This article was authored by Blake Emerson, Assistant Professor of Law at UCLA School of Law.
This article first appeared in the Regulatory Review's series on "Five Recommendations for Improving Administrative Government" that focuses on the ACUS Recommendations adopted at the December 2017 Plenary Session. Reposted with permission. The original may be found here, and the Regulatory Review's entire series may be found here.
At its recent meeting, the Administrative Conference of the United States (ACUS) approved a recommendation entitled Plain Language in Regulatory Drafting. The recommendation offers a number of procedural suggestions to help agencies write their regulations and other public-facing documents in a way that relevant stakeholders can easily understand.
The overarching goal of these suggestions is not merely to simplify complex requirements, or eliminate unnecessarily technical jargon. More than this, plain language can advance core administrative law values, such as public participation in policymaking and the effective implementation of statutory goals.
The recommendation was drafted by the ACUS Committee on Regulation, which is chaired by Connor Raso of the U.S. Securities and Exchange Commission. The Committee’s deliberations were informed by a report on Plain Language in Regulatory Drafting, written by me and ACUS Staff Attorney Cheryl Blake. In writing this report, we first conducted background research on agencies’ plain language obligations and practices, as well as relevant scholarly literature. We then conducted semi-structured interviews with officials at seven agencies, including both executive branch and independent agencies.
Our research found that concerns about the opacity of bureaucratic language stretch back to the earliest days of administrative government. For example, the German philosopher and legal theorist G.W.F. Hegel remarked in the early nineteenth century:
Alienated from the people, officials become, by reason of their skill, themselves the object of the people’s fear; even the way they talk strikes the ears of citizens as gibberish…They see only the consequences of their efforts to secure their rights, but not the course and manner of the proceedings. Officials must therefore accustom themselves to a popular approach, to popular language, and seek to overcome the difficulties this occasions them.
In the United States, demands for such a “popular approach” to administration have been particularly resonant with our democratic culture. The public participation provisions in the Administrative Procedure Act (APA) require agencies to give “interested persons an opportunity to participate in the rulemaking through submission of written data, views, or arguments.” According to the Report of the Senate Judiciary Committee recommending the enactment of the APA, the notice of proposed rulemaking must be “sufficient to fairly apprise interested parties of the issues involved.”
The rulemaking procedure thus anticipates later, explicit calls for plain language in regulatory drafting. It requires agencies to explain their actions in a way that stakeholders can understand. Both the regulatory requirements and the reasons for those requirements must be transparent if affected parties are to have a meaningful opportunity to participate in the policymaking process.
Plain language took on renewed prominence in the late 1960s and 1970s, as civil servants and public interest groups attempted to deepen the accountability of agencies to ordinary citizens. In 1968, ACUS proposed the creation of a Consumer Bulletin that would “extract and paraphrase in popular terms the substance of federal agency actions of significant interest to consumers.” The Administrative Committee of the Federal Register followed suit in 1976 with a rule requiring that final and proposed rules include a preamble that remains understandable to a reader who is “not an expert in the subject area.” During the Carter Administration, agency working groups began holding trainings and sharing resources on plain language. This informal process led to the creation of the Plain Language Action Network, which to this day publishes the official government guidelines on plain language writing techniques.
The current legal framework governing plain language codified this decades-long effort. The Plain Writing Act of 2010 requires agencies to use plain language in various public-facing documents. It also requires agencies to designate officials to oversee plain language implementation, conduct trainings, maintain plain language sections on their websites, and issue compliance reports. Executive Order 12,866, issued by President Bill Clinton in 1993, provides that “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.” Executive Order 13,563, issued by President Barack Obama in 2011, likewise requires that regulations be “accessible, consistent, written in plain language, and easy to understand.”
In our interviews with agency staff, we sought to understand how agencies interpreted and implemented these obligations. We found that plain language served multiple public interests: It strengthens the rule of law by enabling internal staff and reviewing courts to accurately apply and review the regulatory framework; it improves public participation by enabling non-expert stakeholders to comprehend and thus comment on rules; it advances regulatory effectiveness by reducing the cost of compliance and enforcement; and it protects individual rights by notifying private parties of their statutory entitlements and duties.
Agencies found that it was useful to use different kinds of documents to achieve each of these objectives. For example, regulatory effectiveness can often best be achieved through short guidance documents, like FAQs and Q&As, which explain basic requirements in an accessible manner. High-quality public participation in administrative policymaking, by contrast, can be promoted with regulatory preambles that are written in a way that non-specialists can understand.
The plain language recommendations approved by ACUS aim to implement the findings of the report. The focus of these recommendations is not on the mechanics of plain writing, but rather on the procedures that agencies can use to improve the clarity of their regulatory text in legislative rules, general statements of policy, and other less formal documents.
For example, Recommendation 2 states that “agencies should consider directing one or more offices involved in drafting rules and guidance to review them for plain language.” This recommendation grew directly out of agency interviews. One agency attorney noted that plain language issues were assigned to their agency’s Office of General Counsel as a “unique area of responsibility.” This designation enabled the Office to flag plain language concerns for further drafting review. Procedures like these help to ensure that concerns with clear writing do not fall off the radar screen in the often complex, heavily negotiated drafting process.
The recommendations also broaden the focus of plain language compliance from concerns about the readability of government forms and applications to the broader quality of the policymaking process. Recommendation 4 thus suggests that the trainings required by the Plain Writing Act explain the relationship between plain writing and core administrative law values like public participation and regulatory effectiveness. Underscoring these connections should help regulatory attorneys grasp the importance of plain language to their general obligation to ensure that their agencies act in compliance with the law. Recommendation 5 likewise suggests that compliance reports for the Act focus more on the rulemaking process, as well as other dimensions of agency implementation and private compliance.
The recommendation complements this focus on the policymaking process with suggestions for how agencies can draft regulations and guidance documents in a clear manner. Recommendation 6 suggests, among other things, that agencies include a description of relevant plain language techniques in their internal rule-writing manuals, and that rulemaking preambles include a plain language summary for a generalist audience. Turning to guidance documents, which generally lack the force of law, recommendation 8 suggests that agencies “tailor” such documents to the “informational needs and level of expertise of the intended audiences.”
By recognizing the multiple objectives that plain language serves, and identifying procedures and documentary formats that can advance those objectives, ACUS’s recommendation, Plain Language in Regulatory Drafting, promises to deepen the federal government’s existing commitment to an effective and accountable administrative process.