[Senate Report 111-102]
[From the U.S. Government Publishing Office]
111th Congress Report
SENATE
1st Session 111-102
_______________________________________________________________________
Calendar No. 222
PLAIN WRITING ACT OF 2009
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
S. 574
TO ENHANCE CITIZEN ACCESS TO GOVERNMENT INFORMATION AND SERVICES BY
ESTABLISHING THAT GOVERNMENT DOCUMENTS ISSUED TO THE PUBLIC MUST BE
WRITTEN CLEARLY, AND FOR OTHER PURPOSES
December 9, 2009.--Ordered to be printed
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii TOM COBURN, Oklahoma
THOMAS R. CARPER, Delaware JOHN McCAIN, Arizona
MARK L. PRYOR, Arkansas GEORGE V. VOINOVICH, Ohio
MARY L. LANDRIEU, Louisiana JOHN ENSIGN, Nevada
CLAIRE McCASKILL, Missouri LINDSEY GRAHAM, South Carolina
JON TESTER, Montana ROBERT F. BENNETT, Utah
ROLAND W. BURRIS, Illinois
PAUL G. KIRK, Jr., Massachusetts
Michael L. Alexander, Staff Director
Kevin J. Landy, Chief Counsel
Adam R. Sedgewick, Professional Staff Member
Lisa M. Powell, Staff Director, Subcommittee on Oversight of Government
Management, the Federal Workforce, and the District of Columbia
Brandon L. Milhorn, Minority Staff Director and Chief Counsel
John K. Grant, Minority Counsel
Jennifer A. Hemingway, Minority Staff Director, Subcommittee on
Oversight of Government Management, the Federal Workforce, and the
District of Columbia
Trina Driessnack Tyrer, Chief Clerk
Calendar No. 222
111th Congress Report
SENATE
1st Session 111-102
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PLAIN WRITING ACT OF 2009
_______
December 9, 2009.--Ordered to be printed
_______
Mr. Lieberman, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany S. 574]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (S. 574) to enhance
citizen access to Government information and services by
establishing that Government documents issued to the public
must be written clearly, and for other purposes, having
considered the same, reports favorably thereon with an
amendment and recommends that the bill do pass.
CONTENTS
Page
I. Purpose and Summary..............................................1
II. Background.......................................................2
III. Legislative History..............................................6
IV. Section-by-Section Analysis......................................6
V. Estimated Cost of Legislation....................................7
VI. Evaluation of Regulatory Impact..................................8
VII. Changes in Existing Law..........................................8
I. PURPOSE AND SUMMARY
The purpose of S. 574, the Plain Writing Act, is to improve
the effectiveness and accountability of Federal agencies by
promoting clear Government communication that the public can
understand and use. The bill requires agencies to write
documents released to the public in plain writing, or writing
that the intended audience can readily understand and use
because that writing is clear, concise, well-organized, and
follows other best practices of plain writing.
II. BACKGROUND
The problem
Federal agencies issue documents that explain what the
agencies do, the requirements of federal laws and programs, how
members of the public can obtain various benefits, and for many
other purposes. Too often, the public finds these documents
difficult to understand and use because the materials are
poorly organized and unnecessarily complex.
Unclear writing wastes both time and money. The public
wastes time and money trying to understand unclear documents.
Members of the public also waste time and money because they
make unintended mistakes filling out government forms or
fulfilling government requirements, or because they have to
hire attorneys to help them understand government documents.\1\
Todd McCracken, President of the National Small Business
Administration, once testified that the federal government's
use of ``incomprehensible language translates into billions of
lost hours and dollars,'' which are spent ``wrestling with
federal paperwork requirements.''\2\ Federal agencies waste
time and money as well answering questions from frustrated
members of the public and because unclear documents lead to
higher rates of mistakes and noncompliance.\3\
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\1\See Statement of Christopher Cox, Chairman, U.S. Securities and
Exchange Commission before House Committee on Small Business,
Subcommittee on Contracting and Technology, February 26, 2008
(hereafter ``Cox Testimony''), at p. 1.
\2\See Statement of Todd McCracken, President of the National Small
Business Association before House Committee on Small Business,
Subcommittee on Contracting and Technology, February 26, 2008
(hereafter ``McCracken testimony''), at p. 2; see also Statement of
Keith Hall, National Association for the Self-Employed before House
Committee on Small Business, Subcommittee on Contracting and
Technology, February 26, 2008, at p. 3 (describing the federal
paperwork burden on micro-businesses and arguing that plain writing
would ``boost the bottom line for businesses and government alike.
Plain language will require less time and money spent on education,
preparation and compliance.'').
\3\See McCracken testimony, at p. 2 (arguing that noncompliance
with government requirements often is ``the result of the small-
business owners' inability to decipher what is being asked of them.'');
Statement of Annetta Cheek, Chair of the Center for Plain Language
before House Committee on Small Business, Subcommittee on Contracting
and Technology, February 26, 2008 (hereafter ``Cheek testimony''), at
p. 3 (``Confusing communication from the government discourages people
from complying with requirements or applying for benefits.'').
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Clear communication also is important for transparent and
accountable government. As Annetta Cheek, Chair of the Center
for Plain Language, has testified, ``Poor writing isn't
restricted to the federal government, but the government has a
higher responsibility to communicate clearly with citizens.
American taxpayers pay the cost of their government, and they
deserve to understand what it's doing.''\4\ As former Chairman
of the Securities and Exchange Commission Christopher Cox
testified, when poorly written rules are enforced, people view
it as arbitrary and unfair, and their confidence in government
is eroded. According to Chairman Cox, ``Clarity in spelling out
a citizen's obligations is one of the most fundamental
requirements of the rule of law.''\5\
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\4\See Cheek testimony, at p. 1.
\5\See Cox testimony, at p. 2.
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The benefits of plain writing
Studies demonstrate the value of plain writing. The U.S.
Department of Veterans Affairs, for example, rewrote selected
form letters in plain writing and tracked the effects. One unit
of a field office sent out a form letter rewritten to be more
clear and readable, while another unit continued sending out
the original form letter. More people responded to the plainly
written letter than the original letter (45 percent versus 29
percent). Additionally, all of the responses to the plainly
written letter were complete, while 18 percent of the responses
to the original letter were not.\6\ Another Veterans Affairs
office rewrote a different form letter in plain writing. The
office tracked telephone calls seeking help with the letter
before and after it was rewritten. These calls dropped more
than 80 percent after the plain writing version was issued,
from more than 1100 in a year to fewer than 200.\7\
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\6\See Reva Daniel, ``Revising Letters to Veterans,'' Technical
Communication (1st Q. 1995), pp. 69-75, 72-73, available online at
www.dbwriting.com/Revising%20Letters%20to%20Veterans.pdf.
\7\See ibid. at pp. 73-74.
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State programs to promote clear communication with members
of the public are yielding impressive results as well. For
example, the State of Arizona rewrote 100 form letters to
organize, simplify, and shorten them. After rewriting its
letters, the State Unclaimed Property Section received 11,000
fewer telephone calls in 2007 than in 2006, allowing the staff
to process 30,000 more claims than in the previous year.\8\ The
Washington State ``plain talk'' initiative has similarly
improved government efficiency. The Washington Department of
Revenue rewrote information about the State ``use tax''-a tax
citizens had widely misunderstood and ignored. After the
rewrite, three times as many businesses paid the tax, bringing
the State an additional $800,000 in revenue over two years.\9\
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\8\See Amanda Crawford, ``Revenue Department Sees Effects of `Plain
Talk,''' The Arizona Republic, January 6, 2008, available online at
http://www.governor.state.az.us/er/documents/News/
StateTargetsBureaucrateseToImproveCommunication.pdf.
\9\See ``Washington State Sees Results from `Plain Talk'
Initiative,'' USA Today, December 10, 2006, available online at http://
www.usatoday.com/news/nation/2006-12-10-washington-plain-talk_x.htm.
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The Plain Writing Act
More than a decade ago, the federal government took its
first comprehensive steps toward mandating plain writing. On
June 1, 1998, President Clinton issued a memorandum directing
federal agencies to use plain language in government writing.
That memorandum directed agency officials to use plain writing
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'' by October 1, 1998.
Later deadlines were provided for issuing regulations and for
reissuing documents written prior to October 1, 1998.\10\
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\10\See Memorandum from President William J. Clinton to Heads of
Executive Departments and Agencies regarding Plain Language in
Government Writing, June 1, 1998, available at http://
www.plainlanguage.gov/whatisPL/govmandates/memo.cfm.
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Vice President Gore oversaw implementation of these
requirements and coordinated the federal government's Plain
Language Action Network (PLAN),\11\ which was subsequently
renamed the Plain Language Action and Information Network
(PLAIN). The Clinton memorandum remains in effect, and many
agencies maintain plain language programs. PLAIN continues
promoting plain writing in federal government communications
and providing plain writing training workshops.\12\
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\11\See Brian Friel, ``Gore orders agencies to write in plain
English,'' Government Executive, June 2, 1998; John Broderick,
``Reinventing Government: The Role of Plain Language,'' available
online at http://www.odu.edu/al/jpbroder/jpbcladenglish.doc, at 1-2.
\12\See Joanne Locke, ``A History of Plain Language in the United
States Government,'' 2004, available at www.plainlanguage.gov/whatisPL/
history/locke.cfm; Cheek testimony, at p. 5; Cox Testimony, at pp. 2-4
(discussing plain language initiatives at the Securities and Exchange
Commission).
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Although many agencies have made progress, the plain
writing requirement has been implemented unevenly.\13\ As one
example provided at a House hearing on plain writing, a federal
agency wrote to beneficiaries of a federal program:
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\13\See, e.g., Statement of Robert Romasco, Member of the Board of
Directors of the AARP before House Committee on Small Business,
Subcommittee on Contracting and Technology, February 26, 2008
(hereafter Romasco Testimony), at pp. 1-3 (describing federal
government plain writing efforts but arguing that legislation is needed
to ensure government-wide compliance); Cheek testimony at pp. 5-6
(describing plain writing intitiatives but concluding, ``Despite these
scattered results, most agencies still consider it's the reader's job
to figure out what they're saying, not their job to be clear.'').
In cases in which a claimant receives reimbursement
under this provision for expenses that also will or may
be reimbursed from another source, the claimant shall
subrogate the United States to the claim for payment
from the collateral source up to the amount for which
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the claimant was reimbursed under this provision.
According to a witness at the hearing, this means, ``If you
receive payments from us and another source for the same
expenses, you must pay us back the amount received from the
other source.''\14\
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\14\See Cheek testimony, at p. 2.
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This inconsistency has led a wide variety of organizations
to call on Congress to pass legislation to reinforce the
existing plain writing programs. Many organizations contend
that their members continue to lose time and money struggling
to understand federal government documents.\15\ The following
organizations have sent or joined letters in support of plain
writing requirements: the AARP, Disabled American Veterans,
National Small Business Association, Small Business Legislative
Council, Women Impacting Public Policy, National Association of
the Self Employed, American Association of Law Libraries,
American Library Association, Special Libraries Association,
American Nurses Association, American Dental Association,
Association for Business Communication, Association of
Professional Communication Consultants, Strategic Communication
Inc., and Usability Professionals' Association.\16\
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\15\See McCracken testimony, at p. 2; Romasco Testimony at p. 3
(``AARP hears every day from our members who cannot understand the
dense writing and legalese in correspondence they receive from the
federal government. In most cases, this lack of comprehension is not
the fault of the reader but rather the impenetrable writing style of
the government agency.'').
\16\All letters available upon request to the Senate Subcommittee
on Oversight of Government Management, the Federal Workforce, and the
District of Columbia.
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The Plain Writing Act heeds that call and seeks to codify
plain writing requirements, thereby promoting the more
consistent use of plain writing in all federal agencies.\17\
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\17\See, e.g., Romasco Testimony (``In order to ensure uniform
progress in this area, AARP believes a statutory requirement for
government agencies to write in plain language, and a requirement that
the agencies report to Congress on the progress they are making in
meeting this goal, is needed to help ensure compliance.'').
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Under the bill, the Office of Management and Budget (OMB)
would develop and issue guidelines for plain writing, giving
all agencies a single set of standards to reference. The
Committee believes that standard, centralized OMB guidance
would allow for the most efficient and effective implementation
of S. 574's plain writing requirements and that OMB--in
particular the Office of Information and Regulatory Affairs
(OIRA)--has or can readily develop the appropriate expertise to
formulate the guidance. OIRA has responsibility for overseeing
the ``[d]issemination of and access to government information''
as well as the ``quality, utility, and analytic rigor of
information used to support public policy.''\18\ Should OMB
need assistance in developing the guidance, the bill provides
OMB great flexibility and places no restrictions on the
development of the guidance. Therefore, for example, OMB could
consult with federal employees active in PLAIN or could adapt
the guidelines that PLAIN developed.
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\18\See website of the Office of Management and Budget Office for
Information and Regulatory Affairs, at http://www.whitehouse.gov/omb/
regulatory_affairs/default.
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As reported, S. 574 would require agencies to submit
initial reports directly to Congress, and follow up reports to
OMB, which would review agencies' reports on compliance with
the legislation and report to Congress on agencies' progress.
Agencies would be primarily responsible for implementing the
plain writing requirements, and OMB would not be responsible
for reviewing agency communications for compliance or directly
overseeing the plain writing requirements. Additionally,
agencies would be required to include in their reports
information on agency plans to communicate the Act's
requirements to employees, train employees in plain writing,
meet the requirements of the Act, and ensure ongoing compliance
with the Act.
The Plain Writing Act defines ``plain writing'' with
reference to the ``intended audience.'' As Annetta Cheek, Chair
of the Center for Plain Language, testified at the 2008 House
hearing, ``[t]here are no hard rules in plain language except
to be clear to your intended reader.''\19\ Plain writing does
not require deleting complex information; rather it means
organizing and presenting information in a way that improves
readability. Specialized vocabulary, such as legal or
scientific terms, may be appropriate when addressing an
audience that understands the terms. However, when addressing a
general audience, specialized terms should be explained or
avoided if not necessary to accurately present the information
conveyed.
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\19\See Cheek Testimony, at p. 4.
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The Plain Writing Act's definition of ``covered document''
is intended to broadly encompass written communications with
the public. The definition covers written communications
provided to members of the public electronically--for example,
website content or emails--as well as printed documents. Unlike
the Clinton memorandum, however, the bill excepts regulations
from its definition of ``covered document.'' This will reduce
the burden on OMB and federal agencies in implementing the
Plain Writing Act. Additionally, the Committee recognizes that
many regulations are technical and complicated, so implementing
plain writing in rulemaking may require additional planning and
training beyond what is necessary for other documents.
Accordingly, the Plain Writing Act would allow agencies to
focus their efforts first on other types of writing. However,
the Plain Writing Act is not intended to discourage any
executive branch plain writing requirements or programs
supplemental to those required by the Act.
To further reduce the burden of the legislation, agencies
would be given one year from the date of enactment to comply
with plain writing requirements, which is a significantly
longer time period than the Clinton memorandum provided.
OMB raised concerns that this legislation would lead to
litigation. The Committee does not intend to create any
individually enforceable right. Rather, it will be the
responsibility of agencies, OMB, and Congress to ensure that
the plain writing requirements are implemented. To address
OMB's concern, Senator Akaka offered, and the Committee
adopted, an amendment to add a new section 6 to the bill,
specifying that there shall be no judicial review of compliance
with the Act, and that the Act creates no right or benefit
enforceable in any administrative or judicial action.
III. LEGISLATIVE HISTORY
On November 1, 2007, Senator Akaka introduced the Plain
Language Act (S. 2291), which was referred to the Committee on
Homeland Security and Governmental Affairs. Senators McCaskill,
Carper, Levin, Obama, Clinton, Tester, Voinovich, Collins, and
Cochran cosponsored S. 2291. The Committee considered S. 2291
and ordered it to be reported favorably by voice vote on April
10, 2008.
Representative Braley introduced a companion bill (H.R.
3548) in the House of Representatives on September 17, 2007,
which was referred to the House Committee on Oversight and
Government Reform. On February 26, 2008, the House Small
Business Committee, Subcommittee on Contracting and Technology,
held a hearing on the benefits of plain language writing. The
House Committee on Oversight and Government Reform ordered the
legislation to be reported as amended on March 13, 2008, and
the House of Representatives passed H.R. 3548 on April 14,
2008.
On March 11, 2009, Senator Akaka introduced the Plain
Writing Act (S. 574). Senators Voinovich, Carper, Levin,
McCaskill, and Tester are original cosponsors of the
legislation. Ranking Minority Member Collins has joined as a
cosponsor as well.
On April 1, 2009, the Committee considered S. 574 and
ordered the bill reported favorably by voice vote with an
amendment, described above, clarifying that there shall be no
judicial review of compliance with the Act, and that the Act
creates no right or benefit enforceable in any administrative
or judicial action. Members present for the vote were Chairman
Lieberman; Senators Akaka, Carper, Pryor, Tester, Burris and
Bennet; Ranking Minority Member Collins; and Senators Coburn
and Voinovich.
Representative Braley introduced a companion bill (H.R.
946) in the House of Representatives on February 10, 2009,
which was referred to the House Committee on Oversight and
Government Reform.
IV. SECTION-BY-SECTION ANALYSIS
Section 1 titles the bill.
Section 2 identifies the purpose of the Act as improving
the effectiveness and accountability of Federal agencies to the
public by promoting clear Government communication that the
public can understand and use.
Section 3 defines the terms ``agency,'' ``covered
document,'' and ``plain writing.''
Section 4(a) requires that not later than one year after
the date of enactment agencies use plain writing in any covered
document that the agency issues or substantially revises.
Section 4(b) directs OMB to develop guidance on
implementing the requirements of Section 4(a) and issue it as a
circular. In the interim before the guidance is issued,
agencies are directed to follow the writing guidelines PLAIN
developed or any guidance provided by the agency head that is
consistent with the PLAIN guidelines.
Section 5(a) requires the head of each agency to submit an
initial report to the Senate Committee on Homeland Security and
Governmental Affairs and the House Committee on Oversight and
Government Reform within six months of enactment. The initial
report would designate a senior official responsible for
implementing the requirements of the Act and describe the
agency's plan to train employees in plain writing, meet the
deadline for compliance with the Act, and ensure ongoing
compliance.
Section 5(b) requires the agency to submit reports to OMB
on compliance with this legislation. OMB would review those
reports and submit a report on the agencies' compliance to the
Senate Committee on Homeland Security and Governmental Affairs
and the House Committee on Oversight and Government Reform,
annually for the first two years after the date of enactment
and once every three years thereafter. OMB would notify each
agency of the date by which the agency's report is required to
enable it to meet its reporting deadline.
Section 6 specifies that there shall be no judicial review
of compliance or noncompliance with the Act, and that the Act
creates no right or benefit enforceable in any administrative
or judicial action.
V. ESTIMATED COST OF LEGISLATION
April 3, 2009.
Hon. Joseph I. Lieberman,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S.
Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 574, the Plain
Writing Act of 2009.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
S. 574--Plain Writing Act of 2009
S. 574 would amend federal law to require all federal
agencies within one year to use plain writing (clear, concise,
well-organized, and readily identifiable to the intended
reader) in all documents except for regulations. The
legislation also would require the Office of Management and
Budget (OMB) to provide government-wide guidance on this
matter. Finally, S. 574 would require each agency to designate
a coordinator to review its compliance with the legislation,
train employees to use plain language, and prepare reports to
the Congress on compliance with the legislation.
CBO estimates that implementing S. 574 would cost about $3
million a year for agencies to provide additional employee
training and prepare reports for the Congress, subject to the
availability of appropriated funds. The bill could also affect
direct spending by agencies not funded through annual
appropriations, such as the Tennessee Valley Authority and the
Bonneville Power Administration. CBO estimates, however, that
any net increase in spending by those agencies would not be
significant.
Most provisions of the bill would codify and expand current
practices of the federal government. Executive Order 12866 and
the Presidential Memorandum on Plain Language (June 1, 1998)
currently require government agencies to write in language that
is comprehensible to readers. In addition, current laws such as
the Paperwork Reduction Act, requires information collection
forms to be ``written using plain, coherent, and unambiguous
terminology.'' Based on information from OMB, CBO estimates
that implementing this bill would not significantly increase
the cost of preparing various paper or electronic documents
used throughout the government.
S. 574 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.
The CBO staff contact for this estimate is Matthew
Pickford. This estimate was approved by Theresa Gullo, Deputy
Assistant Director for Budget Analysis.
VI. EVALUATION OF REGULATORY IMPACT
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact that would be incurred in
carrying out this legislation. CBO states that there are no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act and no costs on State, local, or
tribal governments. The legislation contains no other
regulatory impact.
VII. CHANGES IN EXISTING LAW
Because this legislation would not repeal or amend any
provision of current law, it would make no changes in existing
law within the meaning of clauses (a) and (b) of paragraph 12
of rule XXVI of the Standing Rules of the Senate.