When the government makes a rule, there’s no excuse for it to not be posted for all to see.
When the government makes a rule, there’s no excuse for it to not be posted for all to see.
I t seems self-evident that a country’s laws and regulations must be freely accessible to the public. As long ago as 1750 b.c., the Babylonian king Hammurabi put his code of laws on a pillar for all to see. Ever since, the public availability of law has been a crucial part of governance. Hammurabi boasted that any subject involved in a dispute could read the laws and learn “what is just.”
Well, roll over Hammurabi, because the U.S. federal government has apparently abandoned this almost 4,000-year-old principle. While most people are aware that federal regulations have been steadily accumulating for decades, many of these new, legally binding regulations are not publicly available through the Code of Federal Regulations.
The relevant term of art here is “incorporation by reference.” This refers to a situation where a law or regulation cites another document and gives that other document the full power of law.
Here’s one example: Four-hundred and eighty-six different federal regulations reference the Boiler and Pressure Vessel Code, which is published not by the government but rather by the American Society of Mechanical Engineers. According to one website, this document “sets the standard for the safe design, manufacture and maintenance of boiler and pressure vessels, power-producing machines and nuclear power plant components.”
That’s all great — regulations are supposed to help ensure public safety, at least in theory. But if you try to get a copy of the ASME Boiler and Pressure Vessel Code, get out your credit card and prepare for some sticker shock. The lowest price I could find for the 2023 edition is $19,181. That will get you the complete set in hard copy, but without binders. Most businesses don’t need the entirety of the Boiler and Pressure Vessel Code, though. Different parts are available for prices ranging from $30 to almost $5,000.
This is far from the only example, although it is the most expensive. A search of the 2021 Code of Federal Regulations for terms such as “incorporated by reference” yields over 23,000 hits. Considering that most of these documents transformed into law are the size of a book, that’s a lot of regulations left out of the public listing of rules. So, like an iceberg, much of America’s mass of regulations lurks below the surface.
Just how big is the iceberg? To answer that question, I followed links provided in the National Institute for Standards and Technology (NIST) database on standards incorporated by reference. I found 5,689 unique sets of standards that are incorporated by reference at least once — regulations kept off the public books but with legal force.
You would think these rules are at least accessible online to end users, who, after all, are legally required to comply with all relevant regulations. But to my dismay, I discovered that 2,269 are behind paywalls.
The average price to access these paywalled regulations is $122.09, with prices for individual regulations ranging from $11 to over $19,000. For entrepreneurs, who navigate complicated or vague legal standards in all kinds of industries, these costs are a significant obstacle. Imagine being required to pay $1,000 or more simply to access the regulations that you would have to follow if you established a new company.
If you wanted to purchase all the standards that are incorporated by reference, it would cost over $250,000.
Incorporation by reference can make sense from the perspective of a regulatory agency. The agency can effectively outsource the development of safety standards for a large chunk of relevant businesses. This has pluses and minuses: Outside experts may be more knowledgeable about the industry than government regulators are, but many people worry about large businesses controlling the regulatory process when this happens. Either way, it’s clearly an issue when those standards are inaccessible to the public because they are behind paywalls.
Since Hammurabi, public access to the laws that govern the people has been enshrined as a core principle of the rule of law. It’s time to get back to Babylonian basics in governance: When the government makes a rule, there’s no excuse for it to not be posted for all to see.