         MARKETING LOANS FOR GRAINS AND WHEAT


T h e fo rm u las in the F ood, A griculture, C onservation, and T rade Act o f 1990, u n d er w hich
     farm ers repay loans from the D epartm ent o f A griculture, contain a scrivener’s e rro r in the
     o rg an izatio n o f the subsections, a n d the provisions should be read as if the error, w hich arose
     in th e p ro cess o f enrollm ent, had n o t been m ade.


U n d er sectio n 1302 o f th e Omnibus B u d g e t R econciliation A ct o f 1990, m arketing loan provi­
     sio n s th at p rev io usly h ad been discretionary w ould be m andatory for the 1993 through 1995
    cro p y ears, if an agricultural trade agreem ent under the U ruguay R ound N egotiations pursu­
    an t to th e G eneral Agreem ent on T ariffs and T rade w ere n ot entered into by June 30, 1992,
    o r if th is ag reem en t h ad not entered into force for the U nited States by June 30, 1993.



                                                                                          June 3, 1992


                 M   em orandum        O p in io   n fo r th e   G   eneral     C ou n sel
                                 Departm ent         o f a g r ic u l t u r e


    You have requested our views concerning the proper reading of two pro­
visions o f the Food, Agriculture, Conservation, and Trade Act of 1990. These
provisions prescribe formulas governing repayment of marketing loans for
feed grains and wheat for the 1991 through 1995 crop years. As explained
in more detail below, we concur in your opinion that the provisions should
be given the reading that ignores a likely typographical error in the process
o f enrollment. We also agree with your reading of a provision of the Omni­
bus Budget Reconciliation Act o f 1990.
                                                      I.

   The Food, Agriculture, Conservation, and Trade Act of 1990 (“ 1990 Act”),
Pub. L. No. 101-624, 104 Stat. 3359, established the most recent five-year
plan of federal price support and acreage reduction programs for numerous
agricultural commodities. The 1990 Act added new sections 105B and 107B
to the Agricultural Act of 1949 (“ 1949 Act”), governing the 1991 through
1995 crops o f feed grains and wheat, respectively. See 1990 Act, §§ 301(3),
401(3), 104 Stat. at 3382-3419.' Both sections contain “marketing loan provi­
sions,” which include formulas for repayment of loans made to farmers by the
Department of Agriculture (“USDA”). Section 105B(a)(4)(A) provides:

 1Sections 105B and 107B are codified at 7 U.S.C. §§ 1444f, 1445b-3a (Supp. U 1990), respectively.

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            The Secretary [of Agriculture] may permit a producer to repay
           a loan made under this subsection for a crop at a level (except as
           provided in subparagraph (C)) that is the lesser of —

             (i) the loan level determined for the crop;
             (ii) the higher of —
                   (I) 70 percent of such level;
                  (II) if the loan level for a crop was reduced under
                 paragraph (3), 70 percent of the loan level that would
                 have been in effect but for the reduction under para­
                 graph (3); or
           (iii) the prevailing world market price for feed grains (adjusted
           to United States quality and location), as determined by the
           Secretary.2
   The marketing loan provisions that governed the 1986 through 1990 crops
of feed grains provided as follows:


            The Secretary may permit a producer to repay a loan made
          under paragraph (1) or (6) for a crop at a level that is the
          lesser o f —
                   (i) the loan level determined for such crop; or
                   (ii) the higher of —
                         (I) 70 percent of such level;
                      (II) if the loan level for a crop was reduced
                under paragraph (3), 70 percent of the loan level that
                would have been in effect but for the reduction under
                paragraph (3); or
                      (III) the prevailing world market price for feed
                grains, as determined by the Secretary.


1949 Act, § 105C(a)(4)(A), as added by Food Security Act of 1985 (“ 1985
Act”), §401, Pub. L. No. 99-198, 99 Stat. 1354, 1396 (codified at 7 U.S.C.
§ 1444e(a)(4)(A) (1988)).3



  2Section 107B(a)(4)(A) is identical except that it refers in (iii) to the prevailing world market price for
wheat. For the sake o f brevity, we will discuss section 105B as a proxy for both provisions.
  3Again, the provision governing wheat was substantially identical. See 1949 Act, § 107D(a)(5)(A), as
added by 1985 Act, § 308, 99 Stat. at 1384 (codified at 7 U.S.C. § 1445b-3(a)(5)(A) (1988)).

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    The relevant textual differences between the loan repayment formulas of
the 1985 Act and the 1990 Act are slight. In the 1985 Act, the “world market
price” factor is headed by “(III)” and is indented so as to be part of clause
(ii). In the 1990 Act, the same factor is headed by “(iii)” and is not indented,
appearing to make it a clause parallel with clauses (i) and (ii), rather than
part o f (ii). The 1985 Act thus has two clauses with the second clause
containing three subclauses, while the 1990 Act has three clauses, the second
o f which contains two subclauses. Moreover, the two clauses of the 1985
Act, as well as the three subclauses of clause (ii), are arranged with the
connective “or” preceding the ultimate clause and subclause. In the 1990
Act, no “or” appears before clause (ii) or before subclause (II) of clause (ii).
    Although the textual difference is small, you have informed us that the
effect is to make a striking change in the marketing loan repayment formula.
USDA estimates that if what appears to be denominated clause (iii) in the
1990 Act is indeed a separate clause, instead of being a third subclause of
clause (ii), the federal treasury would lose some $3 billion per year in the
form o f reduced loan repayments by producers of feed grains and wheat.

                                        n.

    Based upon your detailed understanding of USDA’s marketing loan pro­
grams as implemented by the 1985 and 1990 Acts and your knowledge of
the legislative process preceding enactment of the 1990 Act, you have opined
that the change in the denomination of the prevailing world market price
factor from “(III)” to “(iii)” resulted from an error in the enrollment of the
 1990 Act. On this basis, you conclude that USDA should disregard the error
and should treat the feed grains and wheat loan repayment formulas of the
 1990 Act as having a structure identical to those of the 1985 Act. On the
basis of the materials that you have provided us, we concur in your conclu­
sions.
   We examine first the text o f section 105B(a)(4)(A). It is apparent that
this provision contains a grammatical error: if provision (iii) is a separate
clause, the word “or” is missing from the end of subclause (ii)(I). This is
consistent with the supposed scrivener’s error in transforming what should
have been subclause (ii)(III) into clause (iii). Clause (ii)(I) would not have
needed a final “or” if it had been only the first of three, rather than two,
subclauses in clause (ii). It is also true that if provision (iii) is read to be a
subclause of clause (ii), the word “or” is missing from the end of clause (i).
The fact that section 105B(a)(4)(A) contains a grammatical error, however
read, suggests that we approach the text with more caution than usual.
   An examination o f the sense of section 105B(a)(4)(A) demonstrates that
such additional caution is warranted. As enrolled, the loan repayment for­
mula is seriously flawed as a matter of logic. The output of clause (ii) —
the number that results from taking the “higher o f ’ subclauses (ii)(I) and

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(ii)(II) — will always be less than the output of clause (i).4 The result is that
clause (i) will never be the “lesser o f ’ the three clauses and thus will never
be the output of the loan repayment formula. Section 105B(a)(4)(A) is es­
sentially saying: choose the lesser of A, B, and C — but B is analytically
always less than A, so never choose A. In this scheme, clause (i) — that is,
choice A — is superfluous.
    By contrast, if clause (iii) had been enrolled as subclause (ii)(III), as in
the 1985 Act, there would be no such-absurdity in the loan repayment for­
mula of section 105B. Depending on the world market price, sometimes the
output of clause (ii) would be less than the output of clause (i), sometimes
not. If the market price were high, the output of clause (ii) would be high,
and the output of clause (i) could be the lesser of the two. Clause (i) would
not be superfluous.
    There is at least one other textual indication that section 105B(a)(4)(A)
has suffered a scrivener’s error. The provisions governing upland cotton and
rice — the only other commodities in the 1990 Act with similar marketing
loan provisions — have loan repayment formulas akin to the 1985 Act, rather
than to section 105B(a)(4)(A) as enrolled. The loan repayment formula for
rice, for example, provides:


            In order to ensure that a competitive market position is main­
          tained for rice, the Secretary shall permit a producer to repay
          a loan made under paragraph (1) for a crop at a level that is
          the lesser of —
                   (i) the loan level determined for the crop; or
                   (ii) the higher of —
                      (I) the loan level determined for the crop multi­
                plied by 70 percent; or
                      (II) the prevailing world market price for rice
                as determined by the Secretary.

  4 As to subclause (ii)(I), this statement is true because seventy percent of a positive quantity will always
be less than that quantity (here, “the loan level determined for the crop” ).
  As to subclause (ii)(II), this statement is true because of the other provisions of section 105B(a).
Paragraphs (1) and (2) direct the Secretary to make feed grain marketing loans available at a level
(“Original Level”) to be determined by him according to specified criteria. Paragraph (3)(A) allows the
Secretary to reduce the Original Level by an amount not to exceed ten percent under certain conditions.
Paragraph (3)(B) allow s the Secretary, upon making certain determ inations, to reduce the Original
Level further by an amount not to exceed ten percent. Thus, paragraph (3) as a whole allows the
Secretary to reduce the Original Level by as much as twenty percent, but not more. This "Reduced
Level” — if the Secretary actually makes the reductions — becomes “the loan level determined for the
crop” specified in clause (i) of the repayment formula.
      If we assum e an Original Level of 100, the Reduced Level may be as low as 80, but not lower. Any
number between 80 and 100 is always higher than 70, which is seventy percent of the Original Level,
that is, the quantity specified in subclause (ii)(II). Subclause (ii)(II), then, also will always have a low er
output than clause (i). Clause (ii) as a whole, therefore, will always have a lower output than clause (i),
because its output will be the higher of two quantities, each o f which is lower than clause (i).

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1949 Act, § 101B(a)(5)(A), as added by 1990 Act, § 601, 104 Stat. at 3443
(codified at 7 U.S.C. § 1441-2(a)(5)(A) (Supp. II 1990)). The loan repay­
ment formula for cotton is nearly identical. See 1949 Act, § 103B(a)(5)(A)(i),
as added by 1990 Act, § 501, 104 Stat. at 3423 (codified at 7 U.S.C. § 1444-
2(a)(5)(A)(i) (Supp. II 1990)).5


   In sum, from our textual analysis, we have determined that the feed grains
and wheat loan repayment formulas of the 1990 Act are different from their
predecessors in the 1985 Act — and from their upland cotton and rice coun­
terparts — only in matters o f capitalization of three letters, indentation of
one subclause, and the use o f “or;” and that the 1990 Act formulas as en­
rolled are grammatically and logically flawed. These determinations enable
us to concur with your opinion that sections 105B(a)(4)(A) and 107B(a)(4)(A)
ought to be given the reading closest to their text that makes logical sense:
provision (iii) should be treated as a third subclause of clause (ii).

                                                   III.

   The legislative history of the passage and enrollment of the 1990 Act is
consistent with this conclusion. The House and the Senate passed different
versions o f the 1990 Act and proceeded to conference to work out their
disagreements. The feed grains and wheat marketing loan repayment formu­
las were among the issues to be worked out. As to feed grains, the report of
the Conference Committee stated:


          (2) Loan Repayment
                         (a) In General
            The Senate bill states that the Secretary shall permit a pro­
          ducer to repay a feed grains price support loan for a crop at
          the lesser of —
                         (1) the loan level determined for the crop; or
                      (2) the prevailing world market price for the
                crop. (New Section 105A(a)(3))
           The House amendment states that the Secretary may allow a
          producer to repay a loan at a level that is the lesser of —


  5 In the formulas for both rice and cotton, the "prevailing world market price” factor is one o f only two,
rather than three, factors in the second clause, because the formulas do not have a factor referring to an
unreduced loan level.
  T he title o f the 1990 Act governing oilseeds has a marketing loan provision, but its repaym ent for­
m ula has only two factors — loan level and world market price. The formula is therefore not susceptible
to the sam e kind o f scrivener’s error. S ee 1949 Act, § 205(d)(1)(A), as added by 1990 Act, § 701(2).
104 Stat. at 3457 (codified at 7 U.S.C. § 1446f(d)(l)(A ) (Supp. II 1990)).

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                        (1) the loan level determined for the crop; or
                      (2) the higher of 70 percent of the loan level for
                the crop, or 70 percent of the loan level that would
                have been in effect but for the reduction provided for
                above (if the loan level for the crop was reduced), or
                the prevailing world market price for feed grains, as
                d eterm in ed by the S ecretary.       (New S ection
                105A(a)(4))
            The Conference substitute adopts the House provision.


H.R. Conf. Rep. No. 916, 101st Cong., 2d Sess. 785 (1990) (final emphasis
added), reprinted in 1990 U.S.C.C.A.N. 5286, 5310.6


   The House provision subsumed the prevailing world market price factor
under what became clause (ii) in the enrolled bill, rather than making it a
clause in its own right. The enrolled version of section 105B(a)(4)(A) does
not in fact implement the decision of the conference committee to adopt the
House version of the repayment formula.
   It is always possible, however, that the printed report of the conference
committee is itself in error. It may be that the conference actually adopted
the Senate’s version. We find this possibility less plausible than the likeli­
hood of an enrollm ent error. In the first place, as enrolled, section
105B(a)(4)(A) is certainly not the Senate’s version. Second, the enrolled
repayment formula bears the paragraph number of the House’s version —
“New Section 105A(a)(4)” — rather than the paragraph number of the
Senate’s version — “New Section 105A(a)(3).”7

                                                   IV.

    You also have requested that we confirm your opinion that the effect of
section 1302 of the Omnibus Budget Reconciliation Act of 1990 (“OBRA”),
Pub. L. No. 101-508, 104 Stat. 1388, 1388-12 to -13, is to make the discre­
tio n ary m arketing loan pro v isio n s of sectio n s 105B (a)(4)(A ) an d
107B(a)(4)(A) mandatory for the 1993 through 1995 crop years if an agri­
cultural trade agreement under the Uruguay Round Negotiations conducted


  6 Again, the passage discussing loan repayments for wheat is identical in all relevant respects. See id. at
773-74, reprinted in 1990 U.S.C.C.A.N. at 5298-99.
  ’ Some judicial decisions may support overlooking a scrivener’s error in the enrollment of a bill. In
1974, the Supreme Court stated that ‘“ we must allow ourselves some recognition of the existence of sheer
inadvertence in the legislative process   Cass v. United States, 417 U.S. 72, 83 (1974) (quoting Schm id
v. United States, 436 F.2d 987, 992 (Ct. Cl. 1971) (Nichols, J., dissenting)). The D.C. Circuit stated in
1981 that when “a mistake in draftsmanship is obvious, courts may remedy the m istake.” Symons v.
Chrysler Corp. Loan Guar. Bd., 670 F.2d 238, 242 (D C. Cir. 1981). See also Independent Ins. A gents o f
Am., Inc. v. Clarke, 955 F.2d 731, 737 (D.C. Cir. 1992).

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under the General Agreement on Tariffs and Trade (“GATT”) is not entered
into by June 30, 1992. Section 1302(b)(3) of OBRA provides that if the
condition set out in section 1302(a) — entering into a GATT agreement —
is not met, the Secretary “shall permit producers to repay price support
loans for any of the 1993 through 1995 crops of wheat and feed grains at the
levels provided under sections 107B(a)(4) and 105B(a)(4).” The word “shall”
transforms the permissive language of the 1990 Act into a duty of the Secretary.
   On this issue, we note that even if the United States does “enter into” an
agreement under GATT by June 30, 1992, section 1302(d)(3) would make
the marketing loan provisions mandatory if this GATT agreement “has not
entered into force for the United States” by June 30, 1995.

                                       v.

   In sum, we agree with your interpretations of both the Food, Agriculture,
Conservation, and Trade Act o f 1990 and the Omnibus Budget Reconcilia­
tion Act o f 1990.


                                            TIMOTHY E. FLANIGAN
                                        Acting Assistant Attorney General
                                             Office o f Legal Counsel




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