Cite as 896 F.3d 437 (D.C. Cir. 2018)
the specific legal requirement are found outside the two covers of the codebook. The NFPA 70 tank-barge plug specification discussed above, which the relevant regulation mentions by name in making compliance mandatory, is one such example. See 46 C.F.R. § 39.2009(a)(1)(iii)(B) (providing that the plug must “meet[] … NFPA 70”). Another is the incorporation of ASTM D975-07, the “Standard Specification for Diesel Fuel Oils,” into the U.S. Code. It provides that a retailer of certain biofuels need not affix any special labels to its fuel so long as the fuel “meet[s] ASTM D975 diesel specifications.” 42 U.S.C. § 17021(b)(1). These laws impose legally binding requirements indistinguishable from, for example, a cigarette-labeling obligation, see 15 U.S.C. § 1333(a), except that the federal law imposing that obligating expressly specifies, without reference to an external standard, exactly what qualifies as a cigarette, see id. § 1332(1).
At the other end of the spectrum lie standards that serve as mere references but have no direct legal effect on any private party’s conduct. One example is the incorporation of ASTM D86-07, the “Standard Test Method for Distillation of Petroleum Products and Liquid Fuels at Atmospheric Pressure,” which a federal regulation describes as a “[r]eference procedure” used by the Environmental Protection Agency and regulated motor-vehicle manufacturers to determine whether the boiling point for certain gasoline used for “exhaust and evaporative emission testing” falls within a permissible range. 40 C.F.R. § 86.113-04(a)(1). The regulation creates only one relevant legal obligation: the regulated entity, in testing vehicular emissions, must use gasoline that meets specifications expressly laid out within the regulation itself. The incorporation of an external standard merely tells the regulated entity how it can ensure that the gasoline it uses in fact satisfies the codified requirements.
Of course, between those two poles are countless other varieties of incorporation. Some standards are incorporated for the purpose of triggering agency obligations, see, e.g., 42 U.S.C. § 6833(b)(2)(A) (providing that “[w]henever … [the American Society of Heating, Refrigerating, and Air Conditioning Engineers, Inc. (ASHRAE)] Standard 90.1-1989,” which provides energy-efficiency guidelines for commercial buildings, “[is] revised, the Secretary [of Energy] shall … determine whether such revision will improve energy efficiency in commercial buildings”), or establishing regulatory floors, see, e.g., id. § 6833(b)(2)(B)(i) (“If the Secretary makes an affirmative determination,” each state shall have two years to “certify that it has reviewed and updated the provisions of its commercial building code regarding energy efficiency” such that its code “meet[s] or exceed[s] [the] revised standard.”). Still others, like the “Standards for Educational and Psychological Testing” mentioned above, establish criteria that determine one’s eligibility to apply for federal educational grants. See 34 C.F.R. §§ 668.141(a), 668.146(b)(6) (providing that a student may be eligible for Higher Education Act fund grants if he or she passes a test that, among other things, “[m]eet[s] all standards for test construction provided in the 1999 edition of the Standards for Educational and Psychological Testing”).
Put simply, the incorporated standards at issue here vary considerably in form, substance, and effect. Indeed, even this limited effort to categorize them is surely underinclusive given the dearth of record evidence about all the places where even the ten standards identified in this appeal may have been incorporated by reference into law at the federal, state, and local levels. These ten standards, in turn, represent but a fraction of the heterogeneity of the hundreds of other incorporated standards not at issue in this appeal.
