subsections (a) and (b) of section 4, divide these alternative findings, i.e., (a) safe or (b) not safe, but necessary. (If, under section 4 procedures, there was a failure to show that nitrites were either safe or necessary, the section would cease to apply to them and they could be banned under other provisions of law.)

The specifications for subsection (b) (under which nitrites are not shown safe, but are shown to be necessary) called for allowing the appropriate Secretary to establish a period during which nitrites could continue to be marketed. This period was to be established after consideration of a variety of factors, and was supposed to represent the Secretary's best estimate of when a feasible substitute for nitrites that gave equivalent protection would be available. After that time, whether or not the substitute actually became available, the Secretary could limit or ban the use of nitrites in food.

The draftsman divided these ideas for subsection (b) into three paragraphs. Paragraph (1) requires the appropriate Secretary to establish the requisite period, paragraph (2) authorizes him to ban or otherwise condition the use of nitrites after the expiration of that period, and paragraph (3) lists the factors that he must consider in setting the period. The theory of the division between paragraphs (1) and (2) is easily explained on the same basis as the division between sections 3 and 4, i.e., time. Paragraph (3), however, is not so comfortably accounted for. Although the material in that paragraph is conceptually distinct from that of the other two paragraphs, can it be argued that it is logically subordinate to the requirement of paragraph (1) that a period be set? Is it of the same order of generality, in the context, as the second sentence of paragraph (1), which specifies the considerations in evaluating the "means not requiring the addition of nitrite"? If so, would not both the second sentence of paragraph (1) and all of paragraph (3) merely be different lists of things to be weighed in setting the length of the period? Should they be combined in that case?

$2.9. Exercise in reorganizing and redrafting a subsection. As an exercise, redraft section 4(b) of the nitrite bill at Appendix H to reflect your understanding of the logical subordination of its ideas. Has your redraft made the subsection clearer?

What you may find is that section 4(b) is improved by switching paragraphs (2) and (3), and qualifying the phrase "period of time" in paragraph (1) with a phrase such as ", determined under paragraph (2), that". This bares the hierarchy of ideas by improving the order of the presentation.

Note, though, that any attempt to merge paragraphs (1) and (3), or create a new paragraph (2) from the feasibility and effectiveness requirement of paragraph (1) and the period criteria of paragraph (3), will plunge you into five levels of subdivision, e.g., section 4(b) (1) (A) (i). Subdividing to this level makes a provision long and diffcult to follow.

The answer to a question that preceded this exercise, whether both the second sentence of paragraph (1) and all of paragraph (3) are merely different lists of things to be weighed in setting the length of the period, is probably negative. The desideratum of the period to be set is the time it takes to develop a feasible and effective nitrite substitute. This seems an issue of technology. But in resolving the issue the Secretary must consider factors specified by paragraph (3) that seem less relevant to technology than to risk. Therefore, paragraphs (1) and (3) are dealing with lists that are qualitatively different, and are appropriately covered in separate paragraphs.

$2.10. Technical features of bill structure and internal cross referencing. You may use the nitrite bill at Appendix H as a model for the elements of a draft bill. Every draft bill has a long title and an enacting clause. Some bills, such as the nitrite bill, have short titles as well. If, like the nitrite bill, a bill has a short title immediately following the enacting clause, the short title is preceded by the word "That" and counts as the bill's first section. References to the location of that short title are to "the first section", not to "section one". The next section will appear as "Sec. 2."

If the bill begins with a numbered section 1, the section designator is written, "Section 1", not "Sec. 1". Subsequent sections appears as, "Sec. [number]".

If a bill has titles, all sections under title I should be in the 100 series, those under title II should be in the 200 series, and so forth. If a title is divided into subtitles or other parts (designated “I”, “II”, or "A", "B", and so forth), each part should begin at the beginning of a 10 series, e.g., part A begins at 100, part B at 120, part C at 140. This leaves room to add sections to a part, after the bill becomes law, without complicated renumbering of the entire title. It also makes it convenient to add new sections to successive drafts of the bill.

The major subdivisions of a section are subsections. They appear as small letters in parentheses ("(a)", "(b)", etc.). Because subsections set forth a complete thought-a full sentence at a minimum -paragraph designators replace subsection designators if the principal subdivisions of a section are merely parts of a tabulated sentence-i.e., a sentence whose parts are set out as indented phrases—

even though the subdivision is the first division after the section number. Typically, this occurs in definition sections, such as section 2 of the nitrite bill.

Subsections are divided into numbered paragraphs ("(1)", "(2)", etc.) which are tabulated, but need not be paragraphs or even sentences.

Paragraphs are divided into lettered subparagraphs ("(A)", "(B)", etc.) that follow the same formal rules as do paragraphs.

Subparagraphs are divided into clauses bearing small roman numerals ("(i)", "(ii)”, “(iii)”, "(iv)"), that are, in turn, divided into clauses bearing large roman numerals ("(I)”, “(II)”, etc.). These follow the same rules as paragraphs and subparagraphs.

Where a subdivision does not appear in tabular form, as in the subdivisions of sections 4(a) and 4(b)(1) of the nitrite bill, the enumerated matter is referred to merely as a "clause", regardless of its alphameric designation.

Examples of cross references within a bill are: "section 204 (a) (3) (B)”, “subsection (a) (3) (B)”, "paragraph (3) (B)", "subparagraph (B)", "subparagraph (B) of paragraph (3)", "paragraph (3) (B) of subsection (a)". All of these references are to a subparagraph (B). It is improper to refer to "section 204 of title II" if the reference appears within the Act containing title II. The correct reference, in that case, is "section 204 of this Act" or merely "section 204".

A cross reference to a subdivision of the section in which the cross reference appears should not

name the section. In other words, if in section 204 (a) you wish to refer to section 204(b), your cross reference should read "subsection (b)” or "subsection (b) of this section", not "section 204 (b)". Analogous rules are followed for references within a paragraph of a subsection to another paragraph of the subsection. The reference should be "paragraph (2)" or "paragraph (2) of this subsection", not "section 204 (b) (2)". Similarly, a reference in section 204(a) to a paragraph in section 204(b) should read "subsection (b) (2)", "subsection (b) (2) of this section", "paragraph (2) of subsection (b)", or "paragraph (2) of subsection (b) of this section". A corresponding practice should be followed in referring to other subdivisions within the section containing the reference.

A reference within a subdivision to the subdivision itself should appear simply as "this [name the order of subdivision]". The name of a subdivision does not necessarily correspond with the rhetorical unit that bears that name in formal composition. A "paragraph" in legislation may be no more than a clause (as are the paragraphs of section 2 of the nitrite bill). Nevertheless, it is more common to cross refer to "paragraph (1)", say, rather than "clause (1)", because this facilitates distinguishing among subdivisions. The exception to this rule is the cross reference to an internal (that is, unindented) designation, such as appears in sections 4(a) and 4(b) (1) of the nitrite bill. Here, you would speak of "clause (1)" or "clause (A)”.

$3.1. Where to start. If you have carefully planned your bill and expect it to be short, like the domestic violence proposal at Appendix A, you may draft its sections in any order you please without its making a difference to anyone or to the quality of the final product.

The order of drafting is important if, as is often the case with long and complicated bills, you must circulate each portion of the bill to policy officials for review as it is drafted. Unfortunately, these circumstances present a dilemma. On the one hand, if some of the bill's main provisions are difficult to draft, you will want to draft them earlier than less consequential provisions so that policy officials have more time to consider them. This also gives you more time to refine the provisions before the bill is sent outside of the agency. This alternative leaves the drafting of boilerplate for last, since it should need little review and redrafting.

On the other hand, when one confronts a hungry lion, one throws to it whatever meat is handy. Routine administrative provisions are often voluminous but nevertheless easy to write quickly; you may be tempted to dash them off first, circulate them for review, and while that review is in progress turn to the more demanding sections. This tends to shortchange the bill's most sensitive provisions, which do not, ultimately, get as much attention as the less significant boilerplate provisions. Yet, this alternative has the appearance of efficiency because it speeds the initiation of review. Moreover, it will enable you to draft the bill's most difficult sections at your (comparative) leisure.

$3.2 Short titles. If, for convenience of reference, you assign a short title to an act or to a title of an act, Avoid two pitfalls:

(1) Do not use the year of expected enactment in the short title of a free-standing bill. Trying to remember, and having to restate, that year will be a nuisance to everyone who has to cite the law. The "Higher Education Act of 1965", for example, should have been called the "Higher Education Act". The year of a law is appropriate, though, to distinguish among a series of amendatory laws, e.g., the "Social Security Amendments of 1977", in order to avoid confusion with the Social Security Amendments of 1972.

(2) Do not lose sight of the objective of short titles, which is to make it easy to refer to the bill. Does the short title, "The Mental Retardation Facilities and Community Mental Health Centers Construction Act of 1963" (enacted as P.L. 88-164, 77 Stat. 282) accomplish this objective?

$3.3. Findings and statement of purpose. Findings and statements of purpose may be useful, in a bill founded on the commerce clause, to bolster the constitutional validity of provisions to regulate intrastate commerce. Beyond this-in bills based on the welfare clause, for example-they serve no significant legal purpose. If policy or congressional relations officials insist upon them, you may allow their staffs to write them, subject to your editorial review.

$3.4. Definitions. Happily, all of the words you will need to draft a bill are defined in the dictionary. Defining terms in a bill should be limited to cases in which dictionary definitions are too vague, too inclusive, or too narrow for purposes of the bill, or are ambiguous in the context; or if you wish to stipulate a meaning for a term that is different from its dictionary definition, or assign to it some meaning not conveyed by common understanding of the words comprising it.

1. Pre-existing statutory definitions and rules of construction. There are several statutes that define certain terms for any law of the United States in which the terms appear. The most significant of these is 1 U.S.C. 1, entitled "Rules of Construction". The following are among its more important provisions:

(1) words importing the singular include and apply to several persons, parties, or things;

(2) words importing the plural include the singular; (3) words importing the masculine gender include the feminine as well;

(4) words used in the present tense include the future as well as the present;

(5) the words "person and "whoever" include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.

Section 237 of the Revised Statutes (31 U.S.C. 1020) now establishes the fiscal year of the federal government. This is discussed in §3.6, below.

The Federal Grant and Cooperative Agreement Act of 1977, P.L. 95-224, is a nobly motivated but imperfectly executed effort to establish governmentwide criteria for the selection of legal instruments for various governmental purposes. Its provisions affect the meaning of the terms "grant" and "contract", and create a new legal relationship styled "cooperative agreement". This is discussed in item 3 of this section.

2. Partial definitions. Generally, it is better to assume the dictionary definition of a word, if feasible, and clarify the term's penumbra. For example, if you want to include osteopathic practitioners as participants in a state grant program on the same basis as physicians, you do not have to write a comprehensive definition of "physician". You need merely provide, "The term 'physician' includes an osteopathic practitioner as determined under the law of the State in which he is practicing." A variation of this technique, in the form of a comprehensive definition, is, "The term 'physician' means an individual who is licensed as a physician or osteopathic practitioner under the law of the State in which he is practicing." Unlike formal writing, legislative drafting allows you to define a word in terms of itself.

3. Pickwickian definitions. Avoid assigning to a term a meaning that strays very far from common usage. There are several reasons for this. The drag of a word's normal meaning is very strong; if you give to a word of highly idiosyncratic meaning, you run the risk-at least in a long bill-of forgetting this meaning and employing the word in its customary sense, with resulting confusion. Morever, it is difficult for a reader to keep odd definitions in mind; their use reduces a bill's intelligibility. For example, many years ago, in a bill introduced in Congress to revise the conflict-of-interest criminal provisions of title 18 of the United States Code, the term “bribery" was defined to include all amounts received by a federal employee as compensation for any service. The bill then proceeded to exempt from its penalty provisions those amounts received as salary from federal employment. Apart from the difficulty of keeping this weird definition in mind, one can imagine the feelings of federal employees, if the bill had been enacted, upon learning that a criminal statute designated their paychecks as bribes.

Appendix I contains a more recent example of definitional roulette in a bill that the President twice vetoed. You will notice that it "deems" the term

"poultry" to refer to "domesticated rabbits", the term "domesticated bird" to refer to "domesticated rabbit", and a reference to "feathers" to be a reference to "pelt". We will return to this bill at $4.7.2.

Drafting economy will dictate minor departures from the principle of defining words within the ambit of their common usage. For example, a widely accepted drafting convention is to define the term "State" to include the District of Columbia and some or all of the territories. This avoids the need to repeat constantly throughout the bill the litany, "State, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin Islands, American Samoa, and the Commonwealth of the Northern Mariana Islands". The convenience of this practice overcomes the reservations of the purist.

In 1979, HEW proposed a Mental Health Systems bill that contains an example of how to obtain the type of advantage illustrated by the definition of "State", without at the same time distorting the word that is defined. The Federal Grant and Cooperative Agreement Act prescribes, among other things, the use of a "cooperative agreement" to establish a legal relationship that the Act defines very similarly to to the way it defines the relationship of grantor to grantee (for which it prescribes the use of a grant agreement). The draftsman of the Mental Health Systems bill wanted to avoid the necessity of repeating "or enter into a cooperative agreement" every time he authorized the Secretary to award "a grant". At the same time, he was reluctant to define "grant" to include a cooperative agreement, because the FGCA Act apparently contemplates that the cooperative agreement will give rise to a different relationship between the parties than does a grant agreement.

His solution was to include a substantive provision in the bill that would authorize the Secretary to enter into a cooperative agreement in any case in which the bill would authorize a grant, provided that the conditions imposed under the cooperative agreement were the same as those that the Secretary would impose as a condition for receipt of a grant. Also, the entity entering into the agreement with the Secretary would be subject to all conditions of the bill to which a grantee would be subject. This treatment reveals that what appeared to be a definition problem was a more subtle problem better handled by a substantive provision.

4. Definitions that impose substantive requirements. Chapter two explains why it is a bad idea to put operative provisions-the bill's substantive rules --into a section labeled "Definitions". Doing so may

mislead one who reads only the bill's substantive sections, which have thereby been rendered deceptively simple. The reader may believe that he has grasped the bill's essential rules, when unknown to him a body of them is elsewhere.

Putting substantive rules in definitions is a "quick and dirty" technique of whipping up a fast amendment to a complicated statute. It is a rare professional legislative draftsman who has not sinned this way, less from ignorance than from the need for haste. Usually, when this is done, the substantive rules are given the formal appearance of definitions. The Federal Food, Drug, and Cosmetic Act has some choice examples. The Act regulates, among other things, all new animal drugs. Nevertheless, the Secretary is authorized to exempt from regulation a drug that he finds is generally recognized as safe and effective, and with respect to which batch certification is unnecessary to assure its identity, strength, quality, and purity. This authority is found in the Act's definition of the term "new animal drug", where it appears in the form of an exclusion from that term of any drug that has been the subject of that finding.

Another example is the Act's informal hearing requirements. The Act's intention appears to be that of substituting its own hearing requirements for requirements that might otherwise be imposed by the Administrative Procedure Act as the prelude to issuing certain orders. The proper way to accomplish this is to write a section or sectional subdivision labeled "Informal Hearings" and, in each place in the Act that is to provide for an informal hearing, to add language such as, “. . . the petitioner shall have an opportunity for an informal hearing on the order under [cite the Informal Hearings section or sectional subdivision designation]." Instead, at each such place the draftsman merely provided, ". . . the petitioner shall have an opportunity for an informal hearing on the order." Then, in the Act's definitional section, he added a definition of "informal hearing" as one that "provides for the following: .". Six numbered paragraphs follow. Typical of them is paragraph (6):

The Secretary may require the hearing to be transcribed. A party to the hearing shall have the right to have the hearing transcribed at his expense. Any transcription of a hearing shall be included in the presiding officer's report of the hearing.

A further example is in title XIII of the Public Health Service Act, which defines "health maintenance organization" in a section that is spread over four pages of the Statutes at Large. Under that section, an HMO may reinsure its financial risk for the

cost of providing health care to any member in excess of $5,000. But if it reinsures its financial risk for any such cost in excess of $4,999.99, the organization ceases to be an HMO under the statute. To be fair to the draftsman, he did put all of this under a caption that reads, "Requirements for Health Maintenance Organizations", not "Definitions". Nevertheless, it would have been better practice to define an HMO in a manner reflecting the common understanding of what an HMO is, and then make eligible for assistance under the Act an HMO that complies with specified substantive requirements.

5. Definitions in odd locations. If a definition is to be used in only one section of a lengthy Act, you may put it in that section, rather than with the Act's general definitions. In that way, it will be conveniently located: that is, in the only place it is used.

Conversely, avoid putting in a non-definitional section a definition of a term used throughout the Act. Otherwise, the reader will constantly be searching for the definition. Worse yet, he may not know that the term he is reading is defined. A well-worn exception to this last rule is in drafting the Act that has no general definitions section, if you wish to save the reader the burden of repeatedly ploughing through an extensive organizational name or title, such as, "the Secretary of Health and Human Services". Accepted practice permits you, the first time you refer to the name, to do so (if it is the Secretary, for example) as follows: "the Secretary of Health and Human Services (hereinafter in this Act referred to as the 'Secretary')". This exception is justified by three considerations: The term "Secretary" (or "Commission" or "Administration", etc.) is on its face a term that must surely be defined somewhere, so that the use of such shorthand does not mislead the reader. Most readers will be aware, anyway, what official or agency of government is administering the statute. And, finally, the definition will be easy to find because it must necessarily be located in one of the earlier sections.

$3.5. Exercise in drafting definitions. Before reading further, draft a definition of the term "domestic violence" to conform to the specifications at Appendix A (as clarified by Appendices C and D).

In drafting this definition (which you should now have completed) you probably reexamined Appendix D, answer 68-69, which says:

Try a definition of domestic violence as injury done by an individual to his spouse, or done by an individual to one with whom he is (or was) living as man and wife (whether or not the relationship is so recognized under state law).

If you have uncritically accepted this specification,