Administrative Conference of the United States

PLAIN LANGUAGE IN REGULATORY DRAFTING
Final Report: December 8, 2017

Blake Emerson

Cheryl Blake

Research Fellow

Attorney Advisor

Administrative Conference of
the United States

Administrative Conference of
the United States

This report was prepared for the consideration of the Administrative Conference of the United States. The opinions,
views and recommendations expressed are those of the authors and do not necessarily reflect those of the members
of the Conference or its committees, except where formal recommendations of the Conference are cited.

December 8, 2017

Table of Contents
Introduction ................................................................................................................................................. 1
Background ................................................................................................................................................. 2
General Principles ..................................................................................................................................... 2
Statutory Requirements ............................................................................................................................. 4
The Administrative Procedure Act (APA) ............................................................................................ 4
The Plain Writing Act (PWA) .............................................................................................................. 4
Administrative Guidance and Executive Orders ....................................................................................... 6
History of Administrative Efforts to Promote Plain Language ............................................................. 6
Executive Orders and Memoranda Currently in Force ......................................................................... 7
Study Findings............................................................................................................................................. 8
Study Methodology ................................................................................................................................... 8
The Meanings of Plain Language ............................................................................................................. 8
The Public Interests in Plain Language ................................................................................................... 10
Public Participation ............................................................................................................................. 10
The Rule of Law (Judicial Review) .................................................................................................... 14
Effectiveness (Compliance) ................................................................................................................ 19
Protection of Rights ............................................................................................................................ 22
Agency Plain Language Practices ........................................................................................................... 25
The Rulewriting Process ..................................................................................................................... 25
Guidance ............................................................................................................................................. 30
Supporting Plain Drafting ................................................................................................................... 32
Challenges ............................................................................................................................................... 34
Internal Drafting Process .................................................................................................................... 34
External Requirements ........................................................................................................................ 36
Statutory Language ............................................................................................................................. 37
Subject Matter Complexity ................................................................................................................. 38
Recommendations ..................................................................................................................................... 39
Appendix A ................................................................................................................................................ 42
Appendix B ................................................................................................................................................ 44

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Plain Language in Regulatory Drafting
Blake Emerson and Cheryl Blake
I.

Introduction

This report examines the purposes and practices of “plain language” or “plain writing” in
the regulatory drafting process.1 The Plain Writing Act of 2010 (PWA)2 and Executive Order
13,5633 require agencies to use plain language in various public-facing documents. In addition,
the Federal Plain Language Guidelines provides official standards for the mechanics of plain
writing.4 This statutory, executive, and administrative framework formalizes decades of internal
governmental efforts to make regulatory requirements more comprehensible to regulatory
stakeholders and the public at large.5
Existing resources generally focus on plain language techniques, rather than on the ways
agencies incorporate plain language considerations into their policymaking procedure. This
report focuses on this broader regulatory process in order to identify and distinguish the multiple
public interests and audiences plain language serves. Studying the way agencies draft, finalize,
and explain their rules should clarify the connections between plain language practices and core
principles of administrative law, such as public participation, the rule of law, efficiency, and the
protection of rights. The better agencies can clarify regulatory purposes and requirements for the
relevant audiences, the easier it will be for interested parties to participate in rulemaking, for
reviewing courts to ensure agencies act within the law, for regulated parties to understand their
obligations, and for beneficiaries to vindicate their rights.
This report therefore explores agencies’ application of plain language principles in the
policymaking process. This process extends from the drafting of proposed rules to the issuance
of various regulatory guidance documents, such as interpretive rules or Question-and-Answer
pages on agencies’ websites. Our goal is to show how agencies’ policymaking process can better
incorporate plain language principles and utilize and benefit from plain writing techniques. In
particular, we aim to:
•

clarify the scope of agencies’ plain language obligations;

•

distinguish the multiple public interests that plain language advances;

•

differentiate the various audiences for whom regulatory language can be tailored;

These terms will be used interchangeably in this report. They have a different meaning than “plain meaning,” or
what a regulation’s text unambiguously requires. See discussion infra at p. 16.
2
Pub. L. No. 111-274, 124 Stat. 2861 (2010) (codified at 5 U.S.C. § 301 note).
3
Exec. Order 13,563, 3 C.F.R. 2011 Comp., p. 215 (2012).
4
PLAIN LANGUAGE ACTION & INFORMATION NETWORK, Federal Plain Language Guidelines (Rev. ed. May 2011),
available at https://www.plainlanguage.gov/guidelines/ (accessed Nov. 30, 2017) [hereinafter Federal Plain
Language Guidelines].
5
See infra at pp. 6–7.
1

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•

identify the types of documents that are suited to advance these interests and address
these audiences;

•

describe internal procedures that can promote plain drafting;

•

diagnose challenges to plain language implementation; and

•

make recommendations to improve plain language performance.

In this examination of plain language objectives and procedures, we have relied on
interviews with staff from seven administrative agencies, as well as background research on the
history and purpose of plain language policies. Our conclusions are informed by public officials’
actual understanding of and experience with plain language requirements.
We find that plain language can advance core administrative law values. By clearly
stating regulatory purposes and requirements, agencies can promote the rule of law, regulatory
effectiveness, the protection of rights, and public participation in administrative policymaking.
Each of these objectives relates to different primary audiences, such as reviewing courts,
regulated parties, regulatory beneficiaries, and the general public. For example, regulatory
effectiveness can best be achieved by using language that is plain for regulated entities,
particularly small businesses that may struggle with technical complexity. Different
documentary formats are well-tailored to speak to each of these audiences. Public participation,
for instance, can be advanced through the use of plain language in regulatory preambles and
explanatory documents for particular audiences. Internal administrative procedures can improve
plain language performance by raising the salience of plain language concerns in the drafting
process, distinguishing the plain language objectives that need to be served, and identifying
regulatory documents that will effectively convey information to the relevant audiences.
II.

Background

1. General Principles
The need for plain language in regulatory drafting has been clear since the very early
days of administrative government.6 Regulation often involves highly technical subjects
requiring expert knowledge and experience.7 Congress delegates authority to administrative
6

G.W.F. HEGEL, LECTURES ON NATURAL RIGHT AND POLITICAL SCIENCE: THE FIRST PHILOSOPHY OF RIGHT 269
(trans., ed. Peter C. Hodgson 2012, [1817-19]) (“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.”)
7
FELIX FRANKFURTER, THE PUBLIC AND ITS GOVERNMENT 151 (1930) (“Compelled to grapple with a world more
and more dominated by technological forces, government must have at its disposal the resources of training and
capacity equipped to understand and to deal with the complicated issues to which these technological forces give
rise.”); MAX WEBER, 1 ECONOMY AND SOCIETY 225 (Guenther Roth & Claus Wittich eds. 1963) (“Bureaucratic
administration means fundamentally domination through knowledge. This is the feature of it which makes it
specifically rational. This consists on the one hand in technical knowledge which, by itself, is sufficient to ensure it a
position of extraordinary power. But in addition to this, bureaucratic organizations, or the holders of power who

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agencies in large part because they can bring specialized understanding and constant attention to
bear on complex social and economic problems.8 But the expertise of administrators can
undermine regulatory goals if it is not properly translated into an accessible vocabulary and
format.9 If regulations are written in a way that is difficult to understand, they may be less
efficacious, may conflict with legal norms, and may thwart effective public participation.
There are multiple benefits to the use of plain language. It can promote statutory fidelity
and effective judicial review, since the basis on which an agency acts must be “clearly disclosed”
to determine if it has acted lawfully.10 It can promote efficient compliance by ensuring that
regulatory requirements are known and thus more likely to be observed. It can protect rights by
making beneficiaries aware of their entitlements and notifying regulated parties of their
obligations.11 Particularly for less sophisticated parties, plain language may be essential to
ensure they adequately understand their rights and obligations.
Plain language can also promote the legitimacy of regulation by disclosing its purpose.
As the Court stated in Phelps Dodge Corp. v. N.L.R.B, “[t]he administrative process will best be
vindicated by clarity in its exercise.”12 Democratic principles require that the reasons for
regulating are understandable by those they bind or otherwise affect.13 Even if an agency’s
explanations for its decisions are comprehensible to “specialists,” judges have found that they
may be “unacceptable if they are indecipherable to the public.”14 If the grounds for a regulation
are obvious, interested parties will be better able to evaluate, support, or contest them.

make use of them, have the tendency to increase their power still further by the knowledge growing out of
experience in the service. For they acquire through the conduct of office a special knowledge of facts and have
available a store of documentary material peculiar to themselves”).
8
S. Doc. No. 8, 77th Cong., 1st Sess. (1941) reprinted as FINAL REPORT OF THE ATTORNEY GENERAL'S
COMMITTEE ON ADMINISTRATIVE PROCEDURE 15 (1941) (recognizing “[t]he need of bringing to bear upon
difficult social and economic questions the attention of those who have time and facilities to become and remain
continuously informed about them”); WILLIAM N. ESKRIDGE ET AL., CASES AND MATERIALS ON LEGISLATION AND
REGULATION: STATUTES AND THE CREATION OF PUBLIC POLICY 936 (5th ed. 2014) (“There are sound policy reasons
why Congress regularly opts for administrative processes to complement both statutory and judicial decisionmaking.
When addressing scientific or technical subjects . . . neither Congress nor the federal courts can acquire the same
expertise as civil servants trained in these areas. Moreover, from an efficiency standpoint, Congress lacks the time to
resolve innumerable first-order implementation questions . . . .”).
9
Jane Mansbridge et al., A systemic approach to deliberative democracy, in DELIBERATIVE SYSTEMS 1, 15 (John
Parkinson & Jane Mansbridge, eds. 2012) (“[W]hen otherwise competent experts are not adept at explaining the
reasons for their decisions to non-experts, the system as a whole requires some agents with the capacity to translate
expert conclusions into recommendations that citizens can understand.”).
10
S.E.C. v. Chenery Corp., 318 U.S. 80, 94 (1943). See also Recinos de Leon v. Gonzales, 400 F.3d 1185, 1194
(9th Cir. 2005) (remand to Board of Immigration Appeals where Board had affirmed Immigration Judge’s
“indecipherable explanation” of decision to deny application for asylum).
11
E.g., Affum v. United States, 566 F.3d. 1150, 1164 (D.C. Cir. 2009) (“The agency’s confused and poorly drafted
do not appear to give . . . notice” of regulatory requirements).
12
Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177, 194 (1941).
13
AMY GUTMANN & DENNIS THOMPSON, WHY DELIBERATIVE DEMOCRACY? 144 (2004) (“The reasons decisionmakers give should be accessible. . . . The justification, if it is to be mutual, is irrelevant if those to whom it is
addressed cannot understand its essential content.”)
14
Klamath-Siskiyou Wildlands Ctr. v. BLM, 387 F.3d 989, 996 (9th Cir. 2004) (finding that Bureau of Land
Management’s Environmental Impact Statement (EIS) failed “hard look” review under the National Environmental
Policy Act, where there was “scant information” about certain environmental effects, and regulations of the Council

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2. Statutory Requirements
a. The Administrative Procedure Act (APA)
Plain language advances the general purposes of the Administrative Procedure Act of
1946 (APA).15 The Report of the Senate Judiciary Committee stated that the Act was “designed
to afford parties affected by administrative powers a means of knowing what their rights are and
how they may be protected.”16 The “notice of proposed rulemaking” must, according the Report,
“be sufficient to fairly apprise interested parties of the issues involved, so that they may present
responsive data or argument relating thereto.”17 This notice requirement not only advances due
process values, but also enables “interested persons” to make effective use of their “opportunity
to participate in the rule making through submission of written data, views, or arguments.”18
Final rules must then be published in the Federal Register with a “concise general statement of
their basis and purpose” that enables readers to comprehend their rationale.19
In enacting the APA, Congress therefore contemplated a rulemaking procedure that
would both notify private parties of their obligations and facilitate public involvement in the
formulation of the rule. Rulemaking cannot adequately perform these functions if the purposes
and requirements of the proposed rules are unintelligible or can only be understood at
unreasonable cost.
b. The Plain Writing Act (PWA)
The PWA places more specific plain language obligations on administrative agencies.20
The codified purpose of the PWA is “to improve the effectiveness and accountability of Federal
agencies to the public by promoting clear government communication that the public can
understand and use.”21 Congress therefore affirmed two specific goals of plain language: to
make regulation more efficient in achieving statutory purposes and more responsive to the
people it binds and otherwise affects.
To achieve these goals, the PWA requires that agencies use “plain writing in every
covered document.”22 Covered documents include letters, publications, notices, and instructions
that are “necessary for obtaining any Federal Government benefit or service or filing taxes,” or
that “provide information about any Federal Government benefit or service,” or that explain how
to comply with federal regulatory requirements.23

on Environmental Quality required EIS’s to be “written in plain language . . . so that decisionmakers and the public
can readily understand them.” 40 C.F.R. 1502.8 (2016)).
15
5 U.S.C. §§ 551–57 (2012).
16
S. Rep. No. 79-752 at 193 (1945)
17
5 U.S.C. § 553(b); S. Rep. No. 79-752 at 200 (1945).
18
Id. § 553(c).
19
Id.
20
Pub. L. No. 111-274, 124 Stat. 2861 (codified at 5 U.S.C. § 301 note).
21
5 U.S.C. § 301 note sec. 2.
22
Id. § 301 note sec. 4 (b).
23
Id. § 301 note sec. 3 (2).

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The PWA has several provisions that implement its broad requirement to use plain
writing in administrative documents. Agency’s must: designate “senior officials to oversee . . .
agency implementation”; communicate PWA requirements to employees and train them in plain
writing; maintain a “plain writing section of the agency’s website”; and issue annual compliance
reports.24 However, the Act precludes judicial review of agencies’ compliance with its terms.25
Though the PWA explicitly excludes any “regulation” from its scope,26 the Act applies to
all other documents related to the regulation that are directed to the public. Guidance
documents—including enforcement guidance published in the Federal Register, official manuals
directed to the public, or less formal documents published on agencies’ websites, such as
answers to frequently-asked-questions (FAQs) or question-and-answer pages (Q&As)—are
generally covered under the plain meaning of “publication[s]” in “paper or electronic form.”27
More specifically, such guidance documents are covered to the extent that they “explain[] to the
public how to comply with a requirement the Federal Government administers or enforces.”28
The Office of Management and Budget, which Congress explicitly authorized to issue
guidance on implementing the PWA,29 has determined that the Act also applies to “rulemaking
preambles.”30 Though this interpretation is not free from doubt, it is a fairly persuasive
construction of the Act.31 A rulemaking preamble is both a “publication” and a “notice,” as it
must be published in the Federal Register, and serves notice to affected parties of the proposed
and final rule.32 And it provides “information” about regulatory benefits and services.33 A
rulemaking preamble is arguably not a “regulation,” however, since a regulation is a “rule[]
carrying the force of law.”34 A rulemaking preamble explains the “basis and purpose” of a final
rule,35 but it does not purport to bind the public in the same way as the requirements of the rule
itself.
The structure of the PWA also supports the OMB’s interpretation. Section 3 (2)(B)’s
broad coverage of “publication[s]” suggests that the exclusion of “regulation[s]” in Section 3

24

Id. § 301 note sec. 4 (a).
Id. § 301 note sec. 6.
26
Id. § 301 note sec. 3 (2)(C).
27
Id. § 301 note sec. 3(2)(B).
28
Id. § 301 note sec. 3 (2)(A)(iii).
29
Id. § 301 note sec. 4 (C)(1).
30
Cass R. Sunstein, Adm’r, Office of Info. & Regulatory Affairs, Final Guidance on Implementing the Plain
Writing Act of 2010 (April 13, 2011) [hereinafter Plain Writing Act Guidance].
31
See Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) (describing standards for deference to non-binding
agency documents).
32
5 U.S.C. § 301 note sec. 3 (2)(B).
33
Id. § 301 note sec. 3(2)(A)(iii); 1 C.F.R. § 18.12(a) (2016) (“Each agency submitting a proposed or final rule shall
prepare a preamble which will inform the reader, who is not an expert in the subject area, of the basis and purpose
for the rule or proposal”).
34
See United States v. Mead Corp., 533 U.S. 218, 226-27 (2001) (using “regulations” and “rules carrying the force
of law” as synonyms).
35
5 U.S.C. § 553 (c).
25

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(2)(C) be read narrowly.36 Constructing “regulation” to include rulemaking preambles would not
give full effect to the Act’s coverage of “publication[s].”
The purpose of the Act likewise supports coverage of rulemaking preambles. The
PWA’s codified purpose is “to improve the effectiveness and accountability of Federal agencies
to the public by promoting clear Government communication that the public can understand and
use.”37 Preambles are required by regulation to “inform the reader, who is not an expert in the
subject area, of the basis and purpose for the rule or proposal.”38 The PWA’s objective of
improving public understanding thus aligns with rulemaking preambles’ function of informing
non-experts. For this reason, plainly written preambles are likely to serve the PWA’s interests in
accountability and effectiveness. Federal regulation is likely to be more accountable when
rulemaking preambles are written in plain language, since non-experts can then better assess and
comment on the goals and requirements of the regulation. Federal regulation is likely to be more
effective when rulemaking preambles are written in plain language, because this increases nonexperts’ comprehension of rules and so decreases compliance costs. The policies of the PWA
are therefore advanced by constructing it to cover rulemaking preambles.
3. Administrative Guidance and Executive Orders
a. History of Administrative Efforts to Promote Plain Language
The Plain Writing Act codified a decades-long internal administrative effort to promote
plain language in regulatory documents.39 In 1968, ACUS issued a Recommendation to create a
Consumer Bulletin that would “extract and paraphrase in popular terms the substance of Federal
agency action of significant interest to consumers.”40 The Administrative Committee of the
Federal Register followed suit in 1976 with a rule requiring that final and proposed rules include
a preamble that informs those who are “not expert.”41 In 1978, the Council on Environmental
Quality required that Environmental Impact Statements under the National Environmental Policy
Act be written “in plain language . . . so that decision-makers and the public can readily
understand them.”42 President Carter’s Executive Order 12,044, which lay the groundwork for
regulatory review by the Office of Management and Budget, likewise provided that
“[r]egulations shall be as clear and simple as possible.”43 Administrative officials during the
See Gade v. National Solid Wastes Management Ass’n, 505 U.S. 88, 100 (1992), quoting Pilot Life Ins. Co. v.
Dedeaux, 481 U.S. 41, 51 (1987) (“We must not be guided by a single sentence or member of a sentence, but look to
the provisions of the whole law.”) (internal citations and quotations omitted) (overruled on other grounds) and
United States v. Menasche, 348 U.S. 528, 539-39 (1955) (a court must “give effect, if possible, to every word and
clause of a statute.”) (internal quotations and citations omitted).
37
5 U.S.C. § 301 note sec. 2.
38
1 C.F.R. §18.12(a) (2016).
39
See Cynthia Farina, Mary J. Newhart, & Cheryl Blake, The Problem with Words: Plain Language and Public
Participation in Rulemaking, 83 GEO. WASH. L. REV. 1358, 1367–1379 (2015).
40
Administrative Conference of the United States, Recommendation No. 68-4, Consumer Bulletin, Par.1 (Dec. 11,
1968), available at http://www.acus.gov/sites/default/files/documents/68-4.no-FR.pdf.
41
Clarity of Rulemaking Documents in the Federal Register, 41 Fed. Reg. 56,623 (Dec. 29, 1967) (codified at 1
C.F.R. §18.12 (2016)).
42
43 Fed. Reg. 55,994, 55,995 (Nov. 1978) (codified at 40 C.F.R. §1502.8 (2016)).
43
Exec. Order. 12,044, 3 C.F.R. 152 (1979).
36

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Carter Administration also began coordinating plain language efforts and convening inter-agency
meetings to share resources and conduct trainings.44 These early working groups formed the
basis for the Plain Language Action and Information Network (PLAIN), a group of federal
employees which issues plain language resources. Concerns with plain language gained renewed
attention under Vice President Gore’s Reinventing Government initiative.45
b. Executive Orders and Memoranda Currently in Force
Current executive orders apply plain language requirements to regulations, even though
the PWA does not. President Clinton’s Executive Order 12,866 provides that “[e]ach 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.”46 It also requires changes
made during regulatory review to be “[i]denf[ied] for the public, in a complete, clear and simple
manner.”47 President Clinton’s 1998 Plain Language Memorandum requires agencies to “use
plain language in all new documents, other than regulations, that explain how to obtain a benefit
or service, or how to comply with a requirement you administer or enforce,” as well as “all
proposed and final rulemaking documents published in the Federal Register.”48
President Obama’s 2011 Executive Order 13,563, which supplements the regulatory
review process established by Executive Order 12,866, requires that regulations be “accessible,
consistent, written in plain language, and easy to understand.”49
The Obama Administration’s “Final Guidance on Implementing the Plain Writing Act of
2010” likewise emphasized that plain language “was indispensable to achieve the[] goals” of
“transparency, public participation, and collaboration,” as well as public understanding of
benefits and services, efficient compliance, accomplishment of public purposes, and “the rule of
law.”50 The Guidance clarifies PWA requirements such as designating “Senior Officials for
Plain Writing,” creating plain language web pages, offering trainings, issuing compliance
reports, and establishing incentives and goals to improve measures of plain language
performance.51 As noted earlier, the Guidance also clarifies that plain language requirements
apply to regulatory preambles, though rule text remains outside the scope of the PWA. The
Guidance also suggests that agencies “engage and collaborate with the public” to “implement
plain writing and [meet] the requirements of” the PWA.52 It recommends that agencies consult
with PLAIN, and follow its Federal Plain Language Guidelines.53

44

Telephone Interview with Agency #6 (May 15, 2017).
Farina et al. supra note 39, at 1374–5.
46
Exec. Order No. 12,866 §2(b), 3 C.F.R. 638, 640 (1993).
47
Id. §6(a)(3)(E)(ii), 3 C.F.R. at 646.
48
Memorandum on Plain Language in Government Writing, 63 Fed. Reg. 31,885 (June 10, 1998).
49
Exec. Order No. 13,563 (Jan. 18, 2011)
50
Plain Writing Act Guidance, supra note 30, at 1.
51
Id. at 2.
52
Id. at 3. The Guidance distinguishes regulations from rulemaking preambles, and further states that “longstanding policies,” including Executive Order 12866, “require regulations to be written in a manner that is ‘simple
and easy to understand.’” Id. at 5.
53
Id.; Federal Plain Language Guidelines, supra note 4.
45

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A subsequent memorandum from the Office of Information and Regulatory Affairs
(OIRA) draws an explicit link between the Executive Order’s plain language requirements and
public participation: “Public participation cannot occur if the requirements of rules are unduly
complex and if members of the public are unable to obtain a clear sense of the content of those
requirements.”54 To further such effective public participation, the Memorandum requires that
“regulatory preambles for lengthy or complex rules (both proposed and final) . . . include
straightforward executive summaries. These summaries should separately describe major
provisions and policy choices.”55
*

*

*

Promoting plain language in regulation advances core administrative law values: the
protection of rights, the efficient performance of public purposes, and public participation in
administrative policymaking. The PWA requires all administrative agencies to use plain
language in publicly available documents, including guidance and rulemaking preambles, but
exempts rules with the force of law from its requirements. Executive Orders 12,866 and 13,563,
and their accompanying guidance and memoranda, require agencies in executive departments to
write regulations in plain language, and to include plain language “executive summaries” in their
rulemaking preambles to promote public participation.
III. Study Findings
1. Study methodology
To understand the purposes of plain language in regulatory drafting, and the procedures
that can promote it, ACUS in-house researchers first examined scholarly literature, legal and
administrative requirements, and publicly available agency documents concerning plain
language. This background research informed semi-structured interviews with seven federal
agencies.56 The purpose of these interviews was to disentangle the various meanings of plain
language, the goals that plain language is thought to serve, and to determine how agencies pursue
these goals in practice. The study findings presented rely on these interviews to: (1) distinguish
two different meanings of plain language; (2) explain the public interests that plain language
advances; (3) identify the regulatory audiences that these interests primarily serve; (4) identify
the documentary formats that most effectively promote these public interests and address these
regulatory audiences; (5) identify agency procedures that govern drafting of regulatory
preambles, guidance, and other regulatory documents; and (6) identify factors that pose a
challenge for plain regulatory drafting.
2. The Meanings of Plain Language
At the outset, one might ask: What language counts as “plain”? The PWA defines plain
writing as “writing that is clear, concise, well organized, and follows other best practices
Memorandum from Cass R. Sunstein, Adm’r, Office of Info. & Regulatory Affairs. Clarifying Regulatory
Requirements: Executive Summaries (Jan. 4, 2012).
55
Id.
56
To encourage candid responses, the authors agreed not to identify interviewees or their agencies.
54

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appropriate to the subject matter in question.”57 This definition raises more granular questions,
however: what exactly must be “clear,” and to whom?
Two meanings of plain language emerged from the background research and were
confirmed during interviews. First, and perhaps more conventionally, plain language means
plain requirements. That is, the obligation to write a document in plain language means that
whatever rules it imposes must be easily understandable to their intended audience. One agency
official explained this meaning of plain language succinctly: “to be as clear and direct to the
public as possible in letting them know the actual requirements of our regulations.”58
Second, plain language means plain purposes. Not only must the rules the agency
imposed be clearly indicated, but the reasons the agency has imposed such rules must be clearly
explained. As one agency official put it: “be very clear about why you’re doing what you’re
doing.”59
It is important to distinguish these two meanings of plain language, because they do not
further the same public interests in the same way. The PWA and executive guidance recognize
the following public interests in plain language regulatory drafting: effectiveness, accountability,
transparency, public participation, and the rule of law.60 The interest in effectiveness will be
advanced primarily by plain requirements, which ensure that the rules can be known and
observed at low cost. The interests in accountability, public participation, and transparency, by
contrast, will require the plain statement of purposes as well, since these interests all aim at
exposing policy judgments to public appraisal.
Distinguishing plain requirements from plain purposes is also important because they
matter for different kinds of audiences. Plain requirements will matter most to regulated parties,
and particularly small business entities, who need to understand their obligations without undue
cost. Plain purposes will matter greatly to reviewing courts, which must assess an agency’s
reasoning to determine if the agency’s authority has been lawfully exercised.61 Plain purposes
will also matter to regulated entities, public interest organizations, and members of the general
public who want to understand, engage with, and possibly challenge, in whole or in part, the
agency’s policy judgments.
Finally, distinguishing these two meanings of plain language is important because they
are often advanced by different regulatory documents. Plain requirements are usually expressed
in regulatory text, Q&As, and other audience specific guidance documents. Plain purposes are
usually expressed in rulemaking preambles, executive summaries, and press releases.

57

5 U.S.C. § 301 note sec. 3(3).
Telephone Interview with Agency #2 (Apr. 17, 2017).
59
Telephone Interview with Agency #4 (May 2, 2017).
60
5 U.S.C. § 301 note sec. 2; Plain Writing Act Guidance, supra note 30, at 1.
61
5 U.S.C. §§ 553, 706; Jerry L. Mashaw, Small Things Like Reasons Are Put in A Jar, 70 FORDHAM L.J. 23 (2001)
(“The modest suggestion in section 553 of the APA that agencies must file a ‘concise statement of the basis and
purpose’ of a regulation has developed into the requirement of a comprehensive articulation of factual bases,
methodological assumptions, and statutory authority that justifies any exercise of rulemaking.”)
58

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Clarifying the meaning of plain language in this way should therefore help agencies to
analyze distinct dimensions of their plain language obligations, and assign different plain
language functions to various kinds of documents.
3. The Public Interests in Plain Language
This section analyzes the public interests that are advanced by plain language in more
detail. The interests considered are those either specified by statute or executive action or
conveyed in interviews.
a. Public Participation
Multiple agency officials understood plain language norms as furthering the public
interest in public participation in administrative rulemaking. As explained above, public
participation aligns most naturally with plain purposes, rather than plain requirements. It is
“very important to be clear about the purpose, so that you get the [appropriate] level of
commentary from interested parties, and so that you get responsive comments.”62 Another
believed that “if the public doesn’t understand the what and the why very clearly, they will not
be able to have meaningful access to the process. If we are making a change, we try to very
plainly explain why we are making those changes.”63
Agencies did not understand the interest in public participation merely as a burden upon
the agency’s decision-making process, but as a way of improving regulatory output. “If people
understand what we’re saying in the preamble and in the proposed regulation, this will improve
the overall quality of the public comments. The better the public understands the agency’s
proposal and what’s behind it, the more it can assist the agency, for example, by suggesting
improvements to its information or assumptions.”64 Public accountability can therefore enhance
the epistemic virtues of administration, and not merely the acceptance of regulatory norms by the
public.
Though public participation will be enhanced through plain language in every regulatory
document, certain documents are particularly helpful in promoting meaningful public comment.
The preamble to the proposed rule published in the Federal Register, as well as separately
published outlines directed to particular audiences, are particularly helpful in ensuring that a
wide spectrum of stakeholders can understand and meaningfully engage with the rule.
Consumer Financial Protection Bureau—Mortgage Disclosure Regulations.
Consider, for example, the Consumer Financial Protection Bureau (CFPB)’s issuance of
mortgage disclosure regulations. Congress directed the Bureau to “propose for public comment
rules and model disclosures that combine the disclosures required under the Truth and Lending
Act and [the Real Estate Settlement Procedures Act of 1974] into a single integrated disclosure

62

Telephone Interview with Agency #7 (May 31, 2017).
Telephone Interview with Agency #6 (May 4, 2017).
64
Telephone Interview with Agency #3 (Apr. 18, 2017).
63

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for mortgage loan transactions . . . .”65 In its Summary of the Proposed Rule, the Bureau
explained the purpose of the rule in clear terms:
For more than 30 years, Federal law has required lenders to provide two different
disclosure forms to consumers applying for a mortgage. . . . The information on
these forms is overlapping and the language is inconsistent. Not surprisingly,
consumers find the forms confusing. It is also not surprising that lenders and
settlement agents find the forms burdensome to provide and explain. The DoddFrank Wall Street Reform and Consumer Protection Act (Dodd Frank Act) directs
the Bureau to combine the forms. To accomplish this, the Bureau has engaged in
extensive consumer and industry research and outreach for more than a year. Based
on this input, the Bureau is now proposing a rule with new, combined forms.66
This summary provided a plain language explanation of the legal authority and policy reason for
the rule. But the full proposal was over one-thousand, double-spaced pages in length. This level
of detail is not at all unusual for notices of proposed rulemaking, and can help to ensure that the
agencies’ factual assumptions and policy judgments are clearly articulated and tested during the
comment period. But documents of such length are difficult for many stakeholders to read and
comprehend in full.
Still, there is evidence that the “extensive consumer and industry outreach” the Bureau
conducted beforehand made this complex proposal more accessible. Prior to issuing its Notice
of Proposed Rulemaking, the CFPB provided a 42-page “Outline of Proposals Under
Consideration and Alternatives Considered,” which informed the discussion at a Small Business
Review Panel.67 There, the Bureau considered changing the definition of a “finance charge”
from the current “some fees in, some fees out” approach to cover almost all charges.68 The
Small Business Review Panel accorded with other commenters in arguing that the Bureau had
not yet adequately considered how this definitional change would impose other state and federal
regulatory requirements on certain loans. Some small-business commenters claimed they would
be discouraged from making such loans because of the “stigma they carry.”69 In response to
these and other comments, the CFPB decided to abandon the proposed definitional change.70
In the comment period overall, the Bureau received over 2,800 comments, ranging from
large trade associations to individual commenters, which influenced the final rule.71 By
complementing its detailed Federal Register notice with an elaborate stakeholder engagement
65

12 U.S.C. § 5532(f)(2012).
Integrated Mortgage Disclosures under the Real Estate Settlement Procedures Act (Regulation X) and the Truth In
Lending Act (Regulation Z), 77 Fed. Reg. 51,115, 51,116.
67
CONSUMER FINANCIAL PROTECTION BUREAU, SBREFA, Small Providers, and Mortgage Disclosure (Feb. 21,
2012) available at https://www.consumerfinance.gov/about-us/blog/sbrefa-small-providers-and-mortgagedisclosure/ (last accessed Aug. 17, 2017).
68
78 Fed. Reg. 79,774–79,776 (Dec. 31, 2013).
69
FINAL REPORT OF THE SMALL BUSINESS REVIEW PANEL ON THE CFPB’S PROPOSALS UNDER CONSIDERATION FOR
INTEGRATION OF TILA AND RESPA MORTGAGE DISCLOSURE REQUIREMENTS 25 (April 23, 2012), available to
access from https://www.consumerfinance.gov/about-us/blog/sbrefa-small-providers-and-mortgage-disclosure/.
70
78 Fed, Reg. 79,778.
71
78 Fed. Reg. 79,745–79,746 (Dec. 31, 2013).
66

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December 8, 2017

process that broke down its requirements into plain language documents, the CFPB enabled finegrained public consideration of the terms of the rule.
Department of Education—Grantmaking Applications and Policy.
Using plain language explanations to actively solicit public input early on in
policymaking can also be helpful in activities that differ from typical administrative regulations,
such as grantmaking. For example, the Department of Education provides a “non-technical
summary of the Department’s discretionary grants process and the statutes and regulations that
govern it.”72 In this context, private parties are not usually participating in the policymaking
process, but rather applying for grants relating to early childhood, elementary, secondary, and
post-secondary education. This grantmaking process often involves stakeholders, such as
parents, with acute interest in and practical knowledge of the educational process, who
nonetheless may struggle with technical legal or policy language.
While the grantmaking guide is primarily geared to assist potential applicants in applying
for grants, it includes a discussion of policymaking participation:
Is there anything I can do to help shape regulations and funding priorities?
Yes. The public has the opportunity to comment on proposed regulations and
funding priorities. Usually, before the Department publishes final regulations and
final funding priorities, it issues a Notice of Proposed Rulemaking (NPRM) or a
notice of proposed priorities, requirements, definitions, or selection criteria
(NPP).73
Department of Education grantmaking rules typically include plain language features that aim to
increase the quality of public participation. First, such rules may include a list of targeted
questions on which the Department is seeking input. This helps to direct potential commenters’
attention towards salient and unsettled questions of policy. Second, such rules may include
questions regarding the plain language quality of the proposed regulation. Feedback in response
to these questions helps to ensure that the final regulations are written in clear terms.
For example, in November 2015, the Department issued a notice of proposed rulemaking
that would require grantees to openly license material created with grants from the department. 74
The proposal includes a bulleted list of “specific issues for public comment,” such as, “What
experience do you have implementing requirements of open licensing policy with other federal
agencies? Please share your experiences with these different approaches, including lessons
learned and recommendations that might be related to this document.”75 This plain language
question—addressing potential commenters directly, as “you,” rather than in the passive voice—
asked for first person experience with the program that non-specialist commenters might be
U.S. DEP’T OF EDUC., Grantmaking at ED: Answers to Your Questions About the Discretionary Grants Process iii
(2015), available at https://www2.ed.gov/fund/grant/about/grantmaking/grantmaking.pdf (accessed Aug. 9, 2017).
73
Id. at 11.
74
U.S. Dep’t of Educ., Opening Licensing Requirement for Direct Grant Programs, 80 Fed. Reg. 67,672 (Nov. 3,
2015).
75
Id. at 67,673.
72

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particularly well-suited to offer. The Department received several comments concerning
experience with other open licensing programs, and altered the final rule to address the issue of
grants that are jointly funded by the Department and another Federal agency.76
The NPRM also invited comments on the plain language quality of the proposal itself:
Executive Order 12,866 and the Presidential memorandum “Plain Language in
Government Writing” require each agency to write regulations that are easy to
understand.
The Secretary invites comments on how to make these proposed regulations easier
to understand, including answers to questions such as the following:
•
•
•
•
•
•

Are the requirements in the proposed regulations clearly stated?
Do the proposed regulations contain technical terms or other wording that
interferes with its clarity?
Does the format of the proposed regulations (grouping and order of sections,
use of headings, paragraphing, etc.) aid or reduce their clarity?
Would the proposed regulations be easier to understand if we divided them
into more (but shorter) sections? . . .
Could the description of the proposed programs in the supplementary
information section of this preamble be more helpful in making the
proposed regulations easier to understand? If so, how?
What else could we do to make the proposed regulations easier to
understand?77

This request yielded a comment on the nature of the legal rights implicated by the rule. The
Department acknowledged that “the explanation in the preamble of the NPRM could have been
clearer,” and amended the proposal to clarify its application to copyright and open licensing
law.78 The Department’s particularly strong efforts to implement plain language in regulatory
drafting has thus resulted in concrete changes in the notice-and-comment process and in
regulatory text.
Federal Aviation Administration and Federal Highway Administration— General Rulemaking
Procedures.
Agencies can also promote public participation in policymaking by describing their
rulemaking process in plain language, and requiring that regulatory documents be written in
plain language. The Federal Highway Administration’s Rulemaking Manual provides that both
notices of proposed rulemaking and final rules be written in plain language.79
U.S. Dep’t of Educ., Open Licensing Requirements for Direct Grant Programs, 82 Fed. Reg. 7,376, 7,390 (Mar.
20, 2017).
77
80 Fed. Reg. 67,672, 67,676 (Nov. 3, 2015).
78
U.S. Dep’t of Educ., Open Licensing Requirement for Competitive Grant Programs, 82 Fed. Reg. 7,376, 7,380
(Mar. 30, 2017).
79
See, e.g., FED. HIGHWAY ADMIN., Rulemaking Manual 25, 57 (July 2001), available at
https://www.transportation.gov/sites/dot.gov/files/docs/FHWARulemaking%20Manual.pdf (“The NPRM must be
drafted in plain language”; “The final rule must be drafted in plain language”).
76

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The Federal Aviation Administration (FAA) responded to President Clinton’s 1998
memorandum on plain language by proposing to “revise and clarify its rulemaking procedures by
putting them into plain language and by removing redundant and outdated materials.”80 The
final rule adopted plain language best practices:
We shortened sections, paragraphs, and sentences, and where possible used simple
words to speed up reading and improve understanding. We put our section
headings in the form of questions to help direct the readers to specific material they
are interested in. We used personal pronouns to reduce passive voice and draw
readers into the writing.81
For example, the agency’s general rulemaking provisions previously included a section on
“Participation of interested persons in rulemaking procedures.”82 The revised section is called,
“How may I participate in FAA’s rulemaking process?”83 Such minor changes in phrasing can
encourage public involvement by indicating that participation is more than an abstract
possibility, but rather something that the reader herself may do.
b. The Rule of Law (Judicial Review)
In addition to promoting public participation, plain language can also serve the
foundational public interest in the rule of law. This section will focus primarily on the rule of
law as enforced by judicial review, though the norm can take many other institutional forms.
The APA requires that most rules go through notice and comment procedures, and requires a
reviewing court to set aside agency action that is “arbitrary” or “capricious.”84 The courts have
interpreted these requirements to mandate that agencies offer a reasoned explanation of their
decision that responds to all relevant comments.85 Administrative explanations must be
accessible to generalist judges who may lack in-depth familiarity with the subject matter in
question.86
By facilitating public participation, a plain statement of purposes is likely to increase
agency success on review. One official found that “we can defend regulations better when we’ve
Dep’t of Transp., Fed. Aviation Admin., General Rulemaking Procedures, Proposed Rule, 64 Fed. Reg. 69,856
(Dec. 14, 1999).
81
Dep’t of Transp., Fed. Aviation Admin., General Rulemaking Procedures, Final Rule, 65 Fed. Reg. 50,850
(August 21, 2000).
82
14 C.F.R. 11.31 (1999).
83
14 C.F.R. 11.39 (2017).
84
5 U.S.C. §§553, 706.
85
Citizens to Preserve Overton Park v. Volpe, 401 U.S. 401, 416 (1971) (“[T]he court must consider whether the
decision was based on a consideration of the relevant factors and whether there has been a clear error of
judgment.”); United States v. Nova Scotia Food Products Corp., 568 F.2d 240, 252 (2nd Cir. 1977) (“It is not in
keeping with the rational process to leave vital questions, raised by comments which are of cogent materiality,
completely unanswered. The agencies have a good deal of discretion in expressing the basis of a rule, but the
agencies do not have quite the prerogative of obscurantism reserved to legislatures.”).
86
Telephone Interview with Agency #3 (Apr. 18, 2017). Richard B. Stewart, Regulation, Innovation, and
Administrative Law: A Conceptual Framework, 69 CAL. L. REV. 1256, 1341 (1981) (“The use of formal procedures
in the existing system of review as a quality control mechanism is arguably attributable to its reliance upon
generalist judges who are ill-equipped to deal with technical issues . . . .”).
80

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developed the record and made the regulation clear and understandable to the public.”87 Another
recognized that “if regulations just aren’t understandable, or they can be misconstrued, you are a
lot more vulnerable legally.”88 Many if not most, rules and guidance documents face low
litigation risk, and are likely not written to serve a judicial audience. But for particularly
complex, contentious, or economically significant issues, rulewriters may well be much more
attentive to the possibility of judicial review.
The Article III Audience.
Reviewing courts generally recognize the complexity of regulatory problems, and forgive
certain lapses in linguistic clarity. A court will “uphold a decision of less than ideal clarity if the
agency’s path may reasonably be discerned.”89 But an agency’s failure to explain its action in
understandable terms can trigger judicial skepticism: “the agency must . . . articulate a
satisfactory explanation for its action.”90 It must “cogently explain why it has exercised its
discretion in a given manner.”91 A court must be able to “discern in [an agency’s] action the
policy it is now pursuing.”92 If it cannot tell “what those policies are,” the agency’s findings of
fact or interpretations of law are unlikely to be sustained.93
Regulatory drafting that plainly communicates the agency’s intentions and reasoning is
therefore an important component of success on review. Article III judges are “generalists” who
usually lack agencies’ subject-matter “expertise” and facility with the technical discourse
peculiar to their field.94 Judges are usually not “engineers, computer modelers, economists, or
statisticians,” though the records they review often “require this expertise—and more.”95
Agencies must therefore “organize[] and digest” the evidence and arguments they rely on so that
courts can identify these without having to “scour the four corners of the record.”96
On judicial review, where the audience is the reviewing court, the most important plain
language documents are the regulatory preamble and the regulatory text itself. One official
believed that “it is quite difficult to have plain language in the regulation itself. . . . One of the
problems is that regulation isn’t prose. It’s not in regular English. Part of plain language is
using simple grammatical structures. In a regulation you have clauses, connect one paragraph to
others, etc. So it . . . operates according to its own rules. I don’t think of regulation as being
plain language at all.”97
This is undoubtedly true if the agency thinks about plainness in terms of language that an
ordinary member of the public can understand. In many fields, ordinary people will have great
87

Telephone Interview with Agency #3 (Apr. 18, 2017).
Telephone Interview with Agency #6 (May 4, 2017).
89
Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 286 (1974).
90
Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
91
Id. at 48.
92
Atchison v. Wichita Bd. of Trade, 412 U.S. 800, 805–6 (1973).
93
Id.
94
Northwestern Pipeline Corp. v. Federal Energy Regulatory Comm., 863 F.2d 73, 78 (D.C. Cir. 1988).
95
Sierra Club v. Costle, 657 U.S. F.2d. 298, 410 (D.C. Cir. 1981).
96
Ethyl Corp v. EPA, 541 F.2d 1, 67 (D.C. Cir. 1976) (Bazelon, C.J. and McGowan, J., concurring).
97
Telephone Interview with Agency #1 (Apr. 10, 2017).
88

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difficulty reading the Code of Federal Regulations and quickly determining their obligations
without professional legal advice. But “plainness” in the context of judicial review should not
primarily mean simplification for the average citizen-reader and avoidance of legal terms of art.
For example, plain language guides often suggest using “you” instead of using specific terms
like “applicant” or “employer.”98 But this approach can be confusing where a regulation has
multiple addressees and audiences. Given these sorts of problems, “precision” in the regulatory
text is usually of greater importance than the general accessibility of the language.99
Nevertheless, legal precision and technical precision are not the same thing. Agencies must
explain the complex subject-matter they deal with in a way that a judge familiar with general
principles of administrative law, rather than a scientific field, will be able to understand and
evaluate.
Plain Language Practices in Assembling the Rulemaking Docket.
Plain language in the context of judicial review can also be facilitated by effectively
discriminating between materials that must be included in the rule itself, and those that can be
dealt with in accompanying documents. An agency’s rulemaking record often includes
numerous ancillary materials such as reports on technological feasibility, the economics of the
industry in question, memos from staff scientists, and public comments and responses to those
comments. Including all of this material in the final rule may overwhelm the court and impede
understanding of the agencies’ reasoning and evidentiary support. Thus, some of this material is
best relegated to supporting documents. When it comes to public comments, for example,
we have to respond to all significant comments. As a practical matter, we pretty
much respond to everything. Then the question is: do we put the comments and
our responses in the rule, or in a supporting document? One approach is to include
in the preamble only those comments and agency responses that are directly
relevant to how the agency got from the proposal to the final rule. Responses to
the rest of the public comments would be included in a separate document in the
record. Sometimes on our bigger rules, there is quite a large volume of comments.
One typical model in that situation is to put the major comments and our high-level
responses in the preamble, and then include separate documents in the record for
the rest of our more detailed responses to comments.100
This kind of discernment will make the reasoning supporting the final rule more plain, because
the truly salient issues will have been separated from those that were of less significance.
Judicial and Agency Self-enforcement of Specific Plain Language Obligations.
Though final rules are geared towards a relatively sophisticated legal audience, agencies
must take care to observe any more specific plain language obligations that may be enforced
against them when courts review their actions. For example, Environmental Impact Statements
98

Federal Plain Language Guidelines, supra note 4, at 30. The Plain Language Guidelines attempts to address this
problem by recommending that agencies define “you” in each context. Id. But this may increase rather than
decrease confusion, if the reader must find the relevant definition of “you” for each provision.
99
Telephone Interview with Agency #4 (May 2, 2017).
100
Telephone Interview with Agency #3 (Apr. 18, 2017).

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under the National Environmental Policy Act (NEPA) are required by regulation to be “written
in plain language . . . so that decisionmakers and the public can readily understand them.”101 In
one instance, the Ninth Circuit enforced this obligation against the Bureau of Land Management,
where the Bureau had relied on “generalized conclusory statements” from “agency specialists” to
conclude that the cumulative environmental effects of timber cutting would not be significant. In
holding that the BLM’s Environmental Assessment (EA) was insufficient, the court observed:
“Even accepting BLM’s representation that ‘specialists’ can understand the information in these
EAs, the documents are unacceptable if they are indecipherable to the public.”102
Multiple other regulations impose plain language obligations, either pursuant to NEPA,103
or for other purposes.104 Agencies are generally obliged to conform to their own regulations.105
Of course, many such regulations are unlikely to arise in judicial challenges to agency action.
But such regulations can nonetheless further more general rule of law obligations by making the
rules easier for agency personnel and external stakeholders to understand and to follow. This
“internal administrative law that guides the conduct of administrators” is an important
complement to the more sporadic legal control available through the judicial forum.106
Plain Language and Regulatory Ambiguity.
Plain regulatory drafting may also be relevant to judicial review of agencies’
interpretations of their own regulations. These interpretations are “controlling unless plainly
erroneous or inconsistent with the regulation.”107 An interpretation is plainly erroneous if an
“alternative reading is compelled by the regulation's plain language.”108 “Plain language,” in this
101

40 C.F.R. 1502.8 (2016).
Klamath-Siskiyou Wildlands Ctr. v. BLM, 387 F.3d 989, 996 (9th Cir. 2004).
103
E.g., 10 C.F.R. 51.70 (2017) (National Regulatory Commission provides that a “draft environmental impact
statement will be concise, clear and analytic, will be written in plain language with appropriate graphics, will state
how alternatives considered in it and decisions based on it will or will not achieve the requirements of . . . NEPA”);
7 C.F.R. 520.3 (2017) (Department of Agriculture requires that “environmental documents” issued by the
Agricultural Resource Service be “written in plain language” to “comply with the provisions of NEPA”). 40 C.F.R.
§ 6.203(3) (Environmental Protection Agency provides that “NEPA documents will use plain language to the extent
possible”).
104
E.g., 45 C.F.R. §155(c) (2016) (HHS requires that “information on [health care Exchanges under the Affordable
Care Act] must be provided to applicants and enrollees in plain language . . . .); 42 C.F.R. §435.907 (2016) (HHS
provides that Medicaid eligibility requirements, available Medicaid services, and rights and responsibilities of
Medicaid applicants and beneficiaries “must be provided [by State Medicaid agencies] in plain language . . .” ); 36
CFR § 1250.28 (2016) (the National Archives and Records Administration obliges itself to “use plain language in all
written communications” with Freedom of Information Act requesters); 7 C.F.R. §400.701 (2017) (Department of
Agriculture requires that its Risk Management Agency determine that an insurance policies and plans be “written in
plain language in accordance with the Plain Writing Act” before submitting them to the Board of the Federal Crop
Insurance Corporation for review).
105
United States ex rel Accardi v. Shaughessy 347 U.S. 260, 267–68 (1954)
106
JERRY L. MASHAW, BUREAUCRATIC JUSTICE: MANAGING SOCIAL SECURITY DISABILITY CLAIMS 15 (1983).
107
Auer v. Robbins, 519 U.S. 452, 461 (1997) (internal quotations omitted). The late Justice Scalia and scholars
such as John Manning have criticized the incentives created by Auer, and argued that it conflicts with the separation
of powers. See John Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency
Rules, 96, COLUM. L. REV. 612 (1996). For a defense of Auer deference, see Cass R. Sunstein & Adrian Vermeule,
The Unbearable Rightness of Auer, 84 U. CHI. L. REV. 297 (2017).
108
Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994).
102

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sense, is not totally synonymous with the use of “plain language” or “plain writing” for the
purposes of this report. A “regulation’s plain language” refers to the ordinary English usage, or
the “literal sense,” of the words used.109 This literal meaning may in some cases be presented in
such an intricate or convoluted manner that it does not qualify as “plain writing” in the sense of
the PWA. Nevertheless, when a regulatory provision is drafted using plain writing in the sense
of the PWA, its literal meaning should be more obvious. The scope of discretion the agency has
carved out for itself will be more exactly defined. This will decrease the risk that agency
officials will interpret the regulation in a way that departs from the regulation’s text or purpose,
or from a reviewing court’s reading of the same. Whether the agency wants to craft detailed
regulatory requirements that leave little room for discretion, or rather broad standards that can be
interpreted in multiple ways, plain regulatory drafting will support the agency’s effort to achieve
the level of regulatory precision that it wants.
Using plain language therefore does not necessarily mean avoiding all ambiguous terms.
A rule may use accessible plain language terms that have some general, common sense meaning,
but such non-technical terms may impede the precise statement of regulatory requirements.110
For example, Department of Labor regulations state that an “an employee whose primary duty is
selling financial products does not qualify for the administrative exemption” from the Fair Labor
Standards Act’s minimum wage and maximum hour requirements.111 The Supreme Court has
described this language as “ambiguous,” and the agency has interpreted it in contradictory ways
over a short span of time.112 But the provision is written in relatively clear and understandable
language: it is a short sentence using words that are simple words to anyone passingly familiar
with the financial services industry. Indeed, giving terms like “primary duty” and “financial
products” more precise definitions might make the regulatory text more confusing, either by
lengthening the relevant clauses, or requiring a reader to consult cross-referenced sections to
comprehend its meaning.
The avoidance of ambiguity usually qualifies as a plain language practice in relation to
relatively sophisticated legal and technical audiences. One agency official stated the primary
reason a regulation should be written in plain language is that “you don’t want it to be
ambiguous.”113 Where there is a “highly technical issue” and the rule is ambiguous, agencies
may have to deal “dueling experts” who offer different interpretations of the rule.114 In the
absence of more precise interpretive guidance, regulatory ambiguity may lead to variation and

109

Ohio Dep't of Medicaid v. Price, 2017 U.S. App. LEXIS 13274, *48 (6th Cir 2017).
See generally Colin S. Diver, The Optimal Precision of Administrative Rules, 83 YALE L. J. 65 (1983).
111
29 C.F.R. 541.203(b) (2017). The provision reads in full: “Employees in the financial services industry generally
meet the duties requirements for the administrative exemption if their duties include work such as collecting and
analyzing information regarding the customer's income, assets, investments or debts; determining which financial
products best meet the customer's needs and financial circumstances; advising the customer regarding the
advantages and disadvantages of different financial products; and marketing, servicing or promoting the employer's
financial products. However, an employee whose primary duty is selling financial products does not qualify for the
administrative exemption.” Id.
112
Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1208, 1205 (2015).
113
Telephone Interview with Agency #1 (Apr. 10, 2017).
114
Telephone Interview with Agency #2 (Apr. 17, 2017).
110

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conflict in the application of regulations by agency examiners and adjudicators, courts, and
private parties, undermining the rule of law interest in equal and consistent treatment.
Some agencies might nonetheless write some regulatory provisions in an ambiguous way
to increase their discretion in the future.115 Such regulatory ambiguity can further legitimate
interests, allowing the agency to change course relatively quickly when the facts or balance of
relevant policy considerations changes.116 But strong countervailing interests favor precision: a
detailed technical requirement will often decrease enforcement costs by providing enforcement
officers and adjudicators with exact measures of compliance, and by reducing the opportunity for
litigation challenging the application of a vague term to facts of a particular case.117
There is no generic answer to whether the rule of law interest in plain language will be
served by a greater or lesser degree of ambiguity in regulatory text. The rule of law requires
both that requirements be readily understandable and that they be precise enough to guarantee
equal treatment and minimize the risk of arbitrariness. These requirements often cut in different
directions, and are especially difficult to balance in the complex, technical fields that agencies
regulate. The incentive structure in which agencies operate is equally conflicted. Agencies have
reason to write regulatory text in an ambiguous manner, since their interpretations of an
ambiguous rule will ordinarily receive great deference from reviewing courts.118 But if an
agency wants its current regulations to bind the future conduct of its officials, it will avoid
relying on open-ended standards that admit of varying interpretations. As officials weigh the
desirable level of regulatory precision, plain language analysis can reinforce the rule of law by
ensuring that drafting officials keep their audiences’ comprehension at the forefront of their
deliberations.
c. Effectiveness (Compliance)
The public interest in “effectiveness” could carry multiple meanings. Here we will focus
on the level of compliance with the regulation, rather than whether the regulatory scheme is
“effective” in the sense of being wise as a matter of policy or being the most efficacious scheme
out of multiple alternatives for executing particular policy goals.
Plain requirements are essential to promote efficient compliance. Several agencies
understood this to be the primary purpose of plain language in general: “the purpose is to
Decker v. Northwest Envtl. Def. Ctr., 185 L. Ed. 2d 447, 466, 568 U.S. 597, 620 (2013) (Scalia, J., (“[W]hen an
agency interprets its own rules . . . the power to prescribe is augmented by the power to interpret; and the incentive
is to speak vaguely and broadly, so as to retain a “flexibility” that will enable “clarification” with retroactive
effect.”). See also Robert A. Anthony, The Supreme Court and the APA: Sometimes They Just Don’t Get It, 10
ADMIN. L. J. 1, 11–12 (1996).
116
Peter L. Strauss, Publication Rules in the Rulemaking Spectrum: Assuring a Proper Respect for an Essential
Element, 53 ADMIN. L. REV. 803, 803 (2001) (“Particularly in a society that has come to believe standards are a
better instrument of regulation than detailed command-and-control rules, even an ideal level of rulemaking will
generate an enormous range of issues on which interpretation and policy analysis will be required.”).
117
Diver, supra note 111, at 72.
118
Richard J. Pierce, Jr., Seven Ways to Deossify Agency Rulemaking, 47 ADMIN. L. REV. 59, 85 (1995) (“As long as
the agency has used broad, ambiguous language in its legislative rules, it need have little fear of judicial rejection of
its policy statements or interpretive rules. It can issue or amend its real rules, i.e., its interpretive rules and policy
statements, quickly and inexpensively without following any statutorily described procedures.”)
115

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enhance compliance. You tell someone . . . to use the right form, etc.”119 Particularly for
agencies that process vast numbers of submissions from the public, it is particularly important to
reduce the likelihood that the public will misunderstand the requirements imposed by the agency.
“Most people are trying to do the right thing. . . . It’s less time and effort for our organization to
deal with people who are doing it right.”120 Agencies whose regulations can be understood at
low cost will spend “less money on training, [and] less money on enforcement.”121
Securities and Exchange Commission—Plain Language for Crowdfunders.
These concerns are especially salient with regards to regulations that affect individuals
and small businesses. Many agencies deal with stakeholders of various sizes and sophistication,
from large and well-resourced firms to “mom and pop” establishments. In these cases, the plain
language interest in effectiveness can be advanced by tailoring specific documents for different
audiences. For example, in 2016 the Securities and Exchange Commission (SEC) finalized a
regulation which implemented an exemption from the registration requirements of the Securities
Act for crowdfunding transactions.122 Commissioners and Commission staff understood that the
primary audience for this regulation would be small business and personal investors rather than
the sophisticated, repeat players. As published in the Commission’s Release, the Introduction
provides a strong plain language summary of the basis and purpose of the regulation:
Crowdfunding is a relatively new and evolving method of using the Internet to raise
capital to support a wide range of ideas and ventures. An entity or individual raising
funds through crowdfunding typically seeks small individual contributions from a
large number of people. Individuals interested in the crowdfunding campaign –
members of the ‘crowd’ – may share information about the project, cause, idea, or
business with each other and the use information to decide whether to fund the
campaign based on the collective “wisdom of the crowd.” The Jumpstart Our
Business Startup Act . . . establishes a regulatory structure for startups and small
businesses to raise capital through securities offerings using the Internet through
crowdfunding.123
After establishing the statutory framework, and describing notice-and-comment
proceedings in which the Commission received over 485 comments, the Commission offers a
one-page summary of the rules governing the exemption, including the maximum amount that
can be raised through crowdfunding, limits on crowdfunding investments by individuals,
disclosure provisions, and registration requirements for crowdfunding intermediaries and
platforms.124 The rule also includes various illustrative charts, showing, for example, the
investment limits for borrowers with varying net worth and annual income.125 But, as is the case
with many regulations, the regulatory text itself is scattered across eight different parts of title 17
119

Telephone Interview with Agency #5 (May 3, 2017).
Id.
121
Telephone Interview with Agency #2 (Apr. 17, 2017).
122
80 Fed. Reg. 71,388 (November 16, 2016).
123
Id.
124
Id. at 71,379–80.
125
Id. at 71,394.
120

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of the Code of Federal Regulations. To help security issuers relying on the crowdfunding
exemption to comply with the rule’s requirements, the Commission provided an optional plain
language “Question and Answer Format” that walks issuers through the information they need to
provide in their offering statements.126 The Commission stated in the preamble to its Final Rule
that: “A number of commenters noted that an optional format such as this would be less
burdensome for small issuers while still providing the Commission and investors with the
required information. We believe that this option may help to facilitate compliance and ease
burdens . . . by providing a mechanism by which issuers can easily confirm that they have
provided all the required information.”127
Internal Revenue Service—Publications and the Challenge of “Simplexity”.
Another example of the plain language interest in effectiveness comes from the Internal
Revenue Service (IRS). IRS Regulations that interpret the tax code are often highly technical
and directed toward specialist tax attorneys. In the field of revenue collection, in particular,
precise rules that reduce opportunities for unintended tax avoidance are crucial. But these
complex explanations are often difficult for non-specialist taxpayers to understand. The Internal
Revenue Service therefore issues “Publications” for audiences of varying sophistication. As the
IRS explained in its Plain Writing Act Compliance report:
Plain language for the general public is different from plain language for tax/legal
professionals . . . . The target audience for the IRS Publications, Your Rights as a
Tax Payer, is the general public because the content focuses on individual tax
payers. Conversely, the target audience for the IRS publications, Understanding
Employee Plans Examination Process, is tax/legal professionals because the
content provides guidance to employee plan administrators. The IRS tailors the
language in every type of communication to the subject expertise of the primary
target audience.128
As with all plain language drafting, the balance between understandable terms and
accuracy must always be observed. Particularly in areas like taxation, where the underlying law
and regulations are complex and difficult for non-experts to grasp, plain language translations
may obscure ambiguities or leave out exceptions that may benefit or disadvantage regulatory
stakeholders. Professors Joshua D. Blank and Leigh Osofsky refer to this problem as
“simplexity,” which “occurs when the government presents clear and simple explanations of the
law without highlighting its underlying complexity or reducing this complexity through formal
legal changes.”129 The plain language interest in effectiveness will only be advanced to the
extent that such simplifications increase overall compliance with the law itself.

126

SECURITIES AND EXCHANGE COMMISSION, Form C Under the Securities Act of 1933, available at
https://www.sec.gov/files/formc.pdf.
127
80 Fed. Reg. 71, 423 (Nov. 16, 2015).
128
INTERNAL REVENUE SERVICE, Plain Writing Act Compliance Report, Publication 5206 (June 2016), available at
https://www.irs.gov/pub/irs-pdf/p5206.pdf [hereinafter IRS PWA Compliance Report].
129
Joshua D. Blank and Leigh Osofsky, Simplexity: Plain Language and the Tax Law, 66 EMORY L. J. 189, 193
(2017).

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d. The Protection of Rights
Though the protection of rights is not included amongst the public interests recognized by
the PWA and executive guidance, some agencies stressed its relation to plain language norms.
Particularly where agencies’ enforcement powers are buttressed by provisions for private
enforcement, regulations and guidance that clarify private rights will make their exercise less
costly. One official thus stated that a primary function of plain language was to “empower our
charging parties, affected people, so that they understand what their rights are.”130 By drafting
regulations and accompanying documents in terms that regulatory beneficiaries can understand,
agencies enable these stakeholders to better understand, and defend, the full extent of their
statutory rights.
Consumer Financial Protection Bureau—Consumer Facing Documents.
CFPB has “adopted plain language as a core principle for all consumer facing content.”131
The Bureau generally “considers whether . . . technical or specialized documents will impact
consumers’ behavior or understanding of their rights under the federal consumer financial laws.
When they will impact behavior or understanding, the Bureau generally publishes plain language
summaries of the documents and makes them widely available (typically on the agency’s
website).”132
For example, the “Your Home Loan Toolkit” supplements the requirements of the Know
Before You Owe Mortgage Disclosure Rule, discussed above, with a plain language discussion
of the loan estimate and closing disclosure forms covered by the Rule.133 This guidance helps to
ensure that consumers will comprehend and act in light of their financial rights and obligations.
Just as plain language can empower beneficiaries, plain language can protect the rights of
regulated parties by ensuring that they are adequately and unambiguously notified of their legal
obligations. Judges have therefore insisted that “regulations must give the person of ordinary
intelligence a reasonable opportunity to know what is prohibited.”134 Although courts will rarely
determine that regulations are so confusing or ambiguous as to be void for vagueness, the due
process interest in informing private parties of regulatory requirements will nevertheless be
advanced by making regulatory terms as clear as possible. Where criminal or civil penalties are
at issue, courts may be unwilling to rely on “what the agency intended but did not adequately
express.”135 Plain language thus protects the rights both of regulated parties and the beneficiaries
of regulatory schemes.

130

Telephone Interview with Agency #1 (Apr. 10, 2017).
CONSUMER FINANCIAL PROTECTION BUREAU, Plain Writing Act Compliance Report (July 2017), available at
http://files.consumerfinance.gov/f/201503_cfpb_your-home-loan-toolkit-web.pdf (accessed Aug. 9, 2017).
132
Id. at 6.
133
CONSUMER FINANCIAL PROTECTION BUREAU, Your home loan toolkit: A step-by-step guide (August 2015 ed.),
available at http://files.consumerfinance.gov/f/201503_cfpb_your-home-loan-toolkit-web.pdf (accessed Aug. 9,
2017).
134
Lloyd C. Lockrem v. United States, 609 F.2d 940, 943 (9th Cir. 1979).
135
Diamond Roofing Co., Inc. v. Occupational Safety and Health Review Commission, 528 F.2d 645, 649 (5th Cir.
1976).
131

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Equal Employment Opportunity Commission—The Regulatory Continuum and the Wellness
Rule.
One agency official developed the idea of a regulatory “continuum” ranging from
“complicated” documents like the rule itself to simpler documents that digest the material for
non-specialist audiences.136 This approach allows the agency to tailor regulatory language for
persons of varying expertise, and balance regulatory precision with public comprehension. Take
for example the Equal Employment Opportunity Commission (EEOC)’s rule on employers’
“wellness programs.”137 The rule dealt with complex legal and policy issues related to employee
health programs, which are governed by the Health Insurance Portability and Accountability Act
of 1996, as amended by the Affordable Care Act, the Americans with Disabilities Act, and the
Genetic Information Nondiscrimination Act.138 In particular, the rule sought to ensure that
employee health programs involving disability-related inquiries or medical examinations do not
discriminate against persons with disabilities.139 Toward that end, the rule requires that covered
employee health programs “be reasonably designed to promote health or prevent disease,” be
“voluntary,” and observe limitations on financial incentives to participate.140 Each of these
requirements has detailed specifications. Because the rule was tailored to achieve legal clarity
and inter-agency agreement in a challenging but important policy setting, its requirements might
be somewhat difficult for an employee or small business to understand.
As is its usual practice in issuing new rules or enforcement guidance, the Commission
issued accompanying documents for less technically sophisticated audiences. A “Small Business
Fact Sheet” provides succinct discussion of the reason for the rule and its provisions.141 For
example, in explaining the meaning of “Voluntary,” the Fact Sheet says:
An employee’s participation in a wellness program that includes disability-related
inquiries or medical examination must be voluntary. In order for participation to
be considered voluntary, an employer:
•
•
•
•

May not require participation;
May not deny access to health insurance or benefits to an employee who
does not participate;
May not retaliate against, interfere with, coerce, intimate, or threaten any
employee who does not participate, or fails to achieve certain health
outcomes;
Must provide a notice that explains the medical information that will be
obtained, how it will be used, who will receive it, and the restrictions on
disclosure; and

136

Telephone Interview with Agency #1 (Apr. 10, 2017).
81 Fed. Reg. 31,126 (May 17, 2016) (remanded for reconsideration without vacatur in AARP v. United States
EEOC, 2017 U.S. Dist. LEXIS 133650 (D.D.C. Aug. 22, 2017)).
138
A separate rule deals with the Genetic Information Non-Discrimination Act specifically.
139
81 Fed. Reg. 31,126 (May 17, 2016).
140
81 Fed. Reg. 31,139.
141
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Small Business Fact Sheet: Final Rule on Employer Wellness
Programs and Title I of the Americans with Disabilities Act, available at
https://www.eeoc.gov/laws/regulations/facts-ada-wellness-final-rule.cfm (accessed Aug. 4, 2017).
137

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•

Must comply with the incentive limits described in the rule.142

The succinct Q&A also covers several questions about the purpose and policy of the wellness
rule in greater detail, such as: “What is a wellness program”; “How does this rule relate to the
wellness program rules under HIPAA and the Affordable Care Act”; and “What are some
examples of wellness programs that meet the ‘reasonably designed’ standard?”143
By including such plain language documents in a continuum of regulatory materials,
EEOC clarifies the rights of both employers and employees. Employers’ right to determine the
terms and conditions of employment are conditioned by a number of regulatory laws, from the
Fair Labor Standards Act to the Americans with Disabilities Act. The more easily employers can
understand the scope of their contractual liberties, the better these rights can be vindicated. At
the same time, the restrictions and requirements that statutory law places on the employment
relationship establish rights for employees, such as the right to be free from discrimination on the
basis of race, color, religion, national origin, sex, or disability. But the meaning of these broad
statutory terms is not obvious in every case. It has been elaborated in case law and by
administrative interpretation. By plainly presenting these meanings with regard to particular
subject-matters, such as wellness programs, the Commission gives beneficiaries a clear and
distinct understanding of their rights.
*

*

*

The public interests in the rule of law, effectiveness, the protection of rights, and public
participation in administrative policymaking are all advanced by plain language. But different
kinds of “plainness” are associated with each of these objectives, and each targets different
primary audiences, often through different kinds of documents. The rule of law, especially in the
context of judicial review, can be promoted through plain language in the preambles of final
rules and in the regulatory text. Effectiveness and rights-protection can be promoted through
plain language in accompanying documents, such as guidance geared for particular audiences
and Q&As. Public participation in administrative policymaking can be promoted through
generally accessible language in proposed rules and documents prepared for meetings with
specific stakeholders. By keeping the distinct interests, formats, and audiences of plain language
in mind, agencies can promote core administrative law values.

142

Id.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, EEOC’s Final Rule on Employer Wellness Programs and
Title I of the Americans with Disabilities Act, available at https://www.eeoc.gov/laws/regulations/qanda-adawellness-final-rule.cfm.
143

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The following table summarizes this discussion by aligning the distinct objectives of
plain language with their primary audience and appropriate documentary formats:

Public Interest

Primary audiences

Documents

Public Participation

All external stakeholders,
particularly small businesses
and the general public

Rule of Law

Courts and agency staff

Proposed rule preamble
Proposed rule text
Summaries for specific
audiences
Final rule preamble and text

Effectiveness

Beneficiaries and regulated
entities

Guidance and Q&As

Protection of Rights

Beneficiaries and regulated
entities

Guidance and Q&As

4. Agency Plain Language Practices
a. The Rulewriting Process
How plainly an agency’s regulatory documents are written, and how well they advance
the public’s interests, depend in no small part on an agency’s drafting procedures. To shed light
on how agency staff review regulatory text for plainness, we asked interviewees about the
rulewriting process at their agencies in general, how (if at all) plain writing fits into these
processes, who (if anyone) has primary responsibility for plain language review, and what
internal guidance exists to support plain drafting.
Our interviews revealed a collaborative intra-agency regulatory drafting process
involving various policy divisions as well as Offices of General Counsel (OGC). Drafting
processes are further guided by internal directives and manuals. While the rulewriting process is
perhaps primarily designed to ensure legal sufficiency and strengthen the substantive elements of
proposed rules, the procedures and guidelines involved can also ensure that several teams of

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drafters review regulatory text for clarity in its stated purposes, reasoning, and requirements and
accessibility to an agency’s audiences.144
Coordinating Regulatory Drafting Within the Agency.
In the initial stages of rule-writing, policy divisions within an agency typically have
primary responsibility for preparing a term sheet or other document laying out the contours of a
proposed rule. In some agencies, such as the IRS (which considers their regulations an exercise
in statutory interpretation, rather than novel policy-making), rules are drafted by lawyers in the
first instance.145 Most OGCs, however, will mainly be responsible for ensuring compliance with
the APA and other relevant legal considerations.
Coordination among these offices was often described by interviewees as an iterative
team effort rather than a rigid, regimented workflow. According to one agency, “the whole
process is collaborative from day one.” 146 Once a policy division begins working on a proposed
rule, they “are collaborating with the General Counsel, other [policy] offices, [economists, and
other experts];” each group considers whether the draft is clear and consistent (both internally
within the document and with the agency’s other rules and interpretations), as well as whether
other divisions should be brought in.147 This collaborative approach continues throughout the
rule revision process.
Depending on the agency and the nature of the rule at issue, many divisions or offices
may need to be involved, though this varies widely. Particularly in large agencies, within any
one main division or office there may be a number of policy-specific sub-offices, as well as
offices of engineers or economists that serve a whole division.148 Each office and division
director would review the content (whether a term sheet or, later on, draft rule) prepared by
staff—which would then be further reviewed by regulatory attorneys and their superiors.149
One agency described a fairly distinctive approach to organizing its iterative drafting
efforts. Within the agency, some offices are assigned one or more “unique areas of
responsibility” (UAR) based on their expertise.150 During the drafting process, an office
reviewing a draft rule may mark a comment as being based on its UAR. The office that
originated the draft rule must address such UAR comments in its revisions.151 These UAR
revisions must then be approved by the assistant secretary for the originating office or her

144

As discussed below, coordination among offices can also pose challenges. We discuss these challenges and
potential solutions to them in the sections below.
145
Telephone Interview with Agency #5 (May 3, 2017).
146
Telephone Interview with Agency #7 (May 31, 2017).
147
Id.
148
Telephone Interview with Agency #3 (Apr. 18, 2017).
149
Id.
150
Telephone Interview with Agency #6 (May 4, 2017).
151
Id.

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designee.152 If the originating office has questions about, or disagrees with, the UAR comment,
it may discuss the comment with the office that made it.153 Additionally, the reviewing office
must approve changes responsive to its UAR comments.154 In the event disagreements between
originating and reviewing offices cannot be resolved, a division of the Office of General Counsel
(OGC) will adjudicate the issue.155
“Plain language” is considered within the UAR of this agency’s OGC.156 This gives
plain writing issues prominence in the drafting process. Because plain language is within their
UAR, OGC staff are obliged to consider the clarity of regulatory text during the review process,
and could require reconsideration of regulatory language they deemed insufficiently clear. This
approach clarifies responsibility for plain language issues and ensures they are systematically
addressed and resolved.
Other agencies rely on work groups to coordinate among offices during the drafting
process.157 Under this model, a staff member from the policy office originating the rule would
lead the work group, comprised of other staff in the same office as well as staff from other
concerned policy offices and the OGC.158 Staff from outside the originating policy office may be
brought in at various points in the process, depending on the work group’s needs. For example,
some divisions may be brought in during the mid- to late stages of the process if it then becomes
apparent that their technical expertise is needed; similarly, the OGC may be involved from the
outset or only join the work group once a full draft is in place.159
Finally, either in connection with one of the above workflow models or an alternative
one, agencies may perform plain language review during their internal clearance at the end of the
drafting process.160 For at least one agency, the division of regulatory attorneys responsible for
152

Department of Education: Discretionary Grant Clearance Checklist: Checklist for Originating Offices (on file
with ACUS).
153
Telephone Interview with Agency #6 (May 4, 2017).
154
Department of Education: Discretionary Grant Clearance Checklist: Checklist for Originating Offices (on file
with ACUS).
155
Id.
156
Telephone Interview with Agency #6 (May 4, 2017). Other offices in this agency may also review text touching
on its area(s) of expertise for accuracy and clarity. Accordingly, plain language review falls under the UAR for
multiple offices within the agency. Here, we focus on plainness review as tied to administrative law considerations
that are wholly within the purview of the agency’s OGC.
157
The precise term used by agencies varies. For example, the FHWA Rulemaking Manual outlines the
composition and duties of “rulemaking teams” that support the originating program office in developing the rule.
Team members represent the viewpoint of the head(s) of their respective offices, and are responsible for working
with the originating program office and rest of the rulemaking team to resolve all rulemaking issues critical to their
respective offices. FED. HIGHWAY ADMIN., FHWA RULEMAKING MANUAL 8 (July 2000), available at
https://www.transportation.gov/regulations/fhwa-rulemaking-manual.
158
Telephone Interview with Agency #3 (Apr. 18, 2017).
159
Id.
160
Though reviewing agency clearance procedures as such is beyond the scope of this report, further examination of
these procedures may be found at U.S. GOV’T ACCOUNTABILITY OFF., GAO-15-268, REGULATORY GUIDANCE
PROCESSES: SELECTED DEPARTMENTS COULD STRENGTHEN INTERNAL CONTROL AND DISSEMINATION PRACTICES
(2015), available at https://www.gao.gov/assets/670/669688.pdf.

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reviewing a regulation for legal sufficiency during the final clearance process also reviews the
text for accessibility to relevant audiences.161
Regardless of the system used, the agency officials we spoke with underscored that rulewriters should be mindful of the division of labor and responsibility among various offices—
particularly so they don’t duplicate effort or undermine, even if unintentionally, the main policy
division’s intended meaning. One interviewee at an agency’s OGC described this as a balancing
act. “We can change the language, [but we] generally give [the originating office] the
opportunity. . . . [B]ut if we didn’t understand it correctly, that needs to be fixed.”162
Internal Plain Writing Directives.
Many agencies have internal publications detailing how staff can draft more
straightforward text, though not all are directed primarily at regulatory drafting.163 Still, much of
this internal guidance goes beyond simply outlining editing techniques such as using plain
words, simple sentence structure, etc. Most urged staff to think from the position of the intended
audience so that the final publication is likely to fulfill the reader’s needs.164
By and large, agency plain language guides do not address procedural matters like how
various offices should coordinate the drafting process, nor do rulewriting manuals often assign a
specific office or individual with responsibility for plain language review in regulatory drafting.
Notably, however, the Department of Transportation’s Plain Language Action Plan, issued in
response to Executive Order 12,866, “make[s] plain language a part of the review process for
regulatory and non-regulatory documents.”165 While this directive may seem general in nature,
the Plan as a whole prioritizes plain language as an institutional practice that should be exercised
throughout the Department.166
In addition to overarching guidance on plain drafting and rulewriting generally, some
agencies impose more specific internal requirements to implement plain drafting in the

161

Telephone Interview with Agency #6 (May 4, 2017).
Telephone Interview with Agency #2 (Apr. 17, 2017).
163
Earlier sections of this report discuss agency efforts to use plain language to improve the clarity and accessibility
of their publications from the late 1970s onward. These efforts culminated in executive guidance (specifically, E.O.
12,866), which in turn prompted further internal agency guidance. A particularly robust example is the Department
of Transportation’s Plain Language Action Plan, which set forth a program of conducting trainings, providing
extensive resources and guidance, and other initiatives to implement plain writing of both regulatory and nonregulatory documents. DEP’T OF TRANS., PLAIN LANGUAGE ACTION PLAN,
https://www.transportation.gov/regulations/dot-plain-language-action-plan.
164
E.g., FED. COMM. COMMISSION, PLAIN LANGUAGE WORKBOOK passim (May 2011),
https://transition.fcc.gov/cgb/PlainWritingWorkbook.pdf; SECURITIES & EXCHANGE COMMISSION, A PLAIN ENGLISH
HANDBOOK 9 (Aug. 1998), https://www.sec.gov/pdf/handbook.pdf. Unsurprisingly, given its mission, the CFPB’s
plain language webpage underscores the agency’s orientation toward the needs of consumers. CONSUMER FIN.
PROTECTION BUREAU, Plain Writing, https://www.consumerfinance.gov/plain-writing/ (last accessed Aug. 24 2017).
165
DEP’T OF TRANS., PLAIN LANGUAGE ACTION PLAN, https://www.transportation.gov/regulations/dot-plainlanguage-action-plan.
166
Id.
162

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regulatory context. For example, the IRS directs each “drafting team [to] prepare a plain
language summary” directed at non-expert stakeholders that:
explains, preferably in six sentences or less, the issue addressed by the regulation,
but does not summarize the regulation. The reader is someone who is not familiar
with the tax law. Therefore, the drafting team should avoid references to Code
sections and terms of art. The summary alerts the taxpayer to whether he or she is
affected by the regulation, whether he or she needs more information, or whether
he or she needs to consult a tax advisor.167
Directives like this may serve as useful practices for other agencies to adopt, particularly those in
similarly technical or complex fields.
Regardless of what specific internal guidance agencies issue, they will still need to rely
on staff experience and institutional culture. In one interviewee’s experience: “Many of us at
some point have worked outside the building, and think about what our rules are trying to
achieve. If we make rules that no one can understand, then it’s not serving [our target
audiences].”168
Promoting “Plainness” Review During Rulewriting.
As described above, intra-agency rulewriting can be fairly elaborate from a procedural
perspective, and agencies have varying approaches to organizing the process. Each approach
offers different opportunities to raise the salience of drafting in plain language.
For instance, with respect to how it might advance plain drafting, the UAR system has
numerous strengths which are worth reviewing here. First, this approach ensures that important
plain language issues are not lost or overwritten in multiple rounds of review. The process
encourages staff to be thoughtful, and prioritize meaningful changes within their area of
expertise rather than making rote editing suggestions. As one interviewee stated, “perfection can
be the enemy of the good.”169 Furthermore, as described during the interview, the UAR model
assigns regulatory attorneys a significant institutional role in reviewing regulatory text for plain
language. The system does not make agency attorneys solely responsible for plain drafting, to
the exclusion of program staff. 170 Rather, by recognizing plain language as part of regulatory
attorney’s expertise, this approach not only acknowledges—but puts into practical application—
the deep connection between plain language and core administrative law goals.
Indeed, many of our interviews underscored the connection between plain drafting and
these core goals, including compliance, protection of rights, and public participation. As one
interviewee put it, “with the APA and rulemaking, access to the public and participation are
167

INTERNAL REVENUE SERVICE, CHIEF COUNSEL REGULATION HANDBOOK 32.1.6.8.3 (Sept. 2011),
https://www.irs.gov/irm/part32/irm_32-001-006.html.
168
Telephone Interview with Agency #7 (May 31, 2017).
169
Telephone Interview with Agency #6 (May 4, 2017).
170
Id.

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essential. If there’s lack of understanding [on the part of the public], that access is barred . . .
[and] people can [not] comment in a meaningful way.” 171 Other agencies echoed this
understanding: “if people [reading the regulation] cannot understand something, that is very
harmful to the overall goals. So, we will [make a change] if we find something not to be
understandable.”172
This connection can be advanced through procedures other than the UAR model. Under
the work group model, regulatory attorneys will also certainly note and seek to correct
ambiguities or other drafting issues that could be problematic from a legal perspective. But
without the systematic review and approval structure of the UAR model, here the office
originating the rule would likely bear primary responsibility for incorporating feedback from
other offices and ensuring the final rule is both accurate and written as accessibly as possible.
This approach is not necessarily less advantageous than the UAR model. Much will depend on
whether plain writing is prioritized in the agency’s culture; if plainness is not viewed as an
important part of rulewriters’ work, no system will be able to compensate for the absence of
institutional investment.
b. Guidance
Though the agency staff we interviewed reported significant investment of effort in
drafting regulatory text plainly, many viewed guidance as the primary vehicle for
communicating an agency’s policy goals, reasoning, and regulatory requirements to the public.
Our interviews shed light on how agency staff draft sub-regulatory guidance and how that
guidance is communicated.
Drafting Procedures.
As an organizational matter, the process of drafting guidance differs somewhat from the
rule-writing process. One agency official described the division of responsibility accordingly:
“All documents published in the Federal Register go through [the regulatory] division. For
guidance, they go through the Office of the Secretary. But [the regulatory] division reviews the
vast majority [of guidance], and all [that are] significant.”173 Similarly, other agencies noted
that, unlike regulations (or at least parts of them), guidance, publications, and forms are less
often written by the OGC or other agency attorneys.174
While the primary responsibility for drafting guidance may differ from that in rulewriting, it seems that by and large the same offices will be involved in both processes. Once
guidance is drafted, however, these offices will need to coordinate with the agency’s media or
communications office to share information about its regulation and guidance with relevant

171

Id.
Id.
173
Id.
174
Telephone Interview with Agency #5 (May 3, 2017).
172

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audiences. Again, the process is a collaborative one. As an agency attorney shared with us,
“You do have to help that office when they get questions from the press, or from Congressional
committees.”175
This shift in the division of responsibility for drafting guidance compared to rule text or
preambles is relatively unsurprising. Attorneys have already vetted the underlying rule for legal
sufficiency and clarity, thus they need not necessarily take the lead on drafting sub-regulatory
guidance. Review may still be valuable to ensure that language intended to have legal import is
not made ambiguous or inaccurate; indeed, our interviews revealed that this is commonly done.
Still, regulatory attorneys’ expertise is not as critical at this stage, whereas the expertise of policy
and communications experts in tailoring the agency’s message will be more valuable.
Advantages of Guidance.
With respect to plain writing, guidance has fewer constraints (legal or otherwise) than
regulatory text, offering agencies greater leeway in their drafting. Explaining how agencies view
and use guidance, one agency shared the idea of a “continuum” spanning highly complex
regulatory documents to fairly straightforward guidance.176 As an interviewee at this agency
stated,
On the one hand, you have complicated things [such as rule text] that the court
reads, then you have slightly less complicated things like enforcement guidance.
Those are for legal audiences and investigators. And then you have things like
Q&A documents. After that you have stand-alone outreach documents. Those
really are for lay people.177
As this quote shows, perhaps the most significant advantage of guidance is the ability to
effectively target different audiences. A single guidance document need not achieve as many
goals as a regulation, necessarily, must. Several agencies emphasized that “it’s important . . . to
think about different audiences differently.” 178 One explained:
After the rulemaking process, we create small business guides. We hope these are
straightforward and easily understandable. The less calls that come in, the better.
On the other hand, we very much welcome calls, provide contact information, and
go on speaking circuits to talk about the guides. To the extent we get feedback that
there is an ambiguity, we put out [a] Compliance and Disclosure Interpretation.
They come from real calls that come in.179
Another advantage to guidance is flexibility in formatting and organization. While this
report does not focus on the use of plain language techniques, which are well-discussed
elsewhere, these tools can often be used more liberally in guidance than in primary regulatory
175

Id.
Telephone Interview with Agency #1 (Apr. 10, 2017).
177
Id.
178
Telephone Interview with Agency #4 (May 2, 2017).
179
Telephone Interview with Agency #7 (May 31, 2017).
176

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December 8, 2017

documents.180 As one interviewee stated, “[text] doesn’t exist in a vacuum. . . . [C]onsistent use
of headlines, types of content displays, [etc., help] people travel from page to page.”181 To that
end, agencies should continue to use, or consider implementing additional ways of using,
organizing and structuring guidance to help readers navigate the document and find information
relevant to their needs.
c. Supporting Plain Drafting
Plain language principles apply throughout both rule and guidance drafting processes.
Accordingly, agency practices and publications related to plain language frequently apply in both
contexts. Internal written guidance has largely been covered in the foregoing section. Thus, we
now turn to a discussion of how agencies have used plain language point persons, trainings, and
related resources to support plain drafting.
Role of Plain Language Officials.
The Plain Writing Act requires agencies to designate “senior agency officials” to oversee
agency-wide compliance with the Act by communicating its requirements to agency employees,
establishing procedures to promote compliance, offering trainings, and maintaining a plain
writing section on the agency’s website.182 Notably, the Act does not mandate the creation of a
new office or direct that personnel be hired specially to execute these responsibilities; many
agencies chose to designate employees who were already responsible for communications or
public relations to serve as plain language officials under the Act.183 Because these officials are
already organizationally embedded, and have responsibility to report on the vast majority of
agency publications and communications (indeed, regulatory text is a lonely exception from the
Act’s coverage), they serve as a natural resource for agency attorneys and policy or technical
experts seeking to draft clearer rules and guidance.
As noted previously, agency rule-writers often coordinate with communications
personnel, and in our interviews emphasized the importance of working with them to educate
regulatory stakeholders about the content of proposed and final rules and guidance.184 Though
our interviews focused more on rulewriting than on post-rule activities, our background research
provides further evidence of a close working relationship between agencies’ policy and legal
staff and the communications and outreach staff who often hold primary responsibility for
180

Guidance tends not to be constrained by the inherent complexity or length of many primary regulatory texts.
Additionally, such publications are generally free of Federal Register publication requirements, discussed in more
detail infra. Indeed, only one agency official noted having seen Q&A formats, for example, in a regulation, while
these are more common in guidance. Telephone Interview with Agency #2 (Apr. 17, 2017).
181
Telephone Interview with Agency #4 (May 2, 2017).
182
5 U.S.C § 301 note sec. 4(a).
183
PLAIN LANGUAGE ACTION & INFO. NETWORK, Plain Language in Federal Agencies,
http://www.plainlanguage.gov/plLaw/fedGovt/index.cfm (last accessed Aug. 20, 2017). For example, the CFPB has
designated staff in its Office of the Executive Secretariat to serve as plain language officials. CONSUMER FIN.
PROTECTION BUREAU, CFPB PLAIN WRITING ACT COMPLIANCE REPORT 5 (July 2017).
184
Telephone Interview with Agency #5 (May 3, 2017).

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December 8, 2017

promoting plain language compliance throughout the agency. For example, the IRS Plain
Writing Compliance Report, 2016, urges employees to “[u]se communications professionals as
plain writing subject matter experts to help other IRS professionals with product
development.”185 The agency’s media and publications office, which is responsible for planning,
producing, or procuring all of the agency’s communications, frequently advises other employees
on plain writing and may assist in revisions.186
Staff in these offices can help rule and guidance drafters think about their audiences, and
write for them, in a way that generalized, written plain language directives cannot. Because they
review an array of documents and other communications directed at all of the agency’s
audiences, plain language officials are also well-positioned to build knowledge of the most
effective ways to share information with particular groups, and carry that knowledge forward
into future regulations, guidance, and other communications. Even though regulations are
excluded from the PWA’s coverage, plain language officials may play a role in supporting and
reporting on agency efforts to draft rules plainly. For example, the Consumer Financial
Protection Bureau’s PWA Compliance Report (2013) includes a section on the agency’s
supplemental plain language summaries of regulations likely to impact consumers.187
Plain Language Trainings and Resources.
The Plain Writing Act requires agencies to conduct plain language trainings, although
many were already in the practice of providing such trainings.188 As discussed above, individual
agencies began producing plain language guidelines and trainings as early as the mid- to late
1970s.189 Presently, an agency’s plain language official(s) are responsible for conducting
trainings and producing other plain writing resources.190
Agencies may also make their suites of plain writing resources available to others. The
Plain Language Action and Information Network (PLAIN) has served as a hub for such
resources since its establishment during the Clinton administration.191 Agencies may also host
various resources on their own websites.192 For example, the FAA hosts a series of videos online
that comprise a web-based plain writing course.193 The videos range from roughly 5 to 10
185

IRS PWA Compliance Report, supra note 129, at 13.
Id. at 12.
187
CONSUMER FIN. PROTECTION BUREAU, CFPB PLAIN WRITING ACT COMPLIANCE REPORT 6 (July 2013).
188
5 U.S.C § 301 note sec. 4(a)(1)(A), 4(a)(1)(C).
189
Telephone Interview with Agency #6 (May 15, 2017).
190
5 U.S.C § 301 note sec. 4(a).
191
PLAIN LANGUAGE ACTION & INFO. NETWORK, About Us, http://www.plainlanguage.gov/site/about.cfm (last
accessed Aug. 17, 2017).
192
Some agencies host only general plain language resources on their PWA-required plain language websites, but
many present both general and agency-specific resources. See, e.g., NAT’L INST. HEALTH, Plain Language:
Resources, https://www.nih.gov/institutes-nih/nih-office-director/office-communications-public-liaison/clearcommunication/plain-language/resources (last accessed Aug. 25, 2017); DEP’T OF AG., Plain Writing,
https://www.usda.gov/plain-writing (last accessed Aug. 25, 2017).
193
FED. AVIATION ADMIN., FAA Plain Language Course: The Basics,
https://www.faa.gov/about/initiatives/plain_language/basic_course/ (last accessed Aug. 17, 2017).
186

33

December 8, 2017

minutes in length, and encompass agencies’ legal obligations with regard to plain language,
reasons why drafters should invest in plain writing, and technical examples and quizzes to
practice writing more plainly.
Several agency staff members we interviewed emphasized that these trainings are not
simply technical in nature; indeed, they are likely to be most valuable when they focus on the
connection between plainness and administrative law goals, rather than solely technical advice.
One interviewee who often conducts trainings explained, “If I point out an ambiguity, or a
modifier that could be interpreted in two different ways, people generally understand that” as
raising potential legal problems.194 For that reason, training staff to draft for specific stakeholder
audiences with particular regulatory goals (like efficient compliance) in mind is likely to be most
valuable.
Finally, particularly for those staff whose professional training may not provide them
with significant experience in writing for non-expert audiences, targeted trainings may be
particularly helpful. For some professionals, such as economists and engineers who do not have
significant prior experience in drafting plainly, trainings on plain language techniques may be
worthwhile. For policy staff who already have plain writing skills, trainings focused on the
connection between plain language and regulatory goals may help them better coordinate with
regulatory attorneys and draft for audiences, including courts, that they may not otherwise
prioritize.
5. Challenges
Agencies invest significant resources in drafting both regulations and guidance plainly,
yet they face a number of challenges in the process. Some of these are organizational. For
example, despite efforts to efficiently coordinate the drafting process, the number of offices
involved and diverse goals to be achieved (some of which may be in tension with each other)
present non-trivial obstacles. Other kinds of challenges include constraints presented by
statutory language or the complexity of the subject matter. We describe each of these challenges
in turn, relying primarily on information gathered from our interviews. While not all challenges
can be completely overcome, we present recommendations in the next section to mitigate or
resolve them where possible.
a. Internal Drafting Process
Above, we noted the procedures agencies use to coordinate drafting regulations and
guidance among multiple offices and divisions. Policy and legal offices must work on drafting
the rule together out of necessity, yet this coordination inherently comes at some cost of time and
effort. As described in the preceding section, agencies have a number of strategies they use to

194

Telephone Interview with Agency #6 (May 15, 2017).

34

December 8, 2017

foster efficient coordination that minimizes internal cost. Nevertheless, it is worth highlighting
some of the specific pitfalls that may accompany such multi-layered drafting processes.
One agency interviewee noted that an agency’s past practices can cause a sort of inertia.
“When the rest of the regulations look [a certain way], [people will continue] to do it in that
manner.” 195 This can hinder new efforts to draft regulations plainly when an agency has not
focused on that in the past. Agency staff, particularly lawyers, will rightly be concerned about
the risk of changing established language—for reasons of fairness, reliance, and efficient
compliance, as well as judicial review. Even when language is not of strictly legal importance,
agencies may need to be concerned about confusion on the part of readers. As one interviewee
said, “when people are used to certain [legal or other] phrasing [in a form or other document],
changing it can cause confusion, even when the intent is to make it simpler.”196
However, even when agency staff feel constrained in their drafting of rule text, there is
likely to be room for flexibility in preambles or summaries that accompany the regulation. As
one interviewee emphasized, these elements are important “not [because they are] required by
the APA, but because having plain texts helps public understanding.”197 Preambles and
summaries give drafters room to explain or expand on established language in a way that leaves
settled terms of art in place, but makes their meaning more accessible.
Another aspect of internal process challenges is the need to negotiate language among
offices. Each division will have legitimate concerns about what certain language might mean,
how it would be interpreted by courts and the regulated community, etc. But this negotiation is
time-consuming. Moreover, once staff from various policy offices have settled on satisfactory
terms for part of a rule, the transaction cost of another reviewing office stepping in and
suggesting a “plainer” version may simply be too high. This problem is even more acute in
interagency rulemaking, where agencies with different statutory mandates and subject-matter
emphases have to reach an agreement on regulatory requirements.
One might sum up this problem as simply “having too many cooks in the kitchen.” One
interviewee expressed some frustration with the process, but nevertheless noted that involvement
of different offices is necessary. As this official put it, when something is “drafted by
committee: how simple is it going to be? It’s a delicate consensus. You want to move it along
as quickly as possible. If people look at it again, you don’t know what they’re going to say.
People will make changes to their own changes. . . . [But, w]hat do you do? I don’t know how
you fix that. As you’re drafting you have to go to litigators in the field: is this administrable?”198
Another agency official highlighted yet another challenge presented by agencies’ internal
drafting processes—timeliness. As this interviewee stated, “there’s benefit and detriment to [an
195

Telephone Interview with Agency #2 (Apr. 17, 2017).
Telephone Interview with Agency #5 (May 3, 2017).
197
Telephone Interview with Agency #2 (Apr. 17, 2017).
198
Telephone Interview with Agency #5 (May 3, 2017).
196

35

December 8, 2017

involved clearance process]. . . . You want a legally strong, well-written document. But you
don’t want to spend so much time on every word that you end up losing out on other goals: not
getting regulations out in time [for example]. There’s definitely a balance[e] between improving
the way document is written and other goals.”199
The challenges posed by agencies’ internal drafting and clearance processes are varied,
but not entirely surprising. Agencies will necessarily have to acknowledge their past practice,
and coordination among multiple offices is inherently difficult. Still, the procedures agencies
have used to facilitate the drafting process shed light on possible best practices, which will be
discussed in greater detail in the following section.
b. External Requirements
In addition to the challenges posed by internal drafting and clearance processes, agencies
must contend with external processes governing the publication of regulatory documents. One
set of challenges relates to affirmative external requirements imposing plain language duties on
agencies. For example, OIRA guidance implementing Executive Order 13,563 directs agencies
to include in “regulatory preambles for lengthy or complex rules (both proposed and final) . . . []
straightforward executive summaries. These summaries should separately describe major
provisions and policy choices.”200 While this Guidance was intended to promote public
understanding of rules and participation in rulemaking, it is not clear that this goal has been
achieved.
One empirical study surveyed thousands of regulatory documents and concluded that
executive summaries were generally less readable—at least, according to readability software—
than the remainder of a rule’s preamble.201 A primary reason these executive summaries appear
to be less straightforward than intended is because drafters are attempting to communicate a
significant amount of content in a limited space.202 A straightforward summary of a rule written
for the benefit of the general public would likely end up being fairly lengthy. This finding serves
as a cautionary lesson for other well-intentioned proposals designed to make regulations
accessible and promote public participation, including recent legislation proposing to require that
agencies include in NPRMs posted on Regulations.gov a link to “a summary of not more than
100 words in length of the proposed rule, in plain language . . . .”203 Efforts to support plain
writing—and by extension transparency, public participation, and related administrative law
goals—are likely to be most effective if they support agency staff in preparing supplementary
regulatory information or guidance that is drafted plainly, rather than focusing only on preparing
short summaries of an entire rule’s content.
199

Telephone Interview with Agency #6 (May 4, 2017).
Memorandum from Cass R. Sunstein, Adm’r, Office of Info. & Regulatory Affairs. Clarifying Regulatory
Requirements: Executive Summaries (Jan. 4, 2012).
201
Farina, supra note 39, at 26, 31.
202
Id. at 33.
203
S. 577, 115th Cong. § 2 (2017).
200

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December 8, 2017

Another set of challenges relate to the Federal Register format. Notably, Federal Register
guidelines underscore the importance of plain language and urge agencies to follow best
practices including writing for a specific audience, or set of audiences, and using formatting
techniques such as consistent, informative headings, lists and bullet points, and tables where
relevant.204 Still, agency staff we interviewed identified additional formatting aids that would be
helpful to readers, but that do not currently meet the Federal Register’s style and formatting
guidelines. For example, one interviewee explained that “you can’t put things in indented
paragraphs, with sub-arguments and explanations. It has to be in three column [format]. Just
fixing that one thing would help everyone’s understanding. Indents, bold, and underline [help
the reader] understand the big picture, and get to what you need.”205 There may be
considerations weighing against altering the existing style guidelines. For instance, changing the
three-column format may drive up costs in the print publication of the Federal Register;206 there
is also a risk that variations in formatting from agency to agency or document to document could
reduce reading ease or otherwise cause confusion. Some of the print restrictions, however, may
be overcome on the web-based FederalRegister.gov, which provides a single column of text and
more white space; readers can also download and modify the formatting of the text to meet their
needs.207 While an in-depth examination of these concerns is beyond the scope of this report, we
note this concern to acknowledge the challenge of plain drafting in light of other existing
requirements.
c. Statutory Language
As noted at the outset of this section, some challenges are much less within the agency’s
control. When agencies need to rely on statutory terms or describe statutory regimes that are
ambiguous or complex, the challenge of drafting plainly becomes all the more complicated. In
these cases, agency staff must make sure their writing is accurate, not open to inadvertent
interpretation, and yet not so detailed or precise that a reader cannot straightforwardly follow the
text, or find the text that is most meaningful.208
Several examples of challenging statutory text arose in our interviews and background
research. The Internal Revenue Code, for instance, may have a provision that refers to another
section which in turn refers to a definition elsewhere in the statute.209 In these cases, just
explaining what the law is when justifying the basis of a regulation may be daunting. Our
204

OFF. OF THE FED. REGISTER, DOCUMENT DRAFTING HANDBOOK 2-12–2-13(2017),
https://www.archives.gov/files/federal-register/write/handbook/ddh.pdf
205
Telephone Interview with Agency #3 (Apr. 18, 2017).
206
On at least two occasions the Federal Register has experimented with publishing documents in a two-column
format, but the change was not made permanent. See 66 Fed. Reg. 16,373 (Mar. 23, 2001); 67 Fed. Reg. 34,573
(May 14, 2002).
207
FEDERAL REGISTER, Reader Aids, https://www.federalregister.gov/reader-aids/using-federalregister-gov.
208
Telephone Interview with Agency #5 (May 3, 2017).
209
See generally TAXPAYER ADVOCATE SERVICE, 2012 ANNUAL REPORT TO CONGRESS VOL. 1, The Complexity of
the Tax Code, available at http://www.taxpayeradvocate.irs.gov/2012-annual-report/downloads/most-seriousproblems-tax-code-complexity.pdf.

37

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interviews highlighted the challenges agencies face in this regard. “Any time you have a
technical statute, a wordy statute, incomprehensible statute, it’s hard to draft a regulation that
makes that simple. But we try to do that. When you do simplify, sometimes the simplification
itself, it’s an interpretation, . . . [but] you can’t do nothing.”210
When faced with ambiguous statutory text, agencies may need to explain that the statute
is ambiguous and propose an interpretation in its rulemaking. One agency we interviewed
shared that they have received comments on those points.211 Some level of confusion may be
impossible to prevent, however. Another agency explained that they occasionally receive
comments urging clarifications or changes to text that is statutory. In those cases, in response to
comments the agency will explain the distinction between the statute and the agency’s own
interpretation or policy.212
d. Subject Matter Complexity
A related, cross-cutting challenge is the complexity of the subject matter an agency
regulates. After all, agencies exist in large part to bring specialized, substantive expertise to bear
on problems that Congress, as a generalist body, is not well suited to addressing.213 And,
agencies are likely to be regulating to solve hard questions—not easy ones.
Unsurprisingly, the complex or technical nature of the subject matter was cited in our
interviews as the primary obstacle to plain writing. As one interviewee put it, “when you’re
dealing with [a technical subject or industry], there are some terms you have to use in
regulations. It’s impossible to break those down. [In those cases,] we are focusing on being as
clear and concise as we can in drafting regulation.”214 Another agency attorney grappled with
this same tension, saying:
I see people trying to find 100% precision. I understand why. But there are times
when I had to step back and go: I know what I’m writing because I’m the one
writing it. But what’s the intelligent [lawyer in this substantive area] supposed to
do with it? Or when I’m working on a technical project, how do I explain to the
associate general counsel what we are doing and why? . . . [You have to] stop
thinking about the precision of rules. People are overly precise because they are
trying to figure out the substance, [which is] not easy.215

210

Telephone Interview with Agency #5 (May 3, 2017).
Telephone Interview with Agency #7 (May 31, 2017).
212
Telephone Interview with Agency #6 (May 15, 2017).
213
ESKRIDGE ET AL., supra note 8, at 936.
214
Telephone Interview with Agency #4 (May 2, 2017).
215
Telephone Interview with Agency #5 (May 3, 2017).
211

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December 8, 2017

This unavoidable tension between genuinely difficult subjects and plain writing efforts have
generated criticism that routine advice—the avoidance of jargon and passive voice, short
sentences, etc.—is unsuited to legally effective or technically complex subjects.216
However, the statements from our interviewees suggest a more nuanced approach.
Agency attorneys themselves are aware of the need to see both the forest and the trees when
drafting regulatory text to ensure that each section is accurate and complete, while at the same
time structuring the overall document to explain and guide readers through its subsidiary parts.
As noted in preceding sections, what is plain depends in part on the audience, and the
vast majority of rules will have more than one. A provision with many technical terms may be
sufficiently “plain” for sophisticated regulated audiences and their attorneys. Generalist judges
and non-expert commenters, though, will likely need more straightforward summaries of
complex regulations to understand its purpose and requirements. Many preambles already
include one or more summaries of the overall rule. Undoubtedly, many rules contain additional
summaries or capstone paragraphs introducing each section. Drafters may be well served by
devoting their plain drafting efforts to these sections, rather than focusing on the rule’s most
technical or legal text that resists simplification.217
IV. Recommendations
Our review of seven agencies’ plain language practices demonstrates their serious efforts
to write and communicate regulatory requirements in a clear and accessible manner.
Nevertheless, agency staff recognize a variety of obstacles to plain regulatory drafting. Some
have developed innovative strategies to address these challenges. The recommendations below
endorse some of these strategies, and suggest others that are likely to improve plain language
performance. In general, agencies should endeavor to distinguish the multiple objectives that
plain language advances, the audiences those objectives target, and the documents that are likely
to reach those audiences.
The focus of these recommendations is on the procedural aspects of plainly drafting
regulations and guidance, including the use of plain writing techniques where relevant. This
procedural emphasis highlights the connection between plain language practices and core
administrative law values, namely, public participation, the rule of law, effectiveness, and the
protection of rights. Appropriate use of language that is plain for the relevant audience should
advance each of these interests. Where our interviews revealed important considerations or best
practices related to other aspects of plain language, such as meaningful public participation in
rulemaking, we have sought to capture those as well.

216

See generally Joseph Kimble, Answering the Critics of Plain Language, 5 SCRIBES J. LEGAL WRITING 51 (1994–
95), available at http://www.plainlanguage.gov/whypl/arguments_in_favor/critics.pdf
217
This is not to suggest that technical or legal sections of a rule that are complex should be written poorly, or that
drafters should not be attentive to making them as straightforward as reasonably possible. But because different
audiences have different needs, viewing different sections of the rule as geared toward these different audiences will
likely lead to the greatest return on effort invested.

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December 8, 2017

Plain Writing Practices in General
1. Agencies should follow the plain language best practices and writing techniques
documented in the Federal Plain Language Guidelines.
Agency Internal Drafting Processes
2. Agencies should consider ways to incorporate plain language review into their
existing regulatory and guidance drafting procedures. Raising the salience of plain
language in these drafting processes is important because presenting regulatory
purposes, reasoning, and requirements in a clear, accessible manner advances core
administrative law goals. In particular, agencies should consider whether to designate
one office involved in regulatory drafting to be responsible for reviewing documents
for plain language compliance.
Plain Language Officials, Trainings, and Related Resources
3. Regulatory text is not covered by the Plain Writing Act, and thus does not strictly fall
under the purview of agencies’ plain language officials designated to oversee
compliance. According to the OMB’s Implementing Guidance, however, regulatory
preambles are covered by the PWA, and therefore fall within plain language officials’
responsibility. Because these officials typically hold positions in the agency related
to communications and public outreach, rule writers should consider soliciting input
from these individuals.
4. Agencies have developed numerous plain language trainings and related resources,
including publications and videos. In addition to communicating the requirements of
the Plain Writing Act and related executive guidance, and teaching fundamental plain
writing techniques, agencies should consider producing trainings and resources
devoted to:
a. how plain language promotes the core administrative law goals of public
participation, efficient compliance, judicial review, and the protection of
rights; and,
b. drafting processes, priorities, and techniques aimed at agency engineers,
economists, and other technical experts involved in drafting rules or guidance
who may not have significant exposure to writing for non-expert audiences.
5. Agencies should cover rulemaking preambles and regulatory guidance in their PWA
compliance reports.
Plain Drafting in Regulatory Documents
6. Many agencies have internal requirements and manuals specifying how staff should
write regulatory preambles and text. Such internal rules are most likely to effectuate
plain drafting if they include guidelines providing:

40

December 8, 2017

a. information on plain language techniques that the agency considers most
relevant to its rulemaking practice.
b. instructions for implementing plain language in NPRMs, such as:
i. specifying those topics or questions on which the agency would most
benefit from feedback from the general public and other nonspecialist stakeholders.
ii. requesting comments on whether the regulatory purposes and
requirements are clear and understandable.
c. a discussion of the primary plain language audience for each component of a
proposed and final rule. While agencies must be attentive to each relevant
audience in any given document, at a minimum:
i. the preambles to proposed rules should include a summary that the
general public and non-specialists can understand. Other subparts of
the preamble may include language that is plain for sophisticated
audiences where it is not feasible to describe the rule’s purpose,
reasoning, or requirements without legal or technical language,
although these subparts may benefit from brief introductory
summaries.
ii. the preambles and text of final rules should be written in language
that reviewing courts and attorneys inside and outside the agency can
easily understand.
Plain Drafting in Guidance Documents
7. Agencies should issue regulatory guidance in the form of plain language summaries,
Q&As, or other accessible formats for audiences that may find complex technical and
legal details of regulations inaccessible, such as: regulated small business; regulatory
beneficiaries, e.g., benefit recipients, consumers, protected classes; and private
compliance offices, e.g. human resources departments.
8. Guidance written in plain language is essential to help less sophisticated parties
understand their regulatory rights and obligations, but such guidance may not fully
capture the complexity of underlying regulations or statutes and therefore leaves less
sophisticated parties at a disadvantage compared to those who are more sophisticated.
Therefore, when issuing plain language guidance, it may be appropriate for agencies
to notify stakeholders that the guidance is not a substitute for the regulation, and that
they should seek expert advice if they are not able to understand the regulation’s
requirements.

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December 8, 2017

Appendix A: Federal Agency Plain Language Trainings &
Informational Materials
The table below describes and provides links to plain language resources made publicly available
by several federal agencies. PLAIN hosts additional resources at
https://plainlanguage.gov/training/.
Federal Agency
CDC

Department of
Agriculture

Material Title & Description
Gateway to Health Communication & Social
Marketing Practice
Training resources on improving health literacy and
risk communication with the general public.
Introduction to Plain Language
Introductory plain language webinar that discusses
writing for an audience, good organizational
techniques, and additional resources for employees
to learn more about good plain language drafting.

Department of
Defense

Plain Language Training
Training video for writing in plain language.

FAA

FAA Plain Language Course: The Basics
Close-captioned plain language video course to
familiarize employees with active voice, pronoun
usage, and formatting techniques. Includes review
and examination exercises.
Essentials of Plain Language
Webinar to help agencies comply with the
requirements of the PWA in different kinds of
documents, including from regulations, guidance,
and press releases.
NIH Plain Language Training
Useful techniques on understanding how people
read, how to write concisely and clearly, and how
to organize ideas into easy to read materials.
Plain Language Tools
List of resources to help writers comply with the
PWA.

GSA

NIH

Office of the
Federal Register

Drafting Legal Documents
Series of short style guides on the use of headings
and definitions, avoidance of ambiguity, and other
tips to “help agencies produce clear, enforceable
regulatory documents.”

42

URL
https://www.cdc.gov/h
ealthcommunication/

https://aglearn.usda.go
v/customcontent/OES/
OES-PlainWritingweb/startCourse_USD
APWTR01_1455.html
https://www.dvidshub.
net/video/540372/plai
n-language-training
https://www.faa.gov/a
bout/initiatives/plain_l
anguage/basic_course/

https://www.youtube.c
om/watch?v=ofZHOgv9gg

https://plainlanguage.n
ih.gov/CBTs/PlainLan
guage/login.asp
https://www.archives.
gov/federalregister/write/plainlanguage
https://www.archives.
gov/federalregister/write/legaldocs

December 8, 2017

Making Regulations Readable
Series of tips with examples on how to draft and
format regulations to improve readability.

SEC

USCIS

A Plain English Handbook: How to Create SEC
Disclosure Documents
Handbook for investors on how to prepare filings in
plain language. The handbook gives an overview
of plain writing basics, such as knowing your
audience and reorganizing content for clarity.
Appendices provide before and after examples of
plain filings.
USCIS Plain Language
Series of short, informational videos on plain
language topics such as the use of active voice and
bullet points and the avoidance of acronyms and
zombie nouns.

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https://www.archives.
gov/federalregister/write/plainlanguage/readableregulations.html
https://www.sec.gov/p
df/handbook.pdf

https://www.uscis.gov/
plainlanguage
-orhttps://www.youtube.c
om/watch?v=C4sE6yh
lemk&list=PLADE80
C67FDB39352

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Appendix B: Examples of Plain Regulations
PLAIN offers a table with examples of plain language regulations at https://www.plainlanguage.
gov/examples/regulations/plain-language-regulations/. Selected excerpts are shown here for
reference.

Example 1: Bureau of Indian Affairs. Irrigation Operation and Maintenance. 25 CFR Part 171.
Subpart F – Records, Agreements, and Other Matters
§ 171.600 What information is collected and retained on the irrigation service I receive?
We will collect and retain at least the following information as part of our record
of the irrigation service we have provided you:
(a) Your name;
(b) Delivery point(s) where service was provided;
(c) Beginning date and time of your irrigation service;
(d) Ending date and time of your irrigation service; and
(e) Amount of water we delivered to your farm unit.
§ 171.605 Can I establish a Carriage Agreement with BIA?
(a) We may agree in writing to carry third-party water through our facilities to
your lands not served by our facilities if we have determined that our facilities
have adequate capacity to do so.
(b) If we determine that carrying water in accordance with paragraph (a) of this
section is jeopardizing our ability to provide irrigation service to the lands we are
required to serve, we will terminate the Agreement.
(c) We may enter into an agreement with a third party to provide service through
their facilities to your isolated assessable lands.
(d) You must pay us all administrative, operating, maintenance, and rehabilitation
costs associated with any agreement established under this section before we will
convey water.
(e) We will notify you in writing no less than five days before terminating a
Carriage Agreement established under this section.
(f) We may terminate a Carriage Agreement without notice due to an urgency we
have identified.
§ 171.610 Can I arrange an Incentive Agreement if I want to farm idle lands?
We may approve an Incentive Agreement if:
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(a) You request one in writing at least 90 days prior to the beginning of the
irrigation season that includes a detailed plan to improve the idle lands,
which contains at least the following:
(1) A description of specific improvements you will make, such as
clearing, leveling, or other activities that will improve idle lands to
a condition that supports authorized use of delivered water;
(2) The estimated cost of the improvements you will make;
(3) The time schedule for your proposed improvements;
(4) Your proposed schedule for water delivery, if necessary; and
(5) Justification for use of irrigation water during the improvement
period.
(b) You sign our Incentive Agreement containing terms and conditions we
specify.
§ 171.615 Can I request improvements to BIA facilities as part of my Incentive
Agreement?
Yes. You may request and we may agree to make improvements as part of your
Incentive Agreement that we determine are in the best interest of the irrigation
facility servicing your farm unit.

Example 2: Federal Communications Commission. Personal Radio Services. 47 CFR Part 95.
Subpart A – General Rules for the Personal Radio Services [excerpt]
§95.329 How to contact the FCC.
For information about the Personal Radio Services, see the FCC's internet Web
site (www.fcc.gov). To speak with an FCC representative about the Personal
Radio Services, call the FCC's information line 888-CALL-FCC (888-225-5322).
To write the FCC about these services, address the Federal Communications
Commission, Attention: Mobility Division, Wireless Telecommunications
Bureau, 445 12th Street SW., Washington, DC 20554.
§95.331 Permissible uses.
Personal Radio Services stations may be used only for the purposes set forth in
the rules applicable to each specific Personal Radio Service.
§95.333 Prohibited uses.
No person shall use a Personal Radio Service station:
(a) In connection with any activity which is against Federal, State or local
law;
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(b) To transmit advertisements or program material associated with
television or radio broadcasting;
(c) To transmit messages for hire or provide a common carrier service;
(d) To intentionally interfere with the communications of another station;
(e) To transmit obscene, profane or indecent words, language or meaning;
or
(f) To transmit a false or deceptive communication.

Example 3: Federal Aviation Administration. Airworthiness Directives. 14 CFR Part 39.
[excerpt]
§ 39.1 Purpose of this regulation.
The regulations in this part provide a legal framework for FAA's system of
Airworthiness Directives.
§ 39.3 Definition of airworthiness directives.
FAA's airworthiness directives are legally enforceable rules that apply to the
following products: aircraft, aircraft engines, propellers, and appliances.
§ 39.5 When does FAA issue airworthiness directives?
FAA issues an airworthiness directive addressing a product when we find that:
(a) An unsafe condition exists in the product; and
(b) The condition is likely to exist or develop in other products of the same
type design.
§ 39.7 What is the legal effect of failing to comply with an airworthiness directive?
Anyone who operates a product that does not meet the requirements of an
applicable airworthiness directive is in violation of this section.
§ 39.9 What if I operate an aircraft or use a product that does not meet the requirements
of an airworthiness directive?
If the requirements of an airworthiness directive have not been met, you violate §
39.7 each time you operate the aircraft or use the product.

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