Structure and Word Selection

General Principles
Exceptions
Conditions
Limitations
Provisos
Enumerations
Paragraphs
Abbreviations
Acronyms
Symbols
Specific Terms
Affect, Effect
And, Or
Any, Each
Compose, Comprise
If, When, Whether
Includes
Notwithstanding
Person, Party
Provisions Of
Pursuant To
Respectively and As the Case May Be
Rules, Regulations
Said, Same, Such
Shall, May, May Not, Must
State of Utah
That, Which
Where and When
Writing

General Principles

Exceptions

The rulewriter should state a general principle or category directly rather than describing that principle or category by stating its exceptions.

DO NOT SAY: SAY:
All persons except those 18 years or older shall… Each person younger than 18 years old shall…

When exceptions are used, they should be stated in simple terms. If only one exception applies, the general principle should be stated first and the exception should follow. The word “except” should be used to introduce the exception.

Example:
This rule applies to all persons except persons 65 years of age or older.

If there are multiple conditions or exceptions, the rulewriter should consider:

  • placing all exceptions in a separate subsection and refer to this subsection before stating the general rule; or

  • placing an enumerated list at the end of the sentence after the general rule has been stated (see the section called “Enumerations”).

Examples:
Except as provided in Subsection R477-200-6 (1)(b), the director shall…
The director shall… , except if the applicant:
(a) is a minor;
(b) has been convicted of a felony; or
(c)…

Conditions

When a condition is used, the condition should also be stated in simple terms. If only one or two simple conditions apply, they should be stated first and the general principle should follow. The word “if” should be used to introduce the condition.

Example:
If any person violates this rule, that person is subject to prosecution.

Limitations

Limitations should be avoided if possible. Generally, a rearrangement of sentences and wording will accomplish the rulewriter's objective without use of a limitation. If a limitation must be used, it should follow the general principle and be introduced with the word “but” or may be provided in a separate sentence.

Example:
“Applicant” means a private individual, or person, but does not include a public entity.
(1)(a) “Applicant” means a private individual or person.
(b) “Applicant” does not mean a public entity.

Provisos

Provisos are archaic and usually result in unintelligible phrases. Expressions like “provided, that,” “provided further that,” or other similar phrases should not be used. In most cases, rearranging the sentence will eliminate the need for the proviso. If the clause modified by a proviso is a complete thought, it should always be rewritten as a complete sentence. If the proviso is rewritten as an exception or condition, principles discussed above should be followed in drafting the exception or condition.

Enumerations

To provide access and readability, the rulewriter should enumerate or list exceptions or conditions in separate paragraphs whenever possible. Enumerations generally are incomplete sentences that are preceded by introductory language stating the general principle set off with a colon. Each condition or exception is then followed by a semicolon with the next to last item in the enumeration followed by a conjunction. Internal periods in a paragraph of these types of enumerations should not be used.

Example:
This rule does not apply to:
(1) investment companies;
(2) securities brokers and dealers;
(3) insurance companies; or
(4) licensed attorneys.

If the enumerations are sentences, the introductory clause should be a sentence which states the general rule and makes clear whether all, any one, or a combination of the conditions or exceptions apply.

Rule of “Expression of One Thing is the Exclusion of Another” (Expressio Unius Est Exclusio Alterius)

When drafting a list, the rulewriter should recognize the inference that all omissions from a list are understood to be exclusions. Although it is practically impossible to make a list complete, some courts have applied the rule expressio unius est exclusio alterius, which means “expression of one thing is the exclusion of another,” and refused to apply a rule to something that, had the rulewriter thought of it, might have been included in the list. However, because this rule is a rule of construction and not a rule of law, it can be overcome by a clear indication of contrary intent. In some jurisdictions the rulewriter avoids this problem by using “includes, but not limited to,…” Because the latter phrase may be interpreted as prospective incorporation, it should be avoided. In Utah, however, the rulewriter need only use the term “include.” According to Sutherland Statutory Construction, when “include” is used, “it is generally improper to conclude that [things] not specifically enumerated are excluded.”

DO NOT SAY: SAY:
This rule applies to all evidences of indebtedness, including, but not limited to, bonds, notes, and certificates. This rule applies to all evidences of indebtedness including bonds, notes, and certificates.

Use of “includes” in this case is similar to its use in definitions. It is inclusive but not exclusive, allowing the courts to adopt additional meanings. For further information on the use of includes, see the section called “Includes”.

Rule of “General Words Followed by Specific” (Ejusdem Generis)

The rule of ejusdem generis is also used to interpret rules. It means that when general words follow an enumeration of persons or things with a particular and specific meaning, the general words are not to be construed in their broadest meaning but are to be held as applying only to persons or things of the same general kind or class as those specified in the enumeration. The rulewriter should use general terms when it is reasonable not to have specific enumeration. If enumeration is required, however, the rulewriter should use introductory language that applies to all items listed in the class.

SAY: IF YOU MEAN:
The Division of Conservation may sell gravel, sand, earth, or other material from state owned land. The phrase “other material” means material similar in type to gravel, sand, and earth and not timber.

Paragraphs

The rulewriter should divide long sentences and phrases into shorter and more readable paragraphs when amending existing rules as well as when writing new rules.

DO NOT SAY: SAY:

(1) If any payment on a contract with a private person, firm, or corporation is retained or withheld, it shall be placed in an interest bearing account and the interest shall accrue for the benefit of the contractor and subcontractors to be paid after the project is completed and accepted by the board of commissioners or city council of the city, or the board of trustees of the town.

(1)(a) Any payment on a contract with a private person, firm, or corporation that is retained or withheld shall be placed in an interest bearing account.

(b) The interest shall accrue for the benefit of the contractor and subcontractors to be paid after the project is completed and accepted by the board of commissioners or city council of the city, or the board of trustees of the town.

The rulewriter should also avoid adding paragraphs without designation (a number or letter) to the end of a section. If the language in this “dangling” paragraph affects the last paragraph only, it should be part of the affected paragraph. If the dangling paragraph affects multiple paragraphs, the affected paragraphs should become one subsection, and the dangling paragraph made either a separate subsection or a separate section altogether. By assigning each paragraph a number or letter, the rulewriter makes the rule easier to understand and facilitates accurate citation.

Abbreviations

Avoid most abbreviations except to cite other laws like federal or state statutes and to indicate the time of day (a.m., p.m.). Some words are always abbreviated such as “etc.,” and “e.g.” but these should no be used in rule drafting.

Acronyms

If an acronym is used, the rulewriter must clearly define it. An acronym should be defined in the “Definitions” section of the rule. Alternatively, it may be defined the first time it appears in each rule in which it is used. Acronyms do not have periods.

Examples:
“GRAMA” means the Government Records Access and Management Act, Title 63, Chapter 2.
… Government Records Access and Management Act (GRAMA)…

Symbols

Generally, symbols or special characters may not be used in rule text, except in the special cases noted elsewhere in this manual. Some symbols serve as commands for computer programs and their inclusion in rule text may cause undesired results. Other symbols, like those created within software (for example, WordPerfect's Compose feature), will not translate to other computer systems or programs and are simply lost, thus distorting the meaning of the rule. Still, other word processors use different type fonts to display symbols. All type font codes are stripped from the rule text before it is published. A rulewriter should use the textual equivalent to a symbol to ensure correctness and clarity. REMEMBER: When in doubt, spell it out!

DO NOT SAY: SAY:
† or ‡ Do not use. These symbols are usually used for footnotes. See the section called “Footnotes and Endnotes” for a discussion of why this is bad in rule.
# “pound” or “number”
§ “Section”
§§ “Sections”
[ ] { } “(” or “)”—do not use brackets or braces as part of the rule text; see the section called “Changes to Rule Text”.
& “and”, unless the ampersand is part of an Internet address.
>, <, ≤, and ≥ “greater than”, “less than”, “less than or equal to”, and “greater than or equal to” respectively
° “degrees”
±, or +/- “plus or minus”
“paragraph”
¢ “cents”
µ or Σ do not use Greek or other foreign letters
@ “at”, “each at”, or “sum”
^ do not use
/ “or”
“ ” ‘ ’ " " ' '
© “copyright”
“trademark”
® “registered trademark”
_ (an underscore character) do not use
— (an em dash) “--”

To avoid the unintentional insertion of symbols, a rulewriter must disable automatic formatting features in the word processor being used to draft the rule. If the rulewriter is using WordPerfect, this means disabling QuickCorrect. If the rulewriter is using Word, this means disabling AutoCorrect. QuickCorrect and AutoCorrect automatically substitute one set of characters for another (for example, “(c)” becomes “©”).

Official Titles

In referring to a public officer or agency, use the official and correct title of the person or agency. For example, do not call the director of the Division of Real Estate the “commissioner.”

Specific Terms

Many terms and phrases are difficult in meaning, spelling, and usage. These include archaic legal language, commonly known as “legalese.” Please see Appendix C, Preferred Terms for a comprehensive list of preferred terms or phrases The most common drafting problem terms are described here. For a list of problem words or phrases and their definitions, see Appendix B, Problem Words and Expressions Defined.

Affect, Effect

Whether to use the term “affect” or “effect” in drafting generally depends on whether a verb or a noun is needed. The verb “affect” means to influence, attack, or touch the emotions. The noun “effect” means the result of an act or event. “Effect” is used as a noun only to indicate when something is to produce a specific effect.

DO NOT SAY: SAY:
This provision takes affect on July 1, 2005. This provision takes effect on July 1, 2005.

However, “effect” may also be used as a verb, meaning “to cause to come into being, to bring about…” Thus, “The agency may effect change by engaging in these actions…”

And, Or

Never use “and/or.” The rulewriter should be able to determine which term is correct. If all the items in an enumeration are to be taken together, they may be joined at the last two items by the conjunction “and.” If the items are to be taken in the alternative, “or” is used. If terms are to be taken both together and in the alternative the “and/or” need not be used, but the rulewriter should consider using a phrase similar to “or both” or making the introductory language clear.

DO NOT SAY: SAY:
Each corporation and/or bank shall… Each corporation, bank, or both shall…

Do not use “/” in the place of the word “or.” It creates ambiguity.

Any, Each

One way to avoid ambiguity in writing is to use the singular subject. The rulewriter should therefore use the singular articles “a,” “an,” and “the.” Sometimes the use of these articles creates an ambiguity, and if this occurs, the rulewriter should use the indefinite pronouns “any” and “each.” “Each” should be used if imposing an obligation to act, and “any” should be used if granting a right, privilege, or power. The term “every” should not be used.

DO NOT SAY: SAY:
The commissioner shall issue a certificate to an insurance company. The commissioner shall issue a certificate to each insurance company.
The commissioner may issue a certificate to an insurance company. The commissioner may issue a certificate to any insurance company.

If the subject is plural, the articles and indefinite pronouns need not be used. However, the singular expression is preferred. The terms “all” and “some” should not be used.

DO NOT SAY: SAY:
All qualified employees shall… Qualified employees shall…

Compose, Comprise

The words “compose” and “comprise” both involve the idea of containing, embracing, comprehending, or surrounding. “Compose” also means making or forming.

“Comprise” suggests including or containing. The whole comprises the parts, the parts do not comprise the whole.

“Comprised of” is a wordy expression and should not be used.

Examples:
The board shall be composed of ten members.
The board comprises ten members.

If, When, Whether

Use “if” not “when” to express a condition. Use “when” only as a reference to time.

DO NOT SAY: SAY:
If the complaint is filed, the director shall schedule a hearing… When the complaint is filed, the director shall schedule a hearing…
When the applicant is qualified… If the applicant is qualified…

Includes

As discussed in “Expression of One Thing is the Exclusion of Another,” if a rule contains an inclusive list the term “includes” should be used. This term is inclusive but not exclusive, allowing courts to adopt additional meanings. (See Checkrite Recovery Services v. King, 52 P.3d 1265 (Utah 2002).) Do not say, “shall be deemed to include” or “shall include but is not limited to.” If necessary, a rulewriter may list items that are not to be included under a definition or enumeration. In such case, the rulewriter may begin the list of exclusions with the phrase, “but does not include …”

Notwithstanding

Avoid the use of the term “notwithstanding” unless referring to a specific provision of the Utah Administrative Code. The term “notwithstanding” is normally used as a shortcut to avoid conflicts with other sections. It is preferable for the rulewriter to rewrite that section so that there is no conflict. If a conflict cannot be avoided, the rulewriter should specify the existing section that is in conflict and indicate that the provisions of the rule supersede that section. It is important to be as specific as necessary to explain which provisions are being superseded. Only if it is impossible to specify the sections that are in conflict should the rulewriter state that the new section supersedes conflicting sections.

DO NOT SAY: SAY:
Notwithstanding Section R13-1-1… Section R13-1-1 is amended to read:…
Notwithstanding Section R13-1-1… This section supersedes Section R13-1-1.
Notwithstanding any other law to the contrary… This section supersedes conflicting sections.

Person, Party

The term “party” refers to a party in a legal action, and should not be used to denote a “person” who carries out an act or discharges a duty.

DO NOT SAY: SAY:
A party that violates… A person that violates…

Provisions Of

Use of the phrase “the provisions of” before a citation to a section or subsection is superfluous and should not be used.

DO NOT SAY: SAY:
… comply with the provisions of Section R34-1-101… … comply with Section R34-1-101…

Pursuant To

Phrases like “pursuant to” are used to identify or make reference to other provisions of law. All of the following are acceptable, but the rulewriter should be consistent in their use.

Example:
pursuant to…
as provided in…
under…
prescribed by…
as described in…

Respectively and As the Case May Be

“Respectively” and “as the case may be” are often used improperly. If a rulewriter desires to apply A to X, B to Y, and C to Z, that may be clarified by stating, “A, B, and C apply to X, Y, and Z, respectively.” Here the three relationships are concurrent, not alternative. In such a statement, the verb should be plural.

On the other hand, if a rulewriter desires to apply A if X occurs, B if Y occurs, and C if Z occurs, the correct statement would be “If X, Y, or Z occurs, A, B, or C applies, as the case may be.” Here the three relationships are alternative, not concurrent. The verb should be singular in this situation.

Rules, Regulations

The phrase “rules and regulations” is an inaccurate statement. “Rules” are made by administrative agencies in this state and are referred to as such in official publications. These agencies do not make “regulations.” See Section 63-46a-2. The rulewriter, when referring to rules made by Utah agencies, should only use the term “rules.” The term “regulations” is generally used at the federal level and may be used in reference to federal regulations.

Said, Same, Such

Try to use “a,” “an,” “it,” “that,” “the,” “them,” “these,” “this,” or “those” instead of “said” and “same.” “Such” is not preferred but its use is sometimes necessary to modify a preceding term or phrase. “Such as” and “such a” may be used to introduce an example.

Shall, May, May Not, Must

Do not use expressions such as “is authorized to,” “is empowered to,” “has the duty to,” “can,” or “the Legislature intends that the director shall.” “Shall” or “may” are more appropriate expressions. “Must” may be used if an action is intended to be a condition precedent to the accrual of a right or privilege.

“Shall” is imperative or mandatory and is used when indicating an obligation to act.

DO NOT SAY: SAY:
The director will submit a budget. The director shall submit a budget.

“May” is permissive or directory and is used when granting a right, privilege, or power, or indicating any discretion to act.

DO NOT SAY: SAY:
The director is authorized to issue an order. The director may issue an order.

Whenever possible, an obligation or discretion to act should be stated positively. However, if a right, privilege, or power is abridged and the sentence contains a negative subject, “may not” should be used. This is preferable to “shall not” and “no person shall,” because “no person shall” literally means that no one is required to act. A rule that includes the phrase “shall not” negates the obligation, but not the permission to act. “A person may not” also negates the permission to act and is, therefore, the stronger prohibition.

DO NOT SAY: SAY:
An applicant shall not… An applicant may not…

Because some courts on occasion have interpreted “shall” to mean “may” and vice versa, it is imperative that the rulewriter give careful consideration to the context. If a problem of interpretation arises, add a sentence stating that action inconsistent with the provision is void.

State of Utah

Reference to “the state of Utah” is unnecessary. Utah cannot make rules for another state. When it is necessary to refer to the state of Utah, use “state,” “this state,” or “Utah.”

That, Which

The terms “that” and “which” are not interchangeable. The choice between these terms is determined by the type of clause that follows the terms. “That” is used to introduce a restrictive clause, or a clause that provides information necessary for full comprehension of the sentence.

A restrictive clause is never set off by commas. See the section called “Commas”.

Example:
Any funds that are not restricted shall lapse.

“Which” is used to introduce a nonrestrictive clause, or a clause that provides nonessential or parenthetical information.

A nonrestrictive clause is usually set off by commas. See the section called “Commas”.

Example:
The division, which is responsible for all licenses, shall provide an application blank to each applicant.

Where and When

“When” is preferred to “where” except when dealing with a specific place. However, “if” is the preferred term to “when” to express condition. See the section called “If, When, Whether”.

DO NOT SAY: SAY:
Where the licensee applies… When the licensee applies…

Writing

Utah has adopted the Uniform Electronic Transaction Act, Title 46, Chapter 4, which anticipates that commerce and government services could be conducted electronically. In light of this, a rulewriter should be careful to draft in a media neutral way to allow for electronic transactions. However, the Utah Code has defined the term “writing” to include electronic writings. (See Section 46-4-502.)