If some category is coming in, and the majority or a substantial part of them are getting into irresponsible hands, this could be stopped. But to try to draw language that would cover all possible manufacture, some of which may be low price, some of which may be surplus, I would think we should explore the possibilities of that.

The next two paragraphs are, I feel, very important, if I'm right. Let me come back to the question of whether, under S. 1592, the Secre tary could adopt an unreasonable regulation or method of enforcement. It's been argued that he would be restrained by the Administrative Procedure Act of 1946. There is little in the Administrative Procedure Act to protect the public against an unreasonable rule. Administrative Procedure Act, section 4 requires an agency to give notice of the proposed adoption of a rule and it does permit interested persons to submit written arguments against the rule. But, except where notice or hearing is required by statute, Administrative Procedure Act, section 4 does not apply where the agency finds that public participation is "impractical, unnecessary, or contrary to the public interest." Thus it would surely seem desirable to put the requirement of notice and hearings in the statute itself.

Could a person bring suit to have an unreasonable rule rejected by a Federal court? After looking over Administrative Procedure Act, section 10, Judicial Review, the answer is "No." Administrative Procedure Act, section 10 does not apply where "an agency action is by law committed to agency discretion." S. 1592 certainly appears to do that. Thus the only way to get a court review would apparently be to violate a regulation and get indicted, and then defend yourself in court. This is a pretty tough tool for the average citizen, so much so that it's practically ineffective.

Senator DODD. I think I should point out here that according to counsel it appears that you are not correct with respect to the Administrative Procedure Act. I am advised that the rules promulgated by the Secretary must be reasonable and that they are subject to judicial review, and that the language which you cite is not applicable—it's intended for use in cases of loans by a Federal lending agency only. where there is discretion on the part of the administration to issue or deny the loans. That is what the Treasury Department says about that language.

Mr. HILLIARD. Well, I am not a lawyer, Senator Dodd. I certainly don't want to get in over my head on the subject. But our attorneyresearched this quite carefully and I have a copy of the act here, and this wording about "except so far as agency actions by law committed to agency discretion"-they say that provisions for judicial review an not applicable but it would be very-a very simple thing to put wording in this bill that specifically makes them applicable.

Senator DODD. I'll tell you what I think the trouble is. Again. I'm taking advice of counsel. He tells me that your counsel cited the wrong section of the Administrative Procedure Act. You cited sec tion 1010, and the applicable section of the act in the United States Code is section 1009. This would make a great deal of difference. If your counsel cited the wrong section

Mr. HILLIARD. I am here for Redfield and for myself, and the counsel in Denver who researched this is not the same counsel as the National Shooting Sports Foundation. The numbers you use must be the regu

lations implementing the act-at least they don't correspond to the numbers that are in my copy of the act.

Senator DODD. We will take a careful look at it.

Mr. HILLIARD. It would be very easy to draw language to assure that judicial review applies.

The idea has been expressed that the Secretary simply will not adopt an unreasonable rule. But the Secretary's in the rulemaking business on a gigantic scale, and my attorneys tell me they have very real examples of unreasonable rulings by Treasury in other fields. Either an unreasonable rule, or a delay in issuance, therefore could have the effect of making violators of the vast majority of law-abiding firearmsowning citizens. And this in turn simply undermines the general respect for law, such as we as a nation had a vivid example of under prohibition.

In section 6 (on line 10, page 19 of the draft I have) the word "unlawful" in awfully broad. Doesn't it mean "unlikely to comply with the provisions of this law," and shouldn't language to that effect be put in?

And lastly, Mr. Chairman, I would like to submit that the recommendations of August 1964 (again the Committee's Interim Report No. 1340, pp. 27 and 28) which I believe led to S. 1975 last fall and a nearly identical S. 14 this session of Congress, have not, with one exception, been shown invalid by any of the S. 1592 testimony. The heart and soul of those recommendations, and of the two bills mentioned, is not the flat prohibition of consumer interstate firearms shipments and handgun transactions, as is proposed in S. 1592, but the requirement of a notarized affidavit, and the return receipt evidencing that the chief law enforcement officer in the buyer's locality has received the notification. This affidavit seemed workable and logical, and at the time of the report No. 1340, the committee recommendation said:

If these provisions are enacted into law by Congress, it is felt that the traffic in mail-order firearms to juveniles under the age of 18 will be stopped entirely and the traffic to adult felons and undesirables will be substantially reduced.

Senator DODD. Mr. Hilliard, I now must leave. I find your statement very interesting. I will read it carefully and I am sure the other members of the subcommittee will as well.

Mr. HILLIARD. The gist of that paragraph, Senator Dodd, is to apply to interstate transactions in handguns the affidavit system, where if a man takes the bus to Maryland he has to supply the same affidavit and it has the effect of injecting a waiting period, meaning the time for the return receipt.

Senator DODD. Well, I want to thank you. If you would like to come back and discuss this further tomorrow morning

Mr. HILLIARD. I will be here and will be happy to.

Senator DODD. I think that might be a good idea. We can look more carefully at these Administrative Procedure Act sections that you pointed out. I think we could talk more intelligently about it if we have an opportunity to do that overnight. Is that acceptable to you?

Mr. HILLIARD. To return in the morning?

Senator DODD. Does it cause a great inconvenience to you?

Mr. HILLIARD. No; I had planned to be here anyway.

Senator DODD. Fine. I think we better recess for the day in view of the situation on the floor.

(Whereupon, at 4:40 p.m. the subcommittee recessed until 10 a.m. Wednesday, June 3, 1965.)

TO AMEND THE FEDERAL FIREARMS ACT

THURSDAY, JUNE 3, 1965

U.S. SENATE,

SUBCOMMITTEE ON JUVENILE DELINQUENCY,

COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The subcommittee (composed of Senators Dodd, Hart, Bayh, Burdick, Tydings, Hruska, Fong, and Javits) met, pursuant to recess, at 10:40 a.m., in room 318, Old Senate Office Building, Senator Thomas J. Dodd presiding.

Present: Senators Dodd (presiding), and Burdick.

Also present: Carl L. Perian, staff director; and William C. Mooney, chief investigator.

Senator DODD. Is Commissioner Caples here?

Mr. CAPLES. Yes, Senator.

Senator DODD. Good morning, Commissioner. I am glad to see you this morning.

Commissioner, you are head of the department of public safety in Boston, Mass.

Mr. CAPLES. That is correct.

Senator DODD. I believe you have a statement.

You are accompanied by Lieutenant Collins?

Mr. CAPLES. That is correct. Lieutenant Collins of the Firearms Identification Bureau, Massachusetts State Police, and by Sgt. Edward Higgins, the Firearms Record Bureau of the Massachusetts State Police.

STATEMENT OF RICHARD R. CAPLES, COMMISSIONER, DEPARTMENT OF PUBLIC SAFETY, BOSTON, MASS.; ACCOMPANIED BY LT. JOHN E. COLLINS, FIREARMS IDENTIFICATION BUREAU, MASSACHUSETTS STATE POLICE; AND SGT. EDWARD HIGGINS, FIREARMS RECORD BUREAU, MASSACHUSETTS STATE POLICE

Mr. CAPLES. My name is Richard R. Caples, commissioner of public safety, Commonwealth of Massachusetts.

Our department, department of public safety, has been most interested in the problem that we are appearing here on today. This is the affiliation with the sale and the use of firearms. It dates back to 1865, when we had an initial constabulary in Massachusetts.

During the century of service to the citizens of Massachusetts, the department has diligently been informed and kept abreast of the needs and desires of all parties who might be affected by firearms legis

lation. This deep interest has developed over the years with special emphasis placed on these matters during the past 15 to 20 years.

When our department conducted an extensive investigation and study of the local firearms problem during the fiscal years of 1955 and 1956, their findings and recommendations were submitted to the Massachusetts Legislature in the form of a written report in November of 1956. This bill was subsequently identified as bill 3075, and it was adopted by the Massachusetts General Court.

This resulted in an entire revamping of our firearms law. We are happy to report that this legislation has been a big improvement for us in the Commonwealth.

Again, in recent years, when new problems arose concerning firearms, and they developed in the Massachusetts area during the spring and summer of 1963, our State police officers collected substantial information along with the Police Department of the City of Boston, of evidence to indicate that the overcrowded sales of handguns in our adjoining States was producing a steady flow of weapons into our Commonwealth for unlawful purposes. This information was presented to the New England State Police Administrators Conference in September of 1963. A subcommittee was formed for the very purpose of studying the problems and developing suggested drafts for uniform legislation.

It was the intent to prepare uniform controls that would be acceptable to all of our six New England States. Strong opposition did develop from organized sporting and shooting interests long before this subcommittee had completed its investigation.

Some of the spokesmen for State associations indicated that they would unite and oppose any recommendations for any changes to the existing laws.

Now, it is a shame that opposition would unite blindly and condemn progressive changes without appropriate discussions and hearings. But this was the case.

I say to those people who infer that members of our department have only become interested in the problem since the 1963 tragedy of the assassination of our President Kennedy that this is wrong, because we can go back through the years and point to a 1957 law which made many corrective changes.

Approximately one-half of the 104 million people of the New England area reside in the Commonwealth. It is only natural that our crime statistics would exceed those of any other New England State. Consequently, we are burdened with an outrageous number of violent crimes. The Federal Bureau of Investigation has indicated in their annual reports for the last 10 years that we have experienced a total of 693 murders, 9,349 robberies, and more than 9,000 aggrзvated assaults.

The four eastern counties of the Commonwealth, with a combined population of greater than 3 million persons, has contributed to better than 50 percent of these crime statistics.

During this same period of time, we had more than 6,000 defendants prosecuted before our district courts on weapon violations.

It is also distressing to note that two firearms identification bureaus in the Commonwealth have processed more than 7,500 criminal cases involving the unlawful use of firearms.