SECTION OF ADMINISTRATIVE LAW AND REGULATORY PRACTICE
On June 1, the
President issued an
Executive Memorandum directing that Federal agencies use plain
language in their documents.1 The
President undertook this initiative in an effort to make the
Federal government more responsive, accessible, and understandable
in its communications with the public. The President's memorandum
argued that plain language sends a clear message about what the
Government is doing, what it requires, and what services it offers.
Moreover, the President asserted that plain language saves the
Government and the private sector time, effort, and money.2 Clear communication tends to increase government
transparency and accountability?3
The President's memorandum directed that:
- By October 1, 1998, Federal agencies "use
plain language in all new documents, other than regulations,
that explain how to obtain a benefit or service or how to comply
with a requirement [they] administer or enforce. For example,
these documents may include letters, forms, notices, and instructions.
By January 1, 2002, all such documents created prior to October
1, 1998, must also be in plain language."
- By January 1, 1999, Federal agencies "use
plain language in all proposed and filial rulemakings published
in the Federal Register, unless [they] proposed the rule
before that date. [The agencies] should consider rewriting existing
regulations in plain language when [they] have the opportunity
and resources to do so."4
ordered to do so, the independent agencies were asked to comply
with these directives.5 To judge by the designation
of agency representatives to the plain language enterprise, many
have complied with this request. (Established ABA positions would
support a presidential directive to the independent commissions
on this as on other coordinative efforts.) The SEC, notably,
has generated "A Plain English Handbook" on the creation
of clear disclosure documents, and adopted rules requiring that
every prospectus have its cover page, summary, and risk factors
in plain English.
memorandum states that plain language requirements vary from
one document to another, depending on the intended audience.
However, the Memorandum sets out certain features the President
believes are generally useful in a plain language document. Specifically,
according to the President's memorandum, "plain language
documents should have logical organization and easy-to-read design
features, and should use common, everyday words, except for necessary
technical terms; 'you' and personal pronouns; active voice; and
memorandum assigned to the National Partnership for Reinventing
Government (NPR) the task of issuing guidance to help agencies
comply with the directive and to explain more fully the elements
of plain language.7 On July 31, Vice President Gore issued this guidance.8
It required each agency head, by mid-August, to designate a senior
official responsible for implementing the President's memorandum.9
This official represents the agency on NPR's Plain Language Action
Network (PLAN), an interagency committee charged with making
plain language standards for all government communications. Further,
the Vice President directed each agency to design its own plain
language action plan by September 4, 1998.10
These action plans were to set out strategies for: communicating
the President's expectations to employees, equipping staff with
needed tools, meeting the deadlines established in the President's
Memorandum, and sustaining change over the long term.
President's memorandum directs agencies to use plain language
in proposed and final rules, the Vice President's guidance expands
the domain of plain language to notices of data availability,
technical amendments, Advance Notices of Proposed Rulemaking,
and other notices related to rulemaking. The Vice President's
guidance also directs agencies to improve the clarity of regulatory
support documents like background information documents, economic
assessments, risk assessments, and other technical support documents.11
In support, NPR has established a central web site, http://plainlanguage.gov,
where users can find a handbook, "Writing User-Friendly
Documents," examples, links to responsible officials and
to members of PLAN's steering committee, and other helpful matter.
Elements of Plain
plain language cannot be reduced to a particular format or formula,
the literature yields general agreement on certain core principles.12
organize documents for the convenience of their readers, not
themselves. This means providing information in the order readers
will find most useful. Although it is often helpful to put definitions
at the front of the document, they can also be distracting. Thus,
it may make sense to state eligibility criteria for a program
first, and to define terms as they are used. Ultimately, the
topic covered and the audience sought to be addressed control
what is the most appropriate order for a document.
should use clear and easy to understand language. Familiar vocabulary
makes regulation understandable. "You" and other pronouns
will often clarify, in a familiar and direct way, who is being
asked to comply, and who is the source of that direction. In
general, use of the active voice makes it easier for the public
to understand the document and avoids ambiguity. Shorter sentences
present one idea or concept at a time. This practice allows the
reader to digest distinct bits of information in sequence. Also,
it means the reader does not need continually to refer back to
previous clauses to determine exceptions or applicability. An
arbitrary limit on the number of words in a sentence would be
inappropriate. Nonetheless, authors often can break sentences
with many words or clauses into several shorter sentences.
authors should use helpful stylistic devices, such as question-and-answer
formats, vertical lists, spacing that facilitates clarity, and
tables. A question-and-answer format, particularly in headings,
can help organize materials around a reader's interests. Judicious
use of spacing and indentations, as in a recent rulemaking proposed
by the Department of Transportation, can be very helpful in easing
a reader's way into the dense format of the Federal Register.13
Graphic depictions present material in a more accessible and
understandable format, particularly in regulations. In many instances,
placing complicated provisions into tables or lists dramatically
improves their readability, and may greatly reduce the number
of words needed. Finally, presenting material in graph form eliminates
the need to repeat introductory and clarifying language.
illustrate these concepts. The first example comes from the National
Park Service. The Park Service revised rules that control off-road
vehicle use at Cape Cod National Seashore. The previous rule
When the process of freeing a vehicle that
has been stuck results in ruts or holes, the operator will fill
the ruts or holes created by such activity before removing the
vehicle from the immediate area.14
The revised rule states:
If you make a rut or hole while freeing
a stuck vehicle, you must fill the rut or hole before you move
the vehicle from the area.15
example comes from the Department of Commerce. Recently, the
Department of Commerce's Bureau of Export Administration (BXA)
re-drafted the entire Export Administration Regulation (EAR).16
BXA used logical organization and incorporated charts to help
explain the application of this complex body of regulations.
In so doing, the agency completely re-structured the regulation.
The first part of the revised EAR included in the Code of Federal
Regulations is now called "Steps."17
This part explains to an exporter how to apply the remainder
of the regulatory regime. It also includes "decision-tree"
diagrams to explain how to apply the regulations.18
Further, all the export prohibitions previously scattered throughout
the EAR were combined in one part.19 Finally, a "Country
Chart" demonstrates in a graph when an export license is
the goals of transparency and accountability, agencies will need
to measure their success in drafting plain language documents.
The best way to make this measurement is to ask those who use
the documents. Agencies and bureaus should consider including
standard language in all proposed rule preambles, soliciting
public comment on any ambiguities or drafting errors present
in the document.
the effort to draft regulations in plain language, as they should,
agencies should observe a number of cautions:
judicial review of the regulation is possible, agencies need
to be aware of possible effects of prevailing styles of judicial
interpretation on plain language regulations. Inherent in the
plain language idea is that a text should address, in the most
straightforward possible way, the core issues to which it applies.
Exceptional cases and details are peripheral concerns, which
tend to confuse the honest citizen who wants to know what her
major obligations are. Yet courts employing some styles of interpretation,
most notably "plain meaning" approaches, may not accept
the proposition that regulation drafters can limit their attention
to the core obligations of those subject to a regulation. If,
consequently, authors do not clearly address a secondary issue,
the court may conclude that it is not an element of the regulation.
Since regulated interests may often have incentives to test the
limits of rules, regulators must heed the ways in which their
language might be used or limited in its application. It might
be possible, for example, to have additional sections or subsections
dealing with foreseeable fringe issues, after the text explains
core obligations in direct language.
and Exchange Commission (SEC) addresses the need for completeness
in its handbook on producing disclosure documents in plain English.21
In its frontispiece it both encourages the use of "well-established
techniques for writing in plain English to create clearer and
more informative disclosure documents," and reminds the
user that "Of course, when drafting a document for filing
with the SEC, you must make sure that it meets all legal requirements."
In response to the question "What is a 'Plain English' Document?"
the SEC handbook states the following:
We'll start by dispelling a common misconception
about plain English writing. It does not mean deleting complex
information to make the document easier to understand. For investors
to make informed decisions, disclosure documents must impart
complex information. Using plain English assures the orderly
and clear presentation of complex information so that investors
have the best possible chance of understanding it.
should not make the language of regulations plain by the expedient
of referring to bureaucratic discretion issues that more complex
language could deal with. Doing so would leave an agency with
no standards to cabin its discretion. This approach would disserve
not only members of the regulated community, but also agency
personnel charged with implementing the regulatory regime, who
may look to the regulations for guidance.
is not trivial and can evade the best of intentions. Consider,
for example, the rewritten regulation chosen for the Vice President's
second "No Gobbledygook Award," a revision of BLM regulations
on leasing and developing federal land to produce geothermal
power.22 In three complicated paragraphs, the original
regulation described application procedures and set forth some
necessary content of the application. It also referenced other
sections of the regulation which included standards for the application
document. The award-winning rewrite reads as follows:
"If you want to use federal land to
produce geothermal power, you have to get a site license and
construction permit before you even start preparing the site.
Send a plan to the BLM that shows what you want to do and write
up a proposed site license agreement that you think is fair and
reasonable. The BLM will review it and decide whether or not
to give you a permit and license to proceed with work on the
site. Until and unless they do, don't even think about it."
Notice that this regulation does not say
what standards will govern BLM's decision, or where such standards
could be found. The applicant is to propose what it thinks "fair
and reasonable." The BLM will then decide whether that test
has been met. Work that a regulation might have done appears
instead to have been left to bureaucratic discretion.
should clearly state the obligations and rights of those it affects,
as well as the rights and obligations of the agency. This regulation
succeeds in this goal in one respect. No readers could fail to
appreciate that they should not start any action on a geothermal
site on federal land before acquiring a permit. But it fails
in other respects. Applicants are given no information what the
agency expects or whether what they think "fair and reasonable"
will satisfy the agency. Other interested members of the public
will not be able to learn on what principles the agency conducts
its business. And no public standard guides the agency in the
exercise of its discretion to grant or deny the application.
could be answered, in defense of this regulation, that the geothermal
industry is a small one, confined to limited geographic areas;
BLM has been working with its members for years. While regulations
which apply universally should contain standards that any casual
reader could understand and comply with, this argument would
run, here the actors know each other well, in the institutional
sense if not the more personal. Other policy ends of government,
such as enhancing regulatory flexibility, may argue in such circumstances
for permitting the agency to act on trust, rather than by the
rule - at least until the existing working relationships break
down. Of course this approach reduces, pro tanto, the possibility
of monitoring by others, say by environmental groups; it can
conduce to cozy as well as to arbitrary relationships. Transparency
is improved not only by plain language, but also by openness
about standards being employed.
the Vice President's other plain language awards23
suggest the final cautionary principle stated above, that revisions
should not alter existing regulations without noting and explaining
the changes. The first, third, and fourth of his awards, as they
appear on the plainlanguage website, all substitute quite brief
directives for a former regulation - appearing, in the rewriting,
to have omitted former regulatory coverage. Thus, a rule that
initially applied to "all operations involving the immersion
of materials in liquids, or in the vapors of such liquids,
for the purpose of cleaning or altering the surface or adding
to or imparting a finish thereto or changing the character of
the materials, and their subsequent removal from the liquid or
vapor, draining, and drying" becomes a rule that applies
only to the use of liquids other than water in "diptanks."
A rule about the booking and reimbursement of government employee
travel that serves both government and personal purposes loses
all detail about booking. A rule on housing discrimination complaints,
similarly, no longer addresses the content of a complaint or
the possibility of filing it with state officials.
In each of
these cases it is possible that other provisions, not reflected
in the "award" materials, now address what seems to
have been changed. But it is also possible that the push to conciseness
has led to a decision to change the content of the regulation
- and the demonstrative materials on the awards appear to be
unconcerned with that outcome. The regulations are presented
as if the initial and revised versions of the regulation were
these reformulations can be used to illustrate the need for caution
suggested above, when there is a prospect of judicial review.
Some people might think the preceding paragraph uncharitable
- resistant to the plain language idea in its understanding of
what the revisions accomplished. But in our judgment judges applying
a "plain meaning" interpretation of the revised regulations
would most naturally find that they have substantially changed.
OSHA's regulation now applies only to "dip tanks" and
to liquids, and it does not apply to water -- whatever its temperature.
Even if these changes were unintended, the broader application
of the earlier regulation would not interest a court committed
to reading legislative texts with attention to what they actually
say. It is doubtful that even Chevron could rescue the
agency here; the agency's discretion is limited by what the language
of the instrument it is interpreting appears to permit, using
traditional tools of interpretation.
in response might be this: where an agency rewrites a rule without
intending to change its application or meaning, the text of the
rule should so state. In such a case, the original text would
remain applicable; for purposes of judicial review, the two would
be treated as having the same meaning. This, however, would be
a highly imperfect response, particularly for proponents of plain
language. It would tell citizens and courts that they have not
one but two sources to consult to determine their legal obligations
- and that in the case of seeming conflict, the less well written
source is to prevail. Any such course would be self-defeating.
The better course is to remain aware, in pursuing the worthy
goals of plain language drafting, that it poses risks against
which it is important to guard. Achieving a noteworthy improvement
in legal administration requires some caution as well as commitment
in implementing the President's plain language directive.
Federal government articulates clearly what it requires and what
benefits it offers, it is most likely to achieve the goals of
accountability and transparency. These are goals the Federal
government should seek to achieve. The American Bar Association
encourages the use of plain language in regulations. Plain language
is a means of effective communication to promote understanding
of legal obligations. However, the Federal government, in drafting
plain language documents, should avoid unintended consequences
that could frustrate its laudable goals.
Ronald A. Cass
1. Memorandum to
the Heads of All Departments and Agencies, Presidential Memorandum
on Plain Language, June 1, 1998, 63 FR 31885 (June 10, 1998).
2. Id. at 31885.
3. Maria Walters
et al. v. Reno, 1998 U.S. App. LEXIS 9846 (9th Cir. May 18, 1998).
4. ld. at 31885.
5. ld. at 31885.
6. ld. at 31385.
7. Id. at 3 1885.
8. How to Comply
with the President's Memo on Plain Language, National Partnership
for Reinventing Government Plain Language Action Network website,
http://www.plainlanguage.gov (July 31, 1998).
9. Id. at 1.
10. Id. at 1.
11. Id. at 4.
12. See generally;
William Strunk, Jr., Elements of Style, Privately Printed,
Ithaca, New York (1918); Joseph Kimble, Answering the, Critics
of Plain Language, 5 Scribes J. Legal Writing 51 (1994 -
1995); David Mellinkoff, Legal Writing: Sense and Nonsense,
West (1982); Richard C. Wydick, Plain English for Lawyers
(Third Edition), Carolina Academic Press (1994); Robert J. Martineau,
Drafting Legislation and Rules in Plain English, West
(1991); Securities and Exchange Commission, A Plain English
Handbook: How to Create Clear SEC Disclosure Documents, Securities
and Exchange Commission, Washington, D.C., August 20, 1998; Office
of the Federal Register, National Archives and Record Administration,
Making Regulations Readable, Office of the Federal Register
Document Drafting Handbook, http://www.nara.gov/fedreg/ddhhome.html
13. Fed. Reg.
68624-33. Dec. 11, 1998.
14. 36 CFR 7.67(a)(2)(v).
15. 36 CFR 7.67(a)(4)(vi)
(Revised Feb. 24,1998, 63 FR 9143, 9147).
16. 15 CFR 730
17. 15 CFR 732.
18. Id. at Supp.
19. 15 CFR 736.
20. 15 CFR 738,
and Exchange Commission, A Plain English Handbook; How to
Create Clear SEC Disclosure Documents, Securities and Exchange
Commission, Washington, D.C., August 20, 1998.
22. Office of
the Vice President, "Vice President Gore Presents Second
Plain Language Award," Press release of August 5, 1998.
23. Office of
the Vice President, "Vice President Gore Presents First
Award for Federal Writing in Plain Language," June 30, 1998.
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