(dissenting).
I dissent because I think the court errs in regarding the Deputy Commissioner’s ruling as a mere interpretative opinion which could be promulgated without a hearing and without the approval of the Secretary of the Treasury. In my view the ruling clearly constituted an amendment or modification of the existing regulation and, therefore, is invalid because it was not preceded by a hearing and was not approved by the Secretary.
A regulation promulgated in 1938 provided: “Fruit wine derived wholly * * * from one kind of fruit shall be designated by the word ‘wine’ qualified by the name of such fruit, e. g., ‘peach wine,’ ‘blackberry wine.’ ”
This was and is a plain, straightforward, easily understood regulation providing that wine produced from the blackberry shall be called “blackberry wine.” There is no qualification, limitation, restriction or ambiguity in it. The generic term “blackberry” applies alike to all the varieties of that 'berry.
The Deputy Commissioner knew in 1938, when the regulation was promulgated, that there are scores of varieties of the blackberry, yet he did not frame the regulation so as to apply to some of them and not to others. He used the generic name. Had he intended to exclude one variety, he could and should, and doubtless would, have said so in the regulation — it would have been easy to do — and then the producers of the excluded variety would have had an opportunity to be heard before the regulation became effective.
Now the Deputy Commissioner has “interpreted” the regulation by holding that *335wine produced from the boysen variety, which he admits is horticulturally a blackberry, shall not be labeled “blackberry wine.” He says- the new ruling is an interpretation of the meaning of the word “blackberry” because the boysen variety— a relatively recent development and, as some think, a superior blackberry — is not commonly • known commercially as such. That may be, but it does not destroy the fact that the berry in question is a blackberry, and that its producers should have -been heard before it was excluded.
The Deputy Commissioner himself vacillated between two opinions as to whether the large and luscious newcomer should be recognized as a member of the family to which he concedes it belongs. In 1941 he -said wine made from the boysen variety of the blackberry must not be labeled “blackberry wine.” On February 18, 1949, he reversed that ruling. But on November 30, 1949, the Deputy Commissioner again changed his mind, and denied the designation “blackberry wine” to wine produced from the boysen type of blackberry.
Thus the situation is that the regulation of 1938 permitted the label “blackberry wine” to be applied to wine produced from any variety of the blackberry; and that on November 30, 1949, the Deputy Commissioner ruled in effect that wine produced from any variety of the blackberry may be labeled “blackberry wine” except that produced from one variety, — the boysen type.
The question for determination is whether the second 1949 ruling was a mere interpretation of the 1938 regulation, or an amendment or modification thereof. Did it merely clarify the meaning of the regulation, or did it modify its meaning? May the Deputy Commissioner deprive the Gibson Wine Company of what it apparently regards as a valuable right without granting an administrative hearing ?
I have already shown sufficiently, I think, that the plain English of the regulation made it apply to wine produced from any of the numerous varieties of -the blackberry, including the boysen. The new ruling “interprets” the regulation as though it read: “Fruit wine derived wholly * * * from one kind of fruit shall be designated by the word ‘wine’ qualified by the name of such fruit, e. g., ‘peach wine,’ ‘blackberry wine’; except that the term ‘blackberry wine’ shall not be used to designate wine made from the boysen variety of blackberry because it is a comparatively new type of blackberry not yet commonly known commercially as such.”
What is the difference between the amendment or modification of a regulation, which can be accomplished only after a hearing and with the approval of the Secretary, and a mere interpretative opinion concerning the meaning of the regulation? The court defines that difference thus: “ * * * Generally speaking, it seems to be established that ‘regulations’, ‘substantive rules’ or ‘legislative rules’ are those which create law, usually implementary to an existing law; whereas interpretative rules are statements as to what the administrative officer thinks the statute or regulation means.”
I suggest that a regulation which has a clear, plain and simple meaning doe9 not need interpretation or clarification. The function of interpretation is to clarify language which is ambiguous or subject to more than one construction. I suggest further that a ruling which changes the unmistakable meaning of a regulation is not a mere interpretation thereof, but is a modification or amendment. A ruling which holds that the draftsman of a regulation intended to say something which he did say does not interpret language; it attributes to the draftsman an intention quite different from that which he plainly expressed.
Nevertheless, the court says the new ruling is a mere expression of opinion as to what the 1938 regulation means. Clearly it is not that. To the contrary, it is the expression of an opinion that the promulgating authority did not intend to provide what the regulation plainly says, but intended something else. Such a ruling is not mere opinion as to the meaning of language; on its face it is a modification or amendment of the regulation. Moreover, whether opinion or amendment, the new ruling has the force and effect of law,' as far as the Gibson Wine Company and oth*336ers similarly situated are concerned. It must be obeyed.
The Deputy Commissioner says the boy-sen variety differs from other varieties of the blackberry. The statement does not support his theory that the ruling which excluded that variety from the generic term was not an amendment of the regulation. All the numerous varieties differ, each from the others, else they would not be varieties. I see no escape from the conclusion that the Deputy Commissioner’s ruling singles out one variety and excludes it from the family, —something which the regulation had not done.
The court’s opinion says: “ * * * The statute not only requires that the labeling be such as to prevent deception of the consumer but also provides that the labels should ‘provide the consumer with adequate information as to the identity and quality of the products’. The problem, therefore, was to determine the name of the fruit which would give the consumer an adequate identification of the wine.” That problem is not new. It was present in 1938 and was then solved by using the unqualified generic term “blackberry” in the regulation. When the Deputy Commissioner came to believe that blackberry wine should be labeled so as to show the variety from which it was derived, in order to give the consumer an adequate identification of it, he could not so require merely by saying that was what the regulation meant all the time. Wine made from the boysen blackberry may be somewhat different from wine made from other types of the berry, but it cannot be that wines made from the numerous other types are all alike and that only wine from the boysen type is different.
During oral argument I suggested from the bench that the Deputy Commissioner could attain his objective and do justice to all concerned by requiring that wine made from the boysen variety should be designated “Blackberry Wine (Boysen Variety).” Of course wines from other varieties should be similarly distinguished. The suggestion was not accepted.
The right to be heard is an imports.'it element of due process. In a borderline case, an administrative agency should be quick to gran* a hearing. I do not understand why the Deputy Commissioner was so loath to grant one in this case. To do so would have been much less arduous and time-consuming than to engage in this litigation. It would not be an answer to say the Gibson Wine Company had a hearing in the District Court. That court had no right to. conduct a hearing, as it should have instantly declared the amendment invalid, and' should have remanded the case for the administrative hearing to which the appellant was entitled. It cannot be assumed that the proceeding in court was an adequate substitute therefor.
For the reasons stated, I would reverse.