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27–090 PDF 2006

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

(II)

COMMITTEE ON GOVERNMENT REFORM

TOM DAVIS, Virginia, Chairman

CHRISTOPHER SHAYS, Connecticut

DAN BURTON, Indiana

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

JOHN L. MICA, Florida

GIL GUTKNECHT, Minnesota

MARK E. SOUDER, Indiana

STEVEN C. LATOURETTE, Ohio

TODD RUSSELL PLATTS, Pennsylvania

CHRIS CANNON, Utah

JOHN J. DUNCAN, JR., Tennessee

CANDICE S. MILLER, Michigan

MICHAEL R. TURNER, Ohio

DARRELL E. ISSA, California

JON C. PORTER, Nevada

KENNY MARCHANT, Texas

LYNN A. WESTMORELAND, Georgia

PATRICK T. MCHENRY, North Carolina

CHARLES W. DENT, Pennsylvania

VIRGINIA FOXX, North Carolina

JEAN SCMIDT, Ohio

——— ———

HENRY A. WAXMAN, California

TOM LANTOS, California

MAJOR R. OWENS, New York

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

DANNY K. DAVIS, Illinois

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

CHRIS VAN HOLLEN, Maryland

LINDA T. SANCHEZ, California

C.A. DUTCH RUPPERSBERGER, Maryland

BRIAN HIGGINS, New York

ELEANOR HOLMES NORTON, District of

Columbia

———

BERNARD SANDERS, Vermont

(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

CHRIS CANNON, Utah

MICHAEL R. TURNER, Ohio

LYNN A. WESTMORELAND, Georgia

STEPHEN F. LYNCH, Massachusetts

WM. LACY CLAY, Missouri

CHRIS VAN HOLLEN, Maryland

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

(III)

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

(1)

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

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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.’’

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And I certainly look forward to the testimony of all our witnesses

today.

[The prepared statement of Hon. Candice S. Miller follows:]

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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.

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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

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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

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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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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

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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.

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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.

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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.

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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.

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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.

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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

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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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