3. ‘No source’ requires that the provision not have any basis in enacted law
Jesse M. Cross & Abbe R. Gluck 20, Cross is Assistant Professor, University of South Carolina Law School; Gluck is Professor of Law and Faculty Director, Solomon Center for Health Law and Policy, Yale Law School, “The Congressional Bureaucracy,” 168 U. Pa. L. Rev. 1541, May 2020, WestLaw
For example, OLRC may insert what it calls a “no source” provision into a new positive title that it is preparing for Congress. A “no source” provision is one that did not exist in any congressionally enacted law, but that OLRC creates out of whole cloth.620 For example, if OLRC concludes that a new defined term will help it more easily articulate the policies that it is assembling in the title, it may insert a new definition into the title, and then use this newly defined term throughout the title.621 In the chapter of title 46 labeled “Liability of Water Carriers,” for example, the very concept of a “carrier” is a *1665 defined term added by OLRC in a “no source” provision (the term that indicates OLRC created it).622 While the Revision Notes flag those provisions as having no source, those notes are hard to find and do not appear in the main text--whereas the “no source” provisions themselves do appear in the main text of the Code unflagged, just like provisions that Congress actually had enacted in prior law. “In a positive law codification bill,” an interviewee reported, “we create these definition sections pretty frequently.”623