How we write things matters. How we write regulations really matters because regulations can influence design and make people spend money. One small but important area of regulations is the definitions. If you are going to regulate something, you need to define and identify what you are regulating. That’s all you need to do. After you’ve defined the object, you can impose any design requirements or operational restrictions in a different paragraph, a different section, somewhere else, just not in the definitions.
This is a nice, clean approach that avoids legal problems, brain-breaking confusion, and just plain stalling out when it’s time to administer the regulations. Waivers and exemptions illustrate this point nicely. Let’s say someone asks you for a waiver from a requirement. If you’ve loaded the requirements into what should only be a description, how do you waive a definition? You don’t.
In order to avoid pointing fingers, I will indulge my fondness for science fiction to illustrate the concern. Let’s say that someone has invented a time machine. As a well-informed TSA (Time Stream Administration) regulator you know that sending people back in time more than a year wreaks havoc with the space-time continuum, creates alternate timelines in which the internet is not invented and you might have to live there, and sends vast waves of energy pulsing out from the sun to engulf your home planet in radiation. So, that’s all bad. You don’t want to approve a time machine that travels back more than ten months because you like margin. How do you go about it?
The right way would be to define a time machine with enough precision and clarity that the time machine operators know you are talking about their machine, but not so much that machines that don’t fit the definition but still accomplish time travel are left out. Thus, you can say something like “a ‘time machine’ means a machine that travels forwards or backwards in time.” This definition may require some tweaking, but it will do for now. Then, over in a different section of the regulations you can say something like “No person may operate a time machine to travel farther back in time more than ten months.” (I know, I know: what if she takes it back 8 months and then another 8 months? This post isn’t about that. But if you want to write a guest post…..?). This very hygienic approach avoids all sorts of problems.
Sometimes, however, regulators focus on the ultimate approval, and if you do that, you might not want to give your approval to a time machine that will take people back to visit London in the 18th century where they’ll win the Longitude Prize years early, and then, somehow, the internet won’t get invented. If that is your sole focus you might be tempted to define a time machine as “a machine that travels backward in time by ten months and forward in time.” (Traveling to the future does not bring about the heat death of our home planet. Everyone knows that.) Please resist this temptation. Later when someone invents a time machine that doesn’t do all the bad things you addressed in the preamble to your notice of proposed rulemaking, you might legitimately want to waive the ten-month prohibition. Now you can’t, because it’s not a prohibition. It’s part of the description of what a time machine is. Also, all those other requirements and prohibitions that you put into the right place in the regulations won’t apply to time machines not meeting your definition. This will matter if you want to approve something that’s perfectly safe without going through a whole new rulemaking.
Thus, my plea.