- The Washington Times - Thursday, July 8, 2010


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. Every time the FAA issues an air-worthiness directive, the Boeing Co or Airbus issues a service bulletin. Then that service bulletin is filed and put into a box at the Federal Register, and then that service bulletin goes to the Archives. FAA air-worthiness bulletins from the past decade alone take up four or five shelves worth of space in white boxes; the rest are at the Archives.

How much of this archived content has been superseded over the years? Nobody’s sure about that, either.

The FAA frequently issues air-worthiness directives that update old ones. (This makes sense: Old planes need repairs all the time.) According to Ms. Bunk and Miriam Vincent, the other attorney who handles IBR material, there’s no good way to know just how much incorporated material has invalidated other incorporated material. It doesn’t matter anyway. Federal regulations require that all records be preserved in case of lawsuit and to fulfill the definition of “archives.”

But good luck finding something unless you really know what you’re seeking. Mr. Bunk and Ms. Vincent said requests for material without specifics (the week a rule was published or its official title, for example) are extremely difficult.

Electronic archives, which would ease internal searches, are still a Candy Land fantasy. The Government Accountability Office last month released a report assessing the success of the National Archives plan for an Electronic Records Archive - now estimated to cost $567 million. The GAO found that the NARA is unlikely to complete the targeted system by its own goal of 2012. Electronic archives for IBR material are even further behind.

“We’re hoping,” Ms. Vincent said of the electronic-record project. “It’s in its infancy. We think we have the structure.”

They’re still struggling with legitimate problems for the electronic effort - what do you do with microfilm records when nobody makes microfilm viewers anymore? But it all underscores the core issue. If you want to know the extent of the federal government’s reach into your life, it’s more than just the code of federal laws. It’s more than the Code of Federal Regulations. The federal government is so big that the entire body of binding rules and regulations isn’t online, can’t be searched easily and occasionally runs out of storage space. And, oh, right: Nobody really knows how big it is.

Katherine Miller is a Collegiate Network Fellow with The Washington Times’ Commentary section.

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