President Issues "Plain Language" Mandate to Federal Agencies

Section's Rulemaking Committee Sponsors Forum on Subject

by Daniel Cohen⁽¹⁾

On June 1, the President issued an Executive Memorandum directing Federal agencies to use "plain language" in all their documents, including regulations. The President's Memorandum does not specifically define the term "plain language," stating that it varies from document to document. However, the Memorandum does suggest that plain language documents use common words, short sentences, personal pronouns and active voice. The Memorandum's stated purpose for directing use of plain language is to make the Government more responsive, accessible, and understandable in its communications with the public.

Regarding regulation, the Memorandum directs agencies, starting January 1, 1999, to use plain language in all proposed and final rulemakings published in the Federal Register, unless the rule was proposed before that date. Also, agencies are encouraged to consider rewriting existing regulations in plain language when the opportunity and resources exist to do so.

On June 16, this Section's Rulemaking Committee sponsored a forum on the use of plain language in regulation drafting that drew more than 350 attendees. The forum, moderated by Donald Arbuckle, Acting Administrator of the Office of Information and Regulatory Affairs, featured four experts in plain language regulation. Jean Logan, from the Vice President's National Partnership for Reinventing Government, outlined the purpose and goals of the Executive Memorandum. Julie Falkner, Director, Office of Regulatory Affairs, Department of the Interior, announced several "rules of thumb" for plain language regulation drafting. These included writing to engage the reader; writing in a clear and easy-to-understand style; and using lists, tables, and other visual aids. She also provided examples of regulations DoI had written in plain language demonstrating these rules in action. Fred Emery, former head of the Office of the Federal Register (OFR), recounted his experience heading up a similar, but failed, initiative during the Carter Administration. He explained the limitations on the use of plain language in regulation that led to the failure of the Carter initiative and described pitfalls agency regulation drafters should avoid in implementing President Clinton's memorandum. These included use of formulas to determine when a sentence is too long and elimination of key information or requirements when simplifying the language of a regulation. Finally, Mike White, Director of Legal Affairs at the OFR, summarized changes the OFR is making in its publication requirements and processes to accommodate the use of plain language.

As a result of the popularity of the June 16 forum, the Section is undertaking several steps to provide additional information and training on plain language regulation. Plans are currently being developed to sponsor four plain language regulation workshops, to be held this fall. Each of these workshops will focus on a different area of regulation, such as safety or environment. In addition, the Section is expected to have a resolution endorsing the President's Memorandum for consideration by the Council at its Fall Meeting.

1. Senior Counsel for Regulation, U.S. Department of Commerce; Vice Chair, Rulemaking Committee.