are on the outskirts of this chain, in this ever-widening circle of adventurers who find themselves with worthless coupons in their hands, defrauded.

Of course, the ordinary scheme is not quite as much affected by delay as that.

Senator HATCH. Any other questions, Senator?

Senator DANAHER. No, sir.

Senator HATCH. Thank you, Mr. O'Brien.

STATEMENT OF ASHLEY SELLERS, OFFICE OF THE SOLICITOR, DEPARTMENT OF AGRICULTURE

Senator HATCH. State your name and position and you may proceed. Mr. SELLERS. Mr. Chairman, my name is Ashley Sellers, staff attorney in the office of the solicitor, Department of Agriculture.

On behalf of the Department of Agriculture, I desire to file with the committee a copy of a written statement of the manner in which each of these three bills will affect the Department's activities.

With your permission, I will now hand copies of our written statement to each member of the committee and also one for the reporter to be used in case it is desired to print this report in the transcript of the hearings.

Along with that, I should make the statement, which each of the preceding witnesses has made, and which every Government witness has to make under the prescribed procedure, that, until an indication comes from the Director of the Bureau of the Budget as to whether each of the bills, or any of the bills, is in accordance with the President's program, any statement we make, either oral or written, must be made with that understanding.

Mr. SELLERS. To supplement our written statement, or rather, to give emphasis to certain of the comments which appear therein, I desire to make a few oral remarks.

In general, our attitude toward these three bills is as follows:

From an administrative viewpoint S. 675 appears to be the least objectionable. Even so, it contains a few provisions which, unless amended, would be obstructive and restrictive.

I hasten to state, however, that it could easily be amended, and we have suggested the manner in which we think it should be amended so as to meet our objections.

S. 674, although more restrictive than S. 675 from an administrative point of view, is also capable of amendment so as to render it unobjectionable, and we have attached to each of the comments in our written statement suggestions as to how it could be amended to meet our objections.

Senator AUSTIN. May I ask you, at that point, whether what appears here in the report of the committee, at page 137, and following, is the thing that you refer to in your comments.

Mr. SELLERS. No. I am referring to a copy of our written statement, which, in your absence, I had distributed to different members of the subcommittee.

Senator AUSTIN. Oh, I didn't see that. Thank you.

Mr. SELLERS. S. 918 would, in our opinion, cripple the administrative process.

Our analysis of this bill leads us to feel that its basic structure is such that it could not be amended so as to make it workable.

Our written statement is confined chiefly to an appraisal of the probable effect of enactment of each of these bills upon the work of the Department of Agriculture. In the main, it does not undertake to gauge the respective operations of the bills upon the activities of any other department or upon the administrative process in general. Because no two of these three bills deals with precisely the same details of administrative procedure, the written statement discusses them separately rather than together. Even if these three bills did deal with the same details of procedure, it would be difficult to discuss them together because they do not follow a uniform arrangement or employ the same basic terminology.

As evidence of this, there has been attached to the written statement. for the use of the committee, a chart which we have prepared, showing the variations in subject matter and language which exist in these three bills.

(The chart is printed in full, starting on p. 89 at the conclusion of Mr. Sellers' testimony.)

Mr. SELLERS. In passing, I may say that there seems to be a plethora of charts with respect to these three bills, but ours has been prepared so as to make a comparative summary of the respective pro

visions of the bills.

You will notice that there are three columns in our chart. The column on the left relates to S. 675, that in the center to S. 674, and the one on the right to S. 918.

The center column, relating to S. 674, sets forth the provisions of that bill in its precise order, inasmuch as this bill is more elaborate and deals with more details of procedure than either of the other two bills.

The provisions of S. 675 and S. 918, as shown in the left- and righthand columns, respectively, have been rearranged so as to correlate their provisions with those of S. 674.

I should also add that there is, in the back of the chart, a key by which one can readily find the position on the chart of each provision of S. 675 or S. 918.

The written statement consists of a number of specific comments relating to S. 675 and to S. 674, and a general comment concerning S. 918.

We have made a number of comments with respect to 675 and 674, varying in importance. Some of them are merely technical matters that we think are purely a matter of draftsmanship and we have indicated how we think the bill could be improved in that respect. Others are quite important.

I merely wish to stress here those that we think are the most important.

As presently worded, both section 203 of S. 675 and section 203 (c) of S. 674, would seriously hamper administration of the marketing agreement programs under the Agricultural Marketing Agreement Act of 1937.

Under this act, the Secretary of Agriculture, after notice and hearing, as required by the statute, enters into marketing agreements

with, and issues marketing orders applicable to, handlers of certain agricultural commodities.

These agreements and orders provide variously:

(1) Methods for the limitation of the total quantity of the commodity or of any grade or size thereof, which can be marketed. (2) Methods for allotting the quantity among handlers.

(3) Methods for disposing of surpluses.

(4) Pertaining solely to milk, for fixing minimum prices to be paid to producers.

In the administration of these marketing agreements and orders and upon the basis of the recommendations made by industry committees, which are established under the act, and the marketing agreements and orders, themselves, as agencies to administer such programs, the Secretary issues various types of supplemental orders, including weekly volume regulations and the allotments to handlers thereunder, grade and size regulations applicable to daily shipments, and loading and shipping prohibitions.

Some of these supplemental orders are effective only for a few days or a week, and it is frequently necessary, because of a changed market situation, to amend or terminate such a supplemental order prior to the date fixed for its termination.

In order that these supplemental regulations may be effective, they must be issued very promptly-frequently within a few hours after receipt of the industry's recommendation, which is predicated upon daily market data.

In such cases, there is not even time for the publication of these supplemental orders in the Federal Register prior to their effective date.

Senator AUSTIN. How long does it take to publish in the Register! Mr. SELLERS. As to one type of these supplemental orders, it would mean at least a 2-day delay.

Frequently, we get in from the field, by telegraph, the recommendation of the industry committee on, say, a Friday afternoon, and the regulation, frequently, follows back from the Department, back to the field, within a few hours thereof, to become effective the first thing Monday morning or Sunday night.

We could not get that regulation published in the Federal Register until the following Tuesday, so that you couldn't possibly operate under that order if you had to require, as do both of these bills, the publication prior to their effective date.

Senator AUSTIN. Now, are you giving due importance to the provisions for special or individual cases that are provided for parenthetically in 674?

Mr. SELLERS. I believe I have.

Section 203 (c) of 674 says that publication shall precede effectiveness.

I don't construe that language as meaning a waiver of the requirement of prior publication.

Senator AUSTIN. Well, you have an exception, have you not?
Mr. SELLERS. Yes, sir.

Now, are you referring, sir, to the provision in 674 that the President may exempt any program from the operations of this statute," or rather may suspend

Senator AUSTIN (interposing). No. I was looking at page 8 of your parallel analysis, 203 (c):

Publication of rules: No agency shall act upon unpublished rules, instruc tions, or statements of policy (except instructions for special or individual cases -)

Mr. SELLERS. The difficulty with that, sir, is the term "instructions." As we construed it, the word "instructions" does not mean a regulation that has the force and effect of law, but is merely instructions or advice as to how parties should file papers and what the form should be, and so forth.

Now, if we are wrong about that interpretation, of course, it answers our point. As a matter of fact, the language of the bill is that, except that "staff instructions or individual cases."

Senator HATCH. Well, isn't it significant that the word "rules" is not included in the exception?

Mr. SELLERS. That is right.

Senator HATCH. The requirement is, "No agency shall act upon unpublished rules, instructions, or statement of policy," and the only exception is that of staff instructions.

Mr. SELLERS. Yes.

Now, I may say that I have communicated informally with representatives of both of the groups which drafted the bill, the respective bills, and there is no difference of opinion between us as to our interpretation of it and as to how it would operate in this connection, and I may even go further to say that this was entirely inadvertent on their part.

This was a situation that they did not anticipate and did not discover in their investigation.

Of course, I don't want to put it on the basis of their agreeing to it, but I am confident that that would be the case. We have suggested, in our written statement, the specific language which we think should be used in order to meet this specific objection and that appears in the written statement.

Roughly, the effect of our suggestion would be that, while we would still require the publication of these regulations, we would not require their publication prior to their becoming effective.

Senator AUSTIN. Well, now, this is a good place in the record to get your suggestion which appears at page 9, if I understand you Mr. SELLERS. Yes, sir.

Senator AUSTIN. Of your written statement, namely, amend section 203 of S. 675, "by substituting a colon for the period," and so forth. Is that what you are referring to now?

Mr. SELLERS. That is right.

Shall I read it into the record, sir?

Senator AUSTIN. Yes.

That is, Mr. Chairman, a suggestion.

Senator HATCH. Yes. It is a good suggestion.

Mr. SELLERS. In order to accomplish this purpose, we propose that section 203 of S. 675 be amended

by substituting a colon for the period in line 6 on page 10, and adding the following: "Provided, however, That this section shall not be applicable to rules issued within the contemplation of the provisions of any marketing agree ment or marketing order entered into or issued pursuant to and after the hearing

required by Public Act No. 10, Seventy-third Congress, as amended, and as reenacted and amended by the Agricultural Marketing Agreement Act of 1937, as amended (7 U. S. C., sec. 601 et seq.)."

Now, I may say, in this connection, that we realize as well as the Attorney General's committee or anyone who is attempting to draft legislation that would apply rather generally throughout the Government, that it is not a desirable thing, for the sake of legislation, to tack onto it a large number of specific amendments of this character. That is to say, if you could use language which would be applicable to this situation without referring to any specific act or any specific section of an act, that would be preferable from the standpoint of draftsmanship of statutes and, particularly, one of this character.

The only thing that we can do, however, is to take care of our specific points and, if there is some other way it can be done

Senator HATCH (interposing). You do not have in mind, Mr. Sellers, a general provision that would take care of a situation such as you described or a similar one in some other department, perhaps?

Mr. SELLERS. I have given a great deal of thought to it, sir. As I say, I have been in communication with those who were interested in the bill, and I understand that a somewhat similar situation exists in another agency of the Government.

I don't see, though, how an amendment could be made of a general character, which would cover this situation. We once thought of amending the bill or suggesting its amendment so as to provide that publication in the Federal Register shall not be required prior to the effectiveness of the regulation, provided that the parties interested therein get actual notice of the provisions of the regulation before it becomes effective.

The difficulty with that suggestion would be there would be no way for the Department-no practicable way-to prove that it had given actual notice to each handler, although, as a practical matter, they do get notice.

You must understand that the regulations themselves emanate from the industry committee, which is located in the specific locality in which these various handlers, who are subject to the regulation, are doing business, and frequently representatives-in fact, always-representatives of the handlers are on the industry committee, so that handlers as a whole-and in most cases, every handler-get actual notice of the regulation before it goes into effect.

Now, the difficulty, as I say, would be-if you require actual notice-would be the difficulty of our proving that they did get actual

notice.

This is as far as we have gone in suggesting an amendment. I hope that an amendment of this general character can be found, but we haven't yet found one.

Now, to carry on your thought, sir [addressing Senator Austin], with respect to amendment of 674, to accomplish our purpose, we recommend the amendment of section 203 (c) of S. 674, by striking out all of its present language, and substituting, in lieu thereof, the following:

All rules shall be published in the Federal Register and, in addition, agencies shall publish their rules (as reprints of the Federal Register or Code of Federal Regulations, or otherwise) from time to time (with or without the legislation under which they operate) in pamphlet form: Provided, however, That staff