Case 1:13-cv-01215-TSC Document 239 Filed 03/31/22 Page 24 of 47
For 32 of those 64 standards, Defendant cites to a regulation that incorporated a version identical in text to the version Defendant published, but which was approved and published in a different year. See Pls.’ 2d SMF ¶ 35 (“Standards that have been reapproved without change are indicated by the year of last reapproval in parentheses as part of the designation number (e.g., C5-79 (1997) indicates that C5 was reapproved in 1997.”) (citing O’Brien Decl. Ex. 3 at 1349); Def.’s SDF at ¶ 35 (no objection); Def.’s 2d MSJ at 10 (contending that the “only difference between what was posted and the document cited in the C.F.R. is that the title adds a second, reissue, date in parentheses. All other text is identical”) (citing Def.’s 2d SMF ¶ 84). These standards are identified in the attached Appendix as “Group 2 Standards.”
Defendant argues that because the Group 2 Standards are identical to the text incorporated by reference into law, any discrepancy in the standard’s reissue date is not material to the fair-use analysis. Def.’s 2d MSJ at 9–10. The court agrees. As to each of these standards, Defendant has “[f]aithfully reproduc[ed] the relevant text of a technical standard incorporated by reference for purposes of informing the public about the law,” which “obviously has great value.” ASTM, 896 F.3d at 451 (emphasis added).
For the final 32 standards, identified as “Group 3 Standards,” Defendant concedes that these bear editorial and substantive differences from the ones incorporated by reference into law. Def.’s 2d MSJ at 9–10. Defendant does not identify which provisions of its postings are
ASTM A36. Id. If a standard is written in metric units, the metric version is indicated by the letter M (e.g., A369M-92 indicates that this version of A389 contains metric units). Id. When ASTM publishes standards in metric and inch-pound units it identifies the standard with a dual designation (e.g., ASTM A369/A369M-92 identifies a dual standard). Id. Regulations like the Code of Federal Regulations typically identify ASTM standards according to this specific designation number. For example, 40 C.F.R. § 114.600 specifies the edition of the ASTM standards incorporated by reference in 46 C.F.R. § 119.440, including B122/B122M95 and B96-93. See 40 C.F.R. § 114.600.
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