offense is a misdemeanor (a term including a category of infractions known as petty offenses, for which the maximum imprisonment is six months and the maximum fine is $500). If an offense is a misdemeanor, the United States Attorney may prosecute merely by lodging against a defendant what is known as an "Information". Prosecution for a felony requires a Grand Jury indictment. Occasionally, you will see a statute that characterizes an offense as a "misdemeanor", but establishes a penalty that exceeds one year. United States Attorneys treat these offenses as indictable misdemeanors; that is, they present such cases to a Grand Jury as though they were felonies.

To establish a civil penalty, a statute should specifically announce that a civil penalty is intended. The penalty takes the form of a fine imposed on conduct that the prosecutor need prove only by a preponderance of the evidence.

$3.15. Administrative and judicial review provisions. A draftsman of federal legislation needs to be thoroughly grounded in the Administrative Procedure Act, now spread over several chapters of title 5 of the United States Code. The discussion that follows is not intended as a primer in the subject, but as a reminder of several aspects of the Act that can cause trouble if you ignore them.

1. Rulemaking. Although the APA's rulemaking section, 5 U.S.C. 553, exempts matters relating to loans, grants, and benefits, your agency may have waived this exemption, as did HEW in 1971. 36 Fed. Reg. 2532 (Feb. 5, 1971). In consequence, a draftsman's silence on the subject will cause rulemaking under grant statutes, such as the domestic violence bill, to be subject to the APA's informal rulemaking procedures. This means, at a minimum, that the agency will have to give the public an opportunity to present written views before a rule is adopted. An elaborate regulatory procedure in HEW and its successsor agency requires agency publication of a notion of intent to propose regulations, followed by the receipt of public comment and, often, public hearings, followed by the publication of one or more Notices of Proposed Rulemaking and opportunities for public comment, followed by publication of a final regulation. 41 Fed. Reg. 34811-34812 (Aug. 17, 1976).

Judicial review of informal rulemaking will be available in the appropriate United States district court by virtue of 5 U.S.C. 704. Section 706 of title 5 of the Code fixes the scope of that review. The court is to set aside agency action that is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

If the draftsman is asked to offer interested persons an opportunity for hearing as part of the administrative rulemaking process, he can do so without narrowing either the range of information that the agency may consider in formulating its rules, or the scope of judicial review. If he should provide that a given rule is ". . . to be made on the record after opportunity for an agency hearing" (5 U.S.C. 553 (c), emphasis added), however, he will have subjected the rule to the APA's formal rulemaking procedures. This involves a trial-type hearing under 5 U.S.C. 557, in which the decision is confined to the evidence presented. Judicial review of the decision, under 5 U.S.C. 706, will cause it to be set aside unless it is supported by "substantial evidence" on the record taken as a whole.

2. Adjudication. Unless a statute provides otherwise, or provides for a de novo judicial hearing, adjudication under the APA is a formal process, subject to the "substantial evidence" test on judical review. See 5 U.S.C. 554 and 706. The APA does not extend hearing rights to the beneficiaries of a state grant program. Any such rights must come from the particular federal assistance statute or from state law. In determining what, in this regard, an agency should require of a state (or require of itself under a new grant program), policy officials find themselves pitting, on the one hand, their desire to allow the state, or their agency, the flexibility to design an adjudication procedure by regulations that may conveniently be perfected on the basis of program experience, against a need, on the other hand, to reassure beneficiaries of their rights through the expedient of detailed statutory protection. The draftsman should serve as an informed counsel in this debate.

§3.16. Miscellaneous provisions.

1. Repealers. A common drafting problem is the proper disposition of programs that a new bill is intended to supersede. For example, in 1974 the Hill-Burton hospital construction program, title VI of the Public Health Service Act, expired or, more accurately, the provision authorizing Congress to pass further appropriations for the title expired. A successor program called "Health Resources Development", in the form of a new title XVI of the PHS Act, was then making its way through Congress. It was left to the draftsman to decide whether the bill to enact title XVI should repeal title VI or leave it standing.

The first question the draftsman had to answer was the effect of a repeal on continuing legal obligations incurred under title VI. Section 609 of the Act, for example, provided (to oversimplify some

what) that if, within 20 years of its construction, an assisted facility ceased to be used as a nonprofit hospital the government could get its money back. Would repeal of title VI extinguish this right? The answer to this question is found at 1 U.S.C. 109:

The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability. In this case the draftsman wished to preserve existing obligations, and now saw that a simple repeal of title VI would not disturb them. Nevertheless, the draftsman knew that title VI had been much amended over a number of years, so that one could not readily tell what was in the title merely by consulting the Statutes at Large. If the title were repealed, it would become difficult, in future years, for anyone to figure out what obligations subsisted under it. By leaving the title intact, however, the draftsman could assure that the United States Code and other compilations of the Public Health Service Act would always display the title in its most recent pre-expiration form. Accordingly, the draftsman chose not to repeal it.

What happens, to consider another problem, when you repeal an act that itself repealed a predecessor act? Have you revived the earlier act? The answer (as you probably guessed) is no; a repealer is thought of as being "executed" upon enactment. Therefore its work is not undone when it is itself wiped from the books. This rule appears at 1 U.S.C. 108. "Whenever an Act is repealed, which repealed a former Act, such former Act shall not thereby be revived, unless it shall be expressly so provided."

2. Savings provisions. Savings or "grandfather" provisions are included in a statute to preserve rights or benefits conferred on persons under prior law. They can be extraordinarily complex. Chapter four, which deals with amendatory legislation, discusses their technical aspects.

3. Severability clauses. A typical severability (or "separability") clause reads something like this:

If any provision of this Act, or the application of that provision to any person or circumstance, is held invalid, the remainder of this Act, or the application of that provision to persons or circumstances other than those as to which it is held invalid, is not affected thereby.

It is debatable whether such a provision can affect the outcome of a judicial determination, or whether one should want it to. If a court finds some part of a statute unconstitutional, it may be expected to

leave the remainder of the statute untouched, even without the clause, unless its decision has left the statute in tatters. If so, one would expect the court to strike down the entire statute, notwithstanding a severability clause. If a court finds the application of a provision unconstitutional, it may ordinarily be expected to narrow the provision to valid applications without the clause's help.

Most specifications will not call for the addition of the clause; the draftsman is well advised not to volunteer one.

4. Sunset provisions. Sunset provisions are comparatively new. They aim at forcing congressional review of a program that might continue to be funded beyond its need. The Congress is considering several bills (S. 2, 96th Congress, H.R. 2, 96th Congress) to subject a range of government programs to review every ten years. If one of these bills is enacted, you will need to consult it to see if a new program should be synchronized with the appropriate "sunset reauthorization cycle".

In the absence of general sunset legislation, the domestic violence bill includes a specific sunset section, section 11. Please read the note on this provision on page 2 of Appendix F.

5. Authority to issue rules. A number of statutes contain provisions similar to section 701 of the Federal Food, Drug, and Cosmetic Act. "The authority to promulgate regulations for the efficient enforcement of this Act, except as otherwise provided in this section, is hereby vested in the Secretary". When is such a provision necessary?

If your concern is merely that the agency head be empowered to govern the performance of agency employees in implementing the new statute, 5 U.S.C. 301 already authorizes him to issue the needed regulations. If you wish to confer on the agency head the authority to interpret the new statute, this authority is inherent in the statute's mandate that he administer it.

But what if you want to vest in the agency head substantive rulemaking authority? For example, assume that you wish him to have power to expand the meaning of the defined term "domestic violence" in section 2(1) of the bill by issuing rules having the effect of law. For this, you need an explicit statutory provision. But the type of general provision quoted is probably too obscure for the purpose. Far better would be a clear grant of authority in the definition itself, i.e., "The term 'domestic violence' means . . and such other threat or infliction of physical injury, upon or by such other individual, as the Secretary by regulation may prescribe."

$3.17. Effective date provisions. A bill is effective when enacted, i.e., upon the day it is approved by

the President; or, if the President does not act, upon the close of the tenth day (excluding Sunday but including any holiday) after the day it is "presented" to him; or, if the President vetoes the bill, on the day the veto is overriden. An "effective date" provision should be used only to interfere with this rule. For example, a statute conferring benefits retroactively will need an effective date provision prior to enactment. A more common reason for effective date provisions, of course, is to delay the applicability of one or more sections of the bill. Be careful with these. Provisions that read, "This Act is effective six months after enactment" invite confusion. More precise is, "This Act is effective upon the expiration of six calendar months following the month in which it is enacted," or "This Act is effective upon the close of the 180th day following the date of enactment".

Although burdensome to codifiers, the tying of an effective date provision to the occurrence of an administrative event, rather than to a particular

time, often makes the most sense for non-regulatory programs. For example, if the domestic violence bill were enacted, one Lght suppose that, prior to its expiration with the close of fiscal year 1982, HEW or its successor agency would submit to Congress a bill to extend and amend it. These amendments would not be intended to govern the use of funds appropriated for fiscal year 1982; they would be intended to apply to 1983 appropriations, though, whenever the bill containing those appropriations happened to be enacted. For these reasons, the effective date of a domestic violence extension might appropriately be cast as follows: "The amendments made by this Act are effective with respect to grants made from appropriations for fiscal years beginning after fiscal year 1982."

Like repealers, effective date provisions can present highly complex technical issues in amendatory legislation. Some of these complexities are discussed in chapter four.

§4.1. General considerations. A large part of a draftsman's skill resides in his substantive legal knowledge. A draftsman must always be alert to his legal surroundings-the measures already on the books-if his draft is adequately to take them into account. Nowhere is this more true than in the drafting of amendments, where there is no ready substitute for knowledge of the subject matter.

This is a serious problem for the novice because most legislative drafting for the federal government is of bills to amend existing statutes. Assume, for example, that you are asked to prepare amendments to section 218 of the Social Security Act, 42 U.S.C. 418, which deals with voluntary agreements for the social security coverage of state and local employees. You may not realize that this provision is cited by at least six other sections or sectional subdivisions buried in a title that runs to several hundred pages, and is also referred to at least eight times in various parts of the Internal Revenue Code and at least six times in two free-standing public laws. The section, itself, will confront you with 124 tabulated subdivisions and numerous additional untabulated subdivisions.

A draftsman not intimately familiar with the operation of a complex law cannot acquire competence to draft amendments to it merely by devoting to it a day or two of study. Yet the time for writing a bill is often constrained. The draftsman is without the leisure to embark with each new drafting assignment upon a voyage of discovery over a sea of uncharted substantive law. The full-time practitioner of legislative drafting meets this difficulty by selecting areas of the law in which to specialize.

But what are you to do if you are compelled to draft amendments to a statute with which you are unacquainted? The best advice is to apply the First Rule of Statutory Construction: READ THE STATUTE. If the statute turns out to consist of 700 pages of closely printed text, e.g., the Public Health Service Act in the most recent compilation, apply the Second Rule of Statutory Construction: CONSULT AN EXPERIENCED PROGRAM ATTORNEY. He may tell you that you can remedy your ignorance merely by reading a relevant title, or portion of a title, in conjunction with the Act's general definitions. Also, if the authors of the speci

fications are technicians who have substantial experience with the statute to be amended, ask them to direct you to the portions of the statute that they think should be amended in order to comply with the specifications. In most cases, your problem will be not in eliciting their cooperation, but in preventing them from trying to draft the bill for you.

At all events, make sure your draft bill is reviewed by program technical staff and the program attorney responsible for interpreting the statute that you seek to amend.

Drafting amendatory legislation is not fundamentally different from drafting a free-standing bill. All of the steps that precede the actual writing-policy review, issue refinement, preparation of specifications, clarification of specifications, the making of a drafting outline-are the same.

$4.2. Exercise in developing a drafting outline. For training purposes, assume that the Domestic Violence Prevention Act at Appendix M has been enacted into law. You are assigned to prepare amendments to the Act that conform to the legislative specifications at Appendix N.

If you find the specification clear, you are ready to make a drafting outline. The outline is your guide to the sections of the Act that you will need to amend. Such an outline is useful as a checklist, particularly if the amendments are extensive and the statute voluminous. The outline should show the sections of the Act that you propose to amend and how you propose to amend them. Essentially, it is a translation of the legislative specifications into a drafting guide.

For example, item 5 of the legislative specifications calls for changing the Act's references to the Secretary of Health, Education, and Welfare to the Secretary of Health and Human Services. Your drafting outline might read:

"Amend $3(4) to change Secretary of HEW to Secretary of HSS. References in other sections are correct." When you have completed your drafting outline compare it to the one at Appendix O.

$4.3. Structuring an amendatory bill. After you have finished the drafting outline you are ready to design the bill. The inexperienced draftsman is

tempted to arrange his bill to follow the sequence of the law that he is amending. For example, he may begin by amending the Act's "Findings and Purposes" section, because it is the first section needing amendment. Next, he might amend the Act's definitions section. Then, he might extend the Act's authorization. Finally, he might establish the limitations on obligating funds for child abuse prevention activities.

This structure deprives the bill of internal coherence. For example, the specifications at Appendix N call for amending the Act to allow 15 percent of its appropriations to be used for programs aimed at protecting children. This requires amendment of the sections entitled "Definitions", "State Plan Requirements", and "Research and Demonstration Projects". Ordering those amendments in the bill as they are ordered in the Act, and separating them from each other by unrelated amendments, will make it difficult to discover the draftsman's purposes and how he carried them out. The amendment adding the term "child abuse" to the definitions section of the Act will be inscrutable because the term would not appear again until the amendments to the state plan program.

Such a structure, moreover, may place minor technical amendments in a bill's introductory sections while burying major program changes in the

rear.

Good drafting practice calls for grouping amendments by subject. The child abuse amendments could, for example, appropriately be handled by a single provision of the bill making all of the changes, or by two provisions, the first of which defines "child abuse" as part of the state plan program and the second of which authorizes project grants to prevent child abuse.

Because it is common for a congressional subcommittee to address policy issues within the framework of the language of the bill in which they are embodied, modular construction of this sort often facilitates a bill's consideration. A subcommittee may even wish to discuss or vote on the various sections during a formal reading of the bill. If so, subcommittee members and attendant staff would have difficulty following a single concept that is spread among widely scattered amendments.

Modular construction simplifies the draftsman's task if the subcommittee chooses to accept some but not all of the amendments proposed in the bill. The following example illustrates this. Under the Social Security Act and the Federal Insurance Contributions Act, as both were in effect during 1979,

an individual who performed services outside of the United States as an employee of a foreign business could enjoy social security coverage, regardless of his citizenship, if the foreign business were an incorporated subsidiary of a domestic corporation. The critical language in the Social Security Act (in section 210(a)) read:

The term "employment" means any service performed . . . outside the United States by a citizen of the United States as an employee . . . of a foreign subsidiary (as defined in section 3121 (1) of the Internal Revenue Code of 1954) of a domestic corporation (as determined in accordance with section 7701 of the Internal Revenue Code of 1954) ...

The related FICA provision (section 3121(1) (8) of the Internal Revenue Code) required the foreign subsidiary to be a corporation 20 percent of whose stock was owned by the domestic corporation.

The Social Security Administration decided to propose amendments to dispense with the corporate requirement for both domestic and foreign businesses and to relax the degree of ownership that the domestic business was obligated to maintain in the foreign business. Into how many sections should the draftsman divide these amendments?

The draftsman has four reasonable choices:

1. He could include all of the amendments in a single section of his amendatory bill.

2. He could use three sections in order to deal separately with the domestic corporation rule, the foreign corporation rule, and the ownership rule.

3. He could divide the amendments into two sections, one dealing with the foreign and domestic corporation rules and the other with the ownership rule.

4. He could divide the amendments into two sections, one dealing with the domestic corporation rule and the other dealing with the foreign corporation and ownership rules.

Selecting among these possibilities calls for anticipating the problems that the amendments will encounter in Congress and the executive branch. The draftsman's decision, as shown in Appendix P, was number 4. It reflects a judgment that repeal of the corporate requirements for domestic corporations is less controversial than repeal of the ownership and foreign corporate requirements. Separating the proposals into different sections simplifies redrafting if only one of the proposals is adopted.

The draftsman's decision reflected his guess that the responsible subcommittee would see the most important distinction to be between the treatment. of American companies and foreign companies, not between the corporation rules and the ownership rule. He therefore rejected choices 2 and 3.