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

Filing 215

REPLY to opposition to motion re 202 Second 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. (This document is SEALE filed by PUBLIC.RESOURCE.ORG, INC.. (Attachments: # 1 [REDACTED] Defendant's Response to Plaintiffs' Objections to Certain Evidence In Support of Defendant's Second Supplemental Statement of Material Facts, # 2 Public Resource's Evidentiary Objections In Reply to Plaintiffs' Opposition to Public Resource's Second Motion for Summary Judgment and Reply In Support of Plaintiffs' Second Motion for Summary Judgment and for A Permanent Injunction [Dkt. 213], # 3 Supplemental Reply Declaration of Matthew Becker In Support of Public Resource's Second Motion for Summary Judgment, # 4 Exhibit 98, # 5 Exhibit 99, # 6 Exhibit 100, # 7 Exhibit 101, # 8 Exhibit 102, # 9 Exhibit 103, # 10 Public Resource's Statement of Disputed Facts In Opposition to [213-1] Plaintiffs' Third Supplemental Statement of Material Facts In Support of Their Second Motion for Summary Judgment and A Permanent Injunction, # 11 Public Resource's Reply In Support of Its Request for Judicial Notice [Dkt. 204-3], # 12 Public Resource's Motion to Strike Plaintiffs' Response to Public Resource's Statement of Disputed Facts [Dkt. 213-21], # 13 Text of Proposed Order Granting Public Resource's Motion to Strike Plaintiffs' Response to Public Resource's Statement of Disputed Facts [Dkt. 213-21])(Bridges, Andrew) Modified on 1/17/2020 (ztd).

IN THE 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/Counterclaimant.

SUPPLEMENTAL REPLY DECLARATION OF MATTHEW BECKER IN SUPPORT
OF PUBLIC RESOURCE’S SECOND MOTION FOR SUMMARY JUDGMENT
I, Matthew Becker, declare pursuant to 28 U.S.C. § 1746 as follows:
1.

I am an attorney admitted to practice in the District of Columbia and am an

associate with the law firm of Fenwick & West LLP, counsel of record for DefendantCounterclaimant Public.Resource.Org, Inc. (“Public Resource”).

Except where otherwise

indicated, I have personal knowledge of the facts herein and could and would testify competently
hereto.
2.

Attached as Exhibit 981 is a true and correct copy of the Office of the Federal

Register, Document Drafting Handbook, Aug. 2018 ed. (Rev. 1.1, dated Aug. 9, 2019), obtained
from
1

https://www.archives.gov/files/federal-register/write/handbook/ddh.pdf.

Exhibit numbering is continued from my prior declaration, Dkt. 204-5.

Further

information on the Document Drafting Handbook and the IBR Handbook is available from the
Office of the Federal Register at OFR Handbooks Frequently Asked Questions,
https://www.archives.gov/federal-register/write/handbook/faqs.html.
3.

Attached as Exhibit 99 is a true and correct copy of the 1972 announcement in the

Federal Register by the Office of the Federal Register of the incorporation by reference regulations,
along with the text of that regulation: Incorporation by Reference, 37 Fed. Reg. 23602 (Nov. 4,
1972) (to be codified at 1 C.F.R. 51).
4.

Attached as Exhibit 100 is a true and correct copy of the Office of the Federal

Register’s announcement, “OFR Director Charley Barth Stepping Down for New Opportunity,”
accessed Jan. 16, 2020, at https://www.federalregister.gov/reader-aids/office-of-the-federalregister-blog/2014/10/ofr-director-charley-barth-stepping-down.
5.
Versions

Attached as Exhibit 101 is a true and correct copy of ASHRAE’s “Read-Only
of

ASHRAE

Standards”

webpage

(accessed

Jan.

16,

2020),

at

https://www.ashrae.org/technical-resources/standards-and-guidelines/read-only-versions-ofashrae-standards. This page shows that the 1993 ASHRAE Handbook is not among the standards
that it makes available for read-only access, even though that standard is incorporated by reference
into law at 10 C.F.R. § 434.701 (2011).
6.

Attached for the Court’s convenience as Exhibit 102 is a true and correct copy of

an email from NFPA, previously submitted at Dkt. 124-5, in which NFPA advertises: “Be
confident your electrical work complies with California law. . . . California has adopted the 2011
NEC. Order the NEC Handbook today and receive FREE tabs!”
7.

Attached for the Court’s convenience as Exhibit 103 is a true and correct

compilation of the statements and contributions from the Consumer Product Safety Commission

2

that were located at table 6 of “Comment on Safety Standard for Automatic Residential Garage
Door Operators”, Public.Resource.Org, Nov. 16, 2015, at https://law.resource.org/pub/us/cfr
/regulations.gov.docket.15/cpsc.gov.20151116.html#t6

(cataloguing

nineteen

textual

contributions to the National Electrical Code from Consumer Product Safety Commission staff),
but which are presently unavailable due to maintenance on the Consumer Product Safety
Commission website. Automatically archived versions of these documents are available on the
Internet Archive at the following locations:
https://web.archive.org/web/20170207161319/https://www.cpsc.gov/PageFiles/117366/c
omment422f.pdf
https://web.archive.org/web/20170223204422/https://www.cpsc.gov/PageFiles/117373/c
omment210-12.pdf
https://web.archive.org/web/20170222233233/https://www.cpsc.gov/PageFiles/117338/2
10-8a3.pdf
https://web.archive.org/web/20170125025404/https://www.cpsc.gov/PageFiles/117351/2
10-12c.pdf
https://web.archive.org/web/20170207071338/https://www.cpsc.gov/PageFiles/117355/2
30-xx.pdf
https://web.archive.org/web/20170212055701/https://www.cpsc.gov/PageFiles/108276/2
10.12n.pdf
https://web.archive.org/web/20170207065403/https://www.cpsc.gov/PageFiles/109754/2
10.8A.pdf
https://web.archive.org/web/20170211071503/https://www.cpsc.gov/PageFiles/108291/1
00.pdf

3

https://web.archive.org/web/20170224211212/https://www.cpsc.gov/PageFiles/108285/2
30.xx.pdf
https://web.archive.org/web/20170209202716/https://www.cpsc.gov/PageFiles/109760/2
10.8B.pdf
https://web.archive.org/web/20170210000456/https://www.cpsc.gov/PageFiles/108298/2
10.12r.pdf
https://web.archive.org/web/20170131113344/https://www.cpsc.gov/PageFiles/117282/af
ci.pdf
https://web.archive.org/web/20170212083913/https://www.cpsc.gov/PageFiles/117286/b
edrooms.pdf
https://web.archive.org/web/20170223052803/https://www.cpsc.gov/PageFiles/117292/e
ditorial.pdf
https://web.archive.org/web/20170201050551/https://www.cpsc.gov/PageFiles/117296/s
mokealarm.pdf
https://web.archive.org/web/20170212112237/https://www.cpsc.gov/PageFiles/117301/b
oathoists.pdf
https://web.archive.org/web/20170201050551/https://www.cpsc.gov/PageFiles/117296/s
mokealarm.pdf
https://web.archive.org/web/20170131074532/https://www.cpsc.gov/PageFiles/117275/N
FPA70_550_13b.pdf
https://web.archive.org/web/20170212163343/https://www.cpsc.gov/PageFiles/107512/N
FPA70_550_25.pdf

4

https://web.archive.org/web/20170131074532/https://www.cpsc.gov/PageFiles/117275/N
FPA70_550_13b.pdf
I declare under penalty of perjury under the laws of the United States that the foregoing is
true and correct.
Executed this 16th day of January, 2020 at San Francisco, California.

/s/ Matthew B. Becker
Matthew B. Becker

5