<DOC>
[109th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:27090.wais]
PLAIN LANGUAGE REGULATIONS: HELPING THE AMERICAN PUBLIC UNDERSTAND THE
RULES
=======================================================================
HEARING
before the
SUBCOMMITTEE ON REGULATORY AFFAIRS
of the
COMMITTEE ON
GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
MARCH 1, 2006
__________
Serial No. 109-132
__________
Printed for the use of the Committee on Government Reform
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
index.html
http://www.house.gov/reform
______
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COMMITTEE ON GOVERNMENT REFORM
TOM DAVIS, Virginia, Chairman
CHRISTOPHER SHAYS, Connecticut HENRY A. WAXMAN, California
DAN BURTON, Indiana TOM LANTOS, California
ILEANA ROS-LEHTINEN, Florida MAJOR R. OWENS, New York
JOHN M. McHUGH, New York EDOLPHUS TOWNS, New York
JOHN L. MICA, Florida PAUL E. KANJORSKI, Pennsylvania
GIL GUTKNECHT, Minnesota CAROLYN B. MALONEY, New York
MARK E. SOUDER, Indiana ELIJAH E. CUMMINGS, Maryland
STEVEN C. LaTOURETTE, Ohio DENNIS J. KUCINICH, Ohio
TODD RUSSELL PLATTS, Pennsylvania DANNY K. DAVIS, Illinois
CHRIS CANNON, Utah WM. LACY CLAY, Missouri
JOHN J. DUNCAN, Jr., Tennessee DIANE E. WATSON, California
CANDICE S. MILLER, Michigan STEPHEN F. LYNCH, Massachusetts
MICHAEL R. TURNER, Ohio CHRIS VAN HOLLEN, Maryland
DARRELL E. ISSA, California LINDA T. SANCHEZ, California
JON C. PORTER, Nevada C.A. DUTCH RUPPERSBERGER, Maryland
KENNY MARCHANT, Texas BRIAN HIGGINS, New York
LYNN A. WESTMORELAND, Georgia ELEANOR HOLMES NORTON, District of
PATRICK T. McHENRY, North Carolina Columbia
CHARLES W. DENT, Pennsylvania ------
VIRGINIA FOXX, North Carolina BERNARD SANDERS, Vermont
JEAN SCMIDT, Ohio (Independent)
------ ------
David Marin, Staff Director
Rob Borden, Parliamentarian
Teresa Austin, Chief Clerk
Phil Barnett, Minority Chief of Staff/Chief Counsel
Subcommittee on Regulatory Affairs
CANDICE S. MILLER, Michigan, Chairman
GINNY BROWN-WAITE, Florida STEPHEN F. LYNCH, Massachusetts
CHRIS CANNON, Utah WM. LACY CLAY, Missouri
MICHAEL R. TURNER, Ohio CHRIS VAN HOLLEN, Maryland
LYNN A. WESTMORELAND, Georgia
Ex Officio
TOM DAVIS, Virginia HENRY A. WAXMAN, California
Ed Schrock, Staff Director
Joe Santiago, Professional Staff Member
Alex Cooper, Clerk
Krista Boyd, Minority Professional Staff Member
C O N T E N T S
----------
Page
Hearing held on March 1, 2006.................................... 1
Statement of:
Cheek, Dr. Annetta, vice-chair, Center for Plain Language.... 13
Kimble, Joseph, law professor, Thomas Cooley School of Law... 7
McCracken, Todd, president, National Small Business
Association................................................ 23
Letters, statements, etc., submitted for the record by:
Cheek, Dr. Annetta, vice-chair, Center for Plain Language,
prepared statement of...................................... 16
Kimble, Joseph, law professor, Thomas Cooley School of Law,
prepared statement of...................................... 10
McCracken, Todd, president, National Small Business
Association, prepared statement of......................... 26
Miller, Hon. Candice S., a Representative in Congress from
the State of Michigan, prepared statement of............... 4
PLAIN LANGUAGE REGULATIONS: HELPING THE AMERICAN PUBLIC UNDERSTAND THE
RULES
----------
WEDNESDAY, MARCH 1, 2006
House of Representatives,
Subcommittee on Regulatory Affairs,
Committee on Government Reform,
Washington, DC.
The subcommittee met, pursuant to notice, at 10:10 a.m., in
room 2247, Rayburn House Office Building, Hon. Candice Miller
(chairman of the subcommittee) presiding.
Present: Representatives Miller and Lynch.
Staff present: Ed Schrock, staff director; Rosario
Palmieri, deputy staff director; Kristina Husar and Joe
Santiago, professional staff members; Alex Cooper, clerk;
Krista Boyd, minority counsel; and Teresa Coufal, minority
assistant clerk.
Mrs. Miller of Michigan. I would like to call the meeting
to order. Good morning, everyone. We certainly appreciate your
attendance here today.
The American public is often frustrated by regulations
because they don't understand, often times, what these rules
actually mean. Citizens are so confused by the ``language of
the bureaucrats'' that they question whether or not a
regulation applies to them. Americans want regulators to write
the rules in simple English--easy to read and easy to
understand and easy to follow, and, therefore, easy for them to
actually comply with the rules.
For centuries actually, government officials have proposed
that rules be written in plain language. In fact, James Madison
wrote in the Federalist papers that ``it will be of little
avail to the people if the laws be so voluminous that they
cannot be read or so incoherent that they cannot be
understood.''
If the Founding Fathers read the Code of Federal
Regulations today, they would be simply amazed at the
complexity of the regulations put forth by our government.
One agency drafted a rule that said--this was an example we
pulled out here. This is what this rule said: ``When the
process of freeing a vehicle that has been stuck results in
ruts or holes, the operator will fill the rut or hole created
by such activity before removing the vehicle from the immediate
area.'' I think anyone seeing this has to read it several times
before understanding what the requirement actually said.
Plain language techniques are used to clarify requirements
and remove clutter, so stating this example plainly, the rule
should have read: ``If you make a hole while freeing a stuck
vehicle, you must fill the hole before you drive away.''
The use of plain language in crafting regulations is a
common sense approach to saving the Federal Government and the
American people time, effort, and money. By writing the
regulation in plain language, everyone, from the small business
owner who must comply with the regulation to the agency that
enforces it, will know the regulation's purpose, requirements,
and consequences.
Every year, Federal agencies write and enforce thousands of
rules that range from allowing boat races on various waterways
to registering food facilities to prevent bioterrorism.
However, the average American citizen or small business owner
affected by these rules often times does not fully understand
their impact and their compliance requirements. Many
regulations use ambiguous terms, complex sentences, and jargon
that only a few understand.
You shouldn't have to be a lawyer to figure out if you
qualify for a small business loan. Citizens can find themselves
facing sanctions and penalties because they fail to understand
the requirements within the rules. They want to comply with the
law, but the complexity of many rules inherently causes a
failure to comply.
And I wanted to give one other example, as well, if you can
bear with me. Before using plain language, a Department of
Commerce rule said: ``After notification of the NMFS,'' which
is the National Marine Fisheries Service, ``this final rule
requires all CA/ORDGN vessel operators to have attended one
skipper education workshop after all workshops have been
convened by NMFS in September 1997. CA/ORDG and vessel
operators are required to attend Skipper Education Workshops at
annual intervals thereafter unless that requirement is waived
by the NMFS. NMFS will provide sufficient advance notice to
vessel operators by mail prior to convening workshops.''
After they actually revised the rule trying to use plain
language techniques, any vessel operator would know that the
requirements of that rule were, ``after notification from NMFS,
vessel operators must attend a Skipper Education Workshop
before beginning to fish each fishing season.''
Congress knows that American citizens and businesses still
struggle to understand the many rules that they need to follow,
which are confusing and unreadable.
The need for readable regulations continues. Therefore, I
am pleased to announce that Mr. Lynch, who is my Ranking Member
and should be here shortly, and I have introduced a piece of
bipartisan regulation--excuse me--legislation, H.R. 4809, which
is the Regulation and Plain Language Act of 2006.
This will require agencies to incorporate the concepts of
plain language into their rulemaking process. By requiring
agencies to use plain language, the public will be able to
participate in the regulatory process in a more meaningful and
substantive manner.
I am eager to have a dialog about how regulators can
incorporate these concepts in drafting regulations for the
American public. As one of today's witnesses wrote in 1996,
``using plain language 1, streamlines procedures and paperwork,
and 2, reduces confusion, complaints, and claims and improves
customer satisfaction.''
And I certainly look forward to the testimony of all our
witnesses today.
[The prepared statement of Hon. Candice S. Miller follows:]
[GRAPHIC] [TIFF OMITTED] T7090.001
[GRAPHIC] [TIFF OMITTED] T7090.002
Mrs. Miller of Michigan. Before we start our witnesses,
their testimony, let me just remind you of the light system
that we have. Do they have their lights there? Oh, you see them
here?
These lights, when they light up, you will see--you have 5
minutes for your testimony, but we have a little bit of time
here, so if you go over a little bit, I am not going to hold
you to that. But when you see the yellow light, you will know
that you have 1 minute remaining on that, so--and as you know,
we do have a joint session of the House at 11 o'clock, so we
have that time constraint as well.
And because we are members of the Government Reform
Committee, we have a policy that we swear in all of our
witnesses before testimony is given.
So if you could all rise and raise your right hand.
[Witnesses sworn.]
Mrs. Miller of Michigan. Thank you. I appreciate that.
Our first witness is Mr. Joseph Kimble, and the staff had
written me a very nice intro, but I think I am just going to
read it from the back of the book that you just gave me here.
Joseph Kimble has taught legal writing for more than 20
years at Thomas Cooley Law School, and we appreciate you coming
from Michigan. That is a fantastic law school.
Mr. Kimble. Thank you.
Mrs. Miller of Michigan. He has also lectured throughout
the United States and abroad. He is the editor-in-chief of the
Scribes Journal of Legal Writing; the long-time editor of the
Plain Language column in the Michigan Bar Journal; the
president of the International Organization, Clarity; and the
drafting consultant of all Federal Court rules.
He recently led the work of redrafting the Federal Rules of
Civil Procedure. He lives in Okemos, MI, where he spends time
listening to blues and playing a little bit of basketball.
So we welcome you, Mr. Kimble, to our hearing today. We
look forward to your testimony, and actually before you start,
as Ranking Member Lynch has joined us now, if you would like to
give your opening statement before we begin, you are
recognized.
Mr. Lynch. Thank you, Madam Chair. I appreciate it.
One thing I find here in Washington is they schedule
everything at the same time, so you have to constantly go back
and forth.
I am delighted to be here and, Madam Chair, I just want to
thank you for your great work on this issue, and for holding
this hearing.
I have long remarks. I won't give them. But I think
Governor Al Smith of New York year ago in talking about how
convoluted the regulatory process was in New York at that time
said it best. He said, ``in order for us to guarantee the
citizens the liberties, the freedoms, the rights that they
deserve through their government, they must have a government
that they can understand.'' And I think that is the object of
this bill, and I think that is the object of our efforts here
in a general sense of this committee, and I am delighted to be
working with Chairman Miller on this, so--and I certainly
welcome your remarks. Thank you.
Mrs. Miller of Michigan. Thank you. Professor Kimble.
STATEMENT OF JOSEPH KIMBLE, LAW PROFESSOR, THOMAS COOLEY SCHOOL
OF LAW
Mr. Kimble. Thank you. Thank you, Madam Chair. Welcome from
Michigan and from Thomas Cooley Law School. And thank you to
Mr. Lynch for this opportunity. I am delighted to have the
chance to testify about this very important plain-language
bill.
I would like to talk mainly about two things: the benefits
that this bill will produce, and some of the bad opposing
arguments that you are likely to hear.
First, the benefits. I have spent considerable time
collecting empirical studies about the benefits of plain
language. I have collected dozens of them. And they appear in
the two articles that I have included in the record, and I
think you have little blue off-prints up there--``Writing for
Dollars, Writing to Please,'' one article and the other is
``Answering the Critics of Plain Language.'' I might mention
that I have even since I have written those two articles, I
have collected more studies and I will be merging them into a
book later this year, so stay tuned.
Now, for the most part, I will stand on the evidence of
those two articles. But let me give you just a couple of
examples.
In ``Writing for Dollars,'' on page 9, for instance, you
will find a study done by the Department of Veterans Affairs.
They revised one letter--just one form letter, mind you--and
tested the results. In 1 year, in one regional VA call center,
the number of calls received dropped from about 1,100 in 1 year
to about 200.
Now, this was one paper at one office of one government
agency. Multiply that one paper by every form, letter, notice,
flyer, bulletin, booklet, manual, and other public document
sent out in huge numbers by every office, division, department,
and agency of the government. I mean it is incredible.
Plain language may not be a sexy subject, but I believe
that the cost of poor communication is the great hidden waste
in government--untold millions and billions.
And it is not just the cost to government, as you have
mentioned. Think of the ill-will created by unclear public
information, the confusion and anger and frustration that it
causes people who have to make phone calls, who can't fill out
a form, who don't understand their rights or benefits, who make
mistakes in trying to follow procedures and so on.
Let me highlight a couple of the other studies in ``Writing
for Dollars.'' For instance, the one on page 12, involving U.S.
Naval officers. Officers who read a plain-language version of a
memo, besides having significantly higher comprehension, took
17 percent to 23 percent less time to read it. The researchers
figured that if all Naval personnel routinely read plain
documents, the time saved would amount to $250 to $350 million
a year--just in time saved.
Or how about the study of Army officers on page 28? The
researchers found that readers of a plain-language memo were
twice as likely to comply with it on the same day that they
received it. And, again, one study after another summarized in
those two articles.
In short, there is now compelling evidence that plain
language saves money--enormous amounts of money--and pleases
readers. It is much more likely to be read and understood and
heeded in much less time. I think it could even help to restore
faith in public institutions.
So why shouldn't we do this? Don't readers of public
documents have the right to understand the rights and
requirements that affect their lives from cradle to grave? And
that leads to my second topic--opposing arguments, bad opposing
arguments that you may likely hear.
You will hear, for instance, that you can't write plainly
and at the same time be precise and accurate. Don't believe it.
It is a great myth. And my articles I think have the empirical
evidence. In fact, the evidence is just the opposite. Plain
language is more precise than traditional legal and official
style. I hesitate to say legalese and officialese, but--because
plain language lays bare all of the ambiguities and
inconsistencies and uncertainties and mistakes that traditional
style, with all its excesses, tends to cover up. It happens
every time you peel back the layers, as anyone who has been
involved in a plain-language project can tell you. It happened
repeatedly as we worked through the Federal Rules of Civil
Procedure.
You will also hear that plain language is beneath the
dignity of professional writers. Thus, we get various
disparaging descriptions--baby talk, dumbing down,
unsophisticated, anti-intellectual, ugly and drab. Don't
believe it.
In fact, once again, just the reverse is true. Any second-
rate writer can make things more complicated. Only the best
minds and the best writers can cut through. It takes skill and
hard work to write in plain language. And besides, have you
ever heard anyone complain that a public document is too clear,
too simple? Remember what Walt Whitman said, ``the art of art,
the glory of expression, is simplicity. Noting is better than
simplicity.''
Far from being beneath the dignity of good writers, plain
English is--or should be-the American idiom.
Next, you may hear that government information sometimes
deals with complex subjects and needs to use technical terms.
That is true, but why compound the difficulty with poor
writing? As for technical terms, of course some writing needs
to use technical terms, but they are a small part, a tiny part
of most documents. And even then, you can usually explain
technical terms in a way that most readers will understand.
Finally, you will hear the argument that this bill will
require some up-front costs to train writers. I suppose that is
true. But why shouldn't our public writers acquire the skills
needed to communicate clearly with the public. That is their
job. And there are resources available at reasonable rates.
The Federal interagency group PLAIN offers basic training
for free. That is pretty reasonable for government employees,
and, of course, there are lots of books and articles out there
on how to write plainly. And whatever the up-front costs might
be, I hope I have made the case that they will pale in
comparison with benefits.
Just two points in conclusion. If you would like to see the
difference between overcomplicated writing and plain language,
you have already given--Madam Chair have already given a couple
of examples. If you would like to see another familiar example,
check out pages 34 to 37 of ``Writing for Dollars.'' I rewrote
the exit-seat card that you will find in the exit row of most
airplanes. It is a hoot. And as a matter of fact, we had some
slides ready to show you the before and after----
Mrs. Miller of Michigan. They are in the packet.
Mr. Kimble [continuing]. But the technology failed us, but
they are in the package, and you will see some slides for this
exit seat card. And, of course, it goes--the original goes for
about what?
Mrs. Miller of Michigan. Six pages.
Mr. Kimble. Six pages, seven slides. You know, the person
lacks sufficient mobility, strength, or dexterity in both arms
and legs and hands to reach upwards, sideways, and down where
to the location of the emergency exit, and exit slide operating
mechanisms, blah, blah, blah. It goes on like that for about 6
pages, and you will see at the end my re-write, which is about
half a page. And that card is copied verbatim from the Code of
Federal Regulations.
The American public needs and deserves clear information
from its government. They deserve government writers who have
the will and the skill to accomplish that. And this bill can
help to make it happen. We need this bill, or it won't happen.
The bill may seem like a small thing, but it has tremendous
implications in all the ways that I have tried to describe.
Thank you.
[The prepared statement of Mr. Kimble follows:]
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[GRAPHIC] [TIFF OMITTED] T7090.004
[GRAPHIC] [TIFF OMITTED] T7090.005
Mrs. Miller of Michigan. Thank you very much. Our next
witness this morning is Dr. Annetta Cheek. Dr. Cheek is the
vice chair of the Center for Plain Language, and is the founder
and chair of the U.S. Plain Language Action and Information
Network.
Dr. Cheek is an anthropologist by training, earning a Ph.D.
from the University of Arizona in 1974. Most of her Federal
career has been in writing and implementing regulations. She
became interested in the plain language movement and has worked
to spread the use of plain language across the government.
Dr. Cheek, the floor is yours.
STATEMENT OF DR. ANNETTA CHEEK, VICE-CHAIR, CENTER FOR PLAIN
LANGUAGE
Ms. Cheek. Thank you very much. It is an honor to be here
to support this bill.
Poor writing isn't restricted to the Federal Government,
but I think the Government has a high responsibility to
communicate clearly with the American public.
I am stunned at a lot of the material that I read,
particularly in regulations, and I will do a few readings
myself, if you will bear with me. Here is a great one from the
Department of Justice, which is a primary source for poorly
written regulations. ``The amount of expenses reimbursed to a
claimant under this subpart shall be reduced by any amount that
the claimant receives from a collateral source. In cases in
which a claimant receives reimbursement under this subpart 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 the claimant was reimbursed under this subpart.''
You obviously would need your lawyer to help you understand
that. We think it says, ``if you get a payment from another
source, we will reduce our payment by that amount to you, by
the amount you get. If you already got payments from us and
from another source for the same expenses, you must pay us
back.''
There are now over 200,000 pages in the Code of Federal
Regulations. You should take an opportunity sometime to look at
them all together in a library. It is a huge volume of poorly
written material. And the big problem with them is that
agencies and the private sector use them as the model for other
documents. Joe's example of the exit card is prime example. The
airlines are not required to use exactly the same language in
the regulation, but they do. And this is multiplied hundreds of
thousands of times across the country.
I think there are two reasons for this. First, it is
easier. Writing clearly is hard work. It is not simple. The
product looks simple, but the process is not simple, and part
of the problem is you have to think clearly before you can
write clearly.
Second, a lot of people, particularly in the private
sector, think it is safer to just copy the language of the
regulation. If they take the trouble and time and effort to
rewrite it, they also believe that they may be running the risk
of being accused of not complying, so it is just safer to go
ahead and copy that lousy language, even if the implication is
that people are not going to understand, and, therefore, they
may not be getting the job done.
Let us take a quick look at a few more examples, because I
think the best way to bring this message home is to look at
some examples, and again we would have had slides, but
fortunately, I made copies, and I will skip the first two,
because they are the longest ones, and I will skip one of the
others, because you already read it for me.
Here is one from the Bureau of Indian Affairs, and this one
and the one you read, which was a Park Service reg, the agency
has redone the reg into plain language.
``If the location of the land is in a State other than the
State in which the tribe's reservation is located, the tribe's
justification of anticipated benefits from the acquisition will
be subject to greater scrutiny.''
And they rewrote it to say: ``If the land is in a different
state than the tribe's reservation, we will scrutinize your
justification of anticipated benefits more thoroughly.''
And then my second one was the stuck vehicle, which was the
Park Service reg. Then I have two more short examples.
These, unfortunately, are Department of Justice regulations
that they have not rewritten, and I have taken a stab at doing
it myself.
``When a filing is prescribed to be filed with more than
one of the foregoing, the filing shall be deemed filed as of
the day the last one actually receives the same.''
We think it means ``we consider a filing to have occurred
when all those who must receive the filing have received it.''
And finally, ``no payment shall be made to or on behalf of
more than one individual on the basis of being the public
safety officer's parent as his mother or on that basis as his
father.''
Again, we think this means ``we will pay only one person
claiming to be the public safety officer's father and only one
claiming to be the mother.'' This was about benefits going to
the parents of deceased policemen and firemen and so on.
But that one is still on the books. These few examples show
what is possible when we take the time to write clear
regulation, but I would challenge you to find even 5,000 pages
out of those 200,000 that are written in a way that the
intended reader can understand them.
If we get this bill, the benefits to the American people
will be incalculable, and the savings for the Federal
Government will be huge.
A veteran who needs medical help will be able to understand
what she needs to do. A small business owner will be able to
claim tax benefits and other considerations to which he is
entitled. A school wanting to comply with the No Child Left
Behind Act will be able to figure out what to do without
reading the regulation five times. A senior citizen or hospital
or pharmacy will be able to understand immediately what
Medicare or drug benefits apply.
There are many Federal employees who want to bring the
benefits of plain language to the American public. By passing a
plain language bill, you will give them a powerful tool and
more importantly you will improve the lives of millions of
Americans.
Thank you very much.
[The prepared statement of Ms. Cheek follows:]
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Mrs. Miller of Michigan. Thank you, Dr. Cheek.
And our final witness this morning is Mr. Todd McCracken.
Mr. McCracken currently serves as the president of the National
Small Business Association, which is the Nation's oldest small
business association. As director of its government affairs
branch, Mr. McCracken develops their policies on a variety of
government-related issues and the strategies to implement them.
He is a native of New Mexico. Mr. McCracken is a graduate
of Trinity University in San Antonio, with a B.A. in Economics.
Mr. McCracken, we certainly welcome you and look forward to
your testimony, sir.
STATEMENT OF TODD MCCRACKEN, PRESIDENT, NATIONAL SMALL BUSINESS
ASSOCIATION
Mr. McCracken. Thank you very much. I appreciate the
opportunity to be here.
As you said, I represent the small business community, and
I think there is, you know, there is no other constituency of
the country that has on which these regulations and the way
they are written has a more profound effect, because they not
only have to deal with them as individuals, they have to deal
with the regulations as businesses, and they deal with the
broad cross section, from tax rules individually and tax rules
in their businesses and all the government agencies that
influence them.
And small businesses are much more profoundly affected by
regulations and their readings of them than large businesses
are. As you are probably aware, a recent study published by the
SBA's Office of Advocacy showed that the typical small company,
defined as fewer than 20 employees, pays on average--it costs
them on average $7,000 per employee to comply with Federal
regulations. That is 60 percent more than the average large
company. And a lot of those costs are in the--you know--paying
somebody to figure out what they are supposed to do, whether it
is paying somebody to figure out how to run their 401(k) plan
or paying an accountant to do their taxes.
I mean many of the smallest companies, especially sole
proprietors, ought not have to pay a CPA to figure out how to
do their tax return, but an extremely high percentage of them
do. I don't have an exact number, but anecdotally, it is
extremely high.
So the impact on the small business community is enormous,
and it is not just the money. I throw out a $7,000 figure, but
the reality is in a small company, the business owner is the
CFO, the CEO, the CIO, and now they are dealing with all these
regulations day in and day out. They simply don't have the time
and the wherewithal to figure out what they are supposed to be
doing. And time really is at the crux of what small business
life is all about.
They want to spend their time on how to reach new markets,
develop new products, get new customers rather than trying to
figure out what they are supposed to be doing in complying with
the Federal Government.
So the lack of plain language really does have a huge
impact on the small business community--and I think has been
extremely well stated by the folks who came before me.
And one of the things I want to sort of take a little bit
of time to point out is that not just--to talk about not just
the end product, and how small businesses can figure out what
to comply with, but also of the regulatory process.
The reality is that one of the reasons--certainly not the
only reason--but one of the reasons that dollar figure for
small companies is so much larger than for bigger companies is
because the regulatory process is so fundamentally skewed to
larger companies.
I mean they have a much better ability to have an impact on
the regulatory process because, to a large degree, of the
language that is used. I mean they are able to hire experts and
attorneys to file comments, to figure out how exactly this is
going to affect their company or not affect their company, and
really have an impact while that regulation is under
development. The typical small company, even if they are aware
the regulatory process is ongoing certainly does not have the
wherewithal to have the level of input that the larger
companies do as the regulation is developed.
Plain language I think is not a panacea, but clearly would
help with that if the proposed regulations are written in a way
that a small company could really understand how this would
affect them, and give that input. I mean and it is not just a
matter of reducing the burden. I think in that comment period,
the Federal Government really I think is--or should be--looking
for a way to craft a better regulation to improve it, to make
sure that it really affects the way people run their businesses
and operate their lives, and it is as efficient as possible.
And if people don't understand what they are trying to do
or why they are trying to do it or how it is going to affect my
company, they can't provide that kind of input.
One of the ways that we do that now is through a so-called
panel process, where they actually--some agencies, not all--but
some agencies are required to have small business experts come
in and give them input early on in the process.
But this is a way I think to really amplify that and to
bring that benefit to all agencies, not just those handful that
are required to do these panels.
But my last comment I think comes down to enforcement. I
mean, the Regulatory Flexibility Act, as you may know, was
passed in 1980 and really did almost nothing to affect the
lives of small businesses and the regulatory process for 16
years, because Congress didn't give it any teeth. I mean there
was nobody who was saying, you know, you have to follow this
law. You have to do these things the Congress laid out. It
wasn't until 1996 when it finally got judicial review and a
little bit more authority also for the SBA's Office of Advocacy
that law has finally begun to have a real impact.
And so what I would say is even though we have on the
books, through an Executive order, a requirement that agencies
do plain English and there have been some limited attempts at
that, it is clearly insufficient, and I think the primary
reason is really a lack of enforcement. There is nobody that is
telling them they have to do it.
So that really is the key moving forward we believe is to
have something that is clearly a hammer I guess at the end of
the day to make sure this is done.
Thank you very much.
[The prepared statement of Mr. McCracken follows:]
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Mrs. Miller of Michigan. Well, we certainly appreciate all
of your testimony. Again, because we have the joint session at
11 a.m., we will have about 10 more minutes here with our
hearing.
You know I first became actually interested in this whole
concept of plain language in the job that I had before I came
to Congress. I was a Michigan Secretary of State, as Dr. Kimble
recalls. You probably still have my name on your driver's
license there, but my principal responsibility actually was
serving as the chief elections officer. And I could remember
before I got the job looking at some of the ballot proposals
that we had on our statewide ballots and you know really
important issues like amending our State constitution or
whatever, and I mean honestly, you could not understand--you
know, you would read it and read it, and then you thought,
well, if you voted no, it meant yes. Or if you vote yes, it
meant no.
And it just wasn't plain, and I thought that was so
ridiculous. And then I like to think of myself as sort of a
common sense approach to government, whatever my jobs were, so
I certainly have had an interest in this and am very
appreciative of the bipartisan effort that Congressman Lynch
and I have with the piece of legislation that we have just
introduced.
But could you, Professor Kimble, perhaps give us--or any of
you--could you give us some ideas or observations of any
Federal agencies that are really doing well in trying to write
plain language?
Mr. Kimble. Well, Dr. Cheek would know more about that,
because she works with Federal agencies.
Ms. Cheek. I think at this point probably the Veterans
Administration, particularly Veterans Benefits. They have had a
massive project since about 1993 or 1994 called reader-focused
writing, but that has focused not so much on regulations,
though they have done a couple regulations over. That is
focused mainly on their letters to veterans.
And I think overall, they do the best job of letters. When
agencies ask me where can I get advice about letters, I send
them to Veterans Benefits.
Mrs. Miller of Michigan. You used the DOJ as an example----
Ms. Cheek. As a bad example.
Mrs. Miller of Michigan [continuing]. As a bad example,
with all those attorneys there, but that is----
Ms. Cheek. I am afraid so. You know some of the strongest
supporters of plain language are attorneys and some of the
strongest opponents are attorneys. And DOJ is certainly a
homeland of obscure writing, no question about it.
NIH has been doing a lot with their public medical
information. IRS has finally started working on some of their
forms trying to get them to be written more clearly.
With regulations it is pretty thin. They are scattered.
Securities and Exchange Commission wrote a regulation requiring
financial institutions to write parts of their financial
disclosure documents in plain language, and their reg itself is
pretty good.
The Department of Interior has a big handful of clear
regulations. FAA, which is where I work now, has a couple that
are good and overall have improved. But I think the regulatory
aspects lag behind even the few puny efforts in the public
information area.
Mrs. Miller of Michigan. I might ask Mr. McCracken. You
know we actually--this subcommittee has had a number of
different hearings about--and we have cited the--some of the
numbers that you used in your testimony about $7,000 per
employee for small businesses just to comply with the
regulations and those kinds of things.
Has your association had much conversation, not only of the
burden of regulatory acts, government burden on regulatory acts
on small businesses, etc., but have you really looked at just
the plain language. Have you had quite a bit of discussion
about the inability of people to even understand these
regulations?
Mr. McCracken. We have, and we have been searching for
solutions. We are hopeful that your legislation can take us in
that direction, but clearly when you get small business owners
in a room to talk about Federal regulations, it quickly moves
to that. It is not simply a question of the rule itself is too
burdensome, although that clearly is often the case, but the
lack of understanding of what they are even supposed to do,
combined with the frustration that they are then, you know,
fined based on their inability to understand what they are
supposed to do.
I would really like to also add onto--I think it was Dr.
Cheek that made the comment about these regulations then
providing a model for what other people do, too. I think that
is really important to understand, because small business
owners often look to others, whether they are law firms or
trade associations or someone else to provide them sort of
interpretation sometimes of these regulations, which is itself
I think sort of sad.
But to the extent they do, often those folks also feel
somewhat inhibited in reinterpreting them for people, because
they feel like they have some liability if they get it wrong.
So I would encourage that to be something that the
committee might be--might look at is could there be some
provision to hold harmless some of those advisors if they are
making a good faith effort to interpret the regulations as they
see them, because that also could really help. It wouldn't
improve necessarily the Federal regulation, but it would
certainly improve the ability of small business owners and
others to figure out what they are supposed to do.
Mrs. Miller of Michigan. Thank you. Representative Lynch.
Mr. Lynch. Sure. Just a couple things. As you mentioned,
Mr. McCracken, that there were earlier efforts to try to get at
this problem I think by Executive order and by memorandum as
recently as 1998--President Clinton. But there has been no
teeth, as you say. There has been no enforcement.
Given the fact--and this is a question for all three of you
here, and thank you very much for coming here and helping us
with this.
Mr. Kimble. Pleasure.
Mr. Lynch. Given the fact that a lot of this depends on the
audience--in other words, the problem we are having is that the
general tax code, which should be understood by the average
taxpayer, is written in terms that are more akin to the
technical specs for the Space Shuttle, you know, so you have--
it is the audience. And, you know, and some of the technical
specs for NASA and for the Nuclear Regulatory Commission and
for their audience must necessarily be complex.
So in terms of the enforcement part of this, how do you see
that working from industry to industry, where the audience is
so different and the necessity there is very disparate in terms
of what must be conveyed, what information must be conveyed. Do
you have any recommended models that might address that issue?
Mr. McCracken. I don't have a specific model. Maybe someone
else does.
Ms. Cheek. Well, I would like to make clear--and this is
often misunderstood--that plain language, our definition of
plain language is it is language that the intended reader can
understand the first time, so it is not the same for everybody.
It is audience specific.
And what it comes down to, frankly, is testing a few
documents to make sure that they can really read it. Now,
obviously, we can't test all documents, but I think Veterans
Benefits is a very good model, because they tested a few
documents, and with a kind of testing called protocol testing,
which means each document would be tested with just three or
four people and you would sit down and you would say read the
first sentence and then tell me what it means rather than
asking do you understand this, because people naturally will
say, oh, yeah, sure, I understand, even when they don't.
And because they tested the documents, just a few of them,
they found out what the principles were that they needed to
follow in writing other documents.
So now, they just test very occasionally to make sure they
are still on track. It is not that huge a burden, and the
payoff in time saved is tremendous.
So I think that model works. It is not the easiest thing,
and there are other ways that aren't as effective that you can
also use, but I think that is a good model.
Mr. Kimble. Exactly right. Testing is a very important part
of plain language and again it involves some modest up-front
costs to have readers look over a form or look over a letter,
typical readers, and the--and as soon as--it can be done with
as few as 10 or 15 people. And the problems in the document
will surface almost immediately. And imagine again, against
those up-front costs, the savings if you can reduce the error
rate on a form letter that goes out by the thousands and the
hundreds of thousands. If you can reduce the error rate by 10
or 20 percent, you are talking again huge amounts of money
saved.
Ms. Cheek. Actually, you can do it with 9 people, and then
that way you don't have to go to OMB to get permission under
the Paperwork Reduction Act.
Mr. McCracken. And I don't believe, for the most part,
Federal regulators set out to write documents no one could
understand, so I do believe that if there is some testing and
some lessons learned, that will carry over even to the
documents that aren't specifically tested.
Mr. Kimble. And a little bit of training.
Mr. Lynch. Yeah. OK.
Ms. Cheek. I was teaching a class the other day to a bunch
of people that write Exhibit 300's, which are these horrible
financial documents that go to OMB to justify IT expenses. And
I had pulled out some examples from last year, some sentences
to use as examples in the class, and I read this one, and the
one guy starts, you know, sort of scratching around in his
seat, and I said, did you write that? He said, yes. I said,
well, what does it mean? He said, I don't know.
Mrs. Miller of Michigan. That is scary.
Mr. Lynch. A little honesty.
Mrs. Miller of Michigan. OK. Well, we certainly appreciate
all of you traveling to Washington and testifying today. It has
been very interesting, and again the bill number, which we just
dropped in the hopper last night while we were voting, is H.R.
4809, and this is our bipartisan legislation. It is pretty
simple. It basically is requiring Federal agencies to write
regulations in plain, understandable English and it defines
plain language actually for the first time in Federal law, so
anything that any of you can do to talk to some other Members
of Congress to assist us with this would be very helpful as
well.
We appreciate your attendance.
Ms. Cheek. Thank you.
Mr. Kimble. Thank you.
Mrs. Miller of Michigan. Thanks so much.
[Whereupon, at 10:50 a.m., the subcommittee was adjourned.]
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