Firearms are more tempting to steal than perhaps any other kind of merchandise, with the possible exception of jewelry, and they are certainly more likely to be misused by a thief than by the legal consignee. Section 2(I) makes it unlawful to deal in a stolen firearm. This provision should be of great help in enforcement of criminal law. I only suggest that it be redrawn to read "firearms stolen on the 25-year period preceding the transaction." If a collector should happen to purchase a gun known to have been used by say Jesse James, should he become a felon simply because Jesse James stole the weapon 80 years ago?

Perhaps some limitation to help collectors would be appropriate. Section 3(A) prohibits persons engaging in the business as a firearms importer, manufacturer, or dealer unless he has the necessary licenses. Would some clarification of the word "dealer" be desirable, meaning, I presume, that the person is in business as a dealer, on a continuing basis and for the purpose of making a profit. This really gets into possibly defining what we mean by "in the business of." If the phrase is going to be used, perhaps it should be defined as something to the effect of continuing and for the purpose of profit.

I would hope the hobby handloader, for example, is not in the business if he happens to load for a few friends. Likewise I would hope I was not in the business of importing if I purchased a fine rifle while on a trip in Europe.

I feel the dealer fees are unnecessarily high. Only last August (in the Committee's Interim Report No. 1340) a dealer fee of $10 was recommended.

As an addition, if I may, I wonder about the inclusion of gunsmiths per se as dealers. If there were a lot of little gunsmiths who perform a necessary service to sportsmen and gun owners generally, and they do not sell any arms or ammunition. A hundred dollars is extremely stiff for them. In other words, perhaps a different category for the gunsmith who does not deal in arms or ammunition would be appropriate.

Senator DODD. It might very well be so.

Mr. HILLIARD. Section 3(E) contains an absolute prohibition on the importation of "any firearms" into the United States except as the Secretary "may" authorize the importation in limited cases. Apparently because of the word "may," the Secretary need not ever authorize the importation of any firearms. The language only permits him to do so. Surely this goes far beyond any legitimate governmental purposes. The section could permit the Secretary to put all legitimate arms importers out of business. It seems to me it just is not necessary to place this total power in the hands of the Treasury. I personally feel also that the legitimate importer of any rifle, shotgun, or handgun that is structurally safe to use should not be barred from such importation, even though some of such items are surplus military. I would think the committee's counsel can draw language with more precision-than the present language which could effect a complete embargo which also would give power to the Secretary to deny licensing the importation of any category of firearm where he can show reasonable evidence that a substantial portion of previous importations of similar firearms have been marketed to juveniles or criminals. It seems to me this is what we're really trying to do.

49-588-6523

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 Secretary 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 attorneys researched 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 are 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 section 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 'n 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