Page:ASTM v. PRO (D.C. Cir. 2018).pdf/6

 cases, however, federal, state, or local governments have incorporated technical standards into law. In fact, federal law encourages precisely this practice. See National Technology Transfer and Advancement Act of 1995, Pub. L. No, 104-113, § 12, 110 Stat. 775, 782 (1996) (codified as amended at 15 U.S.C. § 272(b)(3)) (authorizing the National Institute of Standards and Technology “to coordinate the use by Federal agencies of private sector standards, emphasizing where possible the use of standards developed by private, consensus organizations”). As the Office of Management and Budget has explained, incorporating private standards “eliminate[s] the cost to the Federal government of developing its own standards” and “further[s] the reliance upon private sector expertise to supply the Federal government with cost-efficient goods and services.” Office of Mgmt. & Budget, Exec. Office of the President, OMB Circular A-119: Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities 14 (2016), 2016 WL 7664625.

When agencies or legislatures incorporate private standards into law, they often do so by reference—that is, instead of spelling out the requirements of a standard within legislative or regulatory text, they reference the standard being incorporated and direct interested parties to consult that standard in order to understand their obligations. The process for incorporation by reference varies widely by jurisdiction. For example, consider the process employed by the federal government. If an agency wishes to incorporate a standard into a final rule, it must submit a formal request to the Director of the Federal Register. 1 C.F.R. § 51.5(b). In that request, the agency must, among other things, “[d]iscuss … the ways that the [incorporated] materials … are reasonably available to interested parties and how interested parties can obtain the materials,” id. § 51.5(b)(2), and “[e]nsure that a copy of the incorporated material is on file at the Office of the Federal Register,” id. § 51.5(b)(5). Once the Director approves the incorporation, provided that the “matter [is] reasonably available to the class of persons affected,” it “is deemed published in the Federal Register,” 5 U.S.C. § 552(a)(1), and, “like any other properly issued rule, has the force and effect of law,” Nat’l Archives & Records Admin., Code of Federal Regulations Incorporation by Reference, J.A. 1879. Other jurisdictions have established similar procedures but impose additional requirements. For instance, the District of Columbia limits incorporation by reference to circumstances where “[t]he publication of the document would be impractical due to its unusual lengthiness,” D.C. Code § 2-552(c)(1), and requires that “[a] copy of the document incorporated by reference [be] available to the public at every public library branch in the District of Columbia,” id. § 2-552(c)(3).

Just as the incorporation process varies so too—and this is central to the issues before us—do the legal consequences of any given incorporation. This is hardly surprising, given that federal, state, and local legislatures and agencies have incorporated by reference thousands of technical standards. Indeed, by ASTM’s own count, the Code of Federal Regulations alone has incorporated by reference over 1,200 of its standards. ASTM Compl. ¶ 57, J.A. 83. This appeal, which concerns ten standards incorporated by reference into law, reflects just a sliver of that diversity.

One way in which the incorporated standards vary is how readily they resemble ordinary, binding law. At one end of this spectrum lie incorporated standards that define one’s legal obligations just as much as, say, a local building code—except that