Robert E. Feldman
Executive Secretary (Attn: Comments/Legal ESS)
Federal Deposit Insurance Corporation
550 17th Street, NW
Washington, DC 20429
Dear Sir:
I’m commenting
on your April 16, 2004, notice of proposed rulemaking as the Chair
of the Plain Language Action and Information
Network (PLAIN), a group advocating the use of plain language in
Government communications. Many of the members of PLAIN work for
Federal Government agencies.
Section 722 of the Gramm-Leach-Bliley Act of 1999 (Pub. L. 106-102)
requires Federal banking agencies to use plain language in drafting
regulations. Plain language has a solid record of reducing misunderstanding,
improving compliance, fostering public trust in government, and advancing
other goals of Federal programs.
I have two comments
on your proposal related to the use of plain language. The first
has
to do with use of a negative expression where
a positive one would be easier to understand. The second has to do
with your use of the word “shall.”
The second sentence
of proposed § 303.16(b)(2) states, “Nothing
in this subparagraph (b)(2) is intended to suggest that an insured
depository institution may ignore any law or regulation that may
otherwise require the depository institution to maintain records
reflecting the amount owed to each cardholder.” It is a well-settled
precept of clear writing to state things in a positive manner where
possible. Writing in the negative forces the reader to imagine, based
on what is not, what is. It is usually less complicated to state
things positively. See Strunk and White, The Elements of Style, pp.
14-15 (2nd. ed. 1972); David Mellinkoff, Legal Writing: Sense and
Nonsense, p. 38 (1972) (“It is worth experimenting with cutting
down on negatives. They multiply. They confuse. They cause the reader
trouble.”); and Bryan A. Garner, Legal Writing in Plain English,
pp. 30-31 (2001) (“When you can recast a negative statement
as a positive one without changing the meaning, do it. You’ll
save readers from needless mental exertion.”).
For this reason,
I strongly recommend revising the sentence to read positively.
Perhaps you
will consider the following: “An
insured depository institution must comply with any law or regulation
that may otherwise require it to maintain records reflecting the
amount owed to each cardholder.”
My second comment
pertains to your use of the word “shall” in
the introductory language of proposed § 303.16(c), the second
sentence of proposed § 303.16(c)(1), and proposed § 303.16(e). “Shall” is
a troublesome word because it can have several different meanings.
Sometimes it expresses future action (The lease shall terminate if
payment is not received). Sometimes it expresses an obligation (The
court shall enter an order for the relief sought). Sometimes it expresses
an entitlement (The secretary shall be reimbursed for all expenses).
Sometimes it gives or denies permission (Such time shall [or shall
not] be further extended [for cause]). Many legal drafting authorities
have made specific recommendations for use of “shall,” including
using “must” instead of “shall” to express
a duty. See Richard C. Wydick, Plain English for Lawyers, p. 67 (4th
ed. 1998) (“[D]on’t use ‘shall’ for any purpose—it
is simply too unreliable.”) and Bryan A. Garner, Legal Writing
in Plain English, pp. 105-106 (2001) (“In stating requirements,
the [Federal Rules of Appellate Procedure] use the verb ‘must.’”).
In the introductory
language of proposed § 303.16(c), you
state that in a particular situation, “the funds shall be classified
as follows.” It isn’t clear to me whether you are simply
making a statement about the future or trying to establish an obligation.
If your intention is simply to express the future, I recommend that
you rely on present tense instead. It is a well-settled precept of
legal drafting to write in the present tense, not the future. See
Reed Dickerson, The Fundamentals of Legal Drafting, p. 185 (2nd ed.
1986) (“[I]n rule drafting, use the present tense unless you
can articulate a sound reason for using the past, future, or other
tense.”). Using present tense, the sentence would read in part, “the
funds are classified as follows.” If you are trying to establish
an obligation, I recommend the following language instead, “the
institution must classify the funds as follows.”
In the second
sentence of proposed § 303.16(c)(1), “After
the forwarding . . . , the funds shall cease to be ‘deposits’.” Again,
it isn’t clear whether you are simply making a statement about
the future or trying to establish an obligation. If it’s the
future, use present tense to say “the funds cease to be ‘deposits’.” If
it’s an obligation, use “must (and active voice) to say “the
institution must no longer consider the funds to be ‘deposits’.”
In proposed § 303.16(e), you say that in a certain situation, “such
funds shall be governed by [part 330].” In this case, I don’t
think you are creating an obligation. The rules in part 330 create
and contain the obligations. I think you are simply using future
tense where present tense is perfectly adequate. I recommend changing
the paragraph to read, in pertinent part, “such funds are governed
by [part 330].” Note that none of the changes I recommend are
substantive. They are editorial in nature and aimed at clarifying
your language and making your proposal more understandable.
PLAIN is very interested in helping all Federal banking agencies
comply with the requirements of the Gramm-Leach-Bliley Act. To this
end, we would be happy to work with you to change your proposal or
provide ongoing drafting and reviewing assistance to your agency.
Please feel free to contact me by replying to this e-mail or by telephone
at 202/267-3939.
Sincerely,
Annetta Cheek
Chair, PLAIN
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