exhibit.

The fact is material to Plaintiffs’ argument that the inaccurate
and incomplete information PRO provides regarding the way
in which standards have been incorporated undermines its
asserted “transformative” purpose of providing the public with
information regarding the law. Pls. Mem. 15-16; Reply at Part
I.A.1.b.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 46 C.F.R. § 56.60-2 as
the incorporating by reference regulation for ASTM B85-96.
PRO also does not dispute that 46 C.F.R. § 56.60-2 only
incorporates one table within ASTM B85-96 or the fact that
the remainder of the standard is unnecessary for purposes of
compliance with the regulation.

at Part I.A.1.a.

Plaintiffs’ Response

entirety. The Office of the
Federal Register instructs that
material should only be
incorporated by reference into
law “[i]f the material is necessary
to understand or comply with the
regulation.” Becker Decl., ¶ 25,
Ex. 58 (IBR Handbook) at p. 2
(citing 5 U.S.C. § 552(a)). The
decision as to what material to
incorporate by reference,
including the decision as to
whether to incorporate an entire
document or just part of a
document, is a decision made by
the regulatory agency. That
regulatory agency’s decision
must be given deference over any
possible quibble Plaintiffs might
have as to whether a portion of an
incorporated document is
absolutely necessary to
understand or comply with the
regulation. After the regulatory
agency determines what material
to propose for incorporation into
law, the Director of the Federal
Register then reviews the
proposed incorporation, and
either approves or denies the
incorporation. Public Resource
therefore only posted material
that federal agencies had

150 at PRO_00092925, but that regulation
only requires that tension tests shall be
performed to determine tensile strength,
yield strength, and elongation with the
minimum values listed in Table 3 of ASTM
B283-96. 46 C.F.R. § 56.60-2. All portions
of the standard other than Table 3 are
unnecessary to comply with the regulation.
Additionally, Table 3 provides Rockwell
hardness measurements, which are also
unnecessary to understand the minimum
value
required
for
other
three
measurements. See Wise Decl. ¶ 151, Ex.
150 at PRO_00092925.

92

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

The fact is material to Plaintiffs’ argument that the inaccurate
and incomplete information PRO provides regarding the way
in which standards have been incorporated undermines its
asserted “transformative” purpose of providing the public with
information regarding the law. Pls. Mem. 15-16; Reply at Part
I.A.1.b.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 46 C.F.R. § 56.60-2 as
the incorporating by reference regulation for ASTM B283-96,
nor does PRO dispute that all portions of the standard other
than Table 3 are unnecessary to comply with the regulation.

PRO fails to establish a genuine dispute as to a material fact.
PRO has presented a theory of incorporation by reference
under which any time a federal agency states that it is
incorporating a standard, without specifying a particular
portion of the standard, the entire standard becomes binding
law. For the reasons explained in Plaintiffs’ briefing, PRO has
not presented factual support to show that agencies actually
operate in this way (let alone that they did so at the time of
IBR before the handbook was published). Reply at Part
I.A.1.a. And, as Plaintiffs’ briefing explains, as a legal matter,
this theory of incorporation is irreconcilable with the D.C.
Circuit’s decision. ASTM II, 896 F.3d at 450; see also Reply
at Part I.A.1.a.

Plaintiffs’ Response

d. ASTM E23: PRO identifies 46
C.F.R. § 56.50-105(a)(1)(ii) as the
incorporating by reference regulation, Wise
Decl. ¶ 151, Ex. 150 at PRO_00106690, but
that regulation requires testing for low
temperature toughness using the Charpy Vnotch specimen as shown in ASTM E23,
Figure 4. 46 C.F.R. 56.50-105(a)(1)(ii).
Only Figure 4—no other part of the
standard—is necessary to determine the low
temperature toughness. Id.

Plaintiffs’ Statement of Material Facts

93

Disputed. Each standard that
Public Resource posts is
incorporated into law in its
entirety. The Office of the
Federal Register instructs that
material should only be
incorporated by reference into
law “[i]f the material is necessary
to understand or comply with the
regulation.” Becker Decl., ¶ 25,
Ex. 58 (IBR Handbook) at p. 2
(citing 5 U.S.C. § 552(a)). The
decision as to what material to
incorporate by reference,
including the decision as to
whether to incorporate an entire
document or just part of a
document, is a decision made by
the regulatory agency. That
regulatory agency’s decision
must be given deference over any
possible quibble Plaintiffs might

determined was “necessary to
understand or comply with
[federal regulations].” IBR
Handbook at p. 2 (citing 5 U.S.C.
§ 552(a)).
Immaterial. How and whether
Public Resource has identified an
incorporating provision has no
bearing on its fair use.

Defendant Public Resource’s
Response

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 46 C.F.R. § 56.50105(a)(1)(ii) as the incorporating by reference regulation for
ASTM E23. PRO also does not dispute that 46 C.F.R. §
56.50-105(a)(1)(ii) requires testing for low temperature

PRO fails to establish a genuine dispute as to a material fact.
PRO has presented a theory of incorporation by reference
under which any time a federal agency states that it is
incorporating a standard, without specifying a particular
portion of the standard, the entire standard becomes binding
law. For the reasons explained in Plaintiffs’ briefing, PRO has
not presented factual support to show that agencies actually
operate in this way (let alone that they did so at the time of
IBR before the handbook was published). Reply at Part
I.A.1.a. And, as Plaintiffs’ briefing explains, as a legal matter,
this theory of incorporation is irreconcilable with the D.C.
Circuit’s decision. ASTM II, 896 F.3d at 450; see also Reply
at Part I.A.1.a.

Objection. Plaintiffs object to PRO’s reliance on Becker
Decl., ¶ 25, Ex. 58 (IBR Handbook). The quoted language
does not appear in the exhibit.

Plaintiffs’ Response

e. ASTM E145-94 (2001): PRO
identifies 40 C.F.R. § 63.14 as the
incorporating by reference regulation, Wise
Decl. ¶ 151, Ex. 150 at PRO_00106516, but
Appendix A to Subpart PPPP of 40 C.F.R.
§ 63.14 references only forced draft oven
types IIA or IIB. 40 C.F.R. § 63.14. The
ASTM E145-94 (2001) standard addresses

Plaintiffs’ Statement of Material Facts

94

Disputed. Each standard that
Public Resource posts is
incorporated into law in its
entirety. The Office of the
Federal Register instructs that
material should only be
incorporated by reference into
law “[i]f the material is necessary

toughness using the Charpy V-notch specimen as shown in
ASTM E23, Figure 4 and that no other part of the standard is
necessary to determine the low temperature toughness.

have as to whether a portion of an
incorporated document is
absolutely necessary to
understand or comply with the
regulation. After the regulatory
agency determines what material
to propose for incorporation into
law, the Director of the Federal
Register then reviews the
proposed incorporation, and
either approves or denies the
incorporation. Public Resource
therefore only posted material
that federal agencies had
determined was “necessary to
understand or comply with
[federal regulations].” (IBR
Handbook) at p. 2 (citing 5
U.S.C. § 552(a)).
Immaterial. How and whether
Public Resource has identified an
incorporating provision has no
bearing on its fair use.

PRO fails to establish a genuine dispute as to a material fact.
PRO has presented a theory of incorporation by reference
under which any time a federal agency states that it is
incorporating a standard, without specifying a particular
portion of the standard, the entire standard becomes binding

Objection. Plaintiffs object to PRO’s reliance on Becker
Decl., ¶ 25, Ex. 58 (IBR Handbook). The quoted language
does not appear in the exhibit.

The fact is material to Plaintiffs’ argument that the inaccurate
and incomplete information PRO provides regarding the way
in which standards have been incorporated undermines its
asserted “transformative” purpose of providing the public with
information regarding the law. Pls. Mem. 15-16; Reply at Part
I.A.1.b.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

Plaintiffs’ Response

Defendant Public Resource’s
Response

Defendant Public Resource’s
Response

95

other types of forced draft ovens. See Wise to understand or comply with the
Decl. ¶ 151, Ex. 150 at PRO_001065.
regulation.” Becker Decl., ¶ 25,
Ex. 58 (IBR Handbook) at p. 2
(citing 5 U.S.C. § 552(a)). The
decision as to what material to
incorporate by reference,
including the decision as to
whether to incorporate an entire
document or just part of a
document, is a decision made by
the regulatory agency. That
regulatory agency’s decision
must be given deference over any
possible quibble Plaintiffs might
have as to whether a portion of an
incorporated document is
absolutely necessary to
understand or comply with the
regulation. After the regulatory
agency determines what material
to propose for incorporation into
law, the Director of the Federal
Register then reviews the
proposed incorporation, and
either approves or denies the
incorporation. Public Resource
therefore only posted material
that federal agencies had
determined was “necessary to
understand or comply with
[federal regulations].” (IBR
Handbook) at p. 2 (citing 5
U.S.C. § 552(a)).

Plaintiffs’ Statement of Material Facts

The fact is material to Plaintiffs’ argument that the inaccurate
and incomplete information PRO provides regarding the way
in which standards have been incorporated undermines its
asserted “transformative” purpose of providing the public with
information regarding the law. Pls. Mem. 15-16; Reply at Part
I.A.1.b.

For the same reasons explained in Paragraph 36.a., PRO’s
assertion that its inability to identify the correct version of the
standard incorporated by reference in the C.F.R. is immaterial
ignores the D.C. Circuit’s opintion, ASTM II, 896 F.3d at 450
and PRO’s burden to prove each standard has been IBR’d.

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that it identified 40 C.F.R. § 63.14 as the
incorporating by reference regulation for ASTM E145-94
(2001), or that 40 C.F.R. § 63.14 references only forced draft
oven types IIA or IIB and none of the other types of forced
draft ovens addressed by the standard.

law. For the reasons explained in Plaintiffs’ briefing, PRO has
not presented factual support to show that agencies actually
operate in this way (let alone that they did so at the time of
IBR before the handbook was published). Reply at Part
I.A.1.a. And, as Plaintiffs’ briefing explains, as a legal matter,
this theory of incorporation is irreconcilable with the D.C.
Circuit’s decision. ASTM II, 896 F.3d at 450; see also Reply
at Part I.A.1.a.

Plaintiffs’ Response

49. In addition, PRO posts certain ASTM
Standards in their entirety, despite the fact
that the incorporation by reference has no
direct legal effect on any private party’s
conduct. As just one example, ASTM A307
is incorporated by reference in 46 C.F.R. §
56.25-20(b), which governs the design,
construction, and installation of piping
systems in marine vessels. The regulation
provides that, with respect to bolts used in
ships’ and barges’ piping systems, “[w]hen
class 250 cast iron flanges are used or when
class 125 cast iron flanges are used with ring
gaskets, the bolting material must be carbon
steel conforming to ASTM A307
(incorporated by reference, see 46 C.F.R. §
56.01-2), Grade B.” 46 C.F.R. § 56.2520(b). The persons governed by the
regulation at issue—those who design,
construct and install piping systems in
marine vessels—do not need access to
ASTM A307 to comply with this
regulation. They simply have to purchase
bolts that are designated as A307, Grade B
bolts; they do not need to know how to
manufacture such bolts.

Plaintiffs’ Statement of Material Facts

96

Disputed. The complete ASTM
A307 document is incorporated
into law at 46 C.F.R. 56.01-2.
Plaintiffs argue that 46 C.F.R. §
56.25-20(b) does not require
those who design, construct, and
install piping systems in marine
vessels to actually read ASTM
A307, because Plaintiffs assert
that the regulated individual can
simply outsource this
responsibility to a third party that
manufactures bolts. However,
legal responsibility for
compliance still rests on the
regulated piping installers, and
even if they choose to trust a third
party to manufacture bolts for
their purposes, they still would
require access to ASTM A307 to
ensure for themselves that the
bolts they purchase are in
compliance with the regulations.
Immaterial. A law need not have
a direct legal effect on any private
party’s conduct. The law
providing for appointment of

Immaterial. How and whether
Public Resource has identified an
incorporating provision has no
bearing on its fair use.

Defendant Public Resource’s
Response

PRO’s assertion that whether a law has a “direct legal effect”
is irrelevant to PRO’s fair use defense ignores the D.C.
Circuit’s statement that: “where knowing the content of an
incorporated standard might help inform one’s understanding
of the law but is not essential to complying with any legal
duty, the nature of PRO’s use might be less transformative and
its wholesale copying, in turn, less justified.” ASTM II, 896
F.3d at 450.

46 C.F.R. § 56.01-2 is a reference section of the C.F.R.
identifying the relevant version of the ASTM standard that has
been incorporated by 46 C.F.R. § 56.25-20(b). 46 C.F.R. §
56.01-2 does not impose any obligations at all, much less
binding legal obligations.

PRO does not dispute that it posts certain ASTM Standards in
their entirety, despite the fact that the incorporation by
reference has no direct legal effect on any private party’s
conduct. PRO disputes that ASTM A307 has no direct legal
effect on any private party’s conduct.

Plaintiffs’ Response

50. ASTM’s standards also contain
numerous non-mandatory portions that are
aids or supplements to the standard. For
example, ASTM’s Manual of Style contains
certain sections that must be included in
each ASTM standard, such as the title of the
standard. O’Brien Decl. Ex. 5 at A-2. Other
sections, are only included when the subject
matter is pertinent to the document. Id.

Plaintiffs’ Statement of Material Facts

97

Disputed to the extent that
Plaintiffs imply any portion of the
standards at issue are “nonmandatory” as law. Each
standard that Public Resource
posts is incorporated into law in
its entirety. The Office of the
Federal Register instructs that
material should only be
incorporated by reference into
law “[i]f the material is necessary
to understand or comply with the
regulation.” IBR Handbook at p.
2 (citing 5 U.S.C. § 552(a)). The
decision as to what material to
incorporate by reference,
including the decision as to
whether to incorporate an entire
document or just part of a
document, is a decision made by
the regulatory agency. That
regulatory agency’s decision
must be given deference over any
possible quibble Plaintiffs might
have as to whether a portion of an
incorporated document is
absolutely necessary to

members of the Federal Election
Commission is a law, regardless
of whether it has a direct legal
affect on any private party’s
conduct.

Defendant Public Resource’s
Response

Defendant has failed to create a genuine dispute of material
fact. PRO points to no record evidence to support its assertion
that all portions of every Standard at Issue is both mandatory
and incorporated in its entirety notwithstanding the expres
terms of the Standards at Issue and ASTM’s Manual of Style.

PRO fails to establish a genuine dispute as to a material fact.
PRO has presented a theory of incorporation by reference
under which any time a federal agency states that it is
incorporating a standard, without specifying a particular
portion of the standard, the entire standard becomes binding
law. For the reasons explained in Plaintiffs’ briefing, PRO has
not presented factual support to show that agencies actually
operate in this way (let alone that they did so at the time of
IBR before the handbook was published). Reply at Part
I.A.1.a. And, as Plaintiffs’ briefing explains, as a legal matter,
this theory of incorporation is irreconcilable with the D.C.
Circuit’s decision. ASTM II, 896 F.3d at 450; see also Reply
at Part I.A.1.a.

Objection. Plaintiffs object to PRO’s reliance on Becker
Decl., ¶ 25, Ex. 58 (IBR Handbook). The quoted language
does not appear in the exhibit.

Plaintiffs’ Response

understand or comply with the
regulation. After the regulatory
agency determines what material
to propose for incorporation into
law, the Director of the Federal
Register then reviews the
proposed incorporation, and
either approves or denies the
incorporation. Public Resource
therefore only posted material
that federal agencies had
determined was “necessary to
understand or comply with
[federal regulations].” IBR
Handbook at p. 2 (citing 5 U.S.C.
§ 552(a)).

Defendant Public Resource’s
Response

98

51. ASTM standards may include the Disputed. Each standard that
following non-mandatory sections:
Public Resource posts is
incorporated into law in its
entirety. The Office of the
Federal Register instructs that
material should only be
incorporated by reference into
law “[i]f the material is necessary
to understand or comply with the
regulation.” Becker Decl., ¶ 25,
Ex. 58 (IBR Handbook) at p. 2
(citing 5 U.S.C. § 552(a)). The
decision as to what material to
incorporate by reference,
including the decision as to
whether to incorporate an entire

Plaintiffs’ Statement of Material Facts

PRO fails to establish a genuine dispute as to a material fact.
PRO has presented a theory of incorporation by reference
under which any time a federal agency states that it is
incorporating a standard, without specifying a particular
portion of the standard, the entire standard becomes binding
law. For the reasons explained in Plaintiffs’ briefing, PRO has
not presented factual support to show that agencies actually
operate in this way (let alone that they did so at the time of
IBR before the handbook was published). Reply at Part
I.A.1.a. And, as Plaintiffs’ briefing explains, as a legal matter,
this theory of incorporation is irreconcilable with the D.C.

Objection. Plaintiffs object to PRO’s reliance on Becker
Decl., ¶ 25, Ex. 58 (IBR Handbook). The quoted language
does not appear in the exhibit.

Plaintiffs’ Response

a. Appendixes:
“Additional
information may be included in one or more
annexes or appendixes . . . . There are times
when it is desirable to include in a
specification additional information for
general use and guidance but which does not

Plaintiffs’ Statement of Material Facts

99

Disputed for the reasons
addressed above at paragraph 51.
The respective federal agency
determined that the entire
standard was “necessary to
understand or comply with [the
applicable federal regulation],”

Circuit’s decision. ASTM II, 896 F.3d at 450; see also Reply
at Part I.A.1.a.

document or just part of a
document, is a decision made by
the regulatory agency. That
regulatory agency’s decision
must be given deference over any
possible quibble Plaintiffs might
have as to whether a portion of an
incorporated document is
absolutely necessary to
understand or comply with the
regulation. After the regulatory
agency determines what material
to propose for incorporation into
law, the Director of the Federal
Register then reviews the
proposed incorporation, and
either approves or denies the
incorporation. Public Resource
therefore only posted material
that federal agencies had
determined was “necessary to
understand or comply with
[federal regulations].” IBR
Handbook at p. 2 (citing 5 U.S.C.
§ 552(a)).

PRO fails to establish a genuine dispute as to a material fact.
PRO has presented a theory of incorporation by reference
under which any time a federal agency states that it is

Objection. Plaintiffs object to PRO’s reliance on Becker
Decl., ¶ 25, Ex. 58 (IBR Handbook). The quoted language
does not appear in the exhibit.

PRO fails to establish a genuine dispute as to a material fact.
PRO points to no record evidence to support its assertion that
all portions of every Standard at Issue is both mandatory and
incorporated in its entirety notwithstanding the expres terms of
the Standards at Issue and ASTM’s Manual of Style.

Plaintiffs’ Response

Defendant Public Resource’s
Response

part

of

Defendant Public Resource’s
Response

100

Disputed for the reasons
addressed above at paragraph 51.
The respective federal agency
determined that the entire
standard was “necessary to
understand or comply with [the
applicable federal regulation],”
and the Director of the Federal
Register reviewed and approved
the incorporation. Plaintiffs may
in their opinion disagree with the
assessment of the regulatory
agency, but the agency’s
determination is due deference
over ASTM’s opinion.

the and the Director of the Federal
Register reviewed and approved
the incorporation. Plaintiffs may
in their opinion disagree with the
assessment of the regulatory
agency, but the agency’s
determination is due deference
over ASTM’s opinion.

b. Summary
of
Changes:
Identifies the “location of selected changes
to [the] standard since the last issue. . .” Id.
at C-3.

constitute a mandatory
[standard]. Id. at B-8.

Plaintiffs’ Statement of Material Facts

PRO fails to establish a genuine dispute as to a material fact.
PRO has presented a theory of incorporation by reference
under which any time a federal agency states that it is
incorporating a standard, without specifying a particular
portion of the standard, the entire standard becomes binding
law. For the reasons explained in Plaintiffs’ briefing, PRO has
not presented factual support to show that agencies actually
operate in this way (let alone that they did so at the time of
IBR before the handbook was published). Reply at Part
I.A.1.a. And, as Plaintiffs’ briefing explains, as a legal matter,
this theory of incorporation is irreconcilable with the D.C.

Objection. Plaintiffs object to PRO’s reliance on Becker
Decl., ¶ 25, Ex. 58 (IBR Handbook). The quoted language
does not appear in the exhibit.

PRO fails to establish a genuine dispute as to a material fact.
PRO points to no record evidence to support its assertion that
the significance of the Appendixes of the Standards at Issue is
different from how they are described in ASTM’s Manual of
Style.

incorporating a standard, without specifying a particular
portion of the standard, the entire standard becomes binding
law. For the reasons explained in Plaintiffs’ briefing, PRO has
not presented factual support to show that agencies actually
operate in this way (let alone that they did so at the time of
IBR before the handbook was published). Reply at Part
I.A.1.a. And, as Plaintiffs’ briefing explains, as a legal matter,
this theory of incorporation is irreconcilable with the D.C.
Circuit’s decision. ASTM II, 896 F.3d at 450; see also Reply
at Part I.A.1.a.

Plaintiffs’ Response

Disputed for the reasons
addressed above at paragraph 51.
The respective federal agency
determined that the entire
standard was “necessary to
understand or comply with [the
applicable federal regulation],”
and the Director of the Federal
Register reviewed and approved
the incorporation. Plaintiffs may
in their opinion disagree with the
assessment of the regulatory
agency, but the agency’s
determination is due deference
over ASTM’s opinion.

c. Summary of Test Method: “[a]
brief outline of the test method, describing
in the passive voice its essential features
without the details that are a necessary part
of the complete statement of procedure.” Id.
at A-5.

101

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

PRO fails to establish a genuine dispute as to a material fact.
PRO points to no record evidence to support its assertion that
the significance of the Appendixes of the Standards at Issue is
different from how they are described in ASTM’s Manual of
Style.

Objection. Plaintiffs object to PRO’s reliance on Becker
Decl., ¶ 25, Ex. 58 (IBR Handbook). The quoted language
does not appear in the exhibit.
PRO fails to establish a genuine dispute as to a material fact.
PRO has presented a theory of incorporation by reference
under which any time a federal agency states that it is
incorporating a standard, without specifying a particular
portion of the standard, the entire standard becomes binding
law. For the reasons explained in Plaintiffs’ briefing, PRO has
not presented factual support to show that agencies actually
operate in this way (let alone that they did so at the time of
IBR before the handbook was published). Reply at Part
I.A.1.a. And, as Plaintiffs’ briefing explains, as a legal matter,
this theory of incorporation is irreconcilable with the D.C.
Circuit’s decision. ASTM II, 896 F.3d at 450; see also Reply
at Part I.A.1.a.

PRO fails to establish a genuine dispute as to a material fact.
PRO points to no record evidence to support its assertion that
the significance of the Appendixes of the Standards at Issue is
different from how they are described in ASTM’s Manual of
Style.

Circuit’s decision. ASTM II, 896 F.3d at 450; see also Reply
at Part I.A.1.a.

Plaintiffs’ Response

Disputed for the reasons
addressed above at paragraph 51.
The respective federal agency
determined that the entire
standard was “necessary to
understand or comply with [the
applicable federal regulation],”
and the Director of the Federal
Register reviewed and approved
the incorporation. Plaintiffs may
in their opinion disagree with the
assessment of the regulatory
agency, but the agency’s
determination is due deference
over ASTM’s opinion.

Disputed for the reasons
addressed above at paragraph 51.
The respective federal agency
determined that the entire
standard was “necessary to
understand or comply with [the
applicable federal regulation],”
and the Director of the Federal

d. Significance and Use: “[i]nclude
in this section information that explains the
relevance and meaning of the test. State the
practical uses for the test and how it is
typically employed.” Id.

e. Supplementary requirements:
“These should not include statements that
would allow the lowering of minimum
requirements of the standard . . . . Usually
these only apply when specified by the
purchaser in the purchase order or
contract.” Id. at B-7.

102

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

PRO fails to establish a genuine dispute as to a material fact.
PRO has presented a theory of incorporation by reference
under which any time a federal agency states that it is

Objection. Plaintiffs object to PRO’s reliance on Becker
Decl., ¶ 25, Ex. 58 (IBR Handbook). The quoted language
does not appear in the exhibit.

PRO fails to establish a genuine dispute as to a material fact.
PRO points to no record evidence to support its assertion that
the significance of the Appendixes of the Standards at Issue is
different from how they are described in ASTM’s Manual of
Style.

PRO fails to establish a genuine dispute as to a material fact.
PRO has presented a theory of incorporation by reference
under which any time a federal agency states that it is
incorporating a standard, without specifying a particular
portion of the standard, the entire standard becomes binding
law. For the reasons explained in Plaintiffs’ briefing, PRO has
not presented factual support to show that agencies actually
operate in this way (let alone that they did so at the time of
IBR before the handbook was published). Reply at Part
I.A.1.a. And, as Plaintiffs’ briefing explains, as a legal matter,
this theory of incorporation is irreconcilable with the D.C.
Circuit’s decision. ASTM II, 896 F.3d at 450; see also Reply
at Part I.A.1.a.

Objection. Plaintiffs object to PRO’s reliance on Becker
Decl., ¶ 25, Ex. 58 (IBR Handbook). The quoted language
does not appear in the exhibit.

Plaintiffs’ Response

52. There are 61 ASTM standards at issue
in this motion that contain appendixes. Wise
Decl. at ¶ 148, Ex. 149.

Plaintiffs’ Statement of Material Facts

103

incorporating a standard, without specifying a particular
portion of the standard, the entire standard becomes binding
law. For the reasons explained in Plaintiffs’ briefing, PRO has
not presented factual support to show that agencies actually
operate in this way (let alone that they did so at the time of
IBR before the handbook was published). Reply at Part
I.A.1.a. And, as Plaintiffs’ briefing explains, as a legal matter,
this theory of incorporation is irreconcilable with the D.C.
Circuit’s decision. ASTM II, 896 F.3d at 450; see also Reply
at Part I.A.1.a.

Register reviewed and approved
the incorporation. Plaintiffs may
in their opinion disagree with the
assessment of the regulatory
agency, but the agency’s
determination is due deference
over ASTM’s opinion.

Undisputed.

PRO fails to establish a genuine dispute as to a material fact.
PRO points to no record evidence to support its assertion that
the significance of the Appendixes of the Standards at Issue is
different from how they are described in ASTM’s Manual of
Style.

Plaintiffs’ Response

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

104

Defendant Public Resource’s
Response

Plaintiffs’ Response

Undisputed.

105

Undisputed.

54. There are 65 ASTM standards at issue
in this motion that contain a summary of test
method section. Wise Decl. ¶ 148, Ex. 149.

Defendant Public Resource’s
Response

53. There are 13 ASTM standards at issue
in this motion that contain a summary of
changes. Wise Decl. ¶ 148, Ex. 149.

Plaintiffs’ Statement of Material Facts

Plaintiffs’ Response

Plaintiffs’ Statement of Material Facts

106

Defendant Public Resource’s
Response

Plaintiffs’ Response

Undisputed.

107

Undisputed.

56. There are 23 ASTM standards at issue
in this motion that contain a supplementary

Defendant Public Resource’s
Response

55. There are 95 ASTM standards at issue
in this motion that contain a significance and
use section. Wise Decl. at Ex ¶ 148, Ex.
149.

Plaintiffs’ Statement of Material Facts

Plaintiffs’ Response

Disputed for the reasons
addressed in paragraph 57 below.

Defendant Public Resource’s
Response

57. Each of NFPA’s 23 standards at issue
in this case include sections that are
optional, or permissive, designated by the
language “shall be permitted” or “shall not
be required.” As explained in the 2014
NEC: “Permissive rules of this Code are
those that identify actions that are allowed
but not required, are normally used to
describe options or alternative methods,
and are characterized by the use of the terms
shall be permitted or shall not be required.”
Supp. Pauley Decl. ¶ 27, Ex. P (NFPA 70,
2014 ed.) at art. 90.5(B) (NFPAPR0098088) (emphasis added). An
108

Disputed. Each standard that
Public Resource posts is
incorporated into law in its
entirety. The Office of the
Federal Register instructs that
material should only be
incorporated by reference into
law “[i]f the material is necessary
to understand or comply with the
regulation.” IBR Handbook at p.
2 (citing 5 U.S.C. § 552(a)). The
decision as to what material to
incorporate by reference,
including the decision as to

NFPA Standards (and Portions Thereof)
That Do Not Impose Legal Duties

requirements section. Wise Decl. ¶ 148, Ex.
149.

Plaintiffs’ Statement of Material Facts

PRO fails to establish a genuine dispute as to a material fact.
PRO has presented a theory of incorporation by reference
under which any time a federal agency states that it is
incorporating a standard, without specifying a particular
portion of the standard, the entire standard becomes binding
law. For the reasons explained in Plaintiffs’ briefing, PRO has
not presented factual support to show that agencies actually
operate in this way (let alone that they did so at the time of
IBR before the handbook was published). Reply at Part
I.A.1.a. And, as Plaintiffs’ briefing explains, as a legal matter,

Objection. Plaintiffs object to PRO’s reliance on Becker
Decl., ¶ 25, Ex. 58 (IBR Handbook). The quoted language
does not appear in the exhibit.

PRO fails to establish a genuine dispute as to a material fact
for the reasons addressed below.

Plaintiffs’ Response

whether to incorporate an entire
document or just part of a
document, is a decision made by
the regulatory agency. That
regulatory agency’s decision
must be given deference over any
possible quibble Plaintiffs might
have as to whether a portion of an
incorporated document is
absolutely necessary to
understand or comply with the
regulation. After the regulatory
agency determines what material
to propose for incorporation into
law, the Director of the Federal
Register then reviews the
proposed incorporation, and
either approves or denies the
incorporation. Public Resource
therefore only posted material
that federal agencies had
determined was “necessary to
understand or comply with
[federal regulations].” IBR
Handbook at p. 2 (citing 5 U.S.C.
§ 552(a)).
Disputed for the reasons
addressed above at paragraph 57.
The respective federal agency
determined that the entire
standard was “necessary to
understand or comply with [the

example of such an optional rule is article
324.56(A) of the 2014 NEC regarding FCC
Systems
Alterations,
which
states
“Alterations to FCC systems shall be
permitted.” Id. Ex. P at art. 324.56(A)
(NFPA-PR0098260).

58. Similar optional provisions appear
throughout the standards. See Supp. Pauley
Decl. Ex. A (NFPA 1, 2003 ed.) at ch.
10.13.3.10 at 1-49 (NFPA-PR0013107);
Ex. B (NFPA 1, 2006 ed.) at ch. 20.5.2.3.2
at 1-139 (NFPA-PR0013654); Ex. C

109

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

PRO fails to establish a genuine dispute as to a material fact.
PRO has presented a theory of incorporation by reference

Objection. Plaintiffs object to PRO’s reliance on Becker
Decl., ¶ 25, Ex. 58 (IBR Handbook). The quoted language
does not appear in the exhibit.

PRO has not disputed that the 2014 NEC contains the
identified provisions.

this theory of incorporation is irreconcilable with the D.C.
Circuit’s decision. Reply at Part I.A.1.a.

Plaintiffs’ Response

110

under which any time a federal agency states that it is
incorporating a standard, without specifying a particular
portion of the standard, the entire standard becomes binding
law. For the reasons explained in Plaintiffs’ briefing, PRO has
not presented factual support to show that agencies actually
operate in this way (let alone that they did so at the time of
IBR before the handbook was published). Reply at Part
I.A.1.a. And, as Plaintiffs’ briefing explains, as a legal matter,
this theory of incorporation is irreconcilable with the D.C.
Circuit’s decision. Reply at Part I.A.1.a.

applicable federal regulation],”
and the Director of the Federal
Register reviewed and approved
the incorporation. Plaintiffs may
in their opinion disagree with the
assessment of the regulatory
agency, but the agency’s
determination is due deference
over NFPA’s opinion.

(NFPA 10, 2002 ed.) at ch. 6.1.6 at 10-12
(NFPA-PR0014084); Ex. D (NFPA 11,
2005 ed.) at ch. 6.10.2.3 at 11-25 (NFPAPR0014167); Ex. E (NFPA 12, 2005 ed.) at
ch. 4.3.3.1.2 at 12-8 (NFPA-PR0014251);
Ex. F (NFPA 13, 2002 ed.) at ch. 9.2.4.2 at
13-85 (NFPA-PR0014394); Ex. G (NFPA
25, 2002 ed.) at ch. 13.2.3.3 at 25-40
(NFPA-PR0020279); Ex. H (NFPA 30,
2003 ed.) at ch. 7.3.7.7 at 30-64 (NFPAPR0014720); Ex. I (NFPA 54 (2006 ed.) at
ch. 5.3.2.2 at 54-17 (NFPA-PR0014807);
Ex. J (NFPA 58, 2001 ed.) at ch. 8.2.2.6 at
58-60 (NFPA-PR0015018); Ex. K (NFPA
58, 2004 ed.) at ch. 5.7.1.4(C) at 58-15
(NFPA-PR0015096); Ex. L (NFPA 59,
2004 ed.) at ch. 5.5.2.6 at 59-13 (NFPAPR0015228); Ex. M (NFPA 70, 1999 ed.) at
ch. 240-23 at 70-76 (NFPA-PR0015342);
Ex. N (NFPA 70, 2005 ed.) at ch. 504.70 at
70-369 (NFPA-PR0016284); Ex. O (NFPA
70, 2008 ed.) at ch. 517.77 at 70-441
(NFPA-PR0017137); Ex. P (NFPA 70,
2014 ed.) at ch. 324.56(A) at 70- 197
(NFPA-PR0098260); Ex. Q (NFPA 72,
2002 ed.) at ch. 11.3.7 at 72-105 (NFPAPR0018525); Ex. R (NFPA 99, 2005 ed.) at
ch. 11.7.2.4 at 99-104 (NFPA-PR0018791);
Ex. S (NFPA 101, 2000 ed.) at ch.
13.7.4.4.3 at 101-123 (NFPA-PR0019081);
Ex. T (NFPA 101, 2003 ed.) at ch. 7.5.4.1.3
at 101-65 (NFPA-PR0019422); Ex. U
(NFPA 101, 2006 ed.) at ch. 36.4.4.3.1 at

PRO has not disputed that the standards contain the identified
provisions.

Plaintiffs’ Response

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

60. Similar optional provisions appear
throughout the standards. See Supp. Pauley
Decl. ¶ 26; Ex. A (NFPA 1, 2003 ed.) at ch.
1.4 (NFPA-PR0013044); Ex. B (NFPA 1,
2006 ed.) at ch. 1.4 (NFPA-PR0013527);
Ex. C (NFPA 10, 2002 ed.) at ch. 1.2.1
(NFPA-PR0014076); Ex. D (NFPA 11,

59. Each of NFPA’s 23 standards at issue,
provide that the specific provisions of the
NFPA standard are not the only way to
comply with the law, using language that
expressly allows for other materials and
methods for compliance that would be
acceptable to the authority having
jurisdiction. See, e.g., Supp. Pauley Decl.
Ex. I (NFPA 54, 2006 ed.) at ch. 1.4 at 548 (NFPA- PR0014798) (“The provisions of
this code are not intended to prevent the use
of any material, method of construction, or
installation procedure not specifically
prescribed by this code, provided any such
alternative is acceptable to the authority
having jurisdiction.”).

101-268 (NFPA- PR0020039); Ex. V
(NFPA 704, 2007 ed.) at ch. 4.1.5 at 704-5
(NFPA-PR0020217); Dubay Decl. Ex. A
(NFPA 70, 2011 ed.) at ch. 610.43(B) at 70531 (NFPA-PR0018069).

Plaintiffs’ Statement of Material Facts

111

Disputed for the reasons
addressed above at paragraph 57.
The respective federal agency
determined that the entire
standard was “necessary to
understand or comply with [the
applicable federal regulation],”
and the Director of the Federal
Register reviewed and approved
the incorporation. Plaintiffs may
in their opinion disagree with the
assessment of the regulatory
agency, but the agency’s
determination is due deference
over NFPA’s opinion.

Defendant Public Resource’s
Response

Undisputed.

PRO has not disputed that the standards contain the identified
provisions.

PRO fails to establish a genuine dispute as to a material fact.
PRO has presented a theory of incorporation by reference
under which any time a federal agency states that it is
incorporating a standard, without specifying a particular
portion of the standard, the entire standard becomes binding
law. For the reasons explained in Plaintiffs’ briefing, PRO has
not presented factual support to show that agencies actually
operate in this way (let alone that they did so at the time of
IBR before the handbook was published). Reply at Part
I.A.1.a. And, as Plaintiffs’ briefing explains, as a legal matter,
this theory of incorporation is irreconcilable with the D.C.
Circuit’s decision. Reply at Part I.A.1.a.

Objection. Plaintiffs object to PRO’s reliance on Becker
Decl., ¶ 25, Ex. 58 (IBR Handbook). The quoted language
does not appear in the exhibit.

Plaintiffs’ Response

Defendant Public Resource’s
Response

112

61. All 23 of NFPA’s standards include Disputed for the reasons
specific portions of text that do not addressed above at paragraph 57.

2005 ed.) at ch. 1.5 (NFPA-PR0014147);
Ex. E (NFPA 12, 2005 ed.) at ch. 1.2.2
(NFPA-PR0014247); Ex. F (NFPA 13,
2002 ed.) at ch. 1.5 (NFPA-PR0014320);
Ex. G (NFPA 25, 2002 ed.) at ch. 1.3
(NFPA-PR0020244); Ex. H (NFPA 30,
2003 ed.) at ch. 1.5 (NFPA- PR0014664);
Ex. I (NFPA 54, 2006 ed.) at ch. 1.4
(NFPA-PR0014798); Ex. J (NFPA 58, 2001
ed.) at ch. 1.1.3 (NFPA-PR0014963); Ex. K
(NFPA 58, 2004 ed.) at ch. 1.5 (NFPAPR0015087); Ex. L (NFPA 59, 2004 ed.) at
ch. 1.4 (NFPA-PR0015220); Ex. M (NFPA
70, 1999 ed.) at art. 90- 4 (NFPAPR0015285); Ex. N (NFPA 70, 2005 ed.) at
art. 90-4 (NFPA-PR0015939); Ex. O (NFPA
70, 2008 ed.) at art. 90-4 (NFPAPR0016718); Ex. P (NFPA 70, 2014 ed.) at
art. 90-4 (NFPA-PR0098088); Ex. Q
(NFPA 72, 2002 ed.) at ch. 1.5 (NFPAPR0018433); Ex. R (NFPA 99, 2005 ed.) at
ch. 1.4 (NFPA-PR0018700); Ex. S (NFPA
101, 2000 ed.) at § 1.5 (NFPA-PR0018981);
Ex. T (NFPA 101, 2003 ed.) at ch. 1.4
(NFPA-PR0019378); Ex. U (NFPA 101,
2006 ed.) at ch. 1.4 (NFPA-PR0019793);
Ex. V (NFPA 704, 2007 ed.) at ch. 1.5
(NFPA-PR0020216); Dubay Decl. Ex. A
(NFPA 70, 2011 ed.) at art. 90.4 (NFPAPR0017560).

Plaintiffs’ Statement of Material Facts

Objection. Plaintiffs object to PRO’s reliance on Becker
Decl., ¶ 25, Ex. 58 (IBR Handbook). The quoted language

Plaintiffs’ Response

The respective federal agency
determined that the entire
standard was “necessary to
understand or comply with [the
applicable federal regulation],”
and the Director of the Federal
Register reviewed and approved
the incorporation. Plaintiffs may
in their opinion disagree with the
assessment of the regulatory
agency, but the agency’s
determination is due deference
over NFPA’s opinion.

necessarily set forth any binding legal
obligation. See Supp. Pauley Decl. ¶¶ 2529. More specifically, these portions
include the following:

113

62. Prefatory Notices: All 23 of the Disputed for the reasons
NFPA standards include prefatory notices, addressed above at paragraph 57.
disclaimers and copyright information, such The respective federal agency

Additionally, it is unclear from
Plaintiffs’ statement “portions of
text that do not necessarily set
forth any binding legal
obligations,” whether Plaintiffs
actually contend that these
portions of the standards are or
are not binding. If Plaintiffs
themselves cannot make up their
minds on this point, it is unlikely
that a lay citizen could reasonably
determine that he or she was not
obligated to comply with or
understand these provisions.

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

Objection. Plaintiffs object to PRO’s reliance on Becker
Decl., ¶ 25, Ex. 58 (IBR Handbook). The quoted language
does not appear in the exhibit.

By the very terms of the text, these portions do not impose
binding legal obligations and are not necessary to comply with
any law. PRO mischaracterizes Plaintiffs’ Statement of
Material Facts.

PRO fails to establish a genuine dispute as to a material fact.
PRO has presented a theory of incorporation by reference
under which any time a federal agency states that it is
incorporating a standard, without specifying a particular
portion of the standard, the entire standard becomes binding
law. For the reasons explained in Plaintiffs’ briefing, PRO has
not presented factual support to show that agencies actually
operate in this way (let alone that they did so at the time of
IBR before the handbook was published). Reply at Part
I.A.1.a. And, as Plaintiffs’ briefing explains, as a legal matter,
this theory of incorporation is irreconcilable with the D.C.
Circuit’s decision. Reply at Part I.A.1.a.

does not appear in the exhibit.

Plaintiffs’ Response

determined that the entire
standard was “necessary to
understand or comply with [the
applicable federal regulation],”
and the Director of the Federal
Register reviewed and approved
the incorporation. Plaintiffs may
in their opinion disagree with the
assessment of the regulatory
agency, but the agency’s
determination is due deference
over NFPA’s opinion.

as a “Notice and Disclaimer of Liability
Concerning the Use of NFPA Documents.”
Supp. Pauley Decl. ¶ 28(a), Ex. A (NFPA 1,
2003 ed.) at NFPA- PR0013033-34; Ex. B
(NFPA 1, 2006 ed.) at NFPA-PR001351415; Ex. C (NFPA 10, 2002 ed.) at NFPAPR0014071-72; Ex. D (NFPA 11, 2005 ed.)
at NFPA-PR0014141-42; Ex. E (NFPA 12,
2005 ed.) at NFPA-PR0014242-43; Ex. F
(NFPA 13, 2002 ed.) at NFPA-PR001430809; Ex. G (NFPA 25, 2002 ed.) at NFPAPR0020238-39; Ex. H (NFPA 30, 2003 ed.)
at NFPA-PR0014655- 56; Ex. I (NFPA 54,
2006 ed.) at NFPA-PR0014789-90; Ex. J
(NFPA 58, 2001 ed.) at NFPAPR0014957-58; Ex. K (NFPA 58, 2004 ed.)
at NFPA-PR0015080-81; Ex. L (NFPA 59,
2004 ed.) at NFPA-PR0015214-15; Ex. M
(NFPA 70, 1999 ed.) at NFPA-PR001526667; Ex. N (NFPA 70, 2005 ed.) at NFPAPR0015914-15; Ex. O (NFPA 70, 2008 ed.)
at NFPA-PR0016695-96; Ex. P (NFPA 70,
2014 ed.) at NFPA-PR0098062-63; Ex. Q
(NFPA 72, 2002 ed.) at NFPA-PR001841920; Ex. R (NFPA 99, 2005 ed.) at NFPAPR0018686-67; Ex. S (NFPA 101, 2000
ed.) at NFPA- PR0018957-58; Ex. T
(NFPA 101, 2003 ed.) at NFPAPR0019356-57; Ex. U (NFPA 101, 2006
ed.) at NFPA-PR0019770-71; Ex. V (NFPA
704, 2007 ed.) at NFPA-PR0020211-12;
Dubay Decl. Ex. A (NFPA 70, 2011 ed.) at
NFPA-PR0017536-37.
114

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

PRO has not disputed that the standards contain the identified
provisions.

PRO fails to establish a genuine dispute as to a material fact.
PRO has presented a theory of incorporation by reference
under which any time a federal agency states that it is
incorporating a standard, without specifying a particular
portion of the standard, the entire standard becomes binding
law. For the reasons explained in Plaintiffs’ briefing, PRO has
not presented factual support to show that agencies actually
operate in this way (let alone that they did so at the time of
IBR before the handbook was published). Reply at Part
I.A.1.a. And, as Plaintiffs’ briefing explains, as a legal matter,
this theory of incorporation is irreconcilable with the D.C.
Circuit’s decision. Reply at Part I.A.1.a.

Plaintiffs’ Response

Disputed for the reasons
addressed above at paragraph 57.
The respective federal agency
determined that the entire
standard was “necessary to
understand or comply with [the
applicable federal regulation],”
and the Director of the Federal
Register reviewed and approved
the incorporation. Plaintiffs may
in their opinion disagree with the
assessment of the regulatory
agency, but the agency’s
determination is due deference
over NFPA’s opinion.

63. History, Development, and Edition
Information: All 23 of the NFPA standards
include a section describing the history
and development of the standard. Supp.
Pauley Decl. ¶ 28(b), Ex. A (NFPA 1, 2003
ed.) at 1-1 (NFPA-PR0013035); Ex. B
(NFPA 1, 2006 ed.) at 1-1 (NFPAPR0013516-17); Ex. C (NFPA 10, 2002
ed.) at 10-1 (NFPA-PR0014073); Ex. D
(NFPA 11, 2005 ed.) at 11-1 (NFPAPR0014143); Ex. E (NFPA 12, 2005 ed.) at
12-1 (NFPA-PR0014244; Ex. F (NFPA 13,
2002 ed.) at 13-1 to 13-2 (NFPAPR0014310-11); Ex. G (NFPA 25, 2002
ed.) at 25-1 (NFPA-PR0020240); Ex. H
(NFPA 30, 2003 ed.) at 30-1 to 30-2
(NFPA-PR0014657-58); Ex. I (NFPA 54,
2006 ed.) at 54-1 to 54-2 (NFPAPR0014791-92); Ex. J (NFPA 58, 2001 ed.)
at 58-1 (NFPA-PR0014959); Ex. K (NFPA
58, 2004 ed.) at 58-1 (NFPA-PR0015082);
Ex. L (NFPA 59, 2004 ed.) at 59-1
(NFPA-PR0015216); Ex. M (NFPA 70,
1999 ed.) at 70-1 (NFPA-PR0015268; Ex.
N (NFPA 70, 2005 ed.) at 70-1 (NFPAPR0015916); Ex. O (NFPA 70, 2008 ed.) at
70-1 (NFPA-PR0016697); Ex. P (NFPA 70,
2014 ed.) at NFPA-PR0098064; Ex. Q
(NFPA 72, 2002 ed.) at 72-1 (NFPAPR0018421); Ex. R (NFPA 99, 2005 ed.) at
99-1 (NFPA-PR0018688); Ex. S (NFPA
101, 2000 ed.) at 101-1 (NFPAPR0018959); Ex. T (NFPA 101, 2003 ed.)
115

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

PRO has not disputed that the standards contain the identified
provisions.

PRO fails to establish a genuine dispute as to a material fact.
PRO has presented a theory of incorporation by reference
under which any time a federal agency states that it is
incorporating a standard, without specifying a particular
portion of the standard, the entire standard becomes binding
law. For the reasons explained in Plaintiffs’ briefing, PRO has
not presented factual support to show that agencies actually
operate in this way (let alone that they did so at the time of
IBR before the handbook was published). Reply at Part
I.A.1.a. And, as Plaintiffs’ briefing explains, as a legal matter,
this theory of incorporation is irreconcilable with the D.C.
Circuit’s decision. Reply at Part I.A.1.a.

Objection. Plaintiffs object to PRO’s reliance on Becker
Decl., ¶ 25, Ex. 58 (IBR Handbook). The quoted language
does not appear in the exhibit.

Plaintiffs’ Response

64. Reference and Informational Notes:
Of the 23 NFPA standards, 19 also include
informational notes throughout the text that
provide context, background, crossreferences, and other explanatory material,
but they do not set forth any binding legal
obligations. Many of these expressly state
that the notes “are informational only and
are not enforceable as requirements.” E.g.,
Dubay Decl. Ex. A (NFPA 70, 2011 ed.) at
art. 90.5(C) at 70-23 (NFPA-PR0017561).
For example, NFPA 70 (2011 ed.) provides
the following helpful information: “Some
cleaning and lubricating compounds can
cause severe deterioration of many plastic
materials used for insulating and structural
applications in equipment.” Id. at art. 110.11
(Note 2) at 70-35 (NFPA-PR0017572).
Informational notes appear throughout the
main text of the standards (i.e., not
including the annexes). See, e.g., Supp.
Pauley Decl. ¶ 28(c), Ex. A (NFPA 1, 2003
ed.) at Table 60.2.2.1.(b) (Note 1) at 1-203
(NFPA-PR0013237); Ex. B (NFPA 1, 2006
ed.) at Table 60.2.6.5 (Note 1) at 1- 238
(NFPA-PR0013753); Ex. C (NFPA 10,

at 101-1 (NFPA-PR0019358); Ex. U
(NFPA 101, 2006 ed.) at 101-1 (NFPAPR0019772); Ex. V (NFPA 704, 2007 ed.)
at 704-1 (NFPA-PR0020213); Dubay Decl.
Ex. A (NFPA 70, 2011 ed.) at NFPAPR0017538.

Plaintiffs’ Statement of Material Facts

116

Disputed for the reasons
addressed above at paragraph 57.
The respective federal agency
determined that the entire
standard was “necessary to
understand or comply with [the
applicable federal regulation],”
and the Director of the Federal
Register reviewed and approved
the incorporation. Plaintiffs may
in their opinion disagree with the
assessment of the regulatory
agency, but the agency’s
determination is due deference
over NFPA’s opinion.

Defendant Public Resource’s
Response

PRO has not disputed that the standards contain the identified
provisions.

PRO fails to establish a genuine dispute as to a material fact.
PRO has presented a theory of incorporation by reference
under which any time a federal agency states that it is
incorporating a standard, without specifying a particular
portion of the standard, the entire standard becomes binding
law. For the reasons explained in Plaintiffs’ briefing, PRO has
not presented factual support to show that agencies actually
operate in this way (let alone that they did so at the time of
IBR before the handbook was published). Reply at Part
I.A.1.a. And, as Plaintiffs’ briefing explains, as a legal matter,
this theory of incorporation is irreconcilable with the D.C.
Circuit’s decision. Reply at Part I.A.1.a.

Objection. Plaintiffs object to PRO’s reliance on Becker
Decl., ¶ 25, Ex. 58 (IBR Handbook). The quoted language
does not appear in the exhibit.

Plaintiffs’ Response

2002 ed.) at Table 5.3.1 (Notes 1-3) at 1011 (NFPA- PR0014083); Ex. D (NFPA 11,
2005 ed.) at Table 5.2.5.3.4 (Note) at 11-14
(NFPA-PR0014156); Ex. E (NFPA 12,
2005 ed.) at Table 5.3.2.2 (Note) at 12-17
(NFPA-PR0014260); Ex. F (NFPA 13,
2002 ed.) at Table 10.8.3.1.2.2 (Note) at 1395 (NFPA-PR0014404); Ex. G (NFPA 25,
2002 ed.) at Table 11.1 (Note) at 25-31
(NFPA-PR0020270); Ex. I (NFPA 54, 2006
ed.) at Table 6.2(f) (Note) at 54-28 (NFPAPR0014818); Ex. J (NFPA 58, 2001 ed.) at
Table 2.2.2.2 (Notes 1-3) at 58-10 (NFPAPR0014968); Ex. K (NFPA 58, 2004 ed.) at
Table 5.2.4.2 (Notes) at 58-13 (NFPAPR0015094); Ex. M (NFPA 70, 1999 ed.) at
art. 90-2(a)(1) at 70-17 (NFPAPR0015284); Ex. N (NFPA 70, 2005 ed.) at
art. 230.95(C) (FPN Nos. 1-4) at 70-80
(NFPA-PR0015995); Ex. O (NFPA 70,
2008 ed.) at art. 430.26 (FPN) at 70-306
(NFPA-PR0017002); Ex. P (NFPA 70,
2014 ed.) at art. 300.20(B) (Informational
Note) at 70-151 (NFPA-PR0098214); Ex. Q
(NFPA 72, 2002 ed.) at Table 10.4.2.2 (Note
3) at 72-97 (NFPA-PR0018517); Ex. T
(NFPA 101, 2003 ed.) at Table 8.3.4.2
(footnote 2) at 101-72 (NFPA-PR0019429);
Ex. U (NFPA 101, 2006 ed.) at Table 8.3.4.2
(footnote†) at 101-77 (NFPA-PR0019848);
Ex. V (NFPA 704, 2007 ed.) at Table 5.2
(footnote *) at 704-7 (NFPA-PR0020219);
Dubay Decl. Ex. A (NFPA 70, 2011 ed.) at

Plaintiffs’ Statement of Material Facts

117

Defendant Public Resource’s
Response

Plaintiffs’ Response

65. Diagrams,
Figures,
and
Illustrations: Of the 23 NFPA standards,
14 also include figures that illustrate
concepts in the text, but that do not dictate
any legal obligations. These include, for
example, Figure 220.1 of the 2011 edition
of NFPA 70, which provides a graphical
overview of the organization of Article 220.
See Dubay Decl. Ex. A (NFPA 70, 2011 ed.)
at Figure 220.1 at 70-61 (NFPAPR0017598).
Similar figures and
illustrations appear throughout the text. See,
e.g., Supp. Pauley Decl. ¶ 28(d), Ex. A
(NFPA 1, 2003 ed.) at Figure 31.3.7.3.3(C)
(NFPA- PR0013184); Ex. B (NFPA 1, 2006
ed.) at Figure 43.1.4.5.3 at 1-200 (NFPAPR0013715); Ex. D (NFPA 11, 2005 ed.) at
Figure 5.3.5.3.1 at 11-18 (NFPAPR0014160); Ex. F (NFPA 13, 2002 ed.) at
Figures 7.7.4.2.1(a), (b) at 13-36 (NFPAPR0014345); Ex. I (NFPA 54, 2006 ed.) at
Figure 12.6.2.1 at 54-85 (NFPAPR0014875); Ex. J (NFPA 58, 2001 ed.)
at Figure 8.2.10 at 58-63 (NFPAPR0015021); Ex. M (NFPA 70, 1999 ed.) at
Figure 250-2 at 70-81 (NFPA-PR0015347);
Ex. N (NFPA 70, 2005 ed.) at Figure 250126 at 70-113 (NFPA-PR0016028); Ex. O
(NFPA 70, 2008 ed.) at FPN Figures 517.30
Nos. 1 & 2 at 70-431 (NFPA-PR0017127);

art. 505.8 (Informational Note) at 70-402
(NFPA-PR0017939).

Plaintiffs’ Statement of Material Facts

118

Disputed for the reasons
addressed above at paragraph 57.
The respective federal agency
determined that the entire
standard was “necessary to
understand or comply with [the
applicable federal regulation],”
and the Director of the Federal
Register reviewed and approved
the incorporation. Plaintiffs may
in their opinion disagree with the
assessment of the regulatory
agency, but the agency’s
determination is due deference
over NFPA’s opinion.

Defendant Public Resource’s
Response

PRO has not disputed that the standards contain the identified
provisions.

PRO fails to establish a genuine dispute as to a material fact.
PRO has presented a theory of incorporation by reference
under which any time a federal agency states that it is
incorporating a standard, without specifying a particular
portion of the standard, the entire standard becomes binding
law. For the reasons explained in Plaintiffs’ briefing, PRO has
not presented factual support to show that agencies actually
operate in this way (let alone that they did so at the time of
IBR before the handbook was published). Reply at Part
I.A.1.a. And, as Plaintiffs’ briefing explains, as a legal matter,
this theory of incorporation is irreconcilable with the D.C.
Circuit’s decision. Reply at Part I.A.1.a.

Objection. Plaintiffs object to PRO’s reliance on Becker
Decl., ¶ 25, Ex. 58 (IBR Handbook). The quoted language
does not appear in the exhibit.

Plaintiffs’ Response

66. Examples: Of the 23 NFPA
standards, 18 include lists of examples or
illustrative examples that do not dictate any
legal obligations, e.g., a list of examples of
mobile homes not intended as a dwelling
unit. See Dubay Decl. Ex. A (NFPA 70,
2011 ed.) at art. 550.4(A) at 70- 482
(NFPA-PR0018019). These examples
appear throughout the text. See, e.g., Supp.
Pauley Decl. ¶ 28(e), Ex. A (NFPA 1, 2003
ed.) at ch. 3.3.61.6 at 1-28 (NFPAPR0013062); Ex. B (NFPA 1, 2006 ed.) at
ch. 3.3.163 at 1-37 (NFPA-PR0013552);
Ex. D (NFPA 11, 2005 ed.) at ch. 3.3.4 at
11-7 (NFPA-PR0014149); Ex. F (NFPA 13,
2002 ed.) at ch. 8.16.2.4.7.1 at 13-79
(NFPA- PR0014388); Ex. G (NFPA 25,
2002 ed.) at ch. 5.3.3.1 at 25-13 (NFPAPR0020252; Ex. J (NFPA 58, 2001 ed.) at
ch. 2.2.6.3(1) at 58-12 (NFPAPR0014970); Ex. K (NFPA 58, 2004 ed.) at

Ex. P (NFPA 70, 2014 ed.) at Figure
516.4(C)(1)
at
70-459
(NFPAPR0098522); Ex. S (NFPA 101, 2000 ed.)
at Figure 7.10.6.2 at 101-67 (NFPAPR0019025); Ex. T (NFPA 101, 2003 ed.)
at Figure 7.10.6.2.1 at 101-69 (NFPAPR0019426); Ex. U (NFPA 101, 2006 ed.)
at Figure 7.10.6.2.1 at 101-73 (NFPAPR0019844); Dubay Decl. Ex. A (NFPA
70, 2011 ed.) at Informational Note Figure
505.9(C)(2) at 70-404 (NFPA-PR0017941).

Plaintiffs’ Statement of Material Facts

119

Disputed for the reasons
addressed above at paragraph 57.
The respective federal agency
determined that the entire
standard was “necessary to
understand or comply with [the
applicable federal regulation],”
and the Director of the Federal
Register reviewed and approved
the incorporation. Plaintiffs may
in their opinion disagree with the
assessment of the regulatory
agency, but the agency’s
determination is due deference
over NFPA’s opinion.

Defendant Public Resource’s
Response

PRO has not disputed that the standards contain the identified
provisions.

PRO fails to establish a genuine dispute as to a material fact.
PRO has presented a theory of incorporation by reference
under which any time a federal agency states that it is
incorporating a standard, without specifying a particular
portion of the standard, the entire standard becomes binding
law. For the reasons explained in Plaintiffs’ briefing, PRO has
not presented factual support to show that agencies actually
operate in this way (let alone that they did so at the time of
IBR before the handbook was published). Reply at Part
I.A.1.a. And, as Plaintiffs’ briefing explains, as a legal matter,
this theory of incorporation is irreconcilable with the D.C.
Circuit’s decision. Reply at Part I.A.1.a.

Objection. Plaintiffs object to PRO’s reliance on Becker
Decl., ¶ 25, Ex. 58 (IBR Handbook). The quoted language
does not appear in the exhibit. .

Plaintiffs’ Response

67. Informational Annexes: All 23 of the
NFPA standards include informational
annexes that come in a variety of forms.
Many are purely explanatory, e.g., Annex A
“Explanatory Material,” which states
“Annex A is not a part of the requirements
of this NFPA document but is included for
informational purposes only. This annex
contains explanatory material numbered to

ch. 5.2.8.2(C)(1) at 58-15 (NFPAPR0015096); Ex. M (NFPA 70, 1999 ed.) at
art. 551-73(c) at 70- 419 (NFPAPR0015685); Ex. N (NFPA 70, 2005 ed.) at
art. 352.26 at 70-191 (NFPA- PR0016106);
Ex. O (NFPA 70, 2008 ed.) at art. 518.2(A)
at 70-443 (NFPA-PR0017139); Ex. P
(NFPA 70, 2014 ed.) at art. 551.73(C) at 70525 (NFPA-PR0098588); Ex. Q (NFPA 72,
2002 ed.) at ch. 3.3.43.19 at 72-17 (NFPAPR0018437); Ex. R (NFPA 99, 2005 ed.) at
ch. 4.3.3.1.2 at 99- 25 (NFPA-PR0018712);
Ex. S (NFPA 101, 2000 ed.) at Table 22.3.8
(footnote ‡) at 101-183 (NFPAPR0019141); Ex. T (NFPA 101, 2003 ed.) at
Table 22.3.8 (footnote ‡) at 101-194
(NFPA- PR0019551); Ex. U (NFPA 101,
2006 ed.) at Table 22.4.4.11 (footnote †) at
101-207 (NFPA- PR0019978); Ex. V
(NFPA 704, 2007 ed.) at Table 6.2 at 704-8
to 704-9 (NFPA-PR0020220-21); Dubay
Decl. Ex. A (NFPA 70, 2011 ed.) at art.
552.47 at 70-508 (NFPA-PR0018045).

Plaintiffs’ Statement of Material Facts

120

Disputed for the reasons
addressed above at paragraph 57.
The respective federal agency
determined that the entire
standard was “necessary to
understand or comply with [the
applicable federal regulation],”
and the Director of the Federal
Register reviewed and approved

Defendant Public Resource’s
Response

PRO fails to establish a genuine dispute as to a material fact.
PRO has presented a theory of incorporation by reference
under which any time a federal agency states that it is
incorporating a standard, without specifying a particular
portion of the standard, the entire standard becomes binding

Objection. Plaintiffs object to PRO’s reliance on Becker
Decl., ¶ 25, Ex. 58 (IBR Handbook). The quoted language
does not appear in the exhibit.

Plaintiffs’ Response

121

PRO offers no support for its claim that regulatory agencies
“specifically sa[y] that the entire document (which includes
annexes) is incorporated by reference.” PRO has not
identified any regulation that explicitly states it is
incorporating the entire standard (much less that specifically
identifies non-binding annexes as incorporated). The
regulations it has identified, instead, simply contain an
ambiguous reference to a standard, which PRO then uses to
draw unsubstantiated inferences about what an agency intends
by that reference.

PRO has not disputed that the standards contain the identified
provisions.

law. For the reasons explained in Plaintiffs’ briefing, PRO has
not presented factual support to show that agencies actually
operate in this way (let alone that they did so at the time of
IBR before the handbook was published). Reply at Part
I.A.1.a. And, as Plaintiffs’ briefing explains, as a legal matter,
this theory of incorporation is irreconcilable with the D.C.
Circuit’s decision. Reply at Part I.A.1.a.

the incorporation. Plaintiffs may
in their opinion disagree with the
assessment of the regulatory
agency, but the agency’s
determination is due deference
over NFPA’s opinion.

correspond with the applicable text
paragraphs.” Supp. Pauley Decl. Ex. F at
Annex A (NFPA 13 (2002 ed.)). Some of
these are only binding if specifically
incorporated by reference, e.g., Annex H
“Administration and Enforcement,” which
states that it is “not a part of the
requirements of this NFPA document and is
included for informational purposes only . .
. unless specifically adopted by the local
jurisdiction adopting the National Electric
Code®.” Id. Ex. P at Annex H (NFPA 70
(2014 ed.)). These examples are not unique,
all of the standards include informational
annexes. Supp. Pauley Decl. ¶ 28(f), Ex. A
(NFPA 1, 2003 ed.) at Annexes A-K at 1320 to 1-449 (NFPA- PR0013354-483); Ex.
B (NFPA 1, 2006 ed.) at Annexes A-P at 1357 to 1-523 (NFPA- PR0013872-4038);
Ex. C (NFPA 10, 2002 ed.) at Annexes A-J
at 10-17 to 10-53 (NFPA- PR0014089125); Ex. D (NFPA 11, 2005 ed.) at
Annexes A-I at 11-36 to 11-80 (NFPAPR0014178-222); Ex. E (NFPA 12, 2005
ed.) at Annexes A-H at 12-25 to 12-52
(NFPA- PR0014268-95); Ex. F (NFPA 13,
2002 ed.) at Annexes A-E at 13-198 to 13315 (NFPA- PR0014507-624); Ex. G
(NFPA 25, 2002 ed.) at Annexes A-E at 2541 to 25-109 (NFPA- PR0020280-348); Ex.
H (NFPA 30, 2003 ed.) at Annexes A-H at
30-75 to 30-111 (NFPA- PR0014731-67);
Ex. I (NFPA 54, 2006 ed.) at Annexes A-L
Disputed to the extent that
Plaintiffs assert that certain
portions are not binding unless
specifically incorporated by
reference, when in fact the
regulatory agency has specifically
said that the entire document
(which includes annexes) is
incorporated by reference.

Plaintiffs’ Response

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

at 54-111 to 54-151 (NFPA- PR001490141); Ex. J (NFPA 58, 2001 ed.) at Annexes
A-J at 58-78 to 58-97 (NFPA-PR001503615055); Ex. K (NFPA 58, 2004 ed.) at
Annexes A-K at 58-84 to 58-104 (NFPAPR0015165-85); Ex. L (NFPA 59, 2004
ed.) at Annexes A-F at 59-31 to 59-40
(NFPA-PR0015246-55); Ex. M (NFPA 70,
1999 ed.) at Appendices A-E at 70-571 to
70-619 (NFPA-PR0015835-881); Ex. N
(NFPA 70, 2005 ed.) at Annexes A-G at 70640 to 70-737 (NFPA-PR0016555-652);
Ex. O (NFPA 70, 2008 ed.) at Annexes AH at 70-686 to 70-784 (NFPA-PR0017382480); Ex. P (NFPA 70, 2014 ed.) at
Annexes A-J at 70-772 to 70-867 (NFPAPR0098835-930); Ex. Q (NFPA 72, 2002
ed.) at Annexes A-F at 72-111 to 72-227
(NFPA-PR0018531-647); Ex. R (NFPA 99,
2005 ed.) at Annexes A-G at 99-124 to 99238 (NFPA-PR0018811-925); Ex. S
(NFPA 101, 2000 ed.) at Annexes A-B at
101-264 to 101-348 (NFPA-PR0019222306); Ex. T (NFPA 101, 2003 ed.) at
Annexes A-B at 101-276 to 101-359
(NFPA-PR0019633-716); Ex. U (NFPA
101, 2006 ed.) at Annexes A-B at 101-301
to 101-389 (NFPA-PR0020072-160); Ex. V
(NFPA 704, 2007 ed.) at Annexes A-G at
704-12 to 704-20 (NFPA-PR0020224-32);
Dubay Decl. Ex. A (NFPA 70, 2011 ed.) at
Informational Annexes A-I at 70-727 to 70829 (NFPA-PR0018264-366).

Plaintiffs’ Statement of Material Facts

122

Defendant Public Resource’s
Response

Plaintiffs’ Response

Disputed for the reasons
addressed above at paragraph 57.
The respective federal agency
determined that the entire
standard was “necessary to
understand or comply with [the
applicable federal regulation],”
and the Director of the Federal
Register reviewed and approved
the incorporation. Plaintiffs may
in their opinion disagree with the
assessment of the regulatory
agency, but the agency’s
determination is due deference
over NFPA’s opinion.

68. Proposal Forms: NFPA’s standards
also generally include information
regarding the proposal and committee
process for NFPA standards, as well as
proposal forms so the reader can submit
suggestions for future editions. This
information and forms do not set forth any
binding legal obligations. Supp. Pauley
Decl. ¶ 28(g). See, e.g., id. Ex. A (NFPA 1,
2003 ed.) at NFPA- PR0013508-10; Ex. B
(NFPA 1, 2006 ed.) at NFPA-PR001406769; Ex. D (NFPA 11, 2005 ed.) at NFPAPR0014238-40; Ex. E (NFPA 12, 2005 ed.)
at NFPA-PR0014304-06; Ex. H (NFPA 30,
2003 ed.) at NFPA-PR0014785-87; Ex. I
(NFPA 54, 2006 ed.) at NFPA-PR001495355; Ex. K (NFPA 58, 2004 ed.) at NFPAPR0015210-12; Ex. L (NFPA 59, 2004 ed.)
at NFPA-PR0015262- 64; Ex. N (NFPA 70,
2005 ed.) at NFPA-PR0016691-93; Ex. O
(NFPA 70, 2008 ed.) at NFPAPR0017523-34
(and
membership
information); Ex. P (NFPA 70, 2014 ed.) at
NFPA-PR0098986- 89; Ex. R (NFPA 99,
2005 ed.) at NFPA-PR0018953; Ex. T
(NFPA 101, 2003 ed.) at NFPAPR0019766-68; Ex. U (NFPA 101, 2006
ed.) at NFPA-PR0020207-09; Ex. V (NFPA
704, 2007 ed.) at NFPA-PR0020234-36;
Dubay Decl. Ex. A (NFPA 70, 2011 ed.) at
NFPA-PR0018414-17. PRO has posted

123

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

PRO has not disputed that the standards contain the identified
provisions.

PRO fails to establish a genuine dispute as to a material fact.
PRO has presented a theory of incorporation by reference
under which any time a federal agency states that it is
incorporating a standard, without specifying a particular
portion of the standard, the entire standard becomes binding
law. For the reasons explained in Plaintiffs’ briefing, PRO has
not presented factual support to show that agencies actually
operate in this way (let alone that they did so at the time of
IBR before the handbook was published). Reply at Part
I.A.1.a. And, as Plaintiffs’ briefing explains, as a legal matter,
this theory of incorporation is irreconcilable with the D.C.
Circuit’s decision. Reply at Part I.A.1.a.

Objection. Plaintiffs object to PRO’s reliance on Becker
Decl., ¶ 25, Ex. 58 (IBR Handbook). The quoted language
does not appear in the exhibit.

Plaintiffs’ Response

Plaintiffs’ Response

There is no factual dispute. PRO has not disputed the
accuracy of the statement.

Defendant Public Resource’s
Response

70. All 3 of ASHRAE’s standards at issue,
which are three different versions of
ASHRAE Standard 90.1, include large
portions of the text that are not necessary for
compliance with the standard and therefore
do not set forth any binding legal obligation
in instances where the standard is
incorporated by reference. These portions
include the following:

124

PRO has presented a theory of incorporation by reference
under which any time a federal agency states that it is
incorporating a standard, without specifying a particular
portion of the standard, the entire standard becomes binding
law. For the reasons explained in Plaintiffs’ briefing, PRO has
not presented factual support to show that agencies actually
operate in this way. Reply at Part I.A.1.a. And, as Plaintiffs’
briefing explains, as a legal matter, this theory of incorporation
is irreconcilable with the D.C. Circuit’s decision. ASTM II,

PRO fails to establish a genuine dispute as to a material fact.
PRO has not disputed that the standards contain the identified
provisions.

ASHRAE Standards (and Portions Thereof) Disputed for the reasons
That Do Not Impose Legal Duties
addressed below in paragraph 70.
Disputed. Each standard that
Public Resource posts is
incorporated into law in its
entirety. The Office of the
Federal Register instructs that
material should only be
incorporated by reference into
law “[i]f the material is necessary
to understand or comply with the
regulation.” IBR Handbook at p.
2 (citing 5 U.S.C. § 552(a)). The
decision as to what material to
incorporate by reference,

For the reasons stated below, PRO fails to establish a genuine
dispute as to a material fact

69. Many standards incorporate other Not material. The incorporation
standards by reference, which may in turn of one standard by another
reference other standards. Supp. Pauley standard is not before this Court.
Decl. Ex. B (NFPA 1, 2006 ed.) at ch. 5.3.4
at 1-49 (NFPA-PR0013562) (providing
that certain structures must comply with
provisions in NFPA 101); Ex. U (NFPA
101, 2006 ed.) at ch. 9.1.2 at 101-84
(NFPA-PRO0019855)
(dictating
that
“[e]lectrical wiring and equipment shall
[generally] be in accordance with NFPA 70,
National Electrical Code”).

these forms as well. See Wise Decl. ¶ 173,
Ex. 172.

Plaintiffs’ Statement of Material Facts

71. Foreword: All 3 of the ASHRAE
standards include a foreword, which does
not set forth any binding legal obligations.
In fact, the forewords open by stating “[t]his
foreword is not part of this standard. It is

Plaintiffs’ Statement of Material Facts

125

Disputed for the reasons
addressed above at paragraph 70.
The respective federal agency
determined that the entire
standard was “necessary to

896 F.3d at 450 (“[W]here knowing the content of an
incorporated standard might help inform one’s understanding
of the law but is not essential to complying with any legal
duty, the nature of PRO’s use might be less transformative and
its wholesale copying, in turn, less justified. For instance,
ASHRAE Standard 90.1 provides important context for
assessing provisions of state commercial building codes
regarding energy efficiency. At the same time, unless a
particular provision of Standard 90.1 has been incorporated
into state building codes, PRO’s claim that a paraphrase or
summary would always be inadequate to serve its purposes
seems less persuasive.” (internal citations omitted)); see also
Reply at Part I.A.1.a.

including the decision as to
whether to incorporate an entire
document or just part of a
document, is a decision made by
the regulatory agency. That
regulatory agency’s decision
must be given deference over any
possible quibble Plaintiffs might
have as to whether a portion of an
incorporated document is
absolutely necessary to
understand or comply with the
regulation. After the regulatory
agency determines what material
to propose for incorporation into
law, the Director of the Federal
Register then reviews the
proposed incorporation, and
either approves or denies the
incorporation. Public Resource
therefore only posted material
that federal agencies had
determined was “necessary to
understand or comply with
[federal regulations].” (IBR
Handbook) at p. 2 (citing 5
U.S.C. § 552(a)).

PRO has presented a theory of incorporation by reference

PRO fails to establish a genuine dispute as to a material fact.
PRO has not disputed that the standards contain the identified
provisions.

Objection. Plaintiffs object to PRO’s reliance on Becker
Decl., ¶ 25, Ex. 58 (IBR Handbook). The quoted language
does not appear in the exhibit.

Plaintiffs’ Response

Defendant Public Resource’s
Response

understand or comply with [the
applicable federal regulation],”
and the Director of the Federal
Register reviewed and approved
the incorporation. Plaintiffs may
in their opinion disagree with the
assessment of the regulatory
agency, but the agency’s
determination is due deference
over ASHRAE’s opinion.

Disputed for the reasons
addressed above at paragraph 70.
The respective federal agency
determined that the entire
standard was “necessary to

merely informative and does not contain
requirements necessary for conformance to
the standard.” The forewords go on to
provide, inter alia, historical information
about the development of the Standard over
time. Declaration of Steve Comstock,
previously filed at Dkt. 155-5, (“Comstock
Decl.”) ¶ 7, Ex. 1 (ASHRAE 90.1-2004) at
4; Supplemental Declaration of Stephanie
Reiniche (“Supp. Reiniche Decl.”) ¶ 2, Ex.
1 (ASHRAE 90.1-2007) at 6, and Ex. 2
(ASHRAE 90.1-2010) at 6.

72. “Informative Appendix E”: All 3 of
the ASHRAE standards include what the
standards refer to as “Informative Appendix
E.” The appendix opens with a disclaimer
stating: “This appendix is not part of this

126

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

PRO has presented a theory of incorporation by reference

PRO fails to establish a genuine dispute as to a material fact.
PRO has not disputed that the standards contain the identified
provisions.

Objection. Plaintiffs object to PRO’s reliance on Becker
Decl., ¶ 25, Ex. 58 (IBR Handbook). The quoted language
does not appear in the exhibit.

under which any time a federal agency states that it is
incorporating a standard, without specifying a particular
portion of the standard, the entire standard becomes binding
law. For the reasons explained in Plaintiffs’ briefing, PRO has
not presented factual support to show that agencies actually
operate in this way. Reply at Part I.A.1.a. And, as Plaintiffs’
briefing explains, as a legal matter, this theory of incorporation
is irreconcilable with the D.C. Circuit’s decision. ASTM II,
896 F.3d at 450 (“[W]here knowing the content of an
incorporated standard might help inform one’s understanding
of the law but is not essential to complying with any legal
duty, the nature of PRO’s use might be less transformative and
its wholesale copying, in turn, less justified. For instance,
ASHRAE Standard 90.1 provides important context for
assessing provisions of state commercial building codes
regarding energy efficiency. At the same time, unless a
particular provision of Standard 90.1 has been incorporated
into state building codes, PRO’s claim that a paraphrase or
summary would always be inadequate to serve its purposes
seems less persuasive.” (internal citations omitted)); see also
Reply at Part I.A.1.a.

Plaintiffs’ Response

understand or comply with [the
applicable federal regulation],”
and the Director of the Federal
Register reviewed and approved
the incorporation. Plaintiffs may
in their opinion disagree with the
assessment of the regulatory
agency, but the agency’s
determination is due deference
over ASHRAE’s opinion.

Disputed for the reasons
addressed above at paragraph 70.
The respective federal agency
determined that the entire
standard was “necessary to

standard. It is merely informative and does
not contain requirements necessary for
conformance to the standard.” The
appendix contains a variety of general
information, including contact information
for certain trade associations that operate in
industries related to the standard.
Comstock Decl. ¶ 7, Ex. 1 (ASHRAE 90.12004 at 165-66); Supp. Reiniche Decl. ¶ 2,
Ex. 1 (ASHRAE 90.1-2007) at 170-71, and
Ex. 2 (ASHRAE 90.1-2010) at 201-02.

73. “Informative Appendix F”: All 3 of
the ASHRAE standards include what the
standards refer to as “Informative Appendix
F.” The appendix opens with a disclaimer
stating: “This appendix is not part of this

127

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

PRO has presented a theory of incorporation by reference

PRO fails to establish a genuine dispute as to a material fact.
PRO has not disputed that the standards contain the identified
provisions.

Objection. Plaintiffs object to PRO’s reliance on Becker
Decl., ¶ 25, Ex. 58 (IBR Handbook). The quoted language
does not appear in the exhibit.

under which any time a federal agency states that it is
incorporating a standard, without specifying a particular
portion of the standard, the entire standard becomes binding
law. For the reasons explained in Plaintiffs’ briefing, PRO has
not presented factual support to show that agencies actually
operate in this way. Reply at Part I.A.1.a. And, as Plaintiffs’
briefing explains, as a legal matter, this theory of incorporation
is irreconcilable with the D.C. Circuit’s decision. ASTM II,
896 F.3d at 450 (“[W]here knowing the content of an
incorporated standard might help inform one’s understanding
of the law but is not essential to complying with any legal
duty, the nature of PRO’s use might be less transformative and
its wholesale copying, in turn, less justified. For instance,
ASHRAE Standard 90.1 provides important context for
assessing provisions of state commercial building codes
regarding energy efficiency. At the same time, unless a
particular provision of Standard 90.1 has been incorporated
into state building codes, PRO’s claim that a paraphrase or
summary would always be inadequate to serve its purposes
seems less persuasive.” (internal citations omitted)); see also
Reply at Part I.A.1.a.

Plaintiffs’ Response

understand or comply with [the
applicable federal regulation],”
and the Director of the Federal
Register reviewed and approved
the incorporation. Plaintiffs may
in their opinion disagree with the
assessment of the regulatory
agency, but the agency’s
determination is due deference
over ASHRAE’s opinion.

Disputed for the reasons
addressed above at paragraph 70.
The respective federal agency
determined that the entire
standard was “necessary to

standard. It is merely informative and does
not contain requirements necessary for
conformance to the standard.” The
appendix contains a log tracking changes to
the standard over time. Comstock Decl. ¶ 7,
Ex. 1 (ASHRAE 90.1-2004) at 167-69;
Supp. Reiniche Decl. ¶ 2, Ex. 1 (ASHRAE
90.1-2007) at 172-75, and Ex. 2 (ASHRAE
90.1-2010) at 203-10.

74. “Informative Appendix G”: Two of
the ASHRAE standards include what the
standards refer to as “Informative Appendix
G.” The appendix opens with a disclaimer
stating: “This appendix is not part of this

128

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

PRO has presented a theory of incorporation by reference

PRO fails to establish a genuine dispute as to a material fact.
PRO has not disputed that the standards contain the identified
provisions.

Objection. Plaintiffs object to PRO’s reliance on Becker
Decl., ¶ 25, Ex. 58 (IBR Handbook). The quoted language
does not appear in the exhibit.

under which any time a federal agency states that it is
incorporating a standard, without specifying a particular
portion of the standard, the entire standard becomes binding
law. For the reasons explained in Plaintiffs’ briefing, PRO has
not presented factual support to show that agencies actually
operate in this way. Reply at Part I.A.1.a. And, as Plaintiffs’
briefing explains, as a legal matter, this theory of incorporation
is irreconcilable with the D.C. Circuit’s decision. ASTM II,
896 F.3d at 450 (“[W]here knowing the content of an
incorporated standard might help inform one’s understanding
of the law but is not essential to complying with any legal
duty, the nature of PRO’s use might be less transformative and
its wholesale copying, in turn, less justified. For instance,
ASHRAE Standard 90.1 provides important context for
assessing provisions of state commercial building codes
regarding energy efficiency. At the same time, unless a
particular provision of Standard 90.1 has been incorporated
into state building codes, PRO’s claim that a paraphrase or
summary would always be inadequate to serve its purposes
seems less persuasive.” (internal citations omitted)); see also
Reply at Part I.A.1.a.

Plaintiffs’ Response

understand or comply with [the
applicable federal regulation],”
and the Director of the Federal
Register reviewed and approved
the incorporation. Plaintiffs may
in their opinion disagree with the
assessment of the regulatory
agency, but the agency’s
determination is due deference
over ASHRAE’s opinion.

Disputed for the reasons
addressed above at paragraph 70.
The respective federal agency
determined that the entire
standard was “necessary to

standard. It is merely informative and does
not contain requirements necessary for
conformance to the standard.” The
appendix contains general information on
multiple different ways to track energy
efficiency with regard to different aspects of
building construction. Comstock Decl. ¶ 7,
Ex. 1 (ASHRAE 90.1-2004) at 168-80;
Supp. Reiniche Decl. ¶ 2, Ex. 1 (ASHRAE
90.1-2007) at 175-185.

75. Appendix B and D—Non-U.S. Data
in Accompanying Tables: All 3 of the
ASHRAE standards include an Appendix B
and an Appendix D. The appendices include
tables on general climate data for the United

129

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

PRO has presented a theory of incorporation by reference

PRO fails to establish a genuine dispute as to a material fact.
PRO has not disputed that the standards contain the identified
provisions.

Objection. Plaintiffs object to PRO’s reliance on Becker
Decl., ¶ 25, Ex. 58 (IBR Handbook). The quoted language
does not appear in the exhibit.

under which any time a federal agency states that it is
incorporating a standard, without specifying a particular
portion of the standard, the entire standard becomes binding
law. For the reasons explained in Plaintiffs’ briefing, PRO has
not presented factual support to show that agencies actually
operate in this way. Reply at Part I.A.1.a. And, as Plaintiffs’
briefing explains, as a legal matter, this theory of incorporation
is irreconcilable with the D.C. Circuit’s decision. ASTM II,
896 F.3d at 450 (“[W]here knowing the content of an
incorporated standard might help inform one’s understanding
of the law but is not essential to complying with any legal
duty, the nature of PRO’s use might be less transformative and
its wholesale copying, in turn, less justified. For instance,
ASHRAE Standard 90.1 provides important context for
assessing provisions of state commercial building codes
regarding energy efficiency. At the same time, unless a
particular provision of Standard 90.1 has been incorporated
into state building codes, PRO’s claim that a paraphrase or
summary would always be inadequate to serve its purposes
seems less persuasive.” (internal citations omitted)); see also
Reply at Part I.A.1.a.

Plaintiffs’ Response

understand or comply with [the
applicable federal regulation],”
and the Director of the Federal
Register reviewed and approved
the incorporation. Plaintiffs may
in their opinion disagree with the
assessment of the regulatory
agency, but the agency’s
determination is due deference
over ASHRAE’s opinion.

Disputed for the reasons
addressed above at paragraph 70.
The respective federal agency
determined that the entire
standard was “necessary to

States, Canada, and various foreign
countries. Comstock Decl. ¶ 7, Ex. 1
(ASHRAE 90.1-2004) at 110-21, 131-64;
Supp. Reiniche Decl. ¶ 2, Ex. 1 (ASHRAE
90.1-2007) at 114-16 and 148-69, and Ex. 2
(ASHRAE 90.1-2010) at 144-46 and 179While data about the United States climate
may be helpful to a reader for purposes
of understanding and applying the
standards, the data on foreign climates
would not be necessary for compliance with
the standard within the United States.

76. Informational Notes and Policy
Statements: All 3 ASHRAE standards also
include informational notes that have
nothing to do with requirements to comply
with the standards. These include

130

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

PRO has presented a theory of incorporation by reference

PRO fails to establish a genuine dispute as to a material fact.
PRO has not disputed that the standards contain the identified
provisions.

Objection. Plaintiffs object to PRO’s reliance on Becker
Decl., ¶ 25, Ex. 58 (IBR Handbook). The quoted language
does not appear in the exhibit.

under which any time a federal agency states that it is
incorporating a standard, without specifying a particular
portion of the standard, the entire standard becomes binding
law. For the reasons explained in Plaintiffs’ briefing, PRO has
not presented factual support to show that agencies actually
operate in this way. Reply at Part I.A.1.a. And, as Plaintiffs’
briefing explains, as a legal matter, this theory of incorporation
is irreconcilable with the D.C. Circuit’s decision. ASTM II,
896 F.3d at 450 (“[W]here knowing the content of an
incorporated standard might help inform one’s understanding
of the law but is not essential to complying with any legal
duty, the nature of PRO’s use might be less transformative and
its wholesale copying, in turn, less justified. For instance,
ASHRAE Standard 90.1 provides important context for
assessing provisions of state commercial building codes
regarding energy efficiency. At the same time, unless a
particular provision of Standard 90.1 has been incorporated
into state building codes, PRO’s claim that a paraphrase or
summary would always be inadequate to serve its purposes
seems less persuasive.” (internal citations omitted)); see also
Reply at Part I.A.1.a.

Plaintiffs’ Response

Disputed for the reasons
addressed below.

IV.

131

understand or comply with [the
applicable federal regulation],”
and the Director of the Federal
Register reviewed and approved
the incorporation. Plaintiffs may
in their opinion disagree with the
assessment of the regulatory
agency, but the agency’s
determination is due deference
over ASHRAE’s opinion.

“Instructions For Submitting a Proposed
Change to the Standard,” a form for
submitting proposed changes, instructions
for electronic submission of comments, a
brief description of the ASHRAE
organization, and a “Policy Statement”
laying out ASHRAE’s general position and
goals concerning the environmental impact
of its activities. Comstock Decl. ¶ 7, Ex. 1
(ASHRAE 90.1-2004) at 181-89; Supp.
Reiniche Decl. ¶ 2, Ex. 1 (ASHRAE 90.12007) at 189- 92, and Ex. 2 (ASHRAE 90.12010) at 225-28.

PRO’S CONDUCT HARMS
PLAINTIFFS’ ACTUAL AND
POTENTIAL MARKETS; AND AN
INJUNCTION IS NECESSARY
A.
Plaintiffs Distribute Their
Standards, Provide Free
Read-Only Access, And
Other Informational
Resources

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

PRO fails to establish a genuine dispute as to a material fact
for the reasons addressed below.

under which any time a federal agency states that it is
incorporating a standard, without specifying a particular
portion of the standard, the entire standard becomes binding
law. For the reasons explained in Plaintiffs’ briefing, PRO has
not presented factual support to show that agencies actually
operate in this way. Reply at Part I.A.1.a. And, as Plaintiffs’
briefing explains, as a legal matter, this theory of incorporation
is irreconcilable with the D.C. Circuit’s decision. ASTM II,
896 F.3d at 450 (“[W]here knowing the content of an
incorporated standard might help inform one’s understanding
of the law but is not essential to complying with any legal
duty, the nature of PRO’s use might be less transformative and
its wholesale copying, in turn, less justified. For instance,
ASHRAE Standard 90.1 provides important context for
assessing provisions of state commercial building codes
regarding energy efficiency. At the same time, unless a
particular provision of Standard 90.1 has been incorporated
into state building codes, PRO’s claim that a paraphrase or
summary would always be inadequate to serve its purposes
seems less persuasive.” (internal citations omitted)); see also
Reply at Part I.A.1.a.

Plaintiffs’ Response

132

PRO has not offered any support for its assertions that the
“vast majority” of Plaintiffs’ standards have not been
incorporated; that the majority of revenue generated from a
standard comes from its first year or two on the market; or that
ASHRAE gets “very little” revenue from the sale of standards.

There is no factual dispute. PRO has not disputed the
accuracy of the statement.

Disputed and immaterial. The
vast majority of standards that
Plaintiffs publish are not
incorporated into law and are not
at issue. Plaintiffs do not identify
how much of their revenue comes
from outdated or withdrawn
standards, such as every standard
at issue in this litigation. The

79. Plaintiffs depend on the sale of
standards to fuel their overall missiondriving work. The vast majority of that
revenue is from the sale of codes and
standards, including those that have been
incorporated by reference and posted by
PRO. Supp. Pauley Decl. ¶ 33; Supp.
Reiniche Decl. ¶ 4; James Thomas Decl. ¶¶

There is no factual dispute. PRO has raised a legal challenge
to Plaintiffs’ ownership of the copyrights. For the reasons
explained in Plaintiffs’ briefing, that challenge is meritless.
Pls. Mem. 10-12; Reply at Part I.B. For the reasons explained
in Plaintiffs’ briefing, Plaintiffs standards are not “the law.”
Pls. Mem. 16-24; Reply at Part I.A.1.a.

Plaintiffs’ Response

Undisputed.

Disputed to the extent that
Plaintiffs imply they have
copyright ownership of the
standards at issue that have been
made law, and disputed to the
extent that Plaintiffs imply that
there is any reasonable price for
access to the law.

Defendant Public Resource’s
Response

78. Plaintiffs’ sell their standards
individually for prices that range from $25
to $200, or as a part of a membership or
subscription. Rubel Decl. ¶ 4, Ex. 1 (Jarosz
Rep. ¶¶ 84 (ASTM), 92 (NFPA), 99
(ASHRAE).

77. Plaintiffs sell their standards,
including the Works, in a variety of formats
and for a reasonable cost to industry
professionals and tradespeople (and the
companies and organizations for which they
work) who then use these standards in the
course of their business. Supp. Pauley Decl.
¶¶ 34, 43; Reiniche Decl., ¶¶ 17-18; James
Thomas Decl. ¶¶ 45-48; see also Pauley
Decl. ¶ 13; Declaration of James
Golinveaux, filed at Dkt. 118-5
(“Golinveaux Decl.”) ¶ 10.

Plaintiffs’ Sales, Licensing, and Derivative
Works

Plaintiffs’ Statement of Material Facts

81. For example, B580 issued in 1979 has
been reapproved and reissued in its original
form every five years since 1979. Wise
Decl. ¶ 160, Ex. 159. This standard
originally appeared in ASTM’s Annual
133

Undisputed.

PRO’s purported dispute is one of relevance. Plaintiffs’
statement applies with equal force to the standards at issue.
PRO has not offered any support for its assertion that the
majority of Plaintiffs’ standards have not been incorporated.

PRO fails to establish a genuine dispute as to a material fact.
PRO cites to no record evidence in support of its assertion.
Hedgeye Risk Mgmt., 2019 WL 4750243, at *4. PRO has not
disputed the accuracy of the statement.

Disputed and Immaterial to the
extent that ASTM implies it
obtains much revenue from
reapproved or reissued versions
of standards, compared to the first
two years after the initial
publication of standards and
revised standards. Disputed also
to the extent that Plaintiffs’
general statement concerns the
majority of standards that are not
incorporated by reference into
law and therefore not at issue in
this litigation.

80. ASTM sells its standards in books and
as individual standards. Wise Decl. ¶¶ 158161, Exs. 157-160. ASTM derives revenue
from not only the initial publication of a
given standard but also from revised,
reapproved, and reissued versions of
standards. Id.

Plaintiffs’ Response

The fact is material to Plaintiffs’ argument that “unrestricted
and widespread conduct of the sort engaged in by [PRO] . . .
would result in a substantially adverse impact on the potential
market” for Plaintiffs’ standards and derivative works. Pls.
Mem. 25-26 (citation omitted). As Plaintiffs’ briefing
explains, even if PRO limited its activities to posting out-ofdate standards, the undisputed evidence shows that those
activities would harm the market for the current versions of the
same standards. Pls. Mem. 29-30; Reply at Part I.A.4.

Defendant Public Resource’s
Response

37-38; Rubel Decl. ¶ 4, Ex. 1 (Jarosz Rep. majority of Plaintiffs’ revenue
¶¶ 107-08).
from standards comes from the
first year or two that a standard is
on the market, meaning standards
that are incorporated into the law
do not produce much revenue for
Plaintiffs because they are
typically outdated. ASHRAE
gets very little of its revenue from
the sale of standards compared to
other sources of revenue.

Plaintiffs’ Statement of Material Facts

Disputed and Immaterial to the
extent that Plaintiffs’ general
statement concerns the majority
of standards that are not
incorporated by reference into
law and therefore not at issue in
this litigation.

Defendant Public Resource’s
Response

83. Plaintiffs’
revenue
from
complementary and downstream products
and services like e-learning and in person
training courses and other derivative works
is also dependent on their copyrights in their
standards because they market these
products as including copies of the
published material. James S. Thomas Decl.
¶¶ 4, 5-9; Rubel Decl. ¶ 4, Ex. 1 (Jarosz
Rep. ¶¶ 109- 11, 145).

134

Disputed and Immaterial to the
extent that Plaintiffs’ general
statement concerns the majority
of standards that are not
incorporated by reference into
law and therefore not at issue in
this litigation. Also Disputed to
the extent that Public Resource
does not challenge Plaintiffs’
ability to include copies of
standards along other products
and services, and Plaintiffs have
no evidence that they would not
be able to sell products and
services like these if Public

82. NFPA also earns significant revenue
from licensing its standards to other
companies and organizations to use in their
products and services, for example,
derivative works like checklists based on
the standards. Supp. Pauley Decl. ¶ 36.

Book of ASTM Standards in 1980. Wise
Decl. ¶ 9, Ex. 8. The latest version of this
standard still appears in ASTM’s 2019
Annual Book of ASTM Standards. Wise
Decl. ¶ 156, Ex. 155; Wise Decl. ¶ 161, Ex.
160, at ASTM103529, Section 02 Volume
05; Wise Decl. ¶ 159, Ex. 158 at
ASTM103291, Section 02 Volume 05.

Plaintiffs’ Statement of Material Facts

Mr. Jarosz’s unrebutted expert opinion is that Plaintiffs have a
competitive advantage with regard to ancillary products and
services because of their ability to provide copies of
copyrighted materials in connection with such products and
services, that this ability is “a significant driver” of their sales

PRO’s purported dispute regarding this statement being
“general” is one of relevance. Plaintiffs’ statement applies
with equal force to the standards at issue. PRO has not offered
any support for its assertion that the majority of Plaintiffs’
standards have not been incorporated.

PRO fails to establish a genuine dispute as to a material fact.
PRO cites to no record evidence in support of its assertion.
Hedgeye Risk Mgmt., 2019 WL 4750243, at *4.

PRO’s purported dispute is one of relevance. Plaintiffs’
statement applies with equal force to the standards at issue.
PRO has not offered any support for its assertion that the
majority of Plaintiffs’ standards have not been incorporated.

There is no factual dispute. PRO has not disputed the
accuracy of the statement.

Plaintiffs’ Response

135

Disputed to the extent that
Plaintiffs do not offer read-only
access to all standards that
Plaintiffs publish that are
incorporated into law. Also
disputed that the read-only access
is provided at no cost to the user.
Although a user does not have an
immediate monetary cost, the
user must register, provide

85. Plaintiffs also provide read-only
access to the Works—excluding certain of
the Works that are simply not incorporated
by reference as claimed by PRO—on their
websites, and sometimes linked through
other websites, such as local and state
government websites. This is provided at no
cost to the user. Supp. Pauley Decl. ¶¶ 4041, 44; Reiniche Decl., ¶ 19; O’Brien Decl.
¶ 60; Wise Decl. ¶ 157, Ex. 156.

PRO’s dispute as to whether Plaintiffs’ registration processes
impose certain restrictions is not material.

PRO has not disputed the accuracy of the statement, nor has
PRO identified any Work that has been incorporated by
reference that is not available in Plaintiffs’ reading rooms.

PRO fails to establish a genuine dispute as to a material fact.
PRO cites to no record evidence in support of its assertion.
Hedgeye Risk Mgmt., 2019 WL 4750243, at *4.

Mr. Jarosz’s unrebutted expert opinion is that Plaintiffs have a
competitive advantage with regard to ancillary products and
services because of their ability to provide copies of
copyrighted materials in connection with such products and
services, that this ability is “a significant driver” of their sales
of such products and services, and that Plaintiffs would lose
this competitive advantage without copyright in the standards.
Rubel Decl. ¶ 4, Ex. 1 (Jarosz Rep. ¶¶ 109, 146)). PRO’s
conjecture as to a source of Plaintiffs’ competitive advantage
is neither in conflict with Mr. Jarosz’s expert opinion nor
supported by any evidence.

PRO fails to establish a genuine dispute as to a material fact.
PRO cites to no record evidence in support of its assertion.
Hedgeye Risk Mgmt., 2019 WL 4750243, at *4.

of such products and services, and that Plaintiffs would lose
this competitive advantage without copyright in the standards.
Rubel Decl. ¶ 4, Ex. 1 (Jarosz Rep. ¶¶ 109, 146)). PRO’s
conjecture as to a source of Plaintiffs’ competitive advantage
is neither in conflict with Mr. Jarosz’s expert opinion nor
supported by any evidence.

Resource’s activities are deemed
a fair use.

Disputed and Immaterial.
Plaintiffs have a competitive
advantage over other companies
and organizations because they
are the official publishers of the
standards at issue, and industry
members look to them as
authorities.

Plaintiffs’ Response

Defendant Public Resource’s
Response

84. As the copyright owners, Plaintiffs’
ability to include its standards as reference
material for these training courses gives
them a competitive advantage over
competitors, such as third-party training
programs. James S. Thomas Decl. ¶ 10.
This advantage is “a significant driver” of
these sources of revenue “is the provision of
the protected publications in, for example,
trainings and seminars.” Rubel Decl. ¶ 4,
Ex. 1 (Jarosz Rep. ¶ 146)).

Plaintiffs’ Statement of Material Facts

136

Plaintiffs have presented evidence that they provide read-only
access in furtherance of their educational missions and to
ensure public access to standards. Supp. Pauley Decl. ¶ 43, 45;
Supp. Reiniche Decl. ¶ 3; James S. Thomas Decl. ¶ 12. PRO’s
assertions about Plaintiffs’ purpose in setting up their reading
rooms has no support. Plaintiffs incorporate their response to
Paragraph 39 of Plaintiffs’ Disputed Facts Response as if set

There is no factual dispute. PRO has not disputed the
accuracy of the statement.

Disputed to the extent that
Plaintiffs’ purpose in setting up
the read-only environments was
to create an argumentative tool
for influencing policymakers and
the Court, not to provide the
public with a readily usable, easy
to navigate means of reading the
law. SSSMF ¶ 39.

87. Plaintiffs’ provision of free read-only
access and research tools also benefits the
public, because they can be sure of the
authenticity and accuracy of the copy of the
standard they are reading. Supp. Reiniche
Decl. ¶ 3; O’Brien Decl. ¶¶ 52-53; Supp.
Pauley Decl. ¶ 39.

Plaintiffs’ Response

Undisputed.

personal details and contact
information that is then used for
marketing solicitations, and agree
to adhesive contract terms that
include forum selection and
waiver of rights, simply so the
user can read the law (but not
copy and speak the law, which is
still prohibited).

Defendant Public Resource’s
Response

86. Plaintiffs’ provision of free read-only
access to and other resources for researching
their standards serves Plaintiffs’ overall
missions by providing a resource for
individuals to educate themselves as to the
contents of standards, including standards
that have been incorporated by reference.
Supp. Pauley Decl. ¶ 43, 45; Supp. Reiniche
Decl. ¶ 3; Declaration of James S. Thomas,
dated October 4, 2019, filed concurrently
herewith, (“James S. Thomas Decl.”) ¶ 12.

Plaintiffs’ Statement of Material Facts

Disputed. Plaintiffs’ read-only
environments do not fully serve
the needs of people who are
interested in and affected by the
standards, including those who
are subject to the standards as
laws and who are interested in
better understanding and
engaging in the laws by which
their government and other
entities operate. Plaintiffs’
reading rooms are user-unfriendly
and deliberately subject users to a
user interface that is unwieldy,
particularly for lengthy
documents such as 800-plus page
standards. Plaintiffs’ purpose in
setting up the read-only
environments was to create an
argumentative tool for
influencing policymakers and the
Court, not to actually provide the
public with a readily usable, easy
to navigate means of reading the
law. SSSMF ¶ 39.

88. Although industry professionals and
tradespeople who purchase Plaintiffs’
standards to use in the course of their work
might reference Plaintiffs’ free access
websites, the carefully controlled read-only
environment do not provide a substitute for
purchasing a copy of the Works. James S.
Thomas Decl. ¶ 14; Supp. Pauley Decl. ¶ 45.
Rather, Plaintiffs’ online copies serve those
“parties that are interested in or affected by
[Plaintiffs’ standards], but who do not
necessarily need a digital or hardcopy of the
standards.” Rubel Decl. ¶ 4, Ex. 1 (Jarosz
Rep. ¶ 86).

137

89. Plaintiffs are not harmed by the Disputed. Only NFPA has
provision of these free access websites provided an analysis of the effect
because the users who visit them engage of the reading room on its sales,

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

PRO fails to establish a genuine dispute as to a material fact.
PRO does not dispute that reading room users engage with
other products and services or that read-only format prevents
unauthorized distribution. PRO has not offered any support

Plaintiffs have presented evidence that they provide read-only
access in furtherance of their educational missions and to
ensure public access to standards. Supp. Pauley Decl. ¶ 43, 45;
Supp. Reiniche Decl. ¶ 3; James S. Thomas Decl. ¶ 12. PRO’s
assertions about Plaintiffs’ purpose in setting up their reading
rooms has no support. Plaintiffs incorporate their response to
Paragraph 39 of Plaintiffs’ Disputed Facts Response as if set
forth in full.

There is no factual dispute. It is undisputed that people who
are interested in and affected by the standards can read any of
the Works on Plaintiffs’ free access websites without any
monetary cost. PRO has presented no evidence that any
individual seeking to access the Works has had difficulty using
Plaintiffs’ reading rooms. PRO raises a legal argument that
members of the public must be able to access and interact with
the standards in different ways than Plaintiffs offer them—
e.g., that members of the public must be able to copy and paste
the standards or view them without registering for Plaintiffs’
reading rooms. For the reasons explained in Plaintiffs’
briefing, that argument is meritless. Reply at Part I.A.1.b.

forth in full.

Plaintiffs’ Response

PRO fails to establish a genuine dispute as to a material fact.
This statement is supported by the declaration of James T.
Pauley, President and Chief Executive Officer of NFPA. Mr.
Pauley explained that the NFPA has “devoted resources to
researching and consolidating information” regarding
jurisdictions that have incorporated NFPA standards, and that
the NEC Adoptions Map and CodeFinderTM are two websites
that offer this information. Supp. Pauley Decl. ¶¶ 46-47. PRO
points to no evidence that contradicts the statement of Mr.
Pauley.
Disputed. The evidence does not
establish the fact, and a review of
the sites to which NFPA refers
provide only a marketing benefit
to NFPA without any substantial
public benefit.

90. NFPA has also developed additional
resources for researching that consolidate
information regarding the jurisdictions that
have incorporated NFPA’s standards by
reference into local, state, or federal laws or
regulations. These resources include the
NEC Adoptions Map and CodeFinderTM,
which serves the “purpose of creating
general public awareness of some of the
jurisdictions where [AHJs] may require the

138

for its assertion that the reading rooms do not cannibalize sales
because of their user-interface and design. Plaintiffs
incorporate their response to Paragraph 39 of Plaintiffs’
Disputed Facts Response as if set forth in full.

and that analysis is outdated. If
Plaintiffs’ sales are not
cannibalized by their reading
rooms, it is because the reading
rooms are user-unfriendly and
hardly usable due to the
deliberately poor user-interface
design, and restrictions on users’
ability to interact with the law
that is posted there. Additionally,
Plaintiffs’ statement that users
“engage with [Plaintiffs’] other
product and services”
corresponds to the fact that
Plaintiffs use the personal
information of users obtained
through their registration for the
reading room, in order to send
marketing communications to
them without their consent.
SSSMF ¶ 39.

with their other products and services in
furtherance of Plaintiffs’ overall missions
and because the read-only format prevents
unauthorized distribution. Supp. Pauley
Decl. ¶ 45; Supp. Reiniche Decl. ¶ 4; James
S. Thomas Decl. ¶ 15.

Plaintiffs’ Response

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

Disputed. Plaintiff have no
evidence of harm, and their claim
that Public Resource’s activities
“threaten” the market for their
works and derivative works lacks
credibility considering that
Plaintiffs have not adduced
evidence of harm eleven years
after Public Resource first posted
one of the standards at issue.
SSSMF ¶ 133-165.

Defendant Public Resource’s
Response

91. The expert report of John Jarosz
concluded that PRO’s activities would
threaten the market both for Plaintiffs’
standards and for derivative works,
including future standards, trainings and
seminars. Rubel Decl. ¶ 4, Ex. 1 (Jarosz
Rep. ¶¶ 85, 92, 100, 130-49).

139

Disputed to the extent that
Plaintiffs’ expert John Jarosz
predicted that Plaintiffs would be
harmed, yet over four years later
Plaintiffs still have no evidence
of harm. Also disputed to the
extent that Mr. Jarosz’ claims
were not based on credible
evidence, but were instead merely
parroted the self-serving claims
of Plaintiffs’ executives in a
manner that attempted to dress up
Plaintiffs’ executives’ testimony
in the cloth of an expert report.
SSSMF ¶ 142-149.

PRO’s Posting Of Its
Versions Of Plaintiffs’
Works Online Is
Substitutional And
Harmful
PRO’s Conduct Threatens Plaintiffs’
Actual and Derivative Markets

B.

use of NFPA codes and/or standards.”
Supp. Pauley Decl. ¶¶ 46-47.

Plaintiffs’ Statement of Material Facts

There is no factual dispute. PRO has not disputed the
accuracy of the statement. PRO has not offered any expert
opinion of its own, nor has it provided anything other than
unsupported speculation to contradict the analysis in that
report or Mr. Jarosz’s bottom-line opinion.

PRO fails to establish a genuine dispute as to a material fact.
Plaintiffs submitted an expert report detailing how PRO’s
activities threaten the market for Plaintiffs’ standards and
derivative works. Rubel Decl. ¶ 4, Ex. 1 (Jarosz Rep.). PRO
has not offered any expert opinion of its own, nor has it
provided anything other than unsupported speculation to
contradict the analysis in that report or Mr. Jarosz’s bottomline opinion. The fact that it is challenging to pinpoint precise
market effects from PRO’s activities does not go to show that
PRO’s activities are not having these market effects, nor does
it go to show—as is the legally relevant question—that
“unrestricted and widespread conduct of the sort engaged in by
[PRO]” would not have these effects. Pls. Mem. 25-26.

Plaintiffs’ Response

Disputed to the extent that Public
Resource has posted only
standards that have become laws
by incorporation, not any of
Plaintiffs’ standards that are not
law.

Disputed. The citations do not
establish the fact claimed.
Plaintiffs have no evidence that a
single person who used the
documents posted by Public
Resource is “the same sorts of
industry professionals and
tradespeople, such as engineers,
as would otherwise typically
obtain copies of Plaintiffs’
standards directly from
Plaintiffs.” Nor do Plaintiffs
have any evidence that a single
person who accessed a document
that Public Resource posted
would have purchased the
document from Plaintiffs, but for
Public Resource’s posting.
Exhibit 173 consists of two
emails. One is an email where an
individual from Wichita State

92. Anyone visiting PRO’s postings of the
Works on the Internet Archive website can
download, copy, print, and redistribute the
entirety of Plaintiffs’ Works, which are
available without restriction in multiple
formats, such as Full Text and PDF.
Declaration of Christopher Butler, of
Internet Archive (“Butler Decl.”) ¶ 9; Supp.
Pauley Decl. ¶ 31; Wise Decl. ¶ 168, Ex.
167.

93. The individuals and entities who use
PRO’s unrestricted versions of the
Plaintiffs’ standards include the same sorts
of industry professionals and tradespeople,
such as engineers, as would otherwise
typically obtain copies of Plaintiffs’
standards directly from Plaintiffs. Wise
Decl. ¶ 174, Ex. 173 at PRO_00267293
(engineer asking after remand from the
D.C. Circuit, “Does Friday’s decision mean
you can update the site?”), PRO_00267241
(engineering firm saying it heard about
PRO from a “colleague” and asking “How
might we access the documents you
offer?”); Wise Decl. ¶ 165, Ex. 164 at
Interrog. 22.

140

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

PRO does not limit its posting in any way. The opposite—it
has made efforts to expand its access and make its postings

Plaintiffs identified an email from an engineering product
designer in which he asks whether the D.C. Circuit decision
will allow PRO to update his site. Wise Decl. ¶ 174, Ex. 173
at PRO_00267293. Plaintiffs also identified emails from a
mechanical engineer affiliated with a for-profit engineering
firm asking on multiple occasions how he could “access the
documents”—that is, privately developed codes, including
NFPA standards—“[PRO] offer[s].” Wise Decl. ¶ 174, Ex.
173 at PRO_00267241-00267242. Both emails demonstrate
that engineers—i.e., professionals who would typically need to
use Plaintiffs’ standards in their day-to-day work and are
therefore generally likely to purchase copies of standards—
sought to access information from PRO, including copies of
Plaintiffs’ standards.

PRO fails to establish a genuine dispute as to a material fact.
PRO cites to no record evidence in support of its assertion.
Hedgeye Risk Mgmt., 2019 WL 4750243, at *4.

PRO’s assertion that “Public Resource has posted only
standards that have become laws by incorporation” is
unsupported by the record evidence and PRO’s own admission
that “when attempting to post the relevant law, Public
Resource accidentally posted an edition of an ASTM standard
that was not the precise edition listed in the C.F.R.
incorporating language.” Opp. 6 n.3.

There is no factual dispute. PRO has not disputed the
accuracy of the statement.

Plaintiffs’ Response

Plaintiffs’ Statement of Material Facts

“more attractive” and “more usable” substituting further for
Plaintiffs. Wise Decl. ¶ 165, Ex. 164 at Interrog. 22 (“Public
Resource has continued its efforts to make new standards it
posts more accessible, more usable, more attractive, and
usable across different platforms.”)

University asked Mr. Malamud
about the legal effect of the Court
of Appeals’ decision—it is not a
statement that the person
accessed a standard at issue
through Public Resource’s
postings, or that the person would
have purchased a document from
Plaintiffs but for Public
Resource’s activities. The other
email is the owner of a small
business who states that he is
obligated to follow California as
well as other state law, but “[t]he
challenge we have is ensuring
access to relevant, current codes
(whole codes – not just errata) for
the states and municipalities in
which we provide our
engineering services.” He then
asks Mr. Malamud to first tell
him how Public Resource does
not violate copyright law, and
then to tell him how to access the
laws that Public Resource posts.
Public Resource declined to
provide this individual with legal
advice, and as with the other
email, there is no statement that
the person accessed a standard at
issue through Public Resource’s
postings, or that the person would
have purchased a document from
141

Plaintiffs’ Response

Defendant Public Resource’s
Response

94. PRO’s versions of Plaintiffs’
standards compete directly with Plaintiffs’
standards in the market because if the
professionals and tradespeople are able to
access and download nearly identical
standards without cost through PRO’s
postings to the Internet Archive, they will
not buy Plaintiffs’ publications or use their
free access websites. PRO’s postings to the
Internet Archive therefore substitute for
both sales of Plaintiffs’ Works and use of
Plaintiffs’ free access websites. Supp.
Pauley Decl. ¶ 35; Supp. Reiniche Decl. ¶
5; James S. Thomas Decl. ¶ 16; Rubel Decl.
¶ 4, Ex. 1 (Jarosz Rep. ¶¶ 109-111, 149).

Plaintiffs’ Statement of Material Facts

142

Disputed. The citations do not
establish the fact claimed.
Plaintiffs’ publications and
website have the authority that
comes with being the official
publisher of the standards
incorporated into law, and
therefore individuals and
businesses that want the official
versions will turn to Plaintiffs,
not Public Resource or any other
source. Moreover, Public
Resource does not compete
directly with Plaintiffs because
Public Resource provides access
only to law, not to standards that
are not the law, and the standards
at issue are outdated as industry
standards but still relevant as law.
Additionally, Plaintiffs cannot
claim harm to viewership of
standards on their reading rooms,
when Plaintiffs’ purpose in
setting up the reading rooms was
principally to use them as

Plaintiffs but for Public
Resource’s activities. Plaintiffs’
final citation to Wise Decl. ¶ 165,
Ex. 164 at Interrog. 22 appears to
be in error and does not provide
any evidence supporting
Plaintiffs’ assertions.

Defendant Public Resource’s
Response

Plaintiffs have presented evidence that they provide read-only
access in furtherance of their educational missions and to
ensure public access to standards. Supp. Pauley Decl. ¶ 43, 45;
Supp. Reiniche Decl. ¶ 3; James S. Thomas Decl. ¶ 12. PRO’s
assertions about Plaintiffs’ purpose in setting up their reading
rooms has no support. Plaintiffs incorporate their response to
Paragraph 39 of Plaintiffs’ Disputed Facts Response as if set

Plaintiffs’ statement is supported by the declarations of James
S. Thomas, ASTM’s Vice President, Sales & Marketing;
James T. Pauley, NFPA’s President and Chief Executive
Officer; Stephanie Reiniche, ASHRAE’s Director of
Technology. Each declaration explained that PRO’s provision
of standards competes directly with the respective Plaintiff’s
sales. Supp. Pauley Decl. ¶ 35; Supp. Reiniche Decl. ¶ 5;
James S. Thomas Decl. ¶ 16. Plaintiffs’ statement is also
supported by the expert report of John Jarosz, who detailed the
significance of copyright to Plaintiffs’ business models. Rubel
Decl. ¶ 4, Ex. 1 (Jarosz Rep. ¶¶ 109-111, 149). PRO has
offered no evidence that contradicts these declarations or
expert opinion.

PRO fails to establish a genuine dispute as to a material fact.
PRO cites to no record evidence in support of its assertion.
Hedgeye Risk Mgmt., 2019 WL 4750243, at *4.

Plaintiffs’ Response

95. PRO’s provision of unrestricted,
downloadable PDF and HTML copies of
Plaintiffs’ works competes directly with not
only sale of the Works but also ancillary
products such as training courses that
include copies of the Works. James S.
Thomas Decl. ¶ 16; Rubel Decl. ¶ 4, Ex. 1
(Jarosz Rep. ¶¶ 131-41, 145-49).

Plaintiffs’ Statement of Material Facts

143

Disputed for the reasons
addressed in paragraph 94. Also
disputed because Plaintiffs, as the
official publishers of the
standards, have authority within
the relevant industries that drives
sales of ancillary products and
services. Additionally, Plaintiffs
can continue to provide copies of
the standards at issue. Also
disputed to the extent that
Plaintiffs imply, without
evidence, that they continue to
sell products and services for
outdated standards, such as the
standards at issue, rather than for
the most up-to-date standards.

argumentative tools for
influencing policymakers to
refrain from mandating disclosure
of the standards incorporated into
law. Public Resource’s use does
not affect that purpose.

Defendant Public Resource’s
Response

With respect to PRO’s dispute that Plaintiffs may not offer
products and services for superseded standards, Plaintiffs do
continue to sell standards that have been superseded and to sell
products and services for such standards. See, e.g., Wise Decl.

PRO has offered no support for its assertion that Plaintiffs’
role as the official publishers of the standards drive their sales
of ancillary products and services. Mr. Jarosz’s unrebutted
expert opinion is that Plaintiffs have a competitive advantage
with regard to ancillary products and services because of their
ability to provide copies of copyrighted materials in
connection with such products and services, that this ability is
“a significant driver” of their sales of such products and
services, and that Plaintiffs would lose this competitive
advantage without copyright in the standards. Rubel Decl. ¶ 4,
Ex. 1 (Jarosz Rep. ¶¶ 109, 146)). PRO’s conjecture as to a
source of Plaintiffs’ competitive advantage is neither in
conflict with Mr. Jarosz’s expert opinion nor supported by any
evidence.

PRO fails to establish a genuine dispute as to a material fact
for the reasons addressed above in response to ¶ 94.

PRO’s assertion that “Public Resource provides access only to
law, not to standards that are not the law” is unsupported by
the record evidence and PRO’s own admission that “when
attempting to post the relevant law, Public Resource
accidentally posted an edition of an ASTM standard that was
not the precise edition listed in the C.F.R. incorporating
language.” Opp. 6 n.3.

forth in full.

Plaintiffs’ Response

Disputed. The citations do not
establish the fact claimed. It is
not reasonable for Plaintiffs to
assert, without evidence, that
trained industry members who
purchase standards that Plaintiffs
publish would settle for outdated
standards on the hope that some
of the provisions therein might
remain unchanged in the latest
versions. Plaintiffs’ sales
documents and Plaintiffs’
admissions indicate that sales of
standards are highest in the one or
two years immediately after the
new version is released, and that
industry members therefore do
not wait years until the standard
is finally incorporated into law.

96. The harm resulting from PRO’s
posting and dissemination of unrestricted
copies of ASTM’s standards for free
extends beyond PRO’s impact on the sale of
the same version of the ASTM work PRO
copied. Prior versions of ASTM’s standards
can serve as a substitute for new ones
because significant portions—and in some
instances the entire standard—may remain
unchanged from edition to edition. As a
result, for many users, prior versions of
ASTM’s works may be a perfect or near
perfect substitute that interferes with the
market for the current version of ASTM’s
standards. James S. Thomas Decl. ¶ 17.

144

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

PRO offers no support for its assertion that industry members
do not wait to purchase a standard until after it is incorporated.
Even if PRO could show that industry members currently
operating in a given field generally purchase standards when
they were issued, that assertion would not address the loss of
sales from new entrants to a given field—for example, new
businesses or individuals beginning their careers—who could
use PRO’s postings rather than purchasing copies of Plaintiffs’
standards.

Plaintiffs’ statement is supported by the declaration of James
S. Thomas, ASTM’s Vice President, Sales & Marketing, who
explained that prior versions of ASTM’s works may be perfect
or near perfect substitutes and that PRO’s dissemination of
such postings interferes with the market for the current version
of ASTM’s standards. James S. Thomas Decl. ¶ 17. PRO has
offered no evidence that contradicts that declaration.

PRO fails to establish a genuine dispute as to a material fact.
PRO cites to no record evidence in support of its assertion.
Hedgeye Risk Mgmt., 2019 WL 4750243, at *4.

Immaterial: as Plaintiffs’ briefing explains, even if PRO
limited its activities to posting out-of-date standards, the
undisputed evidence shows that those activities would cause
market harm. E.g., Pls. Mem. 29-30.

Ex. 159; O’Brien Decl. III ¶ 10; James S. Thomas Decl. ¶¶ 10,
16-17 (explaining that unrestricted, downloadable PDF and
HTML copies of the Works compete directly with ASTM’s
sales of its standards and other educational resources such as
its training courses).

Plaintiffs’ Response

Disputed. The citations do not
establish the fact claimed.
ASTM’s low viewership for its
reading room does not show that
Public Resource is having a
damaging impact; it instead
proves that ASTM has succeeded
in making its reading room “userunfriendly” and as a result
citizens cannot rely on it. This is
evidenced by the fact that even
during late 2015 through mid2018 when Public Resource was
subject to the injunction, the
viewership rates were still paltry.
Instead, ASTM’s viewership
figures show that Public Resource
has not had an effect on usage of
the ASTM reading room, and it
disproves any possible argument
that people would have used
ASTM’s reading room, but for
the availability of standards
through Public Resource.
Additionally, Plaintiffs cannot
claim harm to viewership of
standards on their reading rooms,
when Plaintiffs’ purpose in
setting up the reading rooms was
principally to use them as
argumentative tools for
influencing policymakers to
refrain from mandating disclosure

97. A simple comparison between views
of ASTM Standards in the ASTM reading
room and data regarding downloads and
access to the ASTM Standards on the PRO
website and the Internet Archive website
shows the damaging impact on the
marketplace for ASTM’s works. From
2013-2018, _________________________
__________________________________
____________________________. Wise
Decl. ¶ 158, Ex. 157 at ASTM103291.

145

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

Plaintiffs incorporate their response to Paragraph 39 of
Plaintiffs’ Disputed Facts Response as if set forth in full.

PRO fails to establish a genuine dispute as to a material fact.
PRO cites to no record evidence in support of its assertion.
Hedgeye Risk Mgmt., 2019 WL 4750243, at *4.
PRO fails to refute that ASTM’s reading room views increased
year over year while PRO’s infringing versions were not
posted or that ASTM’s reading room views decreased in 2018
when PRO reposted its versions of ASTM’s standards. Wise
Decl. ¶ 158, Ex. 157 at ASTM103291. Instead, PRO merely
states without support that ASTM’s reading rooms are
unfriendly. PRO’s statement ignores the fact that standards
are only eligible to be incorporated by reference if they are
reasonably available. 1 C.F.R. § 51.7.

Plaintiffs’ Response

98. PRO’s reproduction and display of
ASTM’s Works dwarfs ASTM’s Reading
Room impressions. PRO’s download data
and access data was only available up to
2014. Wise Decl. ¶ 163, Ex. 162 at
PRO_00245530; Wise Decl. ¶ 164, Ex. 163
at PRO_00232651; Wise Decl.¶ 152, Ex.
151.

Plaintiffs’ Statement of Material Facts

Plaintiffs’ Response

146

PRO fails to establish a genuine dispute as to a material fact.
Disputed to the extent that the
PRO cites to no record evidence in support of its assertion.
asserted “download” and
Hedgeye Risk Mgmt., 2019 WL 4750243, at *4.
“access” figures do not
distinguish actual human
downloads or accesses, as
opposed to automated processes
such as web crawlers and bots.
Because Public Resource does
not require citizens to provide
their personal information, set up
an account, agree to adhesive
terms, or otherwise wall off the
laws that it posts, any automated
process that scans the web, such
as search engines, the Internet
Archive, and other indexing tools,
will all cause these figures to
increment every time they check
back on a document that Public
Resource has posted. Further
disputed to the extent that
Plaintiffs use the term “impact”
where they should instead state
“total.”

of the standards incorporated into
law. Public Resource’s use does
not affect that purpose.

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

147

Defendant Public Resource’s
Response

Plaintiffs’ Response

Plaintiffs’ Statement of Material Facts

148

Defendant Public Resource’s
Response

Plaintiffs’ Response

Plaintiffs’ Statement of Material Facts

149

Defendant Public Resource’s
Response

Plaintiffs’ Response

Disputed. The citations do not
establish the facts claimed.
Plaintiffs have no evidence of any
“impact” on their sales or
viewership, as evidenced by the
consistently low viewership
figures for the ASTM reading
room. ASTM’s low viewership
for its reading room proves
ASTM has succeeded in making
its reading room “userunfriendly” and as a result
citizens cannot rely on it. This is
evidenced by the fact that even
during late 2015 through mid2018 when Public Resource was
subject to the injunction, the
viewership rates were still paltry.

99. The cumulative impact of PRO’s
reproduction and display of ASTM’s
standards on its own website and on Internet
Archive represents __________________
ASTM’s total views across all six years
combined. Compare Wise Decl. ¶ 158, Ex.
157 at ASTM103291, with Wise Decl. ¶
163, Ex. 162 at PRO_00245530 and Wise
Decl. ¶ 164, Ex. 163 at PRO_00232651.

150

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

PRO fails to refute that ASTM’s reading room views increased
year over year while PRO’s infringing versions were not
posted or that ASTM’s reading room views decreased in 2018
when PRO reposted its versions of ASTM’s standards. Wise
Decl. ¶ 158, Ex. 157 at ASTM103291. Instead, PRO merely
states without support that ASTM’s reading rooms are
unfriendly. PRO’s statement ignores the fact that standards
are only eligible to be incorporated by reference if they are
reasonably available. 1 C.F.R. § 51.7.
Plaintiffs incorporate their response to Paragraph 39 of
Plaintiffs’ Disputed Facts Response as if set forth in full.

PRO fails to establish a genuine dispute as to a material fact.
PRO cites to no record evidence in support of its assertion.
Hedgeye Risk Mgmt., 2019 WL 4750243, at *4.

Plaintiffs’ Response

100. With respect to NFPA, revenue is
somewhat cyclical with publications, but in
recent years, NFPA’s revenue from the sale
of standards has been declining. NFPA
attributes this decline, at least in part, to
PRO’s making copies of NFPA’s standards
widely available, including for use by those
same industry professionals who would
otherwise purchase copies or digital

Plaintiffs’ Statement of Material Facts

151

Disputed to the extent that NFPA
attributes any decline in its sales
to Public Resource’s activities.
NFPA’s sales figures show that
its sales have been in steady
decline for years before Public
Resource first posted an NFPA
standard. Becker Decl. Ex. 77.
Other than NFPA’s CEO’s
unsupported assertion, NFPA has
no evidence that Public

Instead, ASTM’s viewership
figures show that Public Resource
has not had an effect on usage of
the ASTM reading room, and it
disproves any possible argument
that people would have used
ASTM’s reading room, but for
the availability of standards
through Public Resource.
Additionally, Plaintiffs cannot
claim harm to viewership of
standards on their reading rooms,
when Plaintiffs’ purpose in
setting up the reading rooms was
principally to use them as
argumentative tools for
influencing policymakers to
refrain from mandating disclosure
of the standards incorporated into
law. Public Resource’s use does
not affect that purpose.

Defendant Public Resource’s
Response

There is no factual dispute. PRO has not disputed the
accuracy of the statement.

Plaintiffs’ Response

Defendant Public Resource’s
Response

101. NFPA’s licenses likely would lose
significant value if the licensees or their
customers could obtain the same material
from PRO in digital format, without cost,
and without restrictions on further
dissemination. Supp. Pauley Decl. ¶ 36.

152

Disputed. NFPA’s claim that its
licenses “likely would” lose value
is disproven by the fact that there
is no evidence they have lost
value during the first six years
that Public Resource was posting
the standards at issue online “in
digital format, without cost, and
without restrictions on further
dissemination.” Nor is there
evidence that the value of those
license increased when Public
Resource was enjoined from
posting, or that the value again
dropped after the Court of
Appeals vacated the injunction
and indicated that posting the law
is likely to be a fair use. In fact,
NFPA states that it does not have
a number on any balance sheet
that corresponds to the value of

subscription access. Supp. Pauley Decl. ¶ Resource’s activities have cost it
38.
any sales—even though Public
Resource posted its first NFPA
standard in 2008, eleven years
ago. Moreover, NFPA is correct
that its sales data shows its sales
are cyclical: sales are highest in
the first and second year of
publication, and then decline
steadily. In contrast, the
standards at issue are outdated.

Plaintiffs’ Statement of Material Facts

PRO fails to establish a genuine dispute as to a material fact.
Plaintiffs’ statement is supported by the declaration of James
T. Pauley, NFPA’s President and Chief Executive Officer.
The fact that it is challenging to pinpoint precise market
effects from PRO’s activities does not go to show that PRO’s
activities are not having these market effects, nor does it go to
show—as is the legally relevant question—that “unrestricted
and widespread conduct of the sort engaged in by [PRO]”
would not have these effects. Pls. Mem. 25-26.

Plaintiffs’ Response

Disputed to the extent that the
asserted “View[ed]”,
“downloaded”, and “accessed”
figures do not distinguish actual
human downloads or accesses, as
opposed to automated processes
such as web crawlers and bots.

the copyrights it holds because
NFPA does not “attempt to place
any value on any intangible
asset.” M. Becker Decl. ¶ 9, Ex.
11 (Mullen Dep. 140:11–18).

Defendant Public Resource’s
Response

103. The Internet Archive website is among
the top 300 most-visited websites in the
world by alexa.com rankings and millions
153

PRO’s Conduct Threatens Further Harm Disputed for the reasons
from
Widespread
Anonymous addressed below.
Dissemination

102. A review of the Internet Archive
websites to which PRO posted its versions
of Plaintiffs’ Works reveals that the 2011
National Electrical Code has been
“View[ed],” which includes being accessed
or downloaded, 40,151 times since
originally uploaded. Supp. Pauley Decl. ¶
31; Wise Decl. ¶ 168, Ex. 167 at 5. This is
an increase of nearly 10,000 in the 13
months since PRO has reposted this
standard. SMF ¶ 242 (NFPA’s 2011 NEC
was downloaded 30,350 times from the
Internet Archive website) (citing Rubel
Decl. ¶ 5, Ex. 2 (Rule 30(b)(6) Dep. of
Public Resource at 254:14-256:16)); Rubel
Decl. ¶ 43, Ex. 39 (Ex. 51 to Rule 30(b)(6)
Dep. of Public Resource).

Plaintiffs’ Statement of Material Facts

PRO fails to establish a genuine dispute as to a material fact
for the reasons addressed below.

There is no factual dispute. PRO has not disputed the
accuracy of the statement. PRO cites to no record evidence in
support of its assertion. Hedgeye Risk Mgmt., 2019 WL
4750243, at *4.

Plaintiffs’ Response

105. Accordingly,
PRO’s
download
information is under-inclusive because it
fails to account for versions of its standards
re-posted by PRO’s users. For example,
Scribd.com is a subscription service in
which users must sign up for premium

104. Neither PRO nor the Internet Archive
keeps information regarding the individuals
and entities that download and use PRO’s
versions of Plaintiffs’ Works or the reasons
that they do so. PRO has “adopted a policy
of not talking to its users and not answering
any questions or asking questions” of those
users regarding Plaintiffs’ Works. Wise
Decl. ¶ 165, Ex. 164 at Interrog. 23.
Likewise, the Internet Archive does not
keep records identifying information
regarding the individuals who use or
download PRO’s versions of Plaintiffs’
Standards. Butler Decl. ¶¶ 4, 9 (“as a
general matter we avoid keeping the IP
(Internet Protocol) addresses of our
readers” and “[aside from counting the
number of users] Internet Archive does not
otherwise monitor how users view, access,
download, or otherwise use the content
posted on the websites”).

of people visit the Internet Archive every
day. See Butler Decl. ¶ 4.

Plaintiffs’ Statement of Material Facts

154

Immaterial, but disputed to the
extent that Plaintiffs imply that
Public Resource’s and the
Internet Archive’s practice of not
unnecessarily collecting and
storing user information is
anything other than a best
practice for treating user
information on the Internet.

Defendant Public Resource’s
Response

Undisputed.

This fact is material to Plaintiffs’ argument that PRO’s
provision of Plaintiffs’ standards will enable down-the-line
infringers who, by virtue of the anonymity PRO and the
Internet Archive, offer and profit from reselling PRO’s copies.
Pls. Mem. 27. The fact is also material to Plaintiffs’ argument
that monetary damages cannot be quantified. Pls. Mem. 42.

There is no factual dispute. PRO has not disputed the
accuracy of the statement.

Plaintiffs’ Response

155

Plaintiffs’ statement is supported by the declaration of James
T. Pauley, NFPA’s President and Chief Executive Officer,
who explained that “NFPA has absolutely no means of
tracking down those individuals who use
Public.Resource.Org’s versions of NFPA’s standards for their
commercial businesses, or for sale to other individuals and
entities.” Supp. Pauley Decl. ¶ 37. PRO provides no support
for its speculation that Plaintiffs could effectively track down
such users by asking their members or by searching for text in
PRO’s disclaimers. The latter assertion is particularly
untenable, given that would-be-infringers could easily remove
the cover sheets containing PRO’s infringers.

PRO fails to establish a genuine dispute as to a material fact.
PRO cites to no record evidence in support of its assertion.
Hedgeye Risk Mgmt., 2019 WL 4750243, at *4.

Disputed to the extent that
Plaintiffs assert they should have
the “ability to control the further
dissemination and use” of the
law. Disputed to the extent that
Plaintiffs assert that they “cannot
easily track down those
individuals who use PRO’s
versions of NFPA’s standards for
their commercial businesses,”
when Plaintiffs have not shown
an attempt to identify a single
such individual or business,
which presumably they would be
in a strong position to investigate
by asking their many thousands
of members. Disputed to the

107. PRO’s postings threaten Plaintiffs’
ability to control the further dissemination
and use of its standards. Because PRO
offers unrestricted and anonymous access to
standards in multiple formats, Plaintiffs
cannot easily track down those individuals
who use PRO’s versions of NFPA’s
standards for their commercial businesses,
or for sale to other individuals and entities.
Supp. Pauley Decl. ¶ 37.

Plaintiffs’ Response

Undisputed.

Defendant Public Resource’s
Response

106. The open publishing forum at
Scribd.com contains dozens of ASTM
works bearing the PRO cover sheet. Wise
Decl. ¶ 154, Ex. 153.

access to view beyond the PRO cover page.
Wise Decl. ¶ 155, Ex. 154.

Plaintiffs’ Statement of Material Facts

156

Undisputed.

109. Although Internet Archive has the
functionality to offer access to the blind and
print disabled in Digital Accessible
Information System (DAISY) format
protected by encryption and accessible
through a key provided by the Library of
Congress National Library Service to

Undisputed.

PRO’s assertion that Plaintiffs’ standards are “the law” is
unsupported by the record evidence and PRO’s own admission
that “when attempting to post the relevant law, Public
Resource accidentally posted an edition of an ASTM standard
that was not the precise edition listed in the C.F.R.
incorporating language.” Opp. 6 n.3.

extent that Plaintiffs assert they
cannot track individuals who
allegedly sell standards acquired
from the Public Resource
website, when they should be
able to do so via a simple Internet
search (for instance, by searching
for Plaintiffs’ names and text
found in Public Resource’s
disclaimers).

Undisputed.

PRO Does Not Make Use
of Internet Archive’s
Features That Would
Protect Plaintiffs’
Standards

Plaintiffs’ Response

Defendant Public Resource’s
Response

108. Although Internet Archive has the
functionality to provide access to books
through “borrowing,” which allows
registered users to “borrow books for two
weeks, after which the loaned item expires
and is removed from the user’s device,” PRO
does not use this function. Butler Decl. ¶ 5.

C.

Plaintiffs’ Statement of Material Facts

157

Disputed to the extent that
Plaintiffs have failed to
enumerate their damages in a way
that shows that Public Resource’s
funds are not sufficient to cover
the damages actually attributable
to Public Resource’s activities.
Plaintiffs’ statement assumes
large but vague damages of an
amount that somehow outstrips
what is possible to raise through
nonprofit fundraising, without
foundation or justification for that
assumption.

111. PRO has limited financial resources
available to pay any damages award
because it is dependent on fundraising for it
activities. PRO Answer, Dkt. 21 at ¶¶ 46-47
(“[nearly] all of PRO’s funding comes from
charitable donations”). PRO describes itself
as a “charity.” Wise Decl. ¶ 165, Ex. 164 at
Interrog. 22.

Disputed. Plaintiffs have
adduced no evidence of
irreparable harm sufficient to
justify an injunction.
Disputed to the extent that Public
Resource has said only that it will
post documents that have been
made law. The 2017 edition of
the NEC is now the law of
numerous states, as NFPA’s own
materials show.

Injunctive Relief Is
Necessary

Defendant Public Resource’s
Response

110. PRO has and will continue to post
versions of additional standards owned by
Plaintiffs if not enjoined. For example, PRO
posted the 2017 edition of the NEC in
January 2019. Supp. Pauley Decl. ¶ 30;
Wise Decl. ¶ 168, Ex. 167 at 6.

D.

residents of the United States and American
citizens abroad, PRO offers DAISY format
without any encryption. Butler Decl. ¶ 6.

Plaintiffs’ Statement of Material Facts

PRO fails to establish a genuine dispute as to a material fact.
Plaintiffs have moved for summary judgment on 217 distinct
copyrighted works, and statutory damages can range up to
$150,000 per work. 17 U.S.C. § 504(c). PRO has not
disputed that it is dependent on fundraising activities or that it
considers itself a charity. Mr. Jarosz’s expert opinion is that
PRO has “at best . . . extremely limited financial resources
available to pay any potential damages award.” Rubel Decl. ¶
4, Ex. 1 (Jarosz Rep. ¶¶ 155)). PRO previously conceded this
fact. PRO Statement of Disputed Facts, Dkt. 121-3, ¶ 272.

There is no factual dispute. PRO has not disputed the
accuracy of the statement.

PRO fails to establish a genuine dispute as to a material fact.
As explained in Plaintiffs’ briefing, there is significant
evidence of irreparable harm. Pls. Mem. 38-41; Reply at Part
III.B.1.

Plaintiffs’ Response

Immaterial and Incomplete.
Counsel for PRO also responded:
“Let me be clear.
Public.Resource would take
direction from this Court. Logos:
yes or no? It doesn't care. It
simply tried to replicate the law
which consists of these
documents incorporated by
reference.” Dkt. 173 at 116:2225.

112. At the initial summary judgment
hearing, when asked what would be an
appropriate remedy, counsel for PRO
responded “I am not able to say.” Transcript
of Hearing on Motion for Summary
Judgment, Dkt. 173 at 133:16 (Sept. 12,
2016).

158

Defendant Public Resource’s
Response

Plaintiffs’ Statement of Material Facts

There is no factual dispute. PRO has not disputed the
accuracy of the statement. PRO’s contention that Plaintiffs’
statement was incomplete is meritless; the subsequent
discussion did not constitute an explanation from PRO of what
an appropriate remedy would be or otherwise clarify the
statement that Plaintiffs’ cited.

Plaintiffs’ Response

Dated:

December 23, 2019

Respectfully submitted,
/s/ J. Kevin Fee
J. Kevin Fee (D.C. Bar: 494016)
Jane W. Wise (D.C. Bar: 1027769)
Morgan, Lewis & Bockius LLP
1111 Pennsylvania Ave., N.W.
Washington, D.C. 20004
Tel: [phone]
Email: [e-mail]
[e-mail]
Counsel for American Society For Testing And
Materials d/b/a ASTM International
/s/ Kelly M. Klaus
Kelly M. Klaus (pro hac vice)
MUNGER, TOLLES & OLSON LLP
560 Mission St., 27th Floor
San Francisco, CA 94105
Tel: [phone]
Email: [e-mail]
Rose L. Ehler (pro hac vice)
MUNGER, TOLLES & OLSON LLP
350 South Grand Ave., 50th Floor
Los Angeles, CA 90071
Tel: [phone]
Email: [e-mail]
Rachel G. Miller-Ziegler
MUNGER, TOLLES & OLSON LLP
1155 F St. NW, 7th Floor
Washington, DC 20004
Tel: [phone]
Email: [e-mail]
Counsel for National Fire Protection Association, Inc.

159

/s/ J. Blake Cunningham
Jeffrey S. Bucholtz (D.C. Bar: 452385)
David Mattern
King & Spalding LLP
1700 Pennsylvania Avenue, NW, Ste. 200
Washington, DC 20006-4707
Tel: [phone]
Email: [e-mail]
J. Blake Cunningham
King & Spalding LLP
101 Second Street, Ste. 2300
San Francisco, CA 94105
Tel: [phone]
Email: [e-mail]
Counsel for American Society of Heating,
Refrigerating, and Air Conditioning Engineers

160