Feds out of Room for Rules You Have to Obey; How Exactly Do You Follow the Laws If Nobody Can Find Them?

The Washington Times (Washington, DC), July 9, 2010 | Go to article overview

Feds out of Room for Rules You Have to Obey; How Exactly Do You Follow the Laws If Nobody Can Find Them?


Byline: Katherine Miller, SPECIAL TO THE WASHINGTON TIMES

Somewhere deep within the bowels of a generic government building is a room filled with boxes of papers - papers that directly affect your life. This room would be something like the warehouse at the end of Raiders of the Lost Ark - if only that warehouse were backroom storage space behind some cubicles. Instead of tripping over something vaguely interesting like the Ark of the Covenant, you would find the lost copy of the 1980 ASME Boiler and Pressure Vessel Code. EPA state implementation plans, FAA air-worthiness directives and regulations about highway workers' vests all find their final resting place here, in the Incorporation by Reference (IBR) library at the Federal Register - purgatory for the federal government's footnotes, located on North Capitol Street in Washington D.C.

Welcome to the dull, melody-less cousin to How a Bill Becomes a Law, titled, How a Federal Rule Ends Up at the Archives.

When the federal government writes a rule or regulation, the Federal Register publishes it. On June 24, for instance, the Register published the 2010 Specifications for the Spiny Dogfish Fishery in the Northeast - a page-turner, no doubt. And those pages add up. Last year, the Federal Register published 68,598 pages of rules and regulations.

Which brings us to the incorporated-by-reference material. When a federal rule cites something that's not a federally authored rule - i.e., the Measurement of Liquid Flow in Closed Conduits Using Transit-Time Ultrasonic Flowmeters - that material becomes, by proxy, part of the federal code and takes on the full force of law. Chief among these documents are things like FAA air-worthiness directives, which specify what each particular plane model needs to be considered up to code and EPA implementation plans for every state.

How many things have been incorporated by reference into the federal code? Nobody's sure.

Seriously. A 2006 publication celebrating the 70th anniversary of the Federal Register estimated that the federal body of law included more than 550 cubic feet of material incorporated by reference, but that's as close to an answer as anyone has. Let that marinate: No one is really sure how many documents have been incorporated into federal law.

Part of the problem, according to Amy Bunk, director of legal affairs and policy for the Register, is that not all of the IBR material is in one place. Until 2003 .. we stored all the material, she

explained We just ran out of space. As you can imagine, after 40 years, we just ran out of room.

So, now, after a sojourn in this federal-footnote purgatory, these documents referenced by the federal code are accessioned to the National Archives, where they'll remain indefinitely.

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Feds out of Room for Rules You Have to Obey; How Exactly Do You Follow the Laws If Nobody Can Find Them?
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