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Case 1:13-cv-01215-TSC Document 239 Filed 03/31/22 Page 23 of 47

• A copy of some of the ASTM standards as republished b Defendant in HTML format; see Wise Decl., Ex. 165, ECF Nos. 198-5, 198-48;
• A copy of some of the NFPA standards as republished by Defendant on the Internet Archive, see Wise Decl., Ex. 166–68, ECF Nos. 198-5, 198-48;
• A copy of the cover sheets Defendant attached to the ASHRAE standards it republished on the Internet Archive, see Wise Decl., Ex. 169, ECF Nos. 198-5, 198-48; and
• Arguments as to how each standard has (or has not) been incorporated by reference into law, see Def.’s 2d MSJ at 9–10; Becker Decl. ¶ 57, Exs. 89–91; Supp. Wise Decl., Exs. 175–176.

Before turning to each of the four factors, and the court’s standard-by-standard analysis, the court first distinguishes between standards that have and have not been incorporated by reference into law.

For each of the 217 standards at issue, Defendant provided the court with what it contends is the incorporating-by-reference regulation. See Becker Decl. ¶ 57, Ex. 89–91. For 153 of the 217 standards, Defendant provided at least one regulation incorporating into law the standard Defendant published. These are identified in the attached Appendix as “Group 1 Standards.” As to the other 64 standards, Defendant cited to a regulation that incorporated a standard bearing a different designation than the one it published.^[1]

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1. Each ASTM standard has a unique designation. In each serial designation, the number following the dash indicates the year of original adoption as a standard, or the year the standard was last revised. See Pls.’ 2d SMF ¶ 35 (citing O’Brien Decl. Ex. 3 at 1349). Standards that have been reapproved without change are indicated by the year of last reapproval in parentheses as part of the designation number. For example, ASTM C5-79 (1997) indicates that ASTM C5 was reapproved in 1997. Id. A letter following this number indicates more than one revision during that year. For example, ASTM A106-04b indicates the second revision in 2004 to ASTM A106. Id. A superscript epsilon indicates an editorial change since the last revision or reapproval, so that ASTM A36-97a^e1 indicates the first editorial revision of the 1997 version of

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