General Principles

Generally
Good Drafting
Organization
Purpose
Principles of Style
Basic Drafting Tools
Quoting Statute in Rule
Tense
Present Tense
Time Relationships
Voice
Active Voice
Action Verbs
Positive Voice
Case
Singular and Plural
Third Person
Compound Terms
Gender Neutral Language

Generally

This chapter provides the rulewriter guidance in composing, drafting, organizing, and formatting rules. Read and re-read this chapter before beginning to write. Major portions of this chapter have been adapted from the Office of Legislative Research and General Counsel's Legislative Drafting Manual, State of Utah, 2005 edition, Chapters 1 and 7. This chapter incorporates most of the same standards applied in writing statutes.

Good Drafting

Organization

Before composing an administrative rule, a rulewriter should identify the authority for the rule; determine the purpose, intended results, or objectives of the rule; define the words to be used; and outline the organization of the rule.

There is no single approach to outlining the organization of a rule. Following the construction of statutes, however, will usually work well. Beginning with a general purpose section, followed by definitions of terms used throughout the rule, before writing the body of the rule, is a common rulewriting method. The body, as in a statute, should be divided by specific subjects the rule addresses, each a section of the rule. Good organization often makes a difficult rule comprehensible, and preparing a complete outline will facilitate good organization.

Purpose

The rulewriter should keep in mind that the basic purpose of an administrative rule is to facilitate carrying out statutory mandates. The rule and consequent agency action must be based on statute (or a constitutional mandate). It may also be based on federal mandate, legislative intent language (if any), the governor's policy, direction from federal or state court, or the agency mission (as defined in or extrapolated from statute).

Fully understanding the intended results of the rule is critical to its effective composition. The rulewriter should be able to identify clearly whether the intent is to restrict activities or provide a benefit under certain conditions, or both; and be able to state the conditions under which the restrictions apply or benefits are bestowed.

Principles of Style

Following the principles of drafting enables a rulewriter to avoid ambiguity and to write in “plain English.” The three basic principles of drafting are:

  • consistency;

  • simplicity; and

  • clarity.

Consistency requires that the same form be used throughout an agency's rules to avoid varying interpretations that may result from divergent styles and construction. Unlike literary composition, a rulewriter avoids unnecessary variation in sentence form, even to the point of monotony. Similarly, a word, especially if the word is included in a definition section, should be used with the same meaning throughout an agency's rules. Avoid synonyms or synonymous expressions.

The principle of simplicity is reflected in dignified but simple and direct regulatory language. Clarity similarly requires a rulewriter to avoid abstract or vague language so that courts and others implementing a rule can understand the directives of the agency. All three principles require common terminology and simple phrasing. The following are basic skills that can be used in achieving these overriding principles.

Careful Choice of Language

An effective rulewriter uses familiar language that expresses the intended meaning according to common and approved usage. Terms used in drafting should be easily understood, with those few exceptions defined. A balance must be struck between excessive technical terms and an inappropriate conversational tone. Technical terms may be used if properly defined. Rules should not be overly simplistic or informal.

  • Use short words and sentences. When possible, keep sentences brief using words of three syllables or fewer.

  • If it is possible to omit a word and retain the desired meaning, omit the word.

  • Do not use jargon, slang, overly technical language, “legalese,” or foreign phrases (including Latin legal terms) unless the word or phrase is a term of art or its use is supported by substantial case law.

  • Do not use abstract words. Regulatory language should be precise using simple and concrete terms.

DO NOT SAY: IF YOU MEAN:
firearm handgun
vehicle automobile
aircraft helicopter
  • Do not use superfluous or indefinite words. These type of words include “real,” “actual,” “true,” “duly,” “whatsoever,” “hereby,” and “therewith.”

  • Do not use provisos. A proviso, such as “provided, that,” is archaic and creates confusion. Rearranging a sentence generally eliminates the need for a proviso. For further discussion of provisos, see the section called “Provisos”.

  • Avoid using indefinite pronouns as references. Indefinite pronouns can result in confusion as to whom a condition or duty applies. If a pronoun could refer to more than one person in a sentence, repeat the title of the person. Use of pronouns also raises issues regarding drafting in gender neutral language. For further discussion of gender neutral drafting, see the section called “Gender Neutral Language”

DO NOT SAY: SAY:
After the executive director appoints the director, he shall administer this rule. After the executive director appoints the director, the director shall administer this rule.
  • Do not use different words to denote the same meaning. The same word, especially if included in a definition section, should be used with the same meaning throughout a rule and throughout any related existing regulatory provisions.

DO NOT SAY: SAY:
An owner of an automobile shall register the owner's car with the division. An owner of a motor vehicle shall register the motor vehicle with the division.
  • Do not use the same word to denote different meanings.

DO NOT SAY: SAY:
Each tank shall have a 10 gallon fuel tank. Each tank shall have a 10 gallon container of fuel.
Appropriate Structure for Rules

Rules should be structured so that the rule is logical and accessible. The arrangement and parallel construction of sentences or phrases become critical to the structure of a rule.

  • Sections similar in substance should be similarly arranged and outlined. Parallel structure improves accessibility and promotes consistency. Sentences should be arranged so that parallel ideas look parallel, especially in a list.

DO NOT SAY: SAY:

(1) The commission shall:

(a) receive applications;

(b) it sets fees; and

(c) approving licenses.

(1) The commission shall:

(a) receive any application;

(b) set fees; and

(c) approve a license.

  • Express parallel points using numbered clauses. For example, if there are multiple conditions or exceptions, a rulewriter should consider placing all exceptions in a separate subsection and refer to this subsection before stating the general rule. The multiple exceptions would appear in the subsection as a list of numbered clauses (for more on exceptions, see the section called “Exceptions”.

Example: [a]

(a) This section applies, according to the provisions thereof, except to the extent that there is involved—

(1) a military or foreign affairs function of the United States; or

(2) a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.

  • Avoid placing two or more prepositional phrases together. Word order becomes confusing when prepositional phrases are placed together.

DO NOT SAY: SAY:
Each applicant for a license in this state… Each license applicant from this state…
OR:
Each applicant for a license to practice in this state…
  • Write a rule as if it is continuously in effect, not as if it applies only at a point in time. This requires drafting in the present tense and avoiding words such as “now” or “present.”

  • Use a simple and consistent paragraph structure within a section. Long sentences or phrases should be divided into shorter, more readable paragraphs when amending an existing rule or writing a new rule. Do not create “dangling” paragraphs, i.e., a paragraph where it is unclear whether the paragraph applies to the last clause of a list or to multiple clauses in the list.

  • Be careful to only modify a word that is intended to be modified. This generally arises when a provision includes multiple terms only some of which are subject to a modification.

DO NOT SAY: SAY:

(1) A person may not own a reptile, a canine, or a feline defined as an endangered species under…

(1) A person may not own:

(a) a reptile;

(b) a canine; or

(c) a feline that is defined as an endangered species under…

SAY, IF YOU MEAN TO MODIFY ALL CATEGORIES:

(1) A person may not own any of the following that is defined as an endangered species under…:

(a) a reptile;

(b) a canine; or

(c) a feline…

Avoid “noun sandwiches.” Noun clusters can be avoided by using more prepositions.

DO NOT SAY: SAY:
Water resources loan plan A loan plan for water resources

Avoid the use of split infinitives. Although there is nothing wrong with them, the prejudice against them is strong.

DO NOT SAY: SAY:
If it is necessary under this section to promptly reply… If it is necessary under this section to reply promptly…

Basic Drafting Tools

A good reference library is a valuable resource to a rulewriter. The following reference documents are recommended for anyone involved in drafting rules.

Quoting Statute in Rule

At times we are tempted to quote statute in rule, either because we believe it will add weight to what we say, or because we want to demonstrate conclusively that we really do have the authority to write this particular rule. There may be any number of other reasons why we want to quote statute in rule. Don't do it.

Let's look at some reasons why quoting statute in rule is a bad idea.

It is redundant. Quoting statute in rule results in printing the exact same legal requirements in two codes when one will suffice. Doing so imposes at the least a time burden on careful readers who go to the effort of comparing the repeated statutory language in rule to the language of the statute itself. Trying to create a one-stop text where all material can be found ultimately doesn't work, and can possibly result in other problems (see “It creates potential for other legal problems” below).

It has no legal purpose. There is no legal purpose to be found in repeating language that is already legally enforceable.

It misses the point of what a rule is supposed to be. A rule is a legal tool intended to be used by an agency to implement or interpret a statute. It is not intended to be a users' manual. This purpose is better accomplished by, well, a users' manual. Agencies may certainly create guidance documents to help their regulated constituents navigate both rule and statute.

[Note] Note

Remember that guidance or interpretive documents are not regulatory in nature, and do not carry the weight of rule. Enforceable rules must go through the rulemaking process (see Section 63-46a-3.5).

It pulls the agency into the regulatory oversight process. The Governor's Office of Planning and Budget (GOPB) reviews rules and routinely tells agencies not to quote statute in rule. The Legislature has a special committee—the Administrative Rules Review Committee (ARRC)—that also reviews rules on a regular basis. The ARRC advises agencies not to quote statutes in rules. While agencies can benefit from comments from both GOPB and ARRC, it seems less than helpful to encourage these comments by doing something they have asked us not to do. Potentially, there may be other implications for the agency and the rule as well. Both GOPB and ARRC review is not limited to language being changed, but also includes the review of existing language.

It creates potential for other legal problems. If an agency quotes statute in rule it is then required to be hyper-vigilant to ensure that it matches the language of the statute exactly. Additionally, after every session, someone must review the language again to verify that no changes have been made. Mismatched quotations result in confusion that may result in a challenge. It also means that any time the legislature makes a change, even a nonsubstantive change, to the text of the statute, the agency is required to go through the rulemaking process to synchronize the texts. Of course, any legislative session requires regulators to go back and review rules and make certain that cross references are still correct. It just means that we are doing this at a much more detailed level than would otherwise be necessary.

It increases unnecessarily the size of the administrative code. Politicians in both the legislative and executive branches tend to point to the size of codes, policy and procedure manuals, and like materials as a tool for showing what is wrong with government. Quoting statute in rule unnecessarily increases the size of the code at the cost of making it bigger, and thus an object of criticism.

In summary, should you feel tempted to quote statute in rule, don't do it.

Tense

In addition to the general principles of consistency, clarity, and simplicity, a rulewriter should follow other basic drafting principles. It is essential for a rulewriter to draft a rule in present tense and to clearly express time relationships.

Present Tense

A rule continually “speaks” to the person reading the rule. Therefore, a rule should be written in the present indicative, not in the subjunctive; and in the present perfect, not in the future perfect.

DO NOT SAY: SAY:
A person who violates this rule shall be guilty… A person who violates this rule is guilty…
If the director shall have been notified… If the director has been notified…

The term “shall” should not be used except to impose an affirmative duty on someone. For a more complete discussion of this issue, see the section called “Structure and Word Selection”.

Example:
The employer shall keep records.

There is generally no need to write in any tense other than the present tense. See Subsection 68-3-12(1)(d) (words used in statutes in the present tense include the future). One exception to this principle occurs in expressing time relationships.

Time Relationships

If a time relationship must be expressed, present facts may be used in conjunction with past facts.

Example:
Any person who has committed a felony may not apply for a permit.

Combining present facts with future facts is generally not appropriate because the application of the law does not occur until the future fact happens (for example, “Any person who will commit a felony may not apply for a permit.”). This type of rule has obvious difficulties.

Voice

Active Voice

Whenever possible, use the active voice rather than the passive voice. A rulewriter's use of the active voice forces the rulewriter to name an actor as the subject of a sentence. Use the passive voice only if no identified principals are involved or if the active voice would be awkward.

DO NOT SAY: SAY:
A board shall be appointed to enforce this rule. The executive director shall appoint a board to enforce this rule.

Action Verbs

Whenever possible, use action verbs instead of participles, infinitives, gerunds, or other noun or adjective verb forms. Action verbs are shorter and more direct.

DO NOT SAY: SAY:
give consideration to consider
give recognition to recognize
have knowledge of know
have need of need
is applicable applies
make an appointment of appoints
make application apply
make payment pay
make provision for provide for

Positive Voice

Write positively.

DO NOT SAY: SAY:
The director may not appoint members other than those with three years experience. The director shall appoint members with at least three years experience.

Avoid several negatives in one sentence.

DO NOT SAY: SAY:
The project may not be approved unless all requirements are met. The project may be approved only if all requirements are met.

Case

Singular and Plural

There is generally no need to write in the singular and the plural tense. See Subsection 68-3-12(1)(b) (singular words used in statutes include the plural and the plural includes the singular). Phrases like “person or persons” or “person(s)” are unnecessary. Do not interchangeably use the singular and the plural (remember consistency in the section called “Principles of Style”). Use the singular even if the statute encompasses both. Using the singular avoids the problem of whether a law applies separately to each member of a class or to the class as a whole. If the agency intends to have the rule only read in the singular, the rulewriter should make that express in regulatory language.

DO NOT SAY: SAY:
The division shall issue licenses to applicants qualified as dentists and dental hygienists.

(1) The division shall issue a license to an applicant who qualifies as a dentist.

(2) The division shall issue a license to an applicant who qualifies as a dental hygienist.

UNLESS YOU MEAN:
The division shall issue a license to an applicant who qualifies as both a dentist and a dental hygienist.

Third Person

When drafting a rule, the rulewriter should use the third person, “person”; and not use the first person “I,” or the second person “you.”

Compound Terms

If a compound word is plural, the significant word takes the “s.”

SINGULAR: PLURAL:
attorney general attorneys general
corporation counsel corporation counsels
lieutenant governor lieutenant governors
notary public notaries public
right-of-way rights-of-way

Gender Neutral Language

Gender based distinctions are rarely appropriate and gender neutral language should be used when possible. However, Subsection 68-3-12(1)(c) provides that words in one gender comprehend the other gender. Therefore, phrases such as “he or she” are unnecessary in drafting rules.

In drafting gender neutral language, the rulewriter can use the following techniques to avoid using gender specific pronouns and to avoid awkward or artificial wording.

  • Repeat the subject of the sentence or the word that would have been the pronoun's antecedent reference. In some instances, the possessive noun may be repeated.

DO NOT SAY: SAY:
A person shall receive an exemption if he submits the application. A person shall receive an exemption if the person submits the application.
  • Substitute a noun for the pronoun.

DO NOT SAY: SAY:
If he submits an application, the division shall consider the application. If the individual submits an application, the division shall consider the application.
  • Omit the pronoun or the phrase that would include the pronoun, if the pronoun or phrase is not essential.

DO NOT SAY: SAY:
The board chair shall hold his office until a successor is appointed. The board chair shall hold office untial a successor is appointed.
  • Use an article such as “a,” “an,” “the,” or “that” instead of the pronoun.

DO NOT SAY: SAY:
The person shall submit his application. The person shall submit an application.
  • Reconstruct or rewrite the sentence to avoid the need for a pronoun.

Use a relative clause.

DO NOT SAY: If an applicant has been licensed in another state, he shall submit a verified application.

SAY: An applicant who has been licensed in another state shall submit a verified application.

Use a modifier without an expressed subject.

DO NOT SAY: If the commissioner finds that the sampling frequency can be safely reduced, he may order it reduced as specified in Subsection (2).

SAY: Upon finding that the sampling frequency can be safely reduced, the commissioner may order it as specified in Subsection (2).

Remove the nominal.

DO NOT SAY: A person who imports or has in his possession dangerous drugs commits a first-degree felony.

SAY: A person who imports or possesses dangerous drugs commits a first-degree felony.

The following table contains examples of preferred gender neutral terms.

DO NOT SAY: SAY:
brother, sister sibling
chairman, chairwoman chair
clergyman minister, member of the clergy
committeeman committee member
crewman crew member
daughter, son child, children
draftsman drafter
enlisted man enlisted personnel
ex-serviceman veteran
father, mother parent
female, male, man, woman person
fireman firefighter
fisherman fisher
foreman supervisor
grandfather, grandmother grandparent
husband, wife spouse
husband and wife married couple
layman lay person
mailman mail carrier
man-hours hours worked, worker hours
mankind humanity
man-made artificial, synthetic
manpower personnel, staff
nurseryman nursery operator
policeman peace officer, police officer, sheriff, trooper
serviceman military personnel
warehouseman warehouse keeper
widow, widower surviving spouse
workman, working men worker, workers