Don’t Quote the Law in the Federal Register!

by Chris Walker — Saturday, Oct. 29, 2016@chris_j_walker

fedreg-pubsIn the frequently asked questions chapter of the Federal Register Document Drafting Handbook, the Office of the Federal Register provides (in Section 18.7) the following prohibition:

It is not appropriate to quote laws and rules in the text of Federal Register documents. Laws may be paraphrased and rules may be cross-referenced if they meet the requirements in section 1.15 or 2.15.)

In other words, federal agencies are not allowed to quote the statutory language they are interpreting in proposed or final regulations and accompanying materials. This prohibition on quoting statutory (or regulatory) text may make some sense, perhaps, in the regulatory text itself as a means of reinforcing an anti-parroting principle. In other words, perhaps the Office of the Federal Register wants to encourage agencies to interpret and implement law in its regulations and not just regurgitate it. I’m not sure I buy that justification and, in all events, am very curious about the driving motivation (and statutory and regulatory authority) for this prohibition.

But let’s put aside the regulatory text. The prohibition applies even more broadly to any Federal Register documents, including preambles to regulations. Those preambles, also known as statements of basis and purpose, provide critical information concerning why agencies are interpreting and implementing statutory provisions in a particular manner. As Jennifer Nou and Kevin Stack have argued (here and here), these preambles should be primary sources for resolving regulatory ambiguities.

Regulatory preambles also provide an invaluable window into understanding how and why an agency has interpreted a statute in a particular regulation — an understanding critical for regulated parties attempting to comply with the regulation (and statute) and for courts that subsequently review the agency’s statutory interpretation. As Justice Kagan has remarked, “we’re all textualists now,” in that we start with the statutory text when interpreting it.

Unsurprisingly, this prohibition is also frustrating federal agency officials, who have reported that the Office of the Federal Register has been enforcing this prohibition (though perhaps inconsistently). One agency general counsel remarked to me:

[I]t is of course difficult to fathom why an agency would be prohibited from quoting relevant statutes in the preamble to a rule. Our jobs, after all, are to examine and apply the text of the statute exactly as it appears in the U.S. Code. Indeed, the failure to do so is typically grounds for legal challenge under the APA. Although we’ve raised this (one would think obvious) point with the Federal Register’s legal staff in the past, they have not accepted our objections.

The Administrative Conference of the United States (ACUS) recently examined the role of preambles and regulatory text as agency guidance. Perhaps another fruitful ACUS project would be to study best practices among agencies for publishing regulations in the Federal Register, including reassessing the guidelines and rules set forth in the Federal Register Document Drafting Handbook. In all events, if anyone has more information on why this prohibition exists, please let me know, and I’ll of course update this post.

[UPDATE 10/31: Over the weekend I received a number of responses from agency lawyers that reinforced the agency frustration that I noted above. A few of them noted that the Office of the Federal Register objects to block quotes, italicized quotes, and statutory text in quotation marks. So the workaround, it seems, is to just quote the statute verbatim without quotation marks, etc. There goes my anti-parroting theory, which several readers have noted didn’t seem too plausible in all events.]

This entry was tagged .

About Chris Walker

Christopher Walker is a law professor at The Ohio State University Moritz College of Law. Prior to joining the law faculty, Professor Walker clerked for Justice Anthony Kennedy of the U.S. Supreme Court and worked on the Civil Appellate Staff at the U.S. Department of Justice. His publications have appeared in the Michigan Law Review, Minnesota Law Review, Stanford Law Review, and University of Pennsylvania Law Review, among others. Outside the law school, he serves as one of forty Public Members of the Administrative Conference of the United States and on the Governing Council for the American Bar Association’s Section on Administrative Law and Regulatory Practice. He blogs regularly at the Yale Journal on Regulation.

Cite As: Author Name, Title, Yale J. on Reg.: Notice & Comment (date), URL.

One thought on “Don’t Quote the Law in the Federal Register!

  1. Peter Strauss

    And if a regulation incorporates by reference an industrial standard, converting it into a legal obligation, the only way to read it is with the often expensive permission of the body that adopted the standard.

    Reply

Leave a Reply

Your email address will not be published. Required fields are marked *