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Plain Writing Legislative History
— 2007- 2010

By Irwin Berent, Plain Writing Association
 SEE ALSO: Bill Comparisons / Media's Response / Historical Bibliography 

Introduction | Background | 110th Congress (2007-2008) | 111th Congress (2009-2010) |
  Origins of Gov't Paperwork Early Plain Language Efforts Executive Orders & A Memo A Legislative Attempt 

A Project of the Plain Writing Association

BACKGROUND

     While the more-distant and more-general history of the plain language movement in government is beyond the scope of this history (and a wealth of historical information is easily accessed through the Association's "Historical Bibliography of the Plain Language Movement" project), a few details may help to set the Plain Writing Act into context.

Origins of Government Paperwork

     The history of the plain language movement in American government is closely tied to the history of government bureaucracy and especially government paperwork. In a Congressional Research Service report ("Paperwork Reduction Act Reauthorization and Government Information Management Issues," Jan. 2007), Harold C. Relyea summarizes how government bureaucracy—and with it, government paperwork—began to grow so massive:
Since its inception in 1789, the federal government has required paperwork for a variety of reasons.... The Constitution mandates one of the largest paperwork requirements — the decennial census. The First Congress set the initial paperwork obligation in the eleventh law it adopted, an act of September 1, 1789, concerning the documentation of marine vessels.
     ...The 16th amendment..., adopted in February 1913, authorized Congress to impose taxes on incomes,... The War Revenue Act of October 1917 made the income tax the chief source of revenue during...World War I, and introduced the American citizenry to the travails of tax reporting.

     Simultaneously, there was "an increase in federal regulatory and compliance agencies with new reporting and recordkeeping requirements for financial, health and safety, and business activities." An autonomous Department of Labor and the Federal Reserve System began in 1913; the Federal Trade Commission, in 1914; and entry into WWI saw numerous other regulatory entities established. And then social benefit programs following WWI added more federal reporting and recordkeeping requirements. Veterans' programs and the VA in 1930. The New Deal in 1933 subsequently brought numerous old age security, unemployment, disability, and welfare programs as well as "financial, banking, industrial, farming, communications, housing, and public works regulatory programs." And WWII brought even more reporting and recordkeeping requirements.

     In a May 16, 1938, letter to the Central Statistics Board, President Roosevelt requested "to report to me on the statistical work of the Federal agencies, with recommendations looking toward consolidations and changes which are consistent with efficiency and economy, both to the Government and private industry" (U.S. Commission on Federal Paperwork, History of Paperwork Reform Efforts, A Report of the Commission on Federal Paperwork, Washington: July 29, 1977, p.15.) This led ultimately to the Federal Reports Act of 1942 (FRA), signed into law on December 24, 1942. The Bureau of the Budget, in charge of implementing the FRA, also inaugurated in 1942 the Advisory Council on Federal Reports, later reformed under the Federal Advisory Committee Act of 1972.

     (In 1944, Maury Maverick would write a memo coining the word Gobbledygook.)

     In 1974, the Commission on Federal Paperwork was established as a result of a 1972 report of the Senate Select Committee on Small Business, which expressed concerns about the management of the FRA, now administered under the Office of Management and Budget (OMB), successor to the Bureau of the Budget. The Commission was statutorily mandated, according to Relyea, "to study, report findings, and make recommendations concerning the adequacy of laws, regulations, and procedures to assure that the federal government was obtaining needed information from the private sector with minimal burden, duplication, and cost." (See Commission on Federal Paperwork: Final Summary Report, Oct. 3, 1977.)

     The Commission's findings would ultimately lead to new legislation replacing the FRA. The Paperwork and Red Tape Reduction Act of 1979 (H.R. 3570) would fail, but the next Congress subsequently passed the Paperwork Reduction Act of 1980, which, according to Relyea, "made OMB the principal policymaker and overseer of government paperwork activities" and "established a new Office of Information and Regulatory Affairs (OIRA) within OMB, to which the director of OMB was to delegate his paperwork functions."

Early Plain Language Efforts

     On the issue of the actual writing of federal regulations, the Commission on Federal Paperwork had included the following among its recommendations for "Techniques to Eliminate Bad Paperwork":
• Write Government material so it can be understood:
   — Set readability standards so that likely recipients can understand questionnaires.
   — Prepare rules and regulations in simple English so that Federal requirements are clear.

     The Commission also encouraged the work of the current administration (President Jimmy Carter, at the time):
The Commission endorses and supports the President's efforts to make Government understandable and responsive. We urge the President to continue his campaign for clarity and readability in Federal publications, rules and regulations, forms and instructions. We suggest that he set standards and a timetable for agency compliance and that he permit the Federal Register to refuse publication of unclear material.
     Just a few years earlier, President Richard Nixon had decreed during his administration that the Federal Register be written in "layman's terms."

Executive Orders and A Memorandum

     President Jimmy Carter issued Executive Order 12044, "Improving Government Regulations," on March 23, 1978, which sought to minimize paperwork by requiring, for instance, cost-benefit analyses to justify new regulations; it declared, among other things, that "Regulations shall be as simple and clear as possible," that every significant regulation should be "written in plain English" and be "understandable to those who must comply with it," and that existing regulations should periodically be evaluated, in part, on the basis of whether there is a "need to simplify or clarify" the language of the regulation. On November 30, 1979, Carter, who would push for the Paperwork and Red Tape Reduction Act of 1979, issued Executive Order 12174, "Federal Paperwork Reduction," declaring in its first section (1-101) that:
Agencies shall minimize the paperwork burden—i.e., the time and costs entailed in complying with requests for information and record keeping requirements-imposed on persons outside the Federal government. Forms should be used only to the extent necessary to gather the basic information required to fulfill an agency's mission. When forms must be used, they should be as short as possible and should elicit information in a simple, straightforward fashion.
     President Reagan revoked Carter's Executive Order 12044, replacing it with EO 12291 (Feb. 17, 1991), which focused on weighing the costs and benefits of the regulatory actions rather than improving their writing. President Bill Clinton's Executive Order 12866, "Regulatory Planning and Review" (Sept.30, 1993), which essentially replaced Reagan's EO 12291, declared as the 12th of its 12 Principles of Regulation, that, to the extent permitted by law and where applicable, "Each agency shall draft its regulations to be simple and easy to understand, with the goal of minimizing the potential for uncertainty and litigation arising from such uncertainty." On February 5, 1996, President Clinton issued his Executive Order 12988, "Civil Justice Reform," declaring among the "Principles to Enact Legislation and Promulgate Regulations Which Do Not Unduly Burden the Federal Court System" a number of requirements pertaining to clear language, namely:
   (a) General Duty to Review Legislation and Regulations. Within current budgetary constraints and existing executive branch coordination mechanisms and procedures established in OMB Circular A-19 and Executive Order No. 12866, each agency promulgating new regulations, reviewing existing regulations, developing legislative proposals concerning regulations, and developing new legislation shall adhere to the following requirements:
      (1) The agency's proposed legislation and regulations shall be reviewed by the agency to eliminate drafting errors and ambiguity;
      * * *
      (3) The agency's proposed legislation and regulations shall provide a clear legal standard for affected conduct rather than a general standard, and shall promote simplification and burden reduction.
   (b) Specific Issues for Review. In conducting the reviews required by subsection (a), each agency formulating proposed legislation and regulations shall make every reasonable effort to ensure:
      (1) that the legislation, as appropriate--
         * * *
         (B) specifies in clear language the preemptive effect, if any, to be given to the law;
         (C) specifies in clear language the effect on existing Federal law, if any, including all provisions repealed, circumscribed, displaced, impaired, or modified;
         (D) provides a clear legal standard for affected conduct;
         * * *
         (G) specifies in clear language the retroactive effect, if any, to be given to the law;
         (H) specifies in clear language the applicable burdens of proof;
         (I) specifies in clear language whether it grants private parties a right to sue and, if so, the relief available and the conditions and terms for authorized awards of attorney's fees, if any;
         * * *
         (Q) addresses other important issues affecting clarity and general draftsmanship of legislation set forth by the Attorney General, with the concurrence of the Director of the Office of Management and Budget (``OMB'') and after consultation with affected agencies, that are determined to be in accodance with the purposes of this order.
      (2) that the regulation, as appropriate--
         (A) specifies in clear language the preemptive effect, if any, to be given to the regulation;
         (B) specifies in clear language the effect on existing Federal law or regulation, if any, including all provisions repealed, circumscribed, displaced, impaired, or modified;
         (C) provides a clear legal standard for affected conduct rather than a general standard, while promoting simplification and burden reduction;
         (D) specifies in clear language the retroactive effect, if any, to be given to the regulation;

     On June 1, 1998, President Clinton issued his "Plain Language in Government Writing" Memorandum for the Heads of Executive Departments and Agencies (FR Doc. 98-15700, Federal Register, v.63, no.111, June 10, 1998), which made sweeping plain-language demands upon all Federal agencies, requiring the following:
     By October 1, 1998, 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 you 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, use plain language in all proposed and final rulemaking documents published in the Federal Register, unless you proposed the rule before that date. You should consider rewriting existing regulations in plain language when you have the opportunity and resources to do so.
     Guidance on "How to Comply with the President's Memo on Plain Language," issued in July, 1998, specified that by August 15, 1998, "each agency head must designate a senior official responsible for implementing the President's memo." This official would represent the agency on the Plain Language Action Network (PLAN), an interagency committee "charged with making plain language standard in all government communication," working in conjunction with the National Partnership for Reinventing Government (NPR). (PLAN later changed its name to the Plain Action and Information Network, or PLAIN. Its website, PlainLanguage.gov, describes PLAIN as "a group of federal employees from many different agencies and specialties who support the use of clear communication in government writing." PLAIN is one of the main coordinating organizations for the entire movement of plain language in government.)

     The guidance also specified that by September 4, 1998, "each agency must design its own plain language action plan, which sets out strategies for communicating the President's expectations to employees, equipping staff with needed tools, meeting the deadlines in the memo, and sustaining change over the long term."

     Its guidance on plain language use in rulemaking documents was broad:
The President's memo directs you to use plain language in all new proposed and final rulemaking documents, including direct final and interim final rules, beginning January 1, 1999. You do not have to use plain language in final rules that you published in traditional style before that date, but we strongly recommend that you do. Also use plain language in notices of data availability, technical amendments, Advance Notices of Proposed Rulemaking, and other notices related to rulemaking. You should also improve the clarity of regulatory support documents like background information documents, economic assessments, risk assessments, and other technical support documents.
     The guidance further clarified that the requirement to write in plain language applied not just to all new rulemaking documents but also to "all forms, letters, instructions, and other documents that tell people how to obtain a benefit or comply with a requirement," including all such documents "created before October 1, 1998." It noted, however, that "If your readers tell you that certain materials are already clear, don't redo them, and don't rewrite material you no longer provide to the public."

     Although the administration of President Clinton's successor, George W. Bush, did not have a formal plain language initiative, by this time a number of Federal agencies were becoming more aware of the needs for plain language in their rulemaking and in their communications with the public, and progress was being made. (See, for instance, "A History of Plain Language in the United States Government," 2004, by Joanne Locke, on the PLAIN website.) Nonetheless, plain language in the Executive branch's rules and regulations was (and is) still not law. (Nor, indeed, is it required of the laws themselves—i.e., of the Legislative branch.)

A Legislative Attempt

     On February 28, 2006, in an attempt to require Federal agencies by law to write regulations in plain language, Reps. Candace Miller (MI-10), Republican, with co-sponsor Stephen Lynch (MA-9), Democrat, introduced into the House of Representatives H.R. 4809, "A Bill To amend the provisions of chapter 35 of title 44, United States Code, commonly referred to as the Paperwork Reduction Act, to ensure usability and clarity of information disseminated by Federal agencies, and to facilitate compliance with Federal paperwork requirements." Its short title was "Regulation in Plain Language Act of 2006." It would have added plain language requirements to the Paperwork Reduction Act of 1995, which is codified in Chapter 35 (Coordination of Federal Information Policy) of Title 44 (Public Printing and Documents) of the U.S. Code. Specifically, in the Definitions section (3502) it was proposed to add, for the very first time in Federal law, a definition of plain language:

(15) the term `plain language' means language that is clear and readily understandable to the intended reader and complies with the following standards:
(A) Uses short words, sentences, and paragraphs.
(B) Uses active verbs.
(C) Contains explanations of legal, foreign, and technical terms, unless the terms are commonly understood.
(D) Avoids defining terms that are commonly understood.
(E) Uses personal pronouns to refer to affected persons and the responsible agency if helpful to improve clarity.
(F) Minimizes cross-references.
(G) Avoids sentences with double negatives or exceptions to exceptions.
(H) Uses tables, diagrams, pictures, maps, and vertical lists to improve clarity.
(I) Demonstrates logical organization.
(J) Addresses separate audiences separately.
(K) Places general material before exceptions and specialized information.
(L) Addresses processes covered by a rule in chronological order.
(M) Follows other best practices of plain language writing.'.

And in the Federal Agency Responsibilities section (3506), within item (d) ("with respect to information dissemination"), it was proposed to add:

(5) ensure that regulations are written in plain, understandable language consistent with the definition of `plain language' in section 3502(15) of this title, through--
(A) designating an agency official as plain language coordinator;
(B) establishing a process for reviewing each regulation to ensure its compliance with this paragraph before publishing it in the Federal Register;
(C) publishing guidelines to implement this paragraph--
(i) not later than 120 days after the date of the enactment of this paragraph;
(ii) after consulting with other Federal agencies and the Interagency Committee on Government Information to promote consistency of application between agencies; and
(iii) after consulting with affected stakeholders;
(D) training employees who write regulations to write in plain language;
(E) reporting to the Committee on Government Reform of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate annually for the first 2 years after the date of the enactment of this paragraph and once every 3 years thereafter on compliance with this paragraph, including--
(i) agency implementation of its guidelines;
(ii) agency actions to ensure consistency with other Federal agency guidelines; and
(iii) examples of some of the changes made to draft regulations in the previous year to conform with this paragraph.'.
Ultimately, the bill did not pass, stalling after coming out of the House Committee on Government Reform on June 8, 2006, and being placed on the Union (Committee of the Whole House) Calendar on September 14, 2006.


P.W.A. PROJECTS

Plain Writing Association / Plain Writing Act / 
plain English star Plain Writing Legislation: A Comparison of Bills
      — This Project of the Plain Writing Association uses proofreading marks and side-by-side comparisons to show how the various versions of the major plain writing bills of the last few years evolved into the Plain Writing Act of 2010. (MORE)

Plain Writing Association / Plain Writing Act / 
plain English star Plain Writing Legislative History
      — This Project of the Plain Writing Association presents a legislative history of the passage of the Plain Writing Act of 2010, documenting the process by which failed plain-writing legislation in the 110th and 111th Congresses ultimately led to the Act. (MORE)

Plain Writing Association / Plain Writing Act / 
plain English star Government Use of Plain Language Editing Software
      — This Project of the Plain Writing Association is a separate website (StyleWriterForGovernment.com) which advocates the use of the ground-breaking plain-English editing software known as StyleWriter Software to assist government in writing more clearly and concisely, in compliance with the Plain Writing Act. (MORE)

Plain Writing Association / Plain Writing Act / 
plain English star The Media's Response to Plain Writing Legislative Efforts
      — This ongoing Project of the Plain Writing Association attempts to document the media's response to the legislative efforts leading to the Plain Writing Act of 2010.  Focusing mainly on the period from 2007 to 2010, the Project, arranged chronologically, presents links to articles and posts in blogs, newspapers, and other periodicals. (MORE)

Plain Writing Association / Plain Writing Act / 
plain English star A Historical Bibliography of the Plain Language Movement
      — This ongoing Project of the Plain Writing Association presents links to articles that cover the main categories of the history of the plain language movement within American government. (MORE)

PLAIN ENGLISH SOFTWARE
StyleWriter For Government Website
Through our StyleWriterForGovernment.com website, PWA distributes plain-writing editing software to governments, businesses, organizations, and individuals. (MORE)

StyleWriter Editing Software
Working within MS Word, StyleWriter Editing Software converts any kinds of written documents (reports, correspondence, contracts, regulations, essays, etc.) into clear, concise, plain English... as you write. StyleWriter identifies and corrects more than 35,000 patterns of writing styles and problems. (See DEMO)

...StyleWriter Software is currently used in the offices of numerous federal agencies, such as the FDA, EPA, and FAA, as well as within 100s of businesses, organizations, and universities worldwide — and by 1000s of individuals.
      StyleWriter is helping to change the culture of careless, unclear, and confusing writing. And in the process, it is helping to save countless hours of work and millions of dollars otherwise lost answering confused client inquiries and complaints, clearing up foul-ups caused by miscommunications, and repeating misunderstood requests.

Electronic Writing Course
We now have at our StyleWriterForGovernment website an Electronic Writing Course that can be used in conjunction with, or separate from, the StyleWriter Software. It's a thorough self-directed course in writing that provides employees with all they need to know to be proficient editors of their work and to make the most effective use of StyleWriter Software. (DETAILS)

Introduction | Background | 110th Congress (2007-2008) | 111th Congress (2009-2010) |
  Origins of Gov't Paperwork Early Plain Language Efforts Executive Orders & A Memo A Legislative Attempt 

A Project of the Plain Writing Association

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