summary of the record will aid in writing the statement of basis and purpose. 4. Writing in "Plain English." Rules should not only establish legal requirements but also communicate those requirements to the people expected to comply with them. Additionally, a rule's supporting documents will aid compliance with the rule only if people read, comprehend, and accept the rationale or analysis set forth in those documents. Therefore, it is in the agency's interest to review the proposed rule and supporting documents for their clarity and organization. The comprehensibility of regulations was given priority in President Carter's regulatory reform program. Executive Order 12044 required agency heads to determine that each regulation they published was "written in plain English and... understandable to those who must comply with it."75 In response to this requirement, some agencies adopted writing guidelines, instituted training programs, or established special review procedures to improve writing quality. However, President Reagan's Executive Order on Federal Regulation revoked the Carter order, thereby removing the only government-wide legal requirement that regulations be written in "plain English."76 Certain agencies, however, are required by statute to write regulations as simply and 77 clearly as possible." alternative [to military] service, published recently, provide an illustration of this kind of statement. The preamble states: "All comments that were received timely have been carefully considered. The final rule is identical with the proposed rule." 48 Fed Reg. 16,675 at 16,676 (Apr. 19, 1983). See also Independent U.S. Tanker Owners Comm. v. Lewis, 690 F.2d 908, 919 (D.C. Cir. 1982). 75/ Exec. Order 12,044 S 2(d)(5), 3 C.F.R. 152 (1978 Comp.) at p. 154. Use of the term "plain English" was perhaps unfortunate because it suggests that all rules ought to be equally comprehensible to the average "man on the street," when, in fact, the order allowed agencies to take into account the type of audience or group to which the rule was directed. 76/ Exec. Order No. 12,291, 3 C.F.R. 127 (1981 Comp.) at p. 134. 77/ See the Financial Regulation Simplification Act of 1980, 12 U.S.C. SS 3521, 3522, which requires federal financial regulatory agency rules to be "as simple and clearly written as possible and (Continued) 78 The Federal Register imposes requirements of style and form upon agency rules. One requirement is that agencies publishing a notice of a proposed or final rule must include "a preamble which will inform the reader who is not an expert in the subject area, of the basis and purpose of the rule or proposal." Regulation writers must also recognize that many readers will be using the texts of rules as reference documents to find answers to specific questions. To serve this need, rules must be organized carefully and logically so that users can readily locate the sections that are relevant to their questions. Therefore, the regulation writer should give some thought to the kind of questions that readers will be likely to have when using the rule. The writer should consider using these questions as section headings. The Federal Communications Commission is one agency that has successfully redrafted some of its rules in plain English. The recently revised rules for citizens band radio operators are a celebrated example of simplified communication without loss of precision. 80 The revised rules are worth reading to see how a flexible approach to format and style, taking into account the type of audience, can be of value. The revised rules incorporate simpler language, distinctive headings, and a logical presentation. They also eliminate much technical jargon and superfluous information. The FCC has also revised in a similar manner its rules for the radio 81 control radio service and for the marine radio service for 82 recreational boaters. The last set of rules was evaluated by testing the comprehension of both experienced and inexperienced recreational boaters who were asked to read the old or new rules. The evaluation showed that the plain English version resulted in more correct answers in less time, and was easier to use, for both experienced and inexperienced boaters.83 understandable by those who are subject to such regulation." 78/ See discussion infra at p. 213. 79/ 1 C.F.R. S 18.12 (1983). 80/ 47 C.F.R. S 95.401 (1982). 81/ 47 C.F.R. SS 95.201-95.243 (1982). 82/ 47 C.F.R. SS 83.1001-83.1022 (1982). 83/ D. Felker and A. Rose, The Evaluation of a Public Document: The Case of FCC's Marine Radio Rules for Recreational Boaters (Continued) Where can regulation writers turn for assistance when drafting rules? Some agencies employ writing specialists to review documents and assist drafters. For example, the Environmental Protection Agency established a "Plain English Project" in its Office of Standards and Regulations to review drafts for matters of language, logic, or ambiguity. A similar function is performed by the Division of Rules and Records in the Nuclear Regulatory Commission's Office of Administration. These offices also prepare materials to assist writers and conduct writing workshops. The Special Projects Unit of the Office of the Federal Register also offers writing assistance. There is a growing body of literature on improved legal writing. Some recent useful books are: David Mellinkoff, Legal Writing: Sense and Morton S. Freeman, The Grammatical Lawyer Richard C. Wydick, Plain English for Lawyers William Strunk and E. B. White, The Elements Rudolf Flesch, How to Write Plain English: A The following government publications may also be helpful: U.S. Office of the Federal Register, Document U.S. Office of the Federal Register, Legal (American Institutes for Research, Document Design Project, 1981). o Write Regulations (And Other Legal Documents) 84 by Janice C. Redish. The article is a "how to" g riters, and it contains concrete examples of ways to arity of rules. Copies may be obtained at cost fr ent Design Center, American Institutes for Resear s Jefferson St., N.W., Washington, D. C. 20007. C. Approval and Publication of the Final R ting Documents. The last steps in the agency rulemaking process are approval of the final rule and supporting documen ation of the rule and statement of basis and purpos al Register. 1. Procedure for approving the final r ting documents. Agency procedures for adopting fir greatly, depending in part on whether the final on is made by a collegial body or a single admini gial or multi-member agencies are are required Published in Legal Notes and Viewpoints Quarterly, Vol g. 1981). Dr. Redish is Director of the Document er, American Institutes for Research, Washington, D.C 207 Government in the Sunshine Act to open their meetings to the public. Though there are narrow grounds for closing meetings, they would rarely apply to final rulemaking action. 85 Therefore, obtaining a final decision from a multi-headed agency may take somewhat longer simply because of the logistics involved in convening and reconvening meetings of the agency. For example, the agency members may meet for the first time on the proposed rule and conclude that they need more analysis of certain issues, or that they want to adopt a rule somewhat different than that proposed by the rulemaking staff. The rule would be sent back to the staff for additional analysis or drafting, and the matter would have to be taken up at a subsequent meeting. Coordination of the agency members' work schedules and the advance notice requirement of the Sunshine Act will affect the scheduling of subsequent meetings. The personal advisers to the decisionmakers probably will play a key role in the process for approving a final rule and its supporting documents. Typically, they assist the decisionmaker in working out the final rule language and read and assess the supporting documents prepared by the rulemaking staff. These advisers also can aid by making sure that the supporting documents--and, especially, the statement of basis and purpose-accurately reflect the judgments and decisions of the decisionmakers. This is extremely important since the fate of the rule on judicial review may hinge on the reasoning contained in those documents. 2. Plaming for subsequent evaluation of the rule. Recent regulatory reform measures, implemented or proposed, have recognized the need to evaluate the effectiveness-and continued effectiveness--of agency rules. President Carter's 85/ See generally R. Berg and S. Klitzman, An Interpretive Guide to the Government in the Sunshine Act (Administrative Conference of the U.S., Office of the Chairman, 1978). Of course, where decisions are made through circulation of drafts and individual notation of approval, the open meeting requirement does not apply. Communications Systems v. FCC, 595 F.2d 797 (D.C. Cir. 1978). But, for major rulemaking, "notation procedure" would be unduly cumbersome, as well as contrary to the spirit of the Act. |