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111th Congress                                                   Report
                                 SENATE
 1st Session                                                    111-102
_______________________________________________________________________

                                     

                                                       Calendar No. 222

 
                       PLAIN WRITING ACT OF 2009

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                                 S. 574

  TO ENHANCE CITIZEN ACCESS TO GOVERNMENT INFORMATION AND SERVICES BY 
  ESTABLISHING THAT GOVERNMENT DOCUMENTS ISSUED TO THE PUBLIC MUST BE 
                WRITTEN CLEARLY, AND FOR OTHER PURPOSES






                December 9, 2009.--Ordered to be printed
        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

               JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan                 SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii              TOM COBURN, Oklahoma
THOMAS R. CARPER, Delaware           JOHN McCAIN, Arizona
MARK L. PRYOR, Arkansas              GEORGE V. VOINOVICH, Ohio
MARY L. LANDRIEU, Louisiana          JOHN ENSIGN, Nevada
CLAIRE McCASKILL, Missouri           LINDSEY GRAHAM, South Carolina
JON TESTER, Montana                  ROBERT F. BENNETT, Utah
ROLAND W. BURRIS, Illinois
PAUL G. KIRK, Jr., Massachusetts

                  Michael L. Alexander, Staff Director
                     Kevin J. Landy, Chief Counsel
              Adam R. Sedgewick, Professional Staff Member
Lisa M. Powell, Staff Director, Subcommittee on Oversight of Government 
    Management, the Federal Workforce, and the District of Columbia
     Brandon L. Milhorn, Minority Staff Director and Chief Counsel
                    John K. Grant, Minority Counsel
    Jennifer A. Hemingway, Minority Staff Director, Subcommittee on 
  Oversight of Government Management, the Federal Workforce, and the 
                          District of Columbia
                  Trina Driessnack Tyrer, Chief Clerk


                                                       Calendar No. 222
111th Congress                                                   Report
                                 SENATE
 1st Session                                                    111-102

======================================================================




                       PLAIN WRITING ACT OF 2009

                                _______
                                

                December 9, 2009.--Ordered to be printed

                                _______
                                

Mr. Lieberman, from the Committee on Homeland Security and Governmental 
                    Affairs, submitted the following

                              R E P O R T

                         [To accompany S. 574]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (S. 574) to enhance 
citizen access to Government information and services by 
establishing that Government documents issued to the public 
must be written clearly, and for other purposes, having 
considered the same, reports favorably thereon with an 
amendment and recommends that the bill do pass.

                                CONTENTS

                                                                   Page
  I. Purpose and Summary..............................................1
 II. Background.......................................................2
III. Legislative History..............................................6
 IV. Section-by-Section Analysis......................................6
  V. Estimated Cost of Legislation....................................7
 VI. Evaluation of Regulatory Impact..................................8
VII. Changes in Existing Law..........................................8

                         I. PURPOSE AND SUMMARY

    The purpose of S. 574, the Plain Writing Act, is to improve 
the effectiveness and accountability of Federal agencies by 
promoting clear Government communication that the public can 
understand and use. The bill requires agencies to write 
documents released to the public in plain writing, or writing 
that the intended audience can readily understand and use 
because that writing is clear, concise, well-organized, and 
follows other best practices of plain writing.

                             II. BACKGROUND

The problem

    Federal agencies issue documents that explain what the 
agencies do, the requirements of federal laws and programs, how 
members of the public can obtain various benefits, and for many 
other purposes. Too often, the public finds these documents 
difficult to understand and use because the materials are 
poorly organized and unnecessarily complex.
    Unclear writing wastes both time and money. The public 
wastes time and money trying to understand unclear documents. 
Members of the public also waste time and money because they 
make unintended mistakes filling out government forms or 
fulfilling government requirements, or because they have to 
hire attorneys to help them understand government documents.\1\ 
Todd McCracken, President of the National Small Business 
Administration, once testified that the federal government's 
use of ``incomprehensible language translates into billions of 
lost hours and dollars,'' which are spent ``wrestling with 
federal paperwork requirements.''\2\ Federal agencies waste 
time and money as well answering questions from frustrated 
members of the public and because unclear documents lead to 
higher rates of mistakes and noncompliance.\3\
---------------------------------------------------------------------------
    \1\See Statement of Christopher Cox, Chairman, U.S. Securities and 
Exchange Commission before House Committee on Small Business, 
Subcommittee on Contracting and Technology, February 26, 2008 
(hereafter ``Cox Testimony''), at p. 1.
    \2\See Statement of Todd McCracken, President of the National Small 
Business Association before House Committee on Small Business, 
Subcommittee on Contracting and Technology, February 26, 2008 
(hereafter ``McCracken testimony''), at p. 2; see also Statement of 
Keith Hall, National Association for the Self-Employed before House 
Committee on Small Business, Subcommittee on Contracting and 
Technology, February 26, 2008, at p. 3 (describing the federal 
paperwork burden on micro-businesses and arguing that plain writing 
would ``boost the bottom line for businesses and government alike. 
Plain language will require less time and money spent on education, 
preparation and compliance.'').
    \3\See McCracken testimony, at p. 2 (arguing that noncompliance 
with government requirements often is ``the result of the small-
business owners' inability to decipher what is being asked of them.''); 
Statement of Annetta Cheek, Chair of the Center for Plain Language 
before House Committee on Small Business, Subcommittee on Contracting 
and Technology, February 26, 2008 (hereafter ``Cheek testimony''), at 
p. 3 (``Confusing communication from the government discourages people 
from complying with requirements or applying for benefits.'').
---------------------------------------------------------------------------
    Clear communication also is important for transparent and 
accountable government. As Annetta Cheek, Chair of the Center 
for Plain Language, has testified, ``Poor writing isn't 
restricted to the federal government, but the government has a 
higher responsibility to communicate clearly with citizens. 
American taxpayers pay the cost of their government, and they 
deserve to understand what it's doing.''\4\ As former Chairman 
of the Securities and Exchange Commission Christopher Cox 
testified, when poorly written rules are enforced, people view 
it as arbitrary and unfair, and their confidence in government 
is eroded. According to Chairman Cox, ``Clarity in spelling out 
a citizen's obligations is one of the most fundamental 
requirements of the rule of law.''\5\
---------------------------------------------------------------------------
    \4\See Cheek testimony, at p. 1.
    \5\See Cox testimony, at p. 2.
---------------------------------------------------------------------------

The benefits of plain writing

    Studies demonstrate the value of plain writing. The U.S. 
Department of Veterans Affairs, for example, rewrote selected 
form letters in plain writing and tracked the effects. One unit 
of a field office sent out a form letter rewritten to be more 
clear and readable, while another unit continued sending out 
the original form letter. More people responded to the plainly 
written letter than the original letter (45 percent versus 29 
percent). Additionally, all of the responses to the plainly 
written letter were complete, while 18 percent of the responses 
to the original letter were not.\6\ Another Veterans Affairs 
office rewrote a different form letter in plain writing. The 
office tracked telephone calls seeking help with the letter 
before and after it was rewritten. These calls dropped more 
than 80 percent after the plain writing version was issued, 
from more than 1100 in a year to fewer than 200.\7\
---------------------------------------------------------------------------
    \6\See Reva Daniel, ``Revising Letters to Veterans,'' Technical 
Communication (1st Q. 1995), pp. 69-75, 72-73, available online at 
www.dbwriting.com/Revising%20Letters%20to%20Veterans.pdf.
    \7\See ibid. at pp. 73-74.
---------------------------------------------------------------------------
    State programs to promote clear communication with members 
of the public are yielding impressive results as well. For 
example, the State of Arizona rewrote 100 form letters to 
organize, simplify, and shorten them. After rewriting its 
letters, the State Unclaimed Property Section received 11,000 
fewer telephone calls in 2007 than in 2006, allowing the staff 
to process 30,000 more claims than in the previous year.\8\ The 
Washington State ``plain talk'' initiative has similarly 
improved government efficiency. The Washington Department of 
Revenue rewrote information about the State ``use tax''-a tax 
citizens had widely misunderstood and ignored. After the 
rewrite, three times as many businesses paid the tax, bringing 
the State an additional $800,000 in revenue over two years.\9\
---------------------------------------------------------------------------
    \8\See Amanda Crawford, ``Revenue Department Sees Effects of `Plain 
Talk,''' The Arizona Republic, January 6, 2008, available online at 
http://www.governor.state.az.us/er/documents/News/
StateTargetsBureaucrateseToImproveCommunication.pdf.
    \9\See ``Washington State Sees Results from `Plain Talk' 
Initiative,'' USA Today, December 10, 2006, available online at http://
www.usatoday.com/news/nation/2006-12-10-washington-plain-talk_x.htm.
---------------------------------------------------------------------------

The Plain Writing Act

    More than a decade ago, the federal government took its 
first comprehensive steps toward mandating plain writing. On 
June 1, 1998, President Clinton issued a memorandum directing 
federal agencies to use plain language in government writing. 
That memorandum directed agency officials to use plain writing 
in ``all new documents, other than regulations, that explain 
how to obtain a benefit or service or how to comply with a 
requirement you administer or enforce'' by October 1, 1998. 
Later deadlines were provided for issuing regulations and for 
reissuing documents written prior to October 1, 1998.\10\
---------------------------------------------------------------------------
    \10\See Memorandum from President William J. Clinton to Heads of 
Executive Departments and Agencies regarding Plain Language in 
Government Writing, June 1, 1998, available at http://
www.plainlanguage.gov/whatisPL/govmandates/memo.cfm.
---------------------------------------------------------------------------
    Vice President Gore oversaw implementation of these 
requirements and coordinated the federal government's Plain 
Language Action Network (PLAN),\11\ which was subsequently 
renamed the Plain Language Action and Information Network 
(PLAIN). The Clinton memorandum remains in effect, and many 
agencies maintain plain language programs. PLAIN continues 
promoting plain writing in federal government communications 
and providing plain writing training workshops.\12\
---------------------------------------------------------------------------
    \11\See Brian Friel, ``Gore orders agencies to write in plain 
English,'' Government Executive, June 2, 1998; John Broderick, 
``Reinventing Government: The Role of Plain Language,'' available 
online at http://www.odu.edu/al/jpbroder/jpbcladenglish.doc, at 1-2.
    \12\See Joanne Locke, ``A History of Plain Language in the United 
States Government,'' 2004, available at www.plainlanguage.gov/whatisPL/
history/locke.cfm; Cheek testimony, at p. 5; Cox Testimony, at pp. 2-4 
(discussing plain language initiatives at the Securities and Exchange 
Commission).
---------------------------------------------------------------------------
    Although many agencies have made progress, the plain 
writing requirement has been implemented unevenly.\13\ As one 
example provided at a House hearing on plain writing, a federal 
agency wrote to beneficiaries of a federal program:
---------------------------------------------------------------------------
    \13\See, e.g., Statement of Robert Romasco, Member of the Board of 
Directors of the AARP before House Committee on Small Business, 
Subcommittee on Contracting and Technology, February 26, 2008 
(hereafter Romasco Testimony), at pp. 1-3 (describing federal 
government plain writing efforts but arguing that legislation is needed 
to ensure government-wide compliance); Cheek testimony at pp. 5-6 
(describing plain writing intitiatives but concluding, ``Despite these 
scattered results, most agencies still consider it's the reader's job 
to figure out what they're saying, not their job to be clear.'').

          In cases in which a claimant receives reimbursement 
        under this provision for expenses that also will or may 
        be reimbursed from another source, the claimant shall 
        subrogate the United States to the claim for payment 
        from the collateral source up to the amount for which 
---------------------------------------------------------------------------
        the claimant was reimbursed under this provision.

    According to a witness at the hearing, this means, ``If you 
receive payments from us and another source for the same 
expenses, you must pay us back the amount received from the 
other source.''\14\
---------------------------------------------------------------------------
    \14\See Cheek testimony, at p. 2.
---------------------------------------------------------------------------
    This inconsistency has led a wide variety of organizations 
to call on Congress to pass legislation to reinforce the 
existing plain writing programs. Many organizations contend 
that their members continue to lose time and money struggling 
to understand federal government documents.\15\ The following 
organizations have sent or joined letters in support of plain 
writing requirements: the AARP, Disabled American Veterans, 
National Small Business Association, Small Business Legislative 
Council, Women Impacting Public Policy, National Association of 
the Self Employed, American Association of Law Libraries, 
American Library Association, Special Libraries Association, 
American Nurses Association, American Dental Association, 
Association for Business Communication, Association of 
Professional Communication Consultants, Strategic Communication 
Inc., and Usability Professionals' Association.\16\
---------------------------------------------------------------------------
    \15\See McCracken testimony, at p. 2; Romasco Testimony at p. 3 
(``AARP hears every day from our members who cannot understand the 
dense writing and legalese in correspondence they receive from the 
federal government. In most cases, this lack of comprehension is not 
the fault of the reader but rather the impenetrable writing style of 
the government agency.'').
    \16\All letters available upon request to the Senate Subcommittee 
on Oversight of Government Management, the Federal Workforce, and the 
District of Columbia.
---------------------------------------------------------------------------
    The Plain Writing Act heeds that call and seeks to codify 
plain writing requirements, thereby promoting the more 
consistent use of plain writing in all federal agencies.\17\
---------------------------------------------------------------------------
    \17\See, e.g., Romasco Testimony (``In order to ensure uniform 
progress in this area, AARP believes a statutory requirement for 
government agencies to write in plain language, and a requirement that 
the agencies report to Congress on the progress they are making in 
meeting this goal, is needed to help ensure compliance.'').
---------------------------------------------------------------------------
    Under the bill, the Office of Management and Budget (OMB) 
would develop and issue guidelines for plain writing, giving 
all agencies a single set of standards to reference. The 
Committee believes that standard, centralized OMB guidance 
would allow for the most efficient and effective implementation 
of S. 574's plain writing requirements and that OMB--in 
particular the Office of Information and Regulatory Affairs 
(OIRA)--has or can readily develop the appropriate expertise to 
formulate the guidance. OIRA has responsibility for overseeing 
the ``[d]issemination of and access to government information'' 
as well as the ``quality, utility, and analytic rigor of 
information used to support public policy.''\18\ Should OMB 
need assistance in developing the guidance, the bill provides 
OMB great flexibility and places no restrictions on the 
development of the guidance. Therefore, for example, OMB could 
consult with federal employees active in PLAIN or could adapt 
the guidelines that PLAIN developed.
---------------------------------------------------------------------------
    \18\See website of the Office of Management and Budget Office for 
Information and Regulatory Affairs, at http://www.whitehouse.gov/omb/
regulatory_affairs/default.
---------------------------------------------------------------------------
    As reported, S. 574 would require agencies to submit 
initial reports directly to Congress, and follow up reports to 
OMB, which would review agencies' reports on compliance with 
the legislation and report to Congress on agencies' progress. 
Agencies would be primarily responsible for implementing the 
plain writing requirements, and OMB would not be responsible 
for reviewing agency communications for compliance or directly 
overseeing the plain writing requirements. Additionally, 
agencies would be required to include in their reports 
information on agency plans to communicate the Act's 
requirements to employees, train employees in plain writing, 
meet the requirements of the Act, and ensure ongoing compliance 
with the Act.
    The Plain Writing Act defines ``plain writing'' with 
reference to the ``intended audience.'' As Annetta Cheek, Chair 
of the Center for Plain Language, testified at the 2008 House 
hearing, ``[t]here are no hard rules in plain language except 
to be clear to your intended reader.''\19\ Plain writing does 
not require deleting complex information; rather it means 
organizing and presenting information in a way that improves 
readability. Specialized vocabulary, such as legal or 
scientific terms, may be appropriate when addressing an 
audience that understands the terms. However, when addressing a 
general audience, specialized terms should be explained or 
avoided if not necessary to accurately present the information 
conveyed.
---------------------------------------------------------------------------
    \19\See Cheek Testimony, at p. 4.
---------------------------------------------------------------------------
    The Plain Writing Act's definition of ``covered document'' 
is intended to broadly encompass written communications with 
the public. The definition covers written communications 
provided to members of the public electronically--for example, 
website content or emails--as well as printed documents. Unlike 
the Clinton memorandum, however, the bill excepts regulations 
from its definition of ``covered document.'' This will reduce 
the burden on OMB and federal agencies in implementing the 
Plain Writing Act. Additionally, the Committee recognizes that 
many regulations are technical and complicated, so implementing 
plain writing in rulemaking may require additional planning and 
training beyond what is necessary for other documents. 
Accordingly, the Plain Writing Act would allow agencies to 
focus their efforts first on other types of writing. However, 
the Plain Writing Act is not intended to discourage any 
executive branch plain writing requirements or programs 
supplemental to those required by the Act.
    To further reduce the burden of the legislation, agencies 
would be given one year from the date of enactment to comply 
with plain writing requirements, which is a significantly 
longer time period than the Clinton memorandum provided.
    OMB raised concerns that this legislation would lead to 
litigation. The Committee does not intend to create any 
individually enforceable right. Rather, it will be the 
responsibility of agencies, OMB, and Congress to ensure that 
the plain writing requirements are implemented. To address 
OMB's concern, Senator Akaka offered, and the Committee 
adopted, an amendment to add a new section 6 to the bill, 
specifying that there shall be no judicial review of compliance 
with the Act, and that the Act creates no right or benefit 
enforceable in any administrative or judicial action.

                        III. LEGISLATIVE HISTORY

    On November 1, 2007, Senator Akaka introduced the Plain 
Language Act (S. 2291), which was referred to the Committee on 
Homeland Security and Governmental Affairs. Senators McCaskill, 
Carper, Levin, Obama, Clinton, Tester, Voinovich, Collins, and 
Cochran cosponsored S. 2291. The Committee considered S. 2291 
and ordered it to be reported favorably by voice vote on April 
10, 2008.
    Representative Braley introduced a companion bill (H.R. 
3548) in the House of Representatives on September 17, 2007, 
which was referred to the House Committee on Oversight and 
Government Reform. On February 26, 2008, the House Small 
Business Committee, Subcommittee on Contracting and Technology, 
held a hearing on the benefits of plain language writing. The 
House Committee on Oversight and Government Reform ordered the 
legislation to be reported as amended on March 13, 2008, and 
the House of Representatives passed H.R. 3548 on April 14, 
2008.
    On March 11, 2009, Senator Akaka introduced the Plain 
Writing Act (S. 574). Senators Voinovich, Carper, Levin, 
McCaskill, and Tester are original cosponsors of the 
legislation. Ranking Minority Member Collins has joined as a 
cosponsor as well.
    On April 1, 2009, the Committee considered S. 574 and 
ordered the bill reported favorably by voice vote with an 
amendment, described above, clarifying that there shall be no 
judicial review of compliance with the Act, and that the Act 
creates no right or benefit enforceable in any administrative 
or judicial action. Members present for the vote were Chairman 
Lieberman; Senators Akaka, Carper, Pryor, Tester, Burris and 
Bennet; Ranking Minority Member Collins; and Senators Coburn 
and Voinovich.
    Representative Braley introduced a companion bill (H.R. 
946) in the House of Representatives on February 10, 2009, 
which was referred to the House Committee on Oversight and 
Government Reform.

                    IV. SECTION-BY-SECTION ANALYSIS

    Section 1 titles the bill.
    Section 2 identifies the purpose of the Act as improving 
the effectiveness and accountability of Federal agencies to the 
public by promoting clear Government communication that the 
public can understand and use.
    Section 3 defines the terms ``agency,'' ``covered 
document,'' and ``plain writing.''
    Section 4(a) requires that not later than one year after 
the date of enactment agencies use plain writing in any covered 
document that the agency issues or substantially revises.
    Section 4(b) directs OMB to develop guidance on 
implementing the requirements of Section 4(a) and issue it as a 
circular. In the interim before the guidance is issued, 
agencies are directed to follow the writing guidelines PLAIN 
developed or any guidance provided by the agency head that is 
consistent with the PLAIN guidelines.
    Section 5(a) requires the head of each agency to submit an 
initial report to the Senate Committee on Homeland Security and 
Governmental Affairs and the House Committee on Oversight and 
Government Reform within six months of enactment. The initial 
report would designate a senior official responsible for 
implementing the requirements of the Act and describe the 
agency's plan to train employees in plain writing, meet the 
deadline for compliance with the Act, and ensure ongoing 
compliance.
    Section 5(b) requires the agency to submit reports to OMB 
on compliance with this legislation. OMB would review those 
reports and submit a report on the agencies' compliance to the 
Senate Committee on Homeland Security and Governmental Affairs 
and the House Committee on Oversight and Government Reform, 
annually for the first two years after the date of enactment 
and once every three years thereafter. OMB would notify each 
agency of the date by which the agency's report is required to 
enable it to meet its reporting deadline.
    Section 6 specifies that there shall be no judicial review 
of compliance or noncompliance with the Act, and that the Act 
creates no right or benefit enforceable in any administrative 
or judicial action.

                    V. ESTIMATED COST OF LEGISLATION

                                                     April 3, 2009.
Hon. Joseph I. Lieberman,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S. 
        Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 574, the Plain 
Writing Act of 2009.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

S. 574--Plain Writing Act of 2009

    S. 574 would amend federal law to require all federal 
agencies within one year to use plain writing (clear, concise, 
well-organized, and readily identifiable to the intended 
reader) in all documents except for regulations. The 
legislation also would require the Office of Management and 
Budget (OMB) to provide government-wide guidance on this 
matter. Finally, S. 574 would require each agency to designate 
a coordinator to review its compliance with the legislation, 
train employees to use plain language, and prepare reports to 
the Congress on compliance with the legislation.
    CBO estimates that implementing S. 574 would cost about $3 
million a year for agencies to provide additional employee 
training and prepare reports for the Congress, subject to the 
availability of appropriated funds. The bill could also affect 
direct spending by agencies not funded through annual 
appropriations, such as the Tennessee Valley Authority and the 
Bonneville Power Administration. CBO estimates, however, that 
any net increase in spending by those agencies would not be 
significant.
    Most provisions of the bill would codify and expand current 
practices of the federal government. Executive Order 12866 and 
the Presidential Memorandum on Plain Language (June 1, 1998) 
currently require government agencies to write in language that 
is comprehensible to readers. In addition, current laws such as 
the Paperwork Reduction Act, requires information collection 
forms to be ``written using plain, coherent, and unambiguous 
terminology.'' Based on information from OMB, CBO estimates 
that implementing this bill would not significantly increase 
the cost of preparing various paper or electronic documents 
used throughout the government.
    S. 574 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contact for this estimate is Matthew 
Pickford. This estimate was approved by Theresa Gullo, Deputy 
Assistant Director for Budget Analysis.

                  VI. EVALUATION OF REGULATORY IMPACT

    Pursuant to the requirements of paragraph 11(b) of rule 
XXVI of the Standing Rules of the Senate, the Committee has 
considered the regulatory impact that would be incurred in 
carrying out this legislation. CBO states that there are no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act and no costs on State, local, or 
tribal governments. The legislation contains no other 
regulatory impact.

                      VII. CHANGES IN EXISTING LAW

    Because this legislation would not repeal or amend any 
provision of current law, it would make no changes in existing 
law within the meaning of clauses (a) and (b) of paragraph 12 
of rule XXVI of the Standing Rules of the Senate.