piece out of the same roll. So uniformity is not as scientifically true for the purposes of this bill as it is for the others.

So that it was suggested that instead of having that kind of a guaranty-the only purpose of the guaranty is not to protect the ultimate consumer-the ultimate consumer has no interest in the guaranty clause as such-but it is the chain of distribution that has the concern about the guaranty, and finally the retailer who has no means of testing, and it was acceptable to the retailers, that the guaranty be notified so that all that the retailer was interested in was assurance from the manufacturers that he had submitted these particular fabrics to reasonably representative tests, and that as a result of those reasonably representative tests he could say that this fabric would meet the requirements of the law.

Now, we retailers-my retailers-felt that this was perfectly satisfactory, and perfectly reasonable, because the guaranty still kept the onus of responsibility in case the law was violated on the person upon whom it rightfully belonged, namely, the manufacturers, and if the manufacturers attempted to distribute in commerce goods that does not meet the requirement of the law, then the full impact must rest upon their shoulders, and the sole purpose of the guaranty is to protect the legitimate retailers who could not provide the facilities for testing these garments.

The CHAIRMAN. Will you give us a reference to the word “reasonable" that you have in mind?

Mr. ROVINS. They are contained in the revised bill, and with your permission I will refer to it.

Mr. HALE. When you say revised, what bill?

Mr. ROVINS. H. R. 3851, H. R. 4159, and H. R. 4500; on page 10. I am referring to 4159, page 10, line 3, "guaranty." It is section 8. [Reading:]

SEC. 8. The penalties provided for a violation of section 3 of this Act shall not apply to any person who establishes a guaranty received in good faith.

So that that eliminates collusion between the retailers, the wholesalers, the manufacturers.

signed by and containing the name and address of the person residing in the United States by whom the fabric or wearing apparel covered by the guaranty was manufactured or from whom it was received, to the effect that reasonable and representative tests made under the procedures provided in section 4 of this Act show that the specific type of fabric covered by the guaranty or used in the wearing apparel covered by the guaranty, when so tested was not highly flammable within the meaning of section 3 of this Act: Provided, That a person furnishing such a guaranty (except a person relying upon a guaranty received in good faith to furnish a guaranty to the same effect, if he, by further processing, has not affected the flammability of the fabric or wearing apparel covered by the guaranty) shall not be relieved thereby from any of the penalties prescribed for violation of section 3 of this Act.

The CHAIRMAN. At that point, are you able, as the attorney for this organization, or will it be necessary for the preceding witness, to answer this question: What do you consider a reasonable and representative test?

Mr. ROVINS. That will necessarily, under all circumstances, have to be a question of fact.

In my opinion, if you take

The CHAIRMAN. Will you indicate-assuming that it is a question of fact, there must be something definite in your mind or in the mind

of the industry when they speak of reasonable examination. Now, could somebody enlighten us as to just what that means, having in mind the criticisms that have been made by the Federal Trade Commission and the Department of Commerce.

Mr. DORN. I would say, Mr. Chairman, that this law sets up that the Federal Trade Commission shall administer the act and shall make the necessary rules and regulations and I should think in those rules and regulations that it would be the one to determine the reasonable test or the reasonable number of samples.

The CHAIRMAN. Well, now, you have not answered it. From your standpoint, what would you consider as reasonable? You have merely said that the Federal Trade Commission can set up standards as to reasonableness. Now, what in your opinion, as one who is identified with the industry, would you consider reasonable or what would you consider unreasonable?

Mr. DORN. I would say a reasonable number of samples would be a test perhaps of every 500 yards of goods and a sample would be taken from the run at that point and processed as to flammability.

Mr. HESELTON. I notice that they use "reasonable and representative." I wonder what "reasonable and representative" refers to. The CHAIRMAN. Yes.

Mr. DORN. That is representative of the run of goods that is being manufactured at that time, I would say.

The CHAIRMAN. Do those two words taken together or separately have any significance in your mind as representing the industry? Mr. DORN. Not particularly.

The CHAIRMAN. That is "reasonable and representative."

Mr. DORN. "Reasonable" would be a reasonable number of samples to cover the particular run of goods. "Representative" would be representative of that particular portion of the goods.

The CHAIRMAN. How many yards are there in a bolt?

Mr. DORN. A bolt runs about 60 yards.

The CHAIRMAN. So then your idea of reasonableness would be to make an examination in about every 10 bolts?

Mr. DORN. That is right.

The CHAIRMAN. What assurance would there be that the bolts in between measured up to the standard?

Mr. DORN. If they are being run on a uniform setting of machines; being run in a like manner, there is every reason to believe the bolts in between would be identical with the ones tested.

The CHAIRMAN. I do not want to be too technical about this. I am trying to see light. I have in mind the manufacture of medicine that requires certain component parts, and I have known of instances where they were manufactured in mass that some of the medicine went out with not a proper distribution of the formula, so that the individual bottle of medicine in that case did not comply with the requirements. Now, how can you guarantee against that same situation in reference to goods by making a spot check, so to speak, on every 500 yards?

Mr. DORN. I do not think you can draw an analogy there between a chemical process, which is the actual blending or causing chemical reaction among certain drugs, to a fabric which is woven at a uniform rate on looms or machines all set to produce a uniform piece of goods. Obviously you cannot test every yard of goods that goes out.

I would believe that a sample from every 10 bolts would be ample to assure a fairly uniform product.

The CHAIRMAN. What is the usual practice with respect to the number of yards that are run at one time on a machine?

Mr. DORN. That would be very difficult to answer because it would depend almost entirely on the order that the manufacturer has for the goods. In some finishing plants they run in lots as small as 500 yards. In others there may be 500,000 yards at one time.

The CHAIRMAN. I do not want to pursue this any further at the moment. I would like to get the thought as definite as possible in the minds of the committee as to what "reasonable and representative" means from the standpoint of the protection of the purchasing public, who must be interested.

Mr. ROVINS. Mr. Chairman, as I said before, the guaranty has nothing in it so far as protecting the public is concerned because the onus will still rest on whomever is selling the goods insofar as civil liability is concerned.

The CHAIRMAN. Let us discuss that for a minute. You say that— Mr. ROVINS (interposing). I am talking about the guaranty, sir. The CHAIRMAN. Do you mean to say that the purchasing public, in the event of damage resulting from material that does not conform with the standards, would not have any right of action?

Mr. ROVINS. No, sir.

The CHAIRMAN. Against the manufacturer.

Mr. ROVINS. Yes; they would have definitely; but I think that, if I may, what I meant was simply this: If the manufacturer has to give a guaranty, he is certainly going to be very, very careful as to the extent of that guaranty and how he makes his tests.

This law is intended to outlaw from commerce any of these dangerous fabrics which do not meet the testing requirements set forth by the standard. We know that the legitimate manufacturers are going to make every diligent effort to comply with that law. The fly-bynights, as against whom it is directed, No. 1, are not going to make tests. No. 2, they are not going to give guaranties; and the result is that the retailer is not going to purchase these kinds of goods unless he gets the guaranty.

Now, there is a phrase in this guaranty which says "received in good faith."

Your retailers are going to examine that very carefully; and, if I am purchasing goods and you are a manufacturer, I will say to you, "How many tests did you make on this run of yardage?" Let us say that you ran 500,000 yards. And you tell me that you made five tests. You have got a question of good faith there, and I as a retailer will question that very seriously.

Mr. HINSHAW. Mr. Chairman.

The CHAIRMAN. Mr. Hinshaw.

Mr. HINSHAW. The question I think is on the proposed amendment to the bill, and that we have gone far afield.

Mr. ROVINS. I will be glad to come back.

The CHAIRMAN. I think that I am partially to blame for that because of the questions that I asked that have led him away. It was due to the fact that he was making an effort, I think, to answer your question in this committee that occasioned the question to be asked,

but in view of the time that is available to us it would be helpful if you can discuss that.

Mr. ROVINS. All right; I will come directly to it.

The CHAIRMAN. The amendment suggested by Mr. Hinshaw.

Mr. ROVINS. Section 4 as it passed the Senate in S. 2918, and subsequently incorporated in the chairman's bill, H. R. 2768, were fairly uniform with two exceptions: No. 1, the confusion which resulted on the floor of the Senate with respect to the phrase under the presently existing procedures and, No. 2, the chairman's bill took cognizance of the fact that the recommended standard at that particular time' had now become a promulgated standard.

I must conscientiously admit that there was a question of constitutionality in our minds with respect to the delegation of authority to the Secretary of Commerce with the limitation that he must conform wih the procedures presently existing for the adoption of commercial standards. That question in my mind is now completely eliminated, predicated, No. 1, on the memorandum of law which was introduced yesterday and my subsequent studies last night on that subject; and I am absolutely convinced at this point that the delegation of authority to the Secretary of Commerce, with the limitations under the presently existing procedures, are perfectly constitutional under the Currin v. Wallace case, decided in 1939.

Currin v. Wallace, decided in 1939, took every one of the cases which were mentioned in that memorandum of law, distinguished, completely the kind of thing that existed in the Tobacco Inspection Act, which is most comparable to what we have now.

The CHAIRMAN. Will you give the correct citation of the case? Mr. ROVINS. Currin v. Wallace (306 U. S. 1).

However, after the passage of S. 2918 that question of constitutionality still existed, and after the promulgation of standards, after the standards became a fact on the part of the action of the Secretary of Commerce, it was thought that probably the best approach to section 4 would be, No. 1, to set up the standard as a standard adopted by the Congress and enacted into law by the Congress.

With that there could be no question of constitutionality. However, insofar as modifying this standard in the case of an emergency or in the case of subsequent scientific development, of any constitutionality question which might affect the law, then it would best be to set up that provision in subdivisions of section 4 (b), so that if 4 (b) were declared unconstitutional the law would still stand with the commercial standard that was enacted into legislation by the Congress itself.

Under the section 4 as it exists in the old S. 2918 and subsequently introduced in the House, if that question of constitutionality affected section 4, then in effect you would have no law whatsoever. And that was the basic reason why section 4 was developed into a section 4 (a) and section 4 (b), to soften the blow of constitutionality.

Now, with respect to Currin v. Wallace, as I understand the memorandum of law submitted by the Department of Commerce and the Federal Trade Commission, that memorandum of law does not say that the attorneys who wrote it believe, without doubt, that this particular provision of law is unconstitutional. They said that it may be questioned on the basis of certain citations.

Well, those certain citations go back to 1935-I think is the latest citation-and there is one earlier than that, 1912.

Currin v. Wallace was decided on January 30, 1939. It involved the Tobacco Inspection Act of 1935, which authorized the Secretary of Agriculture to establish standards of tobacco and designate those auction markets where tobacco was bought and sold, moving in interstate and foreign commerce, and provides under penalty that at a market so designated no tobacco shall be offered for sale at auction until it has been inspected and certified by an authorized representative of the Secretary according to such standards.

Mr. HINSHAW. Provides what?

Mr. ROVINS. Provides, under penalty, that a market so designated no tobacco shall be offered for sale at auction until it has been inspected and certified by an authorized representative of the Secretary according to such standards. He the Secretary of Agriculture-cannot designate the market unless two-thirds of the growers voting at a prescribed referendum favor it.

Now there you have a delegation of what amounts to a veto power over the Secretary of Agriculture, and Chief Justice Hughes in writing that decision made a great contribution to this particular subject. He said, in an action to have the law declared unconstitutional:

The argument that there is an unconstitutional delegation of legislative power is equally untenable. This is not a case where Congress has attempted to abdicate, or to transfer to others, the essential legislative functions with which it is vested by the Constitution.

And he refers to Panama Refining Company versus Ryan, which is one of the cases cited in this memorandum of law.

We have always recognized that legislation must often be adapted to conditions involving details with which it is impracticable for the legislature to deal directly. And further citing the Panama case he said

The CHAIRMAN. I do not think there is any dispute as to that.

Mr. ROVINS. I feel that this memorandum of law should be answered in all of its ramifications, because it has been made a part of the record, and I felt that possibly some of the members of the committee were interested in some of the constitutional aspects of it.

(After informal discussion among the members of the committee :) The CHAIRMAN. This was a discussion of the members of the committee not intended for your ears.

Mr. ROVINS. I did not hear it, sir.

Now, to answer the question that was originally raised by Mr. Hinshaw as to this proposed amendment.

No. 1, we think that it-I am very leery about quoting the numbers of bills, without checking them, sir.

We feel that the language of 3851, 4159, and 4500 is valid and constitutional and serves a very important contribution in this field.

We feel very strongly that this legislation is absolutely essential. We feel that if no legislation comes out of the Congress this year, we may well have some 248 different types of legislation which will have the effect of legislating the textile industry into a chaotic condition if not out of existence completely.

We have been trying for 5 or 6 years now to get legislation on this subject of flammability.

The CHAIRMAN. Will you repeat that?