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.)

Exhibit 175

NFPA 1
(2006):
Uniform Fire
Code

NFPA 1
(2003):
Uniform Fire
Code

Standard

C.F.R Reference
• None
State Law
• Fla Admin Code R
69A-60 003

Authorities Identified
by PRO
C.F.R Reference
• None
State Law
• Fla Admin Code R
69A-3 012

Page 1 of 21

(1) NFPA 1, the Uniform Fire Code, Florida 2006 edition, is hereby adopted and incorporated herein by reference and shall take
effect on the effective date of this rule as a part of the Florida Fire Prevention Code
(2)(a) NFPA 1, Florida 2006 edition may be purchased by writing to the NFPA at 1 Batterymarch Park, Quincy, Massachusetts
02269-9101
(b) All codes, standards, publications, and authorities adopted and incorporated by reference in this rule chapter are also
available for public inspection during regular business hours at the Bureau of Fire Prevention, Division of State Fire Marshal,
Department of Financial Services, 325 John Knox Road, The Atrium, Third Floor, Tallahassee. Florida 32303 and may be
accessed in a read-only, non-printable, non-downloadable format at the Division of State Fire Marshal website whose address is
http://www fldfs com/SFM/
(c) NFPA 1, Florida 2006 edition, may also be purchased at the Bureau of Fire Standards and Training, Division of State Fire
Marshal, 11655 Northwest Gainesville Road, Ocala, Florida 34482

69A-60 003 Standards of the National Fire Protection Association, NFPA 1, the Uniform Fire Code, Florida 2006 Edition,
Adopted

(4) The codes and standards published by the National F1re Protection Association of NFPA 1 and NFPA 101 as adopted in
Rule Chapter 69A-60, F A C may be obtained by writing to BNi, 1612 S Clementine Street, Anaheim, CA 92802 ANSI
standards may be obtained from the American National Standards Institute, 1430 Broadway, New York, N Y 10018
ANSI/ASME standards may be obtained from the American Society of Mechanical Engineers, 345 East 47th Street, New York,
N Y 10017 ASTM standards may be obtained from the American Society for Testing and Materials, 1916 Race Street,
Philadelphia, PA 19103 UL standards may be obtained from Underwriters Laboratories, Inc , 333 Pfingston Road, Northbrook,
IL 60062 All standards incorporated by reference in this rule are also available for public inspection during regular business
hours at the Division currently located on third floor (Room 326) . of the Atrium Building, 325 John Knox Road, Tallahassee,
Florida

1) Except as specifically modified by statute or by the State Fire Marshal's rules, the Florida specific edition of NFPA 101, the
Life Safety Code®, 2003 edition and the Florida specific edition of NFPA 1, the Uniform Fire Code 2003 edition, as adopted
within Rule Chapter 69A-60, FA C, the 2004 edition of the Florida Fire Prevention Code are hereby adopted and incorporated
by reference as a part of the uniform fire safety standards adopted by rule by the State Fire Marshal and are applicable to those
buildings and structures specified in paragraphs (a) and (b) of subsection (1) of Section 633 022, F S In addition, the following
standards, except as specifically modified in the rule chapters in Rule Title 69A, are hereby adopted and incorporated by
reference and shall take effect on the effective date of this rule, as a part of the uniform fire safety standards adopted by rule by
the State Fire Marshal and are applicable to those buildings and structures specified m paragraphs (a) and (b) of subsection (1)
of Section 633 022. F S

69A-J O 12 Standard, of the National Fire Protection Association and Other Standard, Adopted

PRO’s Citation of “Text of Incorporation”

NFPA Response to PRO’s Ex. 91

PRO further fails to rebut the evidence in Plaintiffs’ Second Supplemental
Statement of Material Facts identifying a non-exhaustive list of the portions
of NFPA standards at issue that are optional or permissive and do not set
forth any binding obligation including information regarding the history and
development of the standard, informational notes and informational annexes.
2d Supp. SMF at ¶¶ 57-69.

PRO does not do any analysis of the cited state regulation that would
illuminate which, if any, portions of the standard it would consider “essential
to comply[] with [a] legal duty.” ASTM II, 896 F.3d at 450.

PRO relies upon only a state law adoption. PRO’s claim that it has identified
a regulation showing that that “[t]he federal government has incorporated into
law every entire standard at issue,” Opp. at 8, is false.

PRO further fails to rebut the evidence in Plaintiffs’ Second Supplemental
Statement of Material Facts, Dkt. No. 201 (“2d Supp. SMF”) identifying a
non-exhaustive list of the portions of NFPA standards at issue that are
optional or permissive and do not set forth any binding obligation including
information regarding the history and development of the standard,
informational notes and informational annexes. 2d Supp. SMF at ¶¶ 57-69.

PRO does not do any analysis of the cited state regulation that would
illuminate which, if any, portions of the standard it would consider “essential
to comply[] with [a] legal duty.” Am. Soc’y for Testing & Materials, v.
Public.Resource.Org, Inc., 896 F.3d 437, 450 (D.C. Cir. 2018) (“ASTM II”).

PRO relies upon only a state law adoption. PRO’s claim that it has identified
a regulation showing that that “[t]he federal government has incorporated into
law every entire standard at issue,” Opp. at 8 (Dkt. No. 202-1), is false.

NFPA Response

NFPA 11
(2005):
Standard for
Low Medium
and High
Expansion
Foam

Standard

Authorities Identified
by PRO
C.F.R Reference
• 29 C F R § 1915 5
(2015)
State Law
• None

Page 2 of 21

(xiii) NFPA 11-2005 Standard for Low-, Medium-, and High-Expansion Foam, IBR approved for§ 1915 507(d)(3)

(d)(4) The following material is available for purchase from the National Fire Protection Association, 1 Batterymarch Park, PO
Box 9101, Quincy, MA 02269-9101:

(b)(1) The standards listed in paragraph (d) of this section are incorporated by reference in the corresponding sections noted as
the sections exist on the date of the approval, and a notice of any change in these standards will be published in the Federal
Register The Director of the Federal Register approved these Incorporations by reference in accordance with 5 U S C 552(a)
and 1 CFR part 51 <
(2) Any changes in the standards incorporated by reference in this part and an official historic file of such changes are available
for inspection in the Docket Office at the national office of the Occupational Safety and Health Administration, US Department
of Labor, Washington, DC 20910; telephone: [phone] (TTY number· 877-889-5627)
c) Copies of standards listed in this section and issued by private standards organizations are available for purchase from the
issuing organizations at the addresses or through the other contact information listed below for these private standards
organizations In addition, these standards are available for inspection at the National Archives and Records Administration
(NARA) For information on availability of these standards at NARA, telephone : [phone], or go to
http://www archives gov/federal_register/code_of_federal_regulations/ibr_locations html Also, the standards are available for
inspection at any Regional Office of the Occupational Safety and Health Administration (OSHA), or at the OSHA Docket
Office, U S Department of Labor, 200 Constitution Avenue, NW, Room N-2625, Washington, DC 20210; telephone: [phone] (TTY number: 877-889-5627)

29 CF R § 1915 5, "Incorporation by reference" (2015):

PRO’s Citation of “Text of Incorporation”

NFPA Response to PRO’s Ex. 91

PRO further fails to rebut the evidence in Plaintiffs’ Second Supplemental
Statement of Material Facts identifying a non-exhaustive list of the portions
of NFPA standards at issue that are optional or permissive and do not set
forth any binding obligation including information regarding the history and
development of the standard, informational notes and informational annexes.
2d Supp. SMF at ¶¶ 57-69.

Indeed, it seems unlikely that PRO could meet its burden to justify its
wholesale copying and distribution. For example, at a minimum, the
regulation does not require compliance with provisions of the standard related
to semifixed and portable extinguishing systems:
• The cited federal regulation incorporates the standard for 29 C.F.R.
§ 1915.507(d)(3). See 29 C.F.R. § 1915.5(d)(4)(xiii) (2015).
• That section provides “The employer must select, install, maintain,
inspect, and test . . . [f]ixed extinguishing systems that use water or
foam as the extinguishing agent according to . . . NFPA 11–2005.”
29 C.F.R. § 1915.507(d) (2015) (emphasis added).
• That section accordingly has no relevance to, inter alia, the use of
semifixed and portable extinguishing systems—topics covered in
the standard, Supplemental Declaration of James Pauley (“Supp.
Pauley Decl.” (Dkt No. 198-50), Ex. D (Dkt. No. 199-15, sealed) at
11-5 (NFPA-PR0014147) (“This standard is intended for the use
and guidance of . . . fixed, semifixed, or portable . . . systems”); see,
e.g., id. at Art. 6.15 at 11-29 (NFPA-PR0014171) (providing
guidance specific to “Portable Foam-Generating Devices”).
• Those portions of NFPA 11 (2005) are, accordingly, not essential to
comply with 29 C.F.R. § 1915.5 (2015).

PRO does not do any analysis of the cited federal regulation that would
illuminate which, if any, portions of the standard it would consider “essential
to comply[] with [a] legal duty.” ASTM II, 896 F.3d at 450.

NFPA Response

NFPA 12
(2005):
Standard on
Carbon
Dioxide
Extinguishing
Systems

Standard

Authorities Identified
by PRO
C.F.R Reference
• 30 [sic: should be
29] C F R § 1915 5
(2015)
State Law
• None

Page 3 of 21

(xiii) NFPA 11-2005 Standard for Low-, Medium-, and High-Expansion Foam, IBR approved for§ 1915 507(d)(3)

(d)(4) The following material is available for purchase from the National Fire Protection Association, 1 Batterymarch Park, PO
Box 9101, Quincy, MA 02269-9101:

(b)(1) The standards listed in paragraph (d) of this section are incorporated by reference in the corresponding sections noted as
the sections exist on the date of the approval, and a notice of any change in these standards will be published in the Federal
Register The Director of the Federal Register approved these Incorporations by reference in accordance with 5 U S C 552(a)
and 1 CFR part 51 <
(2) Any changes in the standards incorporated by reference in this part and an official historic file of such changes are available
for inspection in the Docket Office at the national office of the Occupational Safety and Health Administration, US Department
of Labor, Washington, DC 20910; telephone: [phone] (TTY number· 877-889-5627)
c) Copies of standards listed in this section and issued by private standards organizations are available for purchase from the
issuing organizations at the addresses or through the other contact information listed below for these private standards
organizations In addition, these standards are available for inspection at the National Archives and Records Administration
(NARA) For information on availability of these standards at NARA, telephone : [phone], or go to
http://www archives gov/federal_register/code_of_federal_regulations/ibr_locations html Also, the standards are available for
inspection at any Regional Office of the Occupational Safety and Health Administration (OSHA), or at the OSHA Docket
Office, U S Department of Labor, 200 Constitution Avenue, NW, Room N-2625, Washington, DC 20210; telephone: [phone] (TTY number: 877-889-5627)

29 CF R § 1915 5, "Incorporation by reference" (2015):

PRO’s Citation of “Text of Incorporation”

NFPA Response to PRO’s Ex. 91

PRO further fails to rebut the evidence in Plaintiffs’ Second Supplemental
Statement of Material Facts identifying a non-exhaustive list of the portions
of NFPA standards at issue that are optional or permissive and do not set
forth any binding obligation including information regarding the history and
development of the standard, informational notes and informational annexes.
2d Supp. SMF at ¶¶ 57-69.

Indeed, it seems unlikely that PRO could meet its burden to justify its
wholesale copying and distribution. For example, at a minimum, the
regulation does not require compliance with the standard’s provisions related
to marine systems:
• The cited federal regulation incorporates the standard for 29 C.F.R.
§ 1915.507(d)(5). See 29 C.F.R. § 1915.5(d)(4)(xv) (2015).
• That section provides “The employer must select, install, maintain,
inspect, and test . . . [f]ixed extinguishing systems using gas as the
extinguishing agent according to NFPA 12–2005.” 29 C.F.R. §
1915.507(d) (2015). Section 1915.507 is titled “Land-side fire
protection systems” (emphasis added).
• That section accordingly has no relevance to, inter alia, the
selection and installation of fixed extinguishing systems in “ships,
barges, off-shore platforms, motorboats, and pleasure craft”—topics
covered in the standard, see Supp. Pauley Decl. Ex. E (Dkt. No.
199-16, sealed) at Art. 3.4.1 at 12-5 (NFPA-PR0014248); see, e.g.,
id. at Art. 4.1.3 at 12-6 (NFPA-PR0014249).
• Those portions of NFPA 12 (2005) are, accordingly, not essential to
comply with 29 C.F.R. § 1915.5 (2015).

PRO does not do any analysis of the cited federal regulation that would
illuminate which, if any, portions of the standard it would consider “essential
to comply[] with [a] legal duty.” ASTM II, 896 F.3d at 450.

NFPA Response

NFPA 10
(2002):
Standard for
Portable Fire
Extinguishers
(Title of work
on certificate
of registration
is "National
Fire Codes Vol
1-12 and
Master Index")

Standard

Authorities Identified
by PRO
C.F.R Reference
• 31 [sic: should be
29] C F R § 1915 5
(2015)
State Law
• None

Page 4 of 21

(vi) NFPA 10-2002 Standard for Portable Fire Extinguishers, IBR approved for §§ 1915 507(b)(1) and (b)(2)

(d)(4) The following material is available for purchase from the National Fire Protection Association, 1 Batterymarch Park, PO
Box 9101, Quincy, MA 02269-9101:

(b)(1) The standards listed in paragraph ( d) of this section are incorporated by reference in the corresponding sections noted as
the sections exist on the date of the approval, and a notice of any change in these standards will be published in the Federal
Register The Director of the Federal Register approved these incorporations by reference in accordance with 5 U S C 552(a)
and 1 CFR part 51
(2) Any changes in the standards incorporated by reference in this part and an official historic tile of such changes are available
for inspection in the Docket Office at the national office of the Occupational Safety and Health Administration, U S Department
of Labor. Washington, DC 20910; telephone: [phone] (TTY number: 877-889-5627)
( c) Copies of standards listed in this section and issued by private standards organizations are available for purchase from the
issuing organizations at the addresses or through the other contact information listed below for these private standards
organizations In addition, these standards are available for inspection at the National Archives and Records Administration
(NARA) For information on the availability of these standards at NARA, telephone: [phone], or go to
http://www archives gov/federal_register/code_of_federal_regulations/ibr_locations html Also, the standards are available for
inspection at any Regional Office of the Occupational Safety and Health Administration (OSHA), or at the OSHA Docket
Office, U S Department of Labor, 200 Constitution Avenue, NW , Room N-2625, Washington, DC 20210; telephone: [phone] (TTY number: 877-889-5627)

29 CF R § 1915 5, "Incorporation by reference" (2015):

PRO’s Citation of “Text of Incorporation”

NFPA Response to PRO’s Ex. 91

PRO further fails to rebut the evidence in Plaintiffs’ Second Supplemental
Statement of Material Facts identifying a non-exhaustive list of the portions
of NFPA standards at issue that are optional or permissive and do not set
forth any binding obligation including information regarding the history and
development of the standard, informational notes and informational annexes.
2d Supp. SMF at ¶¶ 57-69.

Indeed, it seems unlikely that PRO could meet its burden to justify its
wholesale copying and distribution. For example, at a minimum, the
regulation does not require compliance with the standard’s provisions related
to fire extinguishing equipment in homes:
• The cited federal regulation incorporates the standard for 29 C.F.R.
§§ 1915.507(b)(1) and (b)(2). See 29 C.F.R. § 1915.5(d)(4)(vi)
(2015).
• Those sections provide that “[t]he employer must select, install,
inspect, maintain, and test all portable fire extinguishers” and may
use certain hose systems “in accordance with NFPA 10–2002.” 29
C.F.R. §§ 1915.507(b)(1)-(b)(2) (2015). Section 1915.507 is titled
“Land-side fire protection systems” and appears in a subpart of
OSHA regulations covering “Fire Protection in Shipyard
Employment.”
• These sections accordingly have no relevance to, inter alia, the use
of portable fire extinguishing systems in “one- and two-family
dwellings and living units within multifamily structures”—topics
covered in the standard, see Supp. Pauley Decl. Ex. C (Dkt. No.
199-14, sealed) at Annex F at 10-42 to 10-44 (NFPA-PR0014114116).
• Those portions of NFPA 10 (2002) are, accordingly, not essential to
comply with 29 C.F.R. § 1915.5 (2015).

PRO does not do any analysis of the cited federal regulation that would
illuminate which, if any, portions of the standard it would consider “essential
to comply[] with [a] legal duty.” ASTM II, 896 F.3d at 450.

NFPA Response

NFPA 13
(2002):
Installation of
Sprinkler
Systems (Title
of work on
certificate of
registration is
"National Fire
Codes Vol 112 and Master
Index")

Standard

Authorities Identified
by PRO
C.F.R Reference
• 32 [sic: should be
29] C F R § 1915 5
(2015)
State Law
• None

Page 5 of 21

(ix) NFPA 13-2002 Standard for the Installation of Sprinkler Systems, IBR approved for § 1915 507(d)(2)

(d)(4) The following material is available for purchase from the National Fire Protection Association, 1 Batterymarch Park, PO
Box 9101, Quincy, MA 02269-9101:

(b)(1) The standards listed in paragraph ( d) of this section are incorporated by reference in the corresponding sections noted as
the sections exist on the date of the approval, and a notice of any change in these standards will be published in the Federal
Register The Director of the Federal Register approved these incorporations by reference in accordance with 5 U S C 552(a)
and 1 CFR part 51
(2) Any changes in the standards incorporated by reference in this part and an official historic tile of such changes are available
for inspection in the Docket Office at the national office of the Occupational Safety and Health Administration, U S Department
of Labor. Washington, DC 20910; telephone: [phone] (TTY number: 877-889-5627)
( c) Copies of standards listed in this section and issued by private standards organizations are available for purchase from the
issuing organizations at the addresses or through the other contact information listed below for these private standards
organizations In addition, these standards are available for inspection at the National Archives and Records Administration
(NARA) For information on the availability of these standards at NARA, telephone: [phone], or go to
http://www archives gov/federal_register/code_of_federal_regulations/ibr_locations html Also, the standards are available for
inspection at any Regional Office of the Occupational Safety and Health Administration (OSHA), or at the OSHA Docket
Office, U S Department of Labor, 200 Constitution Avenue, NW , Room N-2625, Washington, DC 20210; telephone: [phone] (TTY number: 877-889-5627)

29 C F R § 1915 5, "Incorporation by reference' (2015):

PRO’s Citation of “Text of Incorporation”

NFPA Response to PRO’s Ex. 91

PRO further fails to rebut the evidence in Plaintiffs’ Second Supplemental
Statement of Material Facts identifying a non-exhaustive list of the portions
of NFPA standards at issue that are optional or permissive and do not set
forth any binding obligation including information regarding the history and
development of the standard, informational notes and informational annexes.
2d Supp. SMF at ¶¶ 57-69.

Indeed, it seems unlikely that PRO could meet its burden to justify its
wholesale copying and distribution. For example, at a minimum, the
regulation does not require compliance with the standard’s provisions related
to sprinkler systems in living units:
• The cited federal regulation incorporates the standard for 29 C.F.R.
§ 1915.507(d)(2). See 29 C.F.R. § 1915.5(d)(4)(ix) (2015).
• That section provides “[t]he employer must select, install, inspect,
maintain, and test all fixed systems required by OSHA as follows: .
. . Automatic sprinkler systems according to NFPA 25-2002 . . . and
either (i) NFPA 13-2002” or “NFPA 750-2003.” 29 C.F.R.
§ 1915.507(d)(2) (2015). Section 1915.507 is titled “Land-side fire
protection systems” and appears in a subpart of OSHA regulations
covering “Fire Protection in Shipyard Employment.”
• This section accordingly has no relevance to, inter alia, the use of
automatic sprinkler systems in “hotel rooms, dormitory rooms,
apartments, condominiums, sleeping rooms in nursing homes, and
similar living units”—a topic covered in the standard, see Supp.
Pauley Decl. Ex. F (Dkt. No. 199-17, sealed) at Art. 3.3.8 at 13-14
(NFPA-PR0014323).
• Those portions of NFPA 13 (2002) are, accordingly, not essential to
comply with 29 C.F.R. § 1915.5 (2015).

PRO does not do any analysis of the cited federal regulation that would
illuminate which, if any, portions of the standard it would consider “essential
to comply[] with [a] legal duty.” ASTM II, 896 F.3d at 450.

NFPA Response

NFPA 25
(2002):
Inspection,
Testing and
Maintenance
of WaterBased Fire
Protection
Systems (Title
of work on
certificate of
registration is
"National Fire
Codes Vol 112 and Master
Index")

Standard

Authorities Identified
by PRO
C.F.R Reference
• 33 [sic: should be
29] C F R § 1915 5
(2015)
State Law
• None

Page 6 of 21

(d)(4) The following material is available for purchase from the National Fire Protection Association, 1 Batterymarch Park, PO
Box 9101, Quincy, MA 02269-9101
(xi) NFPA 25-2002, Inspection, Testing, and Maintenance of Water-Based Fire Protection Systems, IBR approved for § 1915
507(d)(2)

(b)(1) The standards listed in paragraph (d) of this section are incorporated by reference in the corresponding sections noted as
the sections exist on the date of the approval, and a notice of any change in these standards will be published in the Federal
Register The Director of the Federal Register approved these incorporations by reference in accordance with 5 U S C 552(a)
and 1 CFR part 51
(2) Any changes in the standards incorporated by reference in this part and an official historic file of such changes are available
for inspection in the Docket Office at the national office of the Occupational Safety and Health Administration, U S Department
of Labor, Washington, DC 20910; telephone: [phone] (TTY number: 877-889-5627)
(c) Copies of standards listed in this section and issued by private standards organizations are available for purchase from the
issuing organizations at the addresses or through the other contact information listed below for these private standards
organizations In addition, these standards are available for inspection at the National Archives and Records Administration
(NARA) For information on the availability of these standards at NARA, telephone: [phone], or go to http://www
archives gov/federal_register/code_of_federal_regulations/ibr_locations html Also, the standards are available for inspection at
any Regional Office of the Occupational Safety and Health Administration (OSHA), or at the OSHA Docket Office, U S
Department of Labor, 200 Constitution Avenue, NW , Room N-2625, Washington, DC 20210; telephone: [phone] (TTY
number: 877-889-5627)

29 C F R § 1915 5, "Incorporation by reference" (2015):

PRO’s Citation of “Text of Incorporation”

NFPA Response to PRO’s Ex. 91

PRO further fails to rebut the evidence in Plaintiffs’ Second Supplemental
Statement of Material Facts identifying a non-exhaustive list of the portions
of NFPA standards at issue that are optional or permissive and do not set
forth any binding obligation including information regarding the history and
development of the standard, informational notes and informational annexes.
2d Supp. SMF at ¶¶ 57-69.

Indeed, it seems unlikely that PRO could meet its burden to justify its
wholesale copying and distribution. For example, at a minimum, the
regulation does not require compliance with the standard’s provisions related
to water-based fire protection systems other than sprinkler systems:
• The cited federal regulation incorporates the standard for 29 C.F.R.
§ 1915.507(d)(2). See 29 C.F.R. § 1915.5(d)(4)(xi) (2015).
• That section provides “[t]he employer must select, install, inspect,
maintain, and test all . . . [a]utomatic sprinkler systems according to
[inter alia] NFPA 25-2002.” 29 C.F.R. § 1915.507(d)(2).
• This section accordingly has no relevance to, inter alia, the use of
other types of water-based fire protection systems, such as standpipe and hose—topics covered in the standard, Supp. Pauley Decl.
Ex. G (Dkt. No. 199-18, sealed) at Art. 1.1 at 25-5 (NFPAPR0020244); see also id. at Table of Contents at 25-3 (NFPAPR0020242) (Chapter 5 covers Sprinkler Systems and a separate
Chapter 6 covers Standpipe and Hose Systems).
• Those portions of NFPA 25 (2002) are, accordingly, not essential to
comply with 29 C.F.R. § 1915.5 (2015).

PRO does not do any analysis of the cited federal regulation that would
illuminate which, if any, portions of the standard it would consider “essential
to comply[] with [a] legal duty.” ASTM II, 896 F.3d at 450.

NFPA Response

NFPA 54
(2006):
National Fuel
Gas Code

NFPA 30
(2003):
Flammable and
Combustible
Liquids Code

Standard

C.F.R Reference
• None
State Law
• Fla Admin Code R
5F-11 002
• See also Va Admin
Code 20VAC5-305,
Utah R R710-6,
Texas Admin Code
R § 9 301, 41 Ill
Admin Code 200

Authorities Identified
by PRO
C.F.R Reference
• 49 C F R § 192 7
(2009)
State Law
• Fla Admin Code R
69A-60 005

Page 7 of 21

(1) The standards of the National Fire Protection Association for the storage and handling of liquefied petroleum gases as
published in NFPA 58, Liquefied Petroleum Gas Code, 2011 edition, and for gas appliances and gas piping as published in
NFPA 54, National Fuel Gas Code, 2006 edition, shall be the accepted standards for this state and are hereby adopted and
incorporated by reference, subject to such additions and exceptions as are set forth in this rule The LP Gas Code Handbook,
NFPA 58, 2011 Edition, and the National Fuel Gas Code Handbook, NFPA 54, 2006 Edition, are hereby adopted and
incorporated by reference and shall be utilized by the Department as a guide in interpreting the provisions of Chapter 527, F S
Reference to NFPA 58 and NFPA 54 in these rules shall be to the most recent edition as adopted herein The section 6 6 7 of
NFPA 58, 2011 edition, titled "Installation of Containers on Roofs of Buildings," is hereby excluded from adoption The section
7 1 6 2 of NFPA 54, 2006 edition, titled "Conduit with Both Ends Terminating Indoors" is hereby excluded from adoption
(2) "NFPA" is the recognized abbreviation for the National Fire Protection Association, Inc. and generally the abbreviation is
used in these rules in identifying the publications of the association The public may obtain a copy of any NFPA publication by
writing the association, whose address is: National Fire Protection Association, Inc , Batterymarch Park, Quincy, Massachusetts
02269, or at http://www nfpa org

5F-11 002 Standards of National Fire Protection Association Adopted

F National Fire Protection Association (NFPA):
(1) NFPA 30 (2003) "Flammable and Combustible Liquids Code" § 192 735(b)

(2) Documents incorporated by reference

F National Fire Protection Association (NFPA), 1 Batterymarch Park, P O Box 9101, Quincy, MA 02269-9101

(a) Any documents or portions thereof incorporated by reference in this part are included in this part as though set out in full
When only a portion of a document is referenced, the remainder is not incorporated in this part
(b) All incorporated materials are available for inspection in the Office of Pipeline Safety, Pipeline and Hazardous Materials
Safety Administration, 1200 New Jersey Avenue, SE , Washington, DC, 20590-0001, or 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/federal_register/code_of_federal_regulations/ibr_locations html These materials have been approved for
incorporation by reference by the Director of the Federal Register in accordance with 5 U S C 552(a) and l CFR part 51 In
addition, the incorporated materials are available from the respective organizations listed in paragraph (c) (1) of this section
(c) The full titles of documents incorporated by reference, in whole or in part, are provided herein The numbers in parentheses
indicate applicable editions For each incorporated document, citations of all affected sections are provided Earlier editions of
currently listed documents or editions of documents listed in previous editions of 49 CFR part 192 may be used for materials
and components designed, manufactured. or installed in accordance with these earlier documents at the time they were listed
The user must refer to the appropriate previous edition of 49 CFR part 192 for a listing of the earlier listed editions or
documents
(1) Incorporated by reference (IBR)
List of Organizations and Addresses:

49 C F R § 192 7, "What documents are incorporated by reference partly or wholly in this part?” (2009)”

PRO’s Citation of “Text of Incorporation”

NFPA Response to PRO’s Ex. 91

PRO further fails to rebut the evidence in Plaintiffs’ Second Supplemental
Statement of Material Facts identifying a non-exhaustive list of the portions
of NFPA standards at issue that are optional or permissive and do not set
forth any binding obligation including information regarding the history and
development of the standard, informational notes and informational annexes.
2d Supp. SMF at ¶¶ 57-69.

PRO does not do any analysis of the cited state regulation that would
illuminate which, if any, portions of the standard it would consider “essential
to comply[] with [a] legal duty.” ASTM II, 896 F.3d at 450.

PRO relies upon only a state law adoption. PRO’s claim that it has identified
a regulation showing that that “[t]he federal government has incorporated into
law every entire standard at issue,” Opp. at 8, is false.

PRO further fails to rebut the evidence in Plaintiffs’ Second Supplemental
Statement of Material Facts identifying a non-exhaustive list of the portions
of NFPA standards at issue that are optional or permissive and do not set
forth any binding obligation including information regarding the history and
development of the standard, informational notes and informational annexes.
2d Supp. SMF at ¶¶ 57-69.

Indeed, it seems unlikely that PRO could meet its burden to justify its
wholesale copying and distribution. For example, at a minimum, the
regulation does not require compliance with the standard’s provisions related
to underground storage tanks:
• The cited federal regulation incorporates the standard for 49 C.F.R.
§ 192.735(b). See 49 C.F.R. § 192.7(c)(2)(F)(1) (2009).
• That section provides “[a]boveground oil or gasoline storage tanks
must be protected in accordance with” NFPA-30. 49 C.F.R.
§ 192.735(b) (2009).
• This section accordingly has no relevance to, inter alia,
underground storage tanks—a topic covered in the standard, e.g.,
Supp. Pauley Decl. Ex. H (Dkt. No. 199-19, sealed) at Art. 4.2.5.3
at 30-17 (NFPA-PR0014673).
• Those portions of NFPA 30 (2003) are, accordingly, not essential to
comply with 49 C.F.R. § 192.7 (2009).

PRO does not do any analysis of the cited federal regulation that would
illuminate which, if any, portions of the standard it would consider “essential
to comply[] with [a] legal duty.” ASTM II, 896 F.3d at 450.

NFPA Response

NFPA 58
(2001):
Liquefied
Petroleum Gas
Code (Title of
work on
certificate of
registration is
"National Fire
Codes Vol 3")

Standard

Authorities Identified
by PRO
C.F.R Reference
• 49 C F R § 171 7
(2011)
State Law
• None

Page 8 of 21

National Fire Protection Association, 1 Batterymarch Park, Quincy, MA, 02169-7471 l-617-770-3000,, http://www nfpa org:
NFPA 58-Liquefied Petroleum Gas Code, 2001 Edition 173 5, 173 315

(a) Matter incorporated by reference—(1) General There is incorporated, by reference in parts 170-189 of this subchapter,
matter referred to that is not specifically set forth This matter is hereby made a part of the regulations in parts 170-189 of this
subchapter The matter subject to change is incorporated only as it is in effect on the date of issuance of the regulation referring
to that matter The material listed in paragraph (a)(3) has been approved for incorporation by reference by the Director of the
Federal Register in accordance with 5 U S C 552(a) and 1 CFR part 51 Material is incorporated as it exists on the date of the
approval and a notice of any change in the material will be published in the Federal Register Matters referenced by footnote are
included as part of the regulations of this subchapter
(2) Accessibility of materials All incorporated matter is available for inspection at:
(i) The Office of Hazardous Materials Safety, Office of Hazardous Materials Standards. East Building, PHH-10, 1200 New
Jersey Avenue, SE , Washington, DC 20590-0001 For information on the availability of this material at PHH-10, call 1-800467-4922, or go to: http://www phmsa dot gov; and
(ii) 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/federal_register/code_of_federal_regulations/ibr_locations html
(3) Table of material incorporated by reference The following table sets forth material incorporated by reference The first
column lists the name and address of the organization from which the material is available and the name of the material The
second column lists the section(s) of this subchapter, other than § 171 7, in which the matter is referenced The second column
is presented for information only and may not be all inclusive

49 C F R § 171 7, "Reference material" (2011):

PRO’s Citation of “Text of Incorporation”

NFPA Response to PRO’s Ex. 91

PRO further fails to rebut the evidence in Plaintiffs’ Second Supplemental
Statement of Material Facts identifying a non-exhaustive list of the portions
of NFPA standards at issue that are optional or permissive and do not set
forth any binding obligation including information regarding the history and
development of the standard, informational notes and informational annexes.
2d Supp. SMF at ¶¶ 57-69.

Indeed, it seems unlikely that PRO could meet its burden to justify its
wholesale copying and distribution. For example, at a minimum, the
regulation does not require compliance with the standard’s provisions related
to storage of liquefied petroleum gas in permanent locations:
• The cited federal regulation incorporates the standard for 49 C.F.R.
§§ 173.5 and 173.315. See 49 C.F.R. § 171.7(a)(3) (2011).
• Both sections appear in Part 173 of Department of Transportation
regulations titled “Shippers-General Requirements for Shipments
and Packaging.” Section 173.5 provides “[a] non-DOT
specification cargo tank motor vehicle may be used to transport
Liquefied petroleum gas” if, inter alia, “[t]he cargo tank . .
.conforms to applicable requirements in National Fire Protection
Association (NFPA) 58.” 49 C.F.R. § 173.5(d)(4) (2011). Section
173.315 is titled “[c]ompressed gases in cargo tanks and portable
tanks,” and provides guidance regarding “[l]iquefied compressed
gases that are transported in UN portable tanks.” 49 C.F.R.
§ 173.315(a) (2011).
• These sections accordingly have no relevance to, inter alia, the
storage of liquefied petroleum in permanent locations, such as roofs
or exterior balconies—a topic covered in the standard, e.g., Supp.
Pauley Decl. Ex. J (Dkt. No. 199-21, sealed) at Art. 3.4.9 at 58-37
(NFPA-PR0014995-96).
• That portion of NFPA 58 (2001) is accordingly not essential to
comply with 49 C.F.R. § 171.7 (2011).

PRO does not do any analysis of the cited federal regulation that would
illuminate which, if any, portions of the standard it would consider “essential
to comply[] with [a] legal duty.” ASTM II, 896 F.3d at 450.

NFPA Response

NFPA 58
(2004):
Liquefied
Petroleum Gas
Code

Standard

Authorities Identified
by PRO
C.F.R Reference
• 49 C F R § 192 7
(2009)
State Law
• None

Page 9 of 21

(2) NFPA 58 (2004) "Liquefied Petroleum Gas Code (LP-Gas Code) " § 192 11(a); 192 11(b); 192 11(c)

F National Fire Protection Association (NFPA):

(2) Documents incorporated by reference

F National Fire Protection Association (NFPA), 1 Batterymarch Park, P O Box 9101, Quincy, MA 02269-9101

(a)
Any documents or portions thereof incorporated by reference in this part are included in this part as though set out in
full When only a portion of a document is referenced, the remainder is not incorporated in this part
(b)
All incorporated materials are available for inspection in the Office of Pipeline Safety, Pipeline and Hazardous
Materials Safety Administration, 1200 New Jersey Avenue, SE , Washington, DC, 20590-0001, or 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/federal_register/code_of_federal_regulations/ibr_locations html These materials have been approved
for incorporation by reference by the Director of the Federal Register in accordance with 5 U S C 552(a) and 1 CFR part 51 In
addition, the incorporated materials are available from the respective organizations listed in paragraph (c) (1) of this section
(c)
The full titles of documents incorporated by reference, in whole or in part, are provided herein The numbers in
parentheses indicate applicable editions For each incorporated document, citations of all affected sections are provided Earlier
editions of currently listed documents or editions of documents listed in previous editions of 49 CFR part 192 may be used for
materials and components designed, manufactured, or installed in accordance with these earlier documents at the time they were
listed The user must refer to the appropriate previous edition of 49 CFR part 192 for a listing of the earlier listed editions or
documents
(1)
Incorporated by reference (IBR) List of Organizations and Addresses:

49 C F R § 192 7, "What documents are incorporated by reference partly or wholly in this part?" (2009):

PRO’s Citation of “Text of Incorporation”

NFPA Response to PRO’s Ex. 91

PRO further fails to rebut the evidence in Plaintiffs’ Second Supplemental
Statement of Material Facts identifying a non-exhaustive list of the portions
of NFPA standards at issue that are optional or permissive and do not set
forth any binding obligation including information regarding the history and
development of the standard, informational notes and informational annexes.
2d Supp. SMF at ¶¶ 57-69.

Indeed, it seems unlikely that PRO could meet its burden to justify its
wholesale copying and distribution. For example, at a minimum, the
regulation does not require compliance with the standard’s provisions related
to storage of liquefied petroleum gas in classrooms:
• The cited federal regulation incorporates the standard for 49 C.F.R.
§§ 192.11(a), 192.11(b), 192.11(c). See 49 C.F.R.
§ 192.7(c)(2)(F)(2) (2009).
• Those sections provide that “plant[s] that suppl[y] petroleum gas by
pipeline to a natural gas distribution system” and certain “pipeline
system[s] . . . that transport[] only petroleum gas or petroleum
gas/air mixtures” must meet the requirements of, inter alia, NFPA
58. 49 C.F.R. § 192.11. Those sections appear in a subpart titled
“Transportation of Natural and Other Gas by Pipeline.”
• These sections accordingly have no relevance to, inter alia, the
storage of liquefied petroleum in classrooms—a topic covered in
the standard, e.g., Supp. Pauley Decl. Ex. K (Dkt. No. 199-22,
sealed) at Art. 6.17.7 at 58-42 (NFPA-PR0015123).
• That portion of NFPA 58 (2004) is accordingly not essential to
comply with 49 C.F.R. § 192.7 (2009).

PRO does not do any analysis of the cited federal regulation that would
illuminate which, if any, portions of the standard it would consider “essential
to comply[] with [a] legal duty.” ASTM II, 896 F.3d at 450.

NFPA Response

NFPA 59
(2004): Utility
LP Gas Plant
Code

Standard

Authorities Identified
by PRO
C.F.R Reference
• 49 C F R § 192 7
(2009)
State Law
• None

Page 10 of 21

(3) NFPA 59 (2004) "Utility LP-Gas Plant Code " §§ 192 11(a); 192 11(b); 192 11(c)

F National Fire Protection Association (NFPA):

(2) Documents incorporated by reference

F National Fire Protection Association (NFPA), 1 Batterymarch Park, P O Box 9101, Quincy, MA 02269-9101

(a) Any documents or portions thereof incorporated by reference in this part are included in this part as though set out in full
When only a portion of a document is referenced, the remainder is not incorporated in this part
(b) All incorporated materials are available for inspection in the Office of Pipeline Safety, Pipeline and Hazardous Materials
Safety Administration, 1200 New Jersey Avenue, SE , Washington, DC, 20590-0001, or 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/federal_register/code_of_federal_regulations/ibr_locations html These materials have been approved for
incorporation by reference by the Director of the Federal Register in accordance with 5 U S C 552(a) and 1 CFR part 51 In
addition, the incorporated materials are available from the respective organizations listed in paragraph (c) (1) of this section
(c) The full titles of documents incorporated by reference, in whole or in part, are provided herein The numbers in parentheses
indicate applicable editions For each incorporated document, citations of all affected sections are provided Earlier editions of
currently listed documents or editions of documents listed in previous editions of 49 CFR part 192 may be used for materials
and components designed, manufactured, or installed in accordance with these earlier documents at the time they were listed
The user must refer to the appropriate previous edition of 49 CFR part 192 for a listing of the earlier listed editions or
documents
(1) Incorporated by reference (IBR) List of Organizations and Addresses:

49 C F R § 192 7, "What documents are incorporated by reference partly or wholly in this part?" (2009):

PRO’s Citation of “Text of Incorporation”

NFPA Response to PRO’s Ex. 91

PRO further fails to rebut the evidence in Plaintiffs’ Second Supplemental
Statement of Material Facts identifying a non-exhaustive list of the portions
of NFPA standards at issue that are optional or permissive and do not set
forth any binding obligation including information regarding the history and
development of the standard, informational notes and informational annexes.
2d Supp. SMF at ¶¶ 57-69.

Indeed, it seems unlikely that PRO could meet its burden to justify its
wholesale copying and distribution. For example, at a minimum, the
regulation does not require compliance with the standard’s provisions related
liquefied petroleum plants not within the Department of Transportation’s
jurisdiction:
• The cited federal regulation incorporates the standard for 49 C.F.R.
§§ 192.11(a), 192.11(b), 192.11(c). See 49 C.F.R.
§ 192.7(c)(2)(F)(2) (2009).
• Those sections provide that “plant[s] that suppl[y] petroleum gas by
pipeline to a natural gas distribution system” and certain “pipeline
system[s] . . . that transport[] only petroleum gas or petroleum
gas/air mixtures” must meet the requirements of, inter alia, NFPA
59. 49 C.F.R. § 192.11 (2009). Those sections appear in
Department of Transportation regulations that cover “minimum
safety requirements for pipeline facilities and the transportation of
gas” within certain areas of U.S. jurisdiction. 49 C.F.R. § 192.1(a);
see also 43 U.S.C. § 1331(a).
• These sections accordingly have no relevance to, inter alia, rules
governing liquefied petroleum gas plants outside of the United
States and outside of DOT regulations —a topic covered in the
standard, e.g., Supp. Pauley Decl. Ex. L (Dkt. No. 199-23, sealed)
at A.11.2.3.2 at 59-34 (NFPA-PR0015249); id. tbl D.1 59-38
(NFPA-PR0015253).
• Those portions of NFPA 59 (2004) are accordingly not essential to
comply with 49 C.F.R. § 192.7 (2009).

PRO does not do any analysis of the cited federal regulation that would
illuminate which, if any, portions of the standard it would consider “essential
to comply[] with [a] legal duty.” ASTM II, 896 F.3d at 450.

NFPA Response

NFPA 70
(1999):
National
Electrical Code

Standard

Authorities Identified
by PRO
C.F.R Reference
• 7 C F R § 1755 509
(2010)
• See also 7 C F R §
1755 504 (2011)
State Law
• None

Page 11 of 21

(b) The method of customer access location installation prescribed by the ANSI/NFPA 70-1999, NEC® for a mobile home
depends on how the electric power is installed at the mobile home and it can involve considerable judgment on the part of the
telecommunications installer The National Electrical Code® and NEC® are registered trademarks of the National Fire
Protection Association, Inc , Quincy, MA 02269 ·The ANSI/NFPA 70-1999, NEC®, is incorporated by reference in accordance
with 5 U S C 552(a) and 1 CFR part 51 Copies are available from NFPA, 1 Batterymarch Park P O Box 9101, Quincy,
Massachusetts 02269-9101, telephone number 1 [phone] Copies of ANSI/NFPA 70-1999, NEC®, arc available for
inspection during normal business hours at RUS, room 2905, U S Department of Agriculture, 1400 Independence Avenue, SW,
STOP 1598, Washington, DC 20250-1598, or 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/federal_register/code_of_federal_regulations/ibr_locations html The ANSI/NFPA 70-1999, NEC®,
requires primary station protectors to be located where specific acceptable grounding electrodes exist The ANSI/NFPA 701999, NEC®, allows station protector installations to be at the location of the power meter or the electric disconnecting means
apparatus serving the mobile home providing these electric facilities are installed in the manner specifically defined by the
ANSI/NFPA 70-1999, NEC® The ANSI/NFPA 70-1999, NEC®, requires the station protectors to be installed at the nearest of
a number of other meticulously defined ANSI/NFPA 70-1999, NEC®, acceptable electrodes where the protector cannot be
installed at the power meter or the electric disconnecting means apparatus serving the mobile home The provisions can be
confusing

7 C F R § 1755 509, “Mobile homes" (2010):

PRO’s Citation of “Text of Incorporation”

NFPA Response to PRO’s Ex. 91

PRO further fails to rebut the evidence in Plaintiffs’ Second Supplemental
Statement of Material Facts identifying a non-exhaustive list of the portions
of NFPA standards at issue that are optional or permissive and do not set
forth any binding obligation including information regarding the history and
development of the standard, informational notes and informational annexes.
2d Supp. SMF at ¶¶ 57-69.

Indeed, it seems unlikely that PRO could meet its burden to justify its
wholesale copying and distribution. For example, at a minimum, the
regulation does not require compliance with provisions of the standard related
to household cooking appliances and surgical facilities:
• The cited federal regulations “cover approved methods of making
service installations at customer access locations in
telecommunications systems of [rural utility services] borrowers.”
7 C.F.R. § 1755.502 (dictating scope of §§ 1755.503 to 1755.510).
• The regulations accordingly have no relevance to, inter alia,
household cooking appliances or surgical facilities—topics covered
in the standard, e.g., Supp. Pauley Decl. Ex. M (Dkt. No. 199-24,
sealed) at 210-19(c) at 70-41 (NFPA-PR0015307); id. at 517-3 at
70-359 (NFPA-PR0015625).
• Those portions of NFPA 70 (1999) are, accordingly, not essential to
comply with 7 C.F.R. § 1755.509 (2010) or 7 C.F.R. § 1755.504
(2011).

PRO does not do any analysis of the cited federal regulation that would
illuminate which, if any, portions of the standard it would consider “essential
to comply[] with [a] legal duty.” ASTM II, 896 F.3d at 450.

NFPA Response

NFPA 70
(2005):
National
Electrical Code

Standard

Authorities Identified
by PRO
C.F.R Reference
• 49 C F R § 192 7
(2009)
State Law
• None

Page 12 of 21

(4) NFPA 70 (2005) "National Electrical Code" §§ 192 163(e); 192 189(c)

F National Fire Protection Association (NFPA):

(2) Documents incorporated by reference

F National Fire Protection Association (NFPA), 1 Batterymarch Park P O Box 9101, Quincy, MA 02269-9101

(a) Any documents or portions thereof incorporated by reference in this part are included in this part as though set out in full
When only a portion of a document is referenced, the remainder is not incorporated in this part
(b) All incorporated materials are available for inspection in the Office of Pipeline Safety, Pipeline and Hazardous Materials
Safety Administration, 1200 New Jersey Avenue, SE , Washington, DC, 20590-0001, or 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/federal_register/code_of_fedcral_regulations/ibr_locations html These materials have been approved
for incorporation by reference by the Director of the Federal Register in accordance with 5 U S C 552(a) and 1 CFR part 51 In
addition, the incorporated materials are available from the respective organizations listed in paragraph (c) (1) of this section
(c) The full titles of documents incorporated by reference, in whole or in part, are provided herein The numbers in parentheses
indicate applicable editions For each incorporated document, citations of all affected sections are provided Earlier editions of
currently listed documents or editions of documents listed in previous editions of 49 CFR part 192 may be used for materials
and components designed, manufactured, or installed in accordance with these earlier documents at the time they were listed
The user must refer to the appropriate previous edition of 49 CFR part 192 for a listing of the earlier listed editions or
documents
(1) Incorporated by reference (IBR)
List of Organizations and Addresses:

49 C F R § 192 7, "What documents are incorporated by reference partly or wholly in this part?” (2009):

PRO’s Citation of “Text of Incorporation”

NFPA Response to PRO’s Ex. 91

PRO further fails to rebut the evidence in Plaintiffs’ Second Supplemental
Statement of Material Facts identifying a non-exhaustive list of the portions
of NFPA standards at issue that are optional or permissive and do not set
forth any binding obligation including information regarding the history and
development of the standard, informational notes and informational annexes.
2d Supp. SMF at ¶¶ 57-69.

Indeed, it seems unlikely that PRO could meet its burden to justify its
wholesale copying and distribution. For example, at a minimum, the
regulation does not require compliance with provisions of the standard that do
not relate to electrical equipment used in connection with transporting natural
gas:
• The cited federal regulation incorporates the standard for 49 C.F.R.
§ 192.163(e) and § 192.189(c). See 49 C.F.R. § 192.7(c)(2)(F)(4)
(2009).
• Section 192.163(e) provides that “[e]lectrical equipment and wiring
installed in compressor stations must conform to [NFPA 70], so far
as that code is applicable.” 49 C.F.R. § 192.163(e) (2009). Section
192.189 provides “[e]lectrical equipment in vaults must conform to
the applicable requirements of Class 1, Group D, of the [NFPA
70].” 49 C.F.R. § 192.189. Both sections appear in Part 192 of
Department of Transportation Regulations titled “Transportation of
Natural and Other Gas by Pipeline: Minimum Federal Safety
Standards.”
• These sections accordingly have no relevance to, inter alia, theaters
and television studios—topics covered in the standard, see Supp.
Pauley Decl. Ex. N (Dkt. No. 199-25, sealed) at Article 520 at 70427 to 70-435 (NFPA-PR0016342-50) (including provisions for,
e.g., special effects and dressing rooms).
• Those portions of NFPA 70 (2005) are, accordingly, not essential to
comply with 49 C.F.R. § 192.7 (2009).

PRO does not do any analysis of the cited federal regulation that would
illuminate which, if any, portions of the standard it would consider “essential
to comply[] with [a] legal duty.” ASTM II, 896 F.3d at 450.

NFPA Response

NFPA 70
(2008):
National
Electrical Code

Standard

Authorities Identified
by PRO
C.F.R Reference
• 24 C F R § 3285 4
(2013)
State Law
• Regulation SBC-52008 (Rhode Island
State Building
Code)

Page 13 of 21

(2) NFPA 70, National Electrical Code, 2005 edition, IBR approved for §§ 3285 702(e)(1) and 3285 906

(h) The materials listed below are available for purchase from the National Fire Protection Association (NFPA), 1 Batterymarch
Park, Quincy, Massachusetts 02169-7471

24 C F R § 3285 4 "Incorporation by reference (IBR) " (2013)
(a) The materials listed in this section are incorporated by reference in the corresponding sections noted These incorporations by
reference were approved by the Director of the Federal Register, in accordance with 5 U S C 552(a) and 1 CFR part 51 The
materials are available for purchase at the corresponding addresses noted below, and all are available for inspection at the
Office of Manufactured Housing Programs, U S Department of Housing and Urban Development, 451 Seventh Street, SW ,
Room 9164, Washington, DC 20410; or the National Archives and Records Administration (NARA) For information on the
availability of this material at NARA, call [phone], or go to: http://www archives gov/federal-register/cfr/ibr- locations
html

PRO’s Citation of “Text of Incorporation”

NFPA Response to PRO’s Ex. 91

PRO further fails to rebut the evidence in Plaintiffs’ Second Supplemental
Statement of Material Facts identifying a non-exhaustive list of the portions
of NFPA standards at issue that are optional or permissive and do not set
forth any binding obligation including information regarding the history and
development of the standard, informational notes and informational annexes.
2d Supp. SMF at ¶¶ 57-69.

PRO does not do any analysis of the cited state regulation that would
illuminate which, if any, portions of the standard it would consider “essential
to comply[] with [a] legal duty.” ASTM II, 896 F.3d at 450.

24 C.F.R. § 3285.4 (2013) incorporates the 2005 edition of NFPA 70—not
the 2008 edition. PRO has, accordingly, relied upon only a state law
adoption. PRO’s claim that it has identified a regulation showing that that
“[t]he federal government has incorporated into law every entire standard at
issue,” Opp. at 8, is false.

NFPA Response

NFPA 70
(2011):
National
Electrical Code

Standard

Authorities Identified
by PRO
C.F.R Reference
• 49 C F R § 192 7
(2015)
State Law
• None

Page 14 of 21

(4) NFPA-70 (2011), ""National Electrical Code,"" 2011 edition, issued August 5, 2010, (NFPA-70), IBR approved for §§ 192
163(e); and 192 189(c)

(h) National Fire Protection Association (NFPA), 1 Batterymarch Park, Quincy, Massachusetts 02169, phone: [phone],
Web site: http://www nfpa org/

49 C F R § 192 7 "What documents are incorporated by reference partly or wholly in this part?" (2015)
(a)
This part prescribes standards, or portions thereof, incorporated by reference into this part with the approval of the
Director of the Federal Register in 5 U S C 552(a) and 1 CFR part 51 The materials listed in this section have the full force of
law To enforce any edition other than that specified in this section, PHMSA must publish a notice of change in the FEDERAL
REGISTER
(1)
Availability of standards incorporated by reference All of the materials incorporated by reference are available for
inspection from several sources, including the following:
(i)
The Office of Pipeline Safety, Pipeline and Hazardous Materials Safety Administration, 1200 New Jersey Avenue SE
, Washington, DC 20590 For more information contact 202-366-4046 or go to the PHMSA Web site at: http://www phmsa dot
gov/pipeline/regs
(ii)
The National Archives and Records Administration (NARA) For information on the availability of this material at
NARA, call 202-741-6030 or go to the NARA Web site at: http://www archives
gov/federallregister/codeloflfederallregulations/ibrllocations html
(iii)
Copies of standards incorporated by reference in this part can also be purchased or are otherwise made available from
the respective standards-developing organization at the addresses provided in the centralized IBR section below

PRO’s Citation of “Text of Incorporation”

NFPA Response to PRO’s Ex. 91

PRO further fails to rebut the evidence in Plaintiffs’ Second Supplemental
Statement of Material Facts identifying a non-exhaustive list of the portions
of NFPA standards at issue that are optional or permissive and do not set
forth any binding obligation including information regarding the history and
development of the standard, informational notes and informational annexes.
2d Supp. SMF at ¶¶ 57-69.

Indeed, it seems unlikely that PRO could meet its burden to justify its
wholesale copying and distribution. For example, at a minimum, the
regulation does not require compliance with the standard’s provisions related
to theaters and television studios:
• The cited federal regulation incorporates the standard for 49 C.F.R.
§ 192.163(e) and § 192.189(c). See 49 C.F.R. § 192.7(c)(2)(F)(4)
(2015).
• Section 192.163(e) provides that “[e]lectrical equipment and wiring
installed in compressor stations must conform to the NFPA-70, so
far as that code is applicable.” 49 C.F.R. § 192.163(e) (2015).
Section 192.189 provides “[e]lectrical equipment in vaults must
conform to the applicable requirements of Class 1, Group D, of the
[NFPA 70].” 49 C.F.R. § 192.189(c) (2015). Both sections appear
in Part 192 of Department of Transportation Regulations titled
“Transportation of Natural and Other Gas by Pipeline: Minimum
Federal Safety Standards.”
• These sections accordingly have no relevance to, inter alia, theaters
and television studios—topics covered in the standard, see
Declaration of Christian Dubay, Dkt. No. 155-6 Ex. A (sealed) at
Article 520 at 70-459 to 70-468 (NFPA-PR0017996-18005)
(including provisions for, e.g., special effects and dressing rooms).
• Those portions of NFPA 70 (2011) are, accordingly, not essential to
comply with 49 C.F.R. § 192.7 (2015).

PRO does not do any analysis of the cited federal regulation that would
illuminate which, if any, portions of the standard it would consider “essential
to comply[] with [a] legal duty.” ASTM II, 896 F.3d at 450.

NFPA Response

NFPA 70
(2014):
National
Electrical Code

Standard

Authorities Identified
by PRO
C.F.R Reference
• 16 C F R § 1211
40(c)(1) (2019)[sic]
State Law
• ARM 24 301 401
(Administrative
Rules of Montana)

Page 15 of 21

(c)
National Fire Prevention Association (NFPA), 1 Batterymarch Park, Quincy, MA 02269-9101, Telephone: [phone], http://www nfpa org/
(1)
NFPA 70, National Electrical Code, 2014 edition, effective August 21, 2013, into §1211 2(c)

(a) Certain material is incorporated by reference into this part with the approval of the Director of the Federal Register under 5
U S C 552(a) and 1 CFR part 51 All approved material is available for inspection at Consumer Product Safety Commission,
Office of the Secretary, 4330 East-West Highway, Bethesda, MD 20814, telephone [phone] and is available from the
sources listed below It is also 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/federal
register/code of federal regulations/ibr locations html

16 C F R § 1211 40 "Incorporation by reference " (2019)[sic]

PRO’s Citation of “Text of Incorporation”

NFPA Response to PRO’s Ex. 91

PRO further fails to rebut the evidence in Plaintiffs’ Second Supplemental
Statement of Material Facts identifying a non-exhaustive list of the portions
of NFPA standards at issue that are optional or permissive and do not set
forth any binding obligation including information regarding the history and
development of the standard, informational notes and informational annexes.
2d Supp. SMF at ¶¶ 57-69.

Indeed, it seems unlikely that PRO could meet its burden to justify its
wholesale copying and distribution. For example, at a minimum, the
regulation does not require compliance with the standard’s provisions related
to carnivals and circuses:
• The cited federal regulation incorporates the standard for 16 C.F.R.
§ 1211.2(c). See 16 C.F.R. § 1211.40(c)(1) (2016).
• That section defines “[r]esidential garage door operator” as “a
vehicular door operator which,” inter alia, “[s]erves a residential
building of one to four single family units” and “[i]s intended to be
employed in ordinary locations in accordance with NFPA 70.” 16
C.F.R. § 1211.2 (2016).
• That section accordingly has no relevance to, inter alia, carnivals,
circuses, fairs, and similar events—topics covered in the standard,
see Supp. Pauley Decl. Ex. P (Dkt. No. 199-27, sealed) at Article
525 at 70-493 to 70-495 (NFPA-PR0098556-58).
• Those portions of NFPA 70 (2014) are, accordingly, not essential to
comply with 16 C.F.R. § 1211.40(c)(1) (2016).

PRO does not do any analysis of the cited federal regulation that would
illuminate which, if any, portions of the standard it would consider “essential
to comply[] with [a] legal duty.” ASTM II, 896 F.3d at 450.

NFPA Response

NFPA 72
(2002):
National Fire
Alarm Code

Standard

Authorities Identified
by PRO
C.F.R Reference
• 29 C F R § 1915 5
(2015)
State Law
• None

Page 16 of 21

(viii) NFPA 72-2002 National Fire Alarm Code, IBR approved for §1915 507(c)(6)

(4) The following material is available for purchase from the National Fire Protection Association, 1 Batterymarch Park, PO
Box 9101, Quincy, MA 02269-9101:

(a) Specifications, standards, and codes of agencies of the U S Government, to the extent specified in the text, form a part of
the regulations of this part In addition, under the authority vested in the Secretary under the Act, the specifications, standards,
and codes of organizations which are not agencies of the U S Government, in effect on the date of the promulgation of the
regulations of this part as listed below, to the extent specified in the text, form a part of the regulations of this part
(b)(1) The standards listed in paragraph (d) of this section are incorporated by reference in the corresponding sections noted as
the sections exist on the date of the approval, and a notice of any change in these standards will be published in the Federal
Register The Director of the Federal Register approved these incorporations by reference in accordance with 5 U S C 552(a)
and 1 CFR part 51
(c) Copies of standards listed in this section and issued by private standards organizations are available for purchase from the
issuing organizations at the addresses or through the other contact information listed below for these private standards
organizations In addition, these standards are available for inspection at the National Archives and Records Administration
(NARA) For information on the availability of these standards at NARA, telephone: [phone], or go to
http://www archives gov/federal_register/code_of_federal_regulations/ibr_locations html Also, the standards are available for
inspection at any Regional Office of the Occupational Safety and Health Administration (OSHA), or at the OSHA Docket
Office, U S Department of Labor, 200 Constitution Avenue, NW , Room N-2625, Washington, DC 20210; telephone: [phone] (TTY number: 877-889-5627)

29 C F R § 1915 5, "Incorporation by reference" (2015):

PRO’s Citation of “Text of Incorporation”

NFPA Response to PRO’s Ex. 91

PRO further fails to rebut the evidence in Plaintiffs’ Second Supplemental
Statement of Material Facts identifying a non-exhaustive list of the portions
of NFPA standards at issue that are optional or permissive and do not set
forth any binding obligation including information regarding the history and
development of the standard, informational notes and informational annexes.
2d Supp. SMF at ¶¶ 57-69.

Indeed, it seems unlikely that PRO could meet its burden to justify its
wholesale copying and distribution. For example, at a minimum, the
regulation does not require compliance with provisions of Chapter 11 of the
standard:
• The cited federal regulation incorporates the standard for 29 C.F.R.
§ 1915.507(c)(6). See 29 C.F.R. § 1915.5(d)(4)(viii) (2015).
• That section provides that “The employer must . . . [s]elect, install,
inspect, maintain, and test all automatic fire detection systems and
emergency alarms according to NFPA 72–2002 National Fire
Alarm Code (incorporated by reference, see § 1915.5).” 29 C.F.R.
§ 1915.507(c)(6). Section 1915.507 is titled “Land-side fire
protection systems” and appears in a subpart of OSHA regulations
covering “Fire Protection in Shipyard Employment.”
• That section accordingly has no relevance to, inter alia, the
selection and installation of fire alarm systems in single family
dwellings, apartment buildings, and hotels—topics covered in the
standard, see Supp. Pauley Decl. Ex. Q (Dkt. No. 199-28, sealed) at
Chapter 11 at 72-105 to 72-111 (NFPA-PR0018525-31).
• Those portions of NFPA 72 (2002) are, accordingly, not essential to
comply with 29 C.F.R. § 1915.5 (2015).

PRO does not do any analysis of the cited federal regulation that would
illuminate which, if any, portions of the standard it would consider “essential
to comply[] with [a] legal duty.” ASTM II, 896 F.3d at 450.

NFPA Response

NFPA 99
(2005): Health
Care Facilities
Code

Standard

Authorities Identified
by PRO
C.F.R Reference
• 46 C F R § 110 101 (2009)
State Law
• None

Page 17 of 21

(3) NFPA 99+H20, Standard for Health Care Facilities (2005) (""NFPA 99""), 111 105-37;

(l) National Fire Protection Association (NFPA), 1 Batterymarch Park, Quincy, MA 02169:

(a) Certain material is incorporated by reference into this subchapter with the approval of the Director of the Federal Register
under 5 U S C 552(a) and 1 CFR part 51 To enforce any edition other than that specified in this section, the Coast Guard must
publish notice of change in the Federal Register and the material must be available to the public The word "should," when used
in material incorporated by reference, is to be construed the same as the words "must" or "shall" for the purposes of this
subchapter 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/federal_register/code_of_federal_regulations/ibr_locations html The 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 20593-7126, and is available from the sources listed below

46 C F R § 110 10-1, "Incorporation by reference" (2009):

PRO’s Citation of “Text of Incorporation”

NFPA Response to PRO’s Ex. 91

PRO further fails to rebut the evidence in Plaintiffs’ Second Supplemental
Statement of Material Facts identifying a non-exhaustive list of the portions
of NFPA standards at issue that are optional or permissive and do not set
forth any binding obligation including information regarding the history and
development of the standard, informational notes and informational annexes.
2d Supp. SMF at ¶¶ 57-69.

Indeed, it seems unlikely that PRO could meet its burden to justify its
wholesale copying and distribution. For example, at a minimum, the
regulation does not require compliance with provisions of the standard
specific to locations that use nonflammable anesthetic:
• The cited federal regulation incorporates the standard for 46 C.F.R.
§ 111.105-37. 46 C.F.R. § 110.10-1(l)(3) (2009).
• That section provides that “[e]ach electric installation where a
flammable anesthetic is used or stored must meet NFPA 99.” 46
C.F.R. § 111.105-37 (2009).
• That section accordingly has no relevance to, inter alia,
requirements for locations that use nonflammable anesthetic—a
topic covered in the standard, e.g., Supp. Pauley Decl. Ex. R (Dkt.
No. 199-29, sealed) at C.13.1.4.1.1 at 99-197 (NFPA-PR0018884).
• Those portions of NFPA 99 (2005) are, accordingly, not essential to
comply with 46 C.F.R. § 110.10-1 (2009).

PRO does not do any analysis of the cited federal regulation that would
illuminate which, if any, portions of the standard it would consider “essential
to comply[] with [a] legal duty.” ASTM II, 896 F.3d at 450.

NFPA Response

NFPA 101
(2000): Life
Safety Code

Standard

Authorities Identified
by PRO
C.F.R Reference
• 42 C F R § 460 72
(2010)
• See also 42 C F R
§ 483 70 (2011), 42
C F R § 416 44
(2012)
State Law
• None

Page 18 of 21

(b)(i) A PACE center must meet the applicable provisions of the 2000 edition of the Life Safety Code (LSC) of the National
Fire Protection Association that apply to the type of setting in which the center is located The Director of the Office of the
Federal Register has approved the NFPA 101 ® 2000 edition of the Life Safety Code, issued January 14, 2000, for
incorporation by reference in accordance with 5 U S C 552(a) and 1 CFR part 51 A copy of the Code is available for inspection
at the CMS Information Resource Center, 7500 Security Boulevard, Baltimore, MD or 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/federal_register/code_of_federal_regulations/ibr_locations html Copies may be obtained from the
National Fire Protection Association, 1 Batterymarch Park, Quincy, MA 02269 If any changes in this edition of the Code are
incorporated by reference, CMS will publish notice in the Federal Register to announce the changes

42 C F R § 460 72, "Physical environment" (2010):

PRO’s Citation of “Text of Incorporation”

NFPA Response to PRO’s Ex. 91

PRO further fails to rebut the evidence in Plaintiffs’ Second Supplemental
Statement of Material Facts identifying a non-exhaustive list of the portions
of NFPA standards at issue that are optional or permissive and do not set
forth any binding obligation including information regarding the history and
development of the standard, informational notes and informational annexes.
2d Supp. SMF at ¶¶ 57-69.

For example, at a minimum, the regulations do not require compliance with
provisions of Chapters 14 to 17 of the standard:
•
By the very terms of the text of 42 C.F.R. § 460.72 (2010), it
incorporates only “the applicable provisions . . . that apply to the
type of setting in which [a PACE] center is located” and not the
entire NFPA 101 (2000). PACE stands for “Programs of Allinclusive Care for the Elderly,” i.e., nursing homes.
•
Likewise, 42 C.F.R. § 483.70 (2011) applies to “Long Term Care
Facilities” and provides that the “facility must meet the applicable
provisions” and not the entire NFPA 101 (2000).
•
And 42 C.F.R. § 416.44 (2012) applies to certain ambulatory
service centers and provides that the facilities “must meet the
provisions applicable to Ambulatory Health Care Centers of the
2000 edition of [NFPA 101],” not the entire NFPA 101 (2000).
•
Those regulations accordingly have no relevance to, inter alia, daycare occupancies or educational occupancies.—topics covered in
the standard, e.g., Supp. Pauley Decl. Ex. S (Dkt. No. 199-30,
sealed) at Chs. 14-17 (NFPA-PR0019083-104).
•
Those portions of NFPA 101 (2000) are, accordingly, not essential
to comply with 42 C.F.R. § 460.72 (2010), 42 C.F.R. § 483.70
(2011), or 42 C.F.R. § 416.44 (2012).

Indeed, it seems unlikely that PRO could meet its burden to justify its
wholesale copying and distribution.

PRO does not do any analysis of the cited federal regulation that would
illuminate which, if any, portions of the standard it would consider “essential
to comply[] with [a] legal duty.” ASTM II, 896 F.3d at 450.

NFPA Response

NFPA 101
(2003): Life
Safety Code

Standard

Authorities Identified
by PRO
C.F.R Reference
• 38 C F R § 39 63
(2011)
State Law
• None

Page 19 of 21

The publications listed in this section are incorporated by reference The Director of the Federal Register approves this
incorporation by reference in accordance with 5 U S C 552(a) and 1 CFR part 51 Copies of these publications may be inspected
at the office of the State Cemetery Grants Service, National Cemetery Administration, Department of Veterans Affairs, 810
Vermont Avenue, NW , Washington, DC 20420 or 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/federal_register/code_of_federal_regulations/ibr_locations html Copies of the 2003 edition of the National Fire Protection
Association Life Safety Code and Errata (NFPA 101), the 2003 edition of the NFPA 5000, Building Construction and Safety
Code, and the 2002 edition of the National Electrical Code, NFPA 70, may be obtained from the National Fire Protection
Association, Inc (NFPA), 1 Batterymarch Park, P O Box 9101, Quincy, MA 02269-9101, 800-844-6058 (toll free) Copies of
the 2003 edition of the Uniform Mechanical Code and the 2003 edition of the Uniform Plumbing Code may be obtained from
the International Association of Plumbing and Mechanical Officials, 5001 E Philadelphia Street, Ontario, CA 91761-2816 909472-4100 (this is not a toll-free number) The 2002 and 2003 NFPA and IAPMO code publications can be inspected at VA by
calling 202- 461-4902 for an appointment

38 C F R § 39 63, "Architectural design standards" (2011):

PRO’s Citation of “Text of Incorporation”

NFPA Response to PRO’s Ex. 91

PRO further fails to rebut the evidence in Plaintiffs’ Second Supplemental
Statement of Material Facts identifying a non-exhaustive list of the portions
of NFPA standards at issue that are optional or permissive and do not set
forth any binding obligation including information regarding the history and
development of the standard, informational notes and informational annexes.
2d Supp. SMF at ¶¶ 57-69.

Indeed, it seems unlikely that PRO could meet its burden to justify its
wholesale copying and distribution. For example, at a minimum, the
regulation does not require compliance with provisions of Chapter 24 of the
standard:
• The cited federal regulation provides that veterans cemeteries must
comply with the “[a]rchitectural and structural requirements” of
NFPA 101 (2003). 38 C.F.R § 39.63 (2011).
• That section accordingly has no relevance to, inter alia, fire safety
in one- and two-family dwellings—a topic covered in the standard,
e.g., Supp. Pauley Decl. Ex. T (Dkt. No. 199-31, sealed) at Ch. 24
(NFPA-PR0019564-66).
• Those portions of NFPA 101 (2003) are, accordingly, not essential
to comply with 38 C.F.R. § 39.63 (2011).

PRO does not do any analysis of the cited federal regulation that would
illuminate which, if any, portions of the standard it would consider “essential
to comply[] with [a] legal duty.” ASTM II, 896 F.3d at 450.

NFPA Response

NFPA 101
(2006): Life
Safety Code

Standard

Authorities Identified
by PRO
C.F.R Reference
• 38 C F R § 51 200
" Physical
environment "
(2010)
State Law
• Fla Admin Code R
69A-43 018

Page 20 of 21

The facility management must be designed, constructed, equipped, and maintained to protect the health and safety of residents,
personnel and the public
(a)
Life safety from fire The facility must meet the applicable provisions of the National Fire Protection Association"s
NFPA 101, Life Safety Code (2006 edition), except that the requirement in paragraph 19 3 5 1 for all buildings containing
nursing homes to have an automatic sprinkler system is not applicable until August 13, 2013, unless an automatic sprinkler
system was previously required by the Life Safety Code and the NFPA 99, Standard for Health Care Facilities (2005 edition)
Incorporation by reference of these materials was approved by the Director of the Federal Register in accordance with 5 U S C
552(a) and 1 CFR part 51 These materials incorporated by reference are available for inspection at the Department of Veterans
Affairs, Office of Regulation Policy and Management (02REG), 810 Vermont Avenue, NW , Washington, DC 20420, call 202461-4902, or 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/federallregister/codeloflfederallregulations/ibrllocations html Copies may be obtained from the
National Fire Protection Association, 1 Batterymarch Park, P O Box 9101, Quincy, MA 02269-9101
(For ordering information, call tollfree 1-800-344-3555 )
(b)
Emergency power (1) An emergency electrical power system must be provided to supply power adequate for
illumination of all exit signs and lighting for the means of egress, fire alarm and medical gas alarms, emergency
communication systems, and generator task illumination
(2)
The system must be the appropriate type essential electrical system in accordance with the applicable provisions of
the National Fire Protection Association"s NFPA 101, Life Safety Code (2006 edition) and the NFPA 99,
Standard for Health Care Facilities (2005 edition) Incorporation by reference of these materials was approved by the Director of
the Federal Register in accordance with 5 U S C 552(a) and 1 CFR part 51 The availability of these materials is described in
paragraph (a) of this section
(3)
When electrical life support devices are used, an emergency electrical power system must also be provided for
devices in accordance with NFPA 99, Standard for Health Care Facilities (2005 edition)
(4)
The source of power must be an on-site emergency standby generator of sufficient size to serve the connected load or
other approved sources in accordance with the National Fire Protection Association"s NFPA 101, Life
Safety Code (2006 edition) and the NFPA 99, Standard for Health Care Facilities (2005 edition) Incorporation by reference of
these materials was approved by the Director of the Federal Register in accordance with 5 U S C
552(a) and 1 CFR part 51 The availability of these materials is described in paragraph (a) of this section

38 C F R § 51 200 " Physical environment " (2010)

PRO’s Citation of “Text of Incorporation”

NFPA Response to PRO’s Ex. 91

PRO further fails to rebut the evidence in Plaintiffs’ Second Supplemental
Statement of Material Facts identifying a non-exhaustive list of the portions
of NFPA standards at issue that are optional or permissive and do not set
forth any binding obligation including information regarding the history and
development of the standard, informational notes and informational annexes.
2d Supp. SMF at ¶¶ 57-69.

Indeed, it seems unlikely that PRO could meet its burden to justify its
wholesale copying and distribution. For example, at a minimum, the
regulation does not require compliance with the standard’s provisions
regarding industrial occupancies, detention and correctional occupancies, and
educational occupancies.
•
The cited federal regulation appears in a part of Department of
Veterans Affairs regulations titled “Per Diem for Nursing Home
Care of Veterans in State Homes.” The regulation relates to the
“Physical environment” of the nursing home care facility. 38 C.F.R
§ 51.200 (2010). By the very terms of the text of the cited
regulation, it incorporates only “the applicable provisions” and not
the entire NFPA 101 (2006). Id.
•
This section accordingly has no relevance to, inter alia, industrial
occupancies, detention and correctional occupancies, and
educational occupancies—topics covered in the standard, e.g.,
Supp. Pauley Decl. Ex. U (Dkt. No. 199-32, sealed) at Chs. 14-15,
22-23, 40 (NFPA-PR0019910-19, NFPA-PR0019969-90, NFPAPR0020055-59).
•
Those portions of NFPA 101 (2006) are, accordingly, not essential
to comply with 38 C.F.R. § 51.200 (2010).

PRO does not do any analysis of the cited federal regulation that would
illuminate which, if any, portions of the standard it would consider “essential
to comply[] with [a] legal duty.” ASTM II, 896 F.3d at 450.

NFPA Response

NFPA 704
(2007):
Standard
System for the
Identification
of the Hazards
of Materials
for Emergency
Response

Standard

Authorities Identified
by PRO
C.F.R Reference
• 6 C F R § 27 204
(2012)[sic]
State Law
• None

Page 21 of 21

6 C F R § 27 204, "Minimum concentration by security issue":
(2) Release-Flammable Chemicals If a release-flammable chemical of interest is present in a mixture in a concentration equal to
or greater than one percent (1%) by weight of the mixture, and the mixture has a National Fire Protection Association (NFPA)
flammability hazard rating of 4, the facility shall count the entire amount of the mixture toward the STQ Except as provided in
§27 203(b)(1)(v) for fuels that are stored in aboveground tank farms (including farms that are part of pipeline systems), if a
release-flammable chemical of interest is present in a mixture in a concentration equal to or greater than one percent (1%) by
weight of the mixture, and the mixture has a National Fire Protection Association (NFPA) flammability hazard rating of 1, 2, or
3, the facility need not count the mixture toward the STQ The flammability hazard ratings are defined in NFPA 704: Standard
System for the Identification of the Hazards of Materials for Emergency Response [2007 ed ] The Director of the Federal
Register approves the incorporation by reference of this standard in accordance with 5 U S C 552(a) and 1 CFR part 51 You
may obtain a copy of the incorporated standard from the National Fire Protection Association at 1 Batterymarch Park, Quincy,
MA 02169-7471 or http://www nfpa org You may inspect a copy of the incorporated standard at the Department of Homeland
Security, 1621 Kent Street, 9th Floor, Rosslyn VA (please call 703-235-0709) to make an appointment or at the or at the
National Archives and Records Administration (NARA) For information on the availability of material at NARA, call 202-7416030, or go to http://www archives gov/federal_register/code_of_federal_regulations/ibr_locations html If a release-flammable
chemical of interest is present in a mixture, and the concentration of the chemical is less than one percent (1%) by weight, the
facility need not count the mixture in determining whether the facility possesses the STQ

PRO’s Citation of “Text of Incorporation”

NFPA Response to PRO’s Ex. 91

PRO further fails to rebut the evidence in Plaintiffs’ Second Supplemental
Statement of Material Facts identifying a non-exhaustive list of the portions
of NFPA standards at issue that are optional or permissive and do not set
forth any binding obligation including information regarding the history and
development of the standard, informational notes and informational annexes.
2d Supp. SMF at ¶¶ 57-69.

Indeed, it seems unlikely that PRO could meet its burden to justify its
wholesale copying and distribution. For example, at a minimum, the
regulation does not require compliance with the standard’s provisions related
to hazards other than “flammability hazards,” as clear from the text of the
regulation.
•
6 C.F.R. § 27.204 (2007) “Minimum concentration by security
issue” regulates only “mixture in a concentration equal to or greater
than one percent (1%) by weight of the mixture, and the mixture
has a National Fire Protection Association (NFPA) flammability
hazard rating of 1, 2, or 3.”
•
This section accordingly has no relevance to, inter alia, health
hazards, instability hazards, or special hazards—topics covered in
the standard, e.g., Supp. Pauley Decl. Ex. V (Dkt. No. 199-33,
sealed) at Chs. 5, 7, 8 (NFPA-PR0020218-19, NFPA-PR00202124).
•
Those portions of NFPA 704 (2007) are, accordingly, not essential
to comply with 6 C.F.R. § 27.204 (2007).

PRO does not do any analysis of the cited federal regulation that would
illuminate which, if any, portions of the standard it would consider “essential
to comply[] with [a] legal duty.” ASTM II, 896 F.3d at 450.

NFPA Response