B-119932, AUGUST 9, 1954, 34 COMP. GEN. 58

B-119932: Aug 9, 1954

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A PRIVATE PARTY WHO REQUESTS A STUDY AS A SPECIAL SERVICE WHICH ALSO SERVES PUBLIC INTEREST SHOULD BE CHARGED ONLY WITH THAT PORTION OF THE SERVICES WHICH IS ATTRIBUTABLE TO HIS SPECIAL BENEFIT. 1954: REFERENCE IS MADE TO YOUR LETTER OF MAY 3. REQUESTING AN OPINION WITH RESPECT TO SEVERAL QUESTIONS WHICH HAVE ARISEN IN CONNECTION WITH A PROPOSAL TO EXPAND THE VOLUME OF SERVICES TO INDUSTRY AND COMMERCE WHICH PRESENTLY ARE FURNISHED BY YOUR DEPARTMENT IN ACCORDANCE WITH THE DUTIES PRESCRIBED BY THE ACT OF FEBRUARY 14. YOUR FIRST QUESTION IS WHETHER CERTAIN STUDIES YOUR DEPARTMENT NOW CONTEMPLATES MAKING QUALIFY AS "TECHNICAL INFORMATION" WITH THE PURVIEW OF THE ACT OF SEPTEMBER 9. PROVIDES IN PERTINENT PART AS FOLLOWS: THAT THE PURPOSE OF THIS ACT IS TO MAKE THE RESULTS OF TECHNOLOGICAL RESEARCH AND DEVELOPMENT MORE READILY AVAILABLE TO INDUSTRY AND BUSINESS.

B-119932, AUGUST 9, 1954, 34 COMP. GEN. 58

BOOKS - PERIODICALS, ETC. - SCIENTIFIC ENGINEERING INFORMATION SERVICES RENDERED BY DEPARTMENT OF COMMERCE UNDER THE ACT OF SEPTEMBER 9, 1950, WHICH PLACES RESPONSIBILITY OF THE DEPARTMENT OF COMMERCE TO ACT AS CENTRAL CLEARING HOUSE FOR DISSEMINATION OF SCIENTIFIC, TECHNOLOGICAL AND ENGINEERING INFORMATION TO AMERICAN BUSINESS AND INDUSTRY, THE DEPARTMENT MAY UNDERTAKE STUDIES WHICH RELATE TO ECONOMIC AND MARKET INFORMATION, EVEN THOUGH THE STUDIES DO NOT FALL WITHIN THE RESTRICTED MEANING OF TECHNICAL INFORMATION, IN THE LIMITED SENSE OF APPLIED SCIENCE AND MECHANICAL ARTS AS MIGHT BE INFERRED FROM THE TERMS "SCIENTIFIC, TECHNICAL, ENGINEERING" IN THE ACT. THE SPECIAL ACCOUNT ESTABLISHED BY THE SECRETARY OF COMMERCE PURSUANT TO THE ACT OF SEPTEMBER 9, 1950, FOR THE DEPOSIT OF FEES CHARGED AMERICAN BUSINESS AND INDUSTRY FOR PUBLICATION AND INFORMATION SERVICES MAY BE USED TO REIMBURSE CURRENT APPROPRIATIONS FOR COSTS INCURRED IN THE REPRODUCTION AND FURNISHING OF COPIES OF DOCUMENTS PREPARED UNDER AUTHORITY OF THE ACT, BUT NOT FOR THE COST OF PERSONAL SERVICES EMPLOYED IN THEIR PREPARATION. WHILE THE ACT OF SEPTEMBER 9, 1950, CONTEMPLATES THAT ALL COSTS OF PUBLICATIONS AND INFORMATION SERVICES FURNISHED TO AMERICAN BUSINESS AND INDUSTRY BY THE DEPARTMENT OF COMMERCE BE RECOVERED, A PRIVATE PARTY WHO REQUESTS A STUDY AS A SPECIAL SERVICE WHICH ALSO SERVES PUBLIC INTEREST SHOULD BE CHARGED ONLY WITH THAT PORTION OF THE SERVICES WHICH IS ATTRIBUTABLE TO HIS SPECIAL BENEFIT.

ACTING COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF COMMERCE, AUGUST 9, 1954:

REFERENCE IS MADE TO YOUR LETTER OF MAY 3, 1954, REQUESTING AN OPINION WITH RESPECT TO SEVERAL QUESTIONS WHICH HAVE ARISEN IN CONNECTION WITH A PROPOSAL TO EXPAND THE VOLUME OF SERVICES TO INDUSTRY AND COMMERCE WHICH PRESENTLY ARE FURNISHED BY YOUR DEPARTMENT IN ACCORDANCE WITH THE DUTIES PRESCRIBED BY THE ACT OF FEBRUARY 14, 1903, 32 STAT. 826, TO FOSTER, PROMOTE AND DEVELOP THE FOREIGN AND DOMESTIC COMMERCE OF THE UNITED STATES. ALSO, THERE HAS BEEN RECEIVED AND CONSIDERED A LETTER OF JUNE 30, 1954, FROM THE DEPUTY GENERAL COUNSEL, DEPARTMENT OF COMMERCE, RELATIVE TO THE MATTER.

YOUR FIRST QUESTION IS WHETHER CERTAIN STUDIES YOUR DEPARTMENT NOW CONTEMPLATES MAKING QUALIFY AS "TECHNICAL INFORMATION" WITH THE PURVIEW OF THE ACT OF SEPTEMBER 9, 1950, 64 STAT. 823, AS AMENDED, 15 U.S.C. 1151- 1157.

WITH RESPECT THERETO, THE ACT OF SEPTEMBER 9, 64 STAT. 823, PROVIDES IN PERTINENT PART AS FOLLOWS:

THAT THE PURPOSE OF THIS ACT IS TO MAKE THE RESULTS OF TECHNOLOGICAL RESEARCH AND DEVELOPMENT MORE READILY AVAILABLE TO INDUSTRY AND BUSINESS, AND TO THE GENERAL PUBLIC, BY CLARIFYING AND DEFINING THE FUNCTIONS AND RESPONSIBILITIES OF THE DEPARTMENT OF COMMERCE AS A CENTRAL CLEARINGHOUSE FOR TECHNICAL INFORMATION WHICH IS USEFUL TO AMERICAN INDUSTRY AND BUSINESS.

SEC. 2. THE SECRETARY OF COMMERCE (HEREINAFTER REFERRED TO AS THE " SECRETARY") IS HEREBY DIRECTED TO ESTABLISH AND MAINTAIN WITHIN THE DEPARTMENT OF COMMERCE A CLEARINGHOUSE FOR THE COLLECTION AND DISSEMINATION OF SCIENTIFIC, TECHNICAL, AND ENGINEERING INFORMATION, AND TO THIS END TO TAKE SUCH STEPS AS HE MAY DEEM NECESSARY AND DESIRABLE---

(A) TO SEARCH FOR, COLLECT, CLASSIFY, COORDINATE, INTEGRATE, RECORD, AND CATALOG SUCH INFORMATION FROM WHATEVER SOURCES, FOREIGN AND DOMESTIC, THAT MAY BE AVAILABLE:

(B) TO MAKE SUCH INFORMATION AVAILABLE TO INDUSTRY AND BUSINESS, TO STATE AND LOCAL GOVERNMENTS, TO OTHER AGENCIES OF THE FEDERAL GOVERNMENT, AND TO THE GENERAL PUBLIC, THROUGH THE PREPARATION OF ABSTRACTS, DIGESTS, TRANSLATIONS, BIBLIOGRAPHIES, INDEXES, AND MICROFILM AND OTHER REPRODUCTIONS, FOR DISTRIBUTION EITHER DIRECTLY OR BY UTILIZATION OF BUSINESS, TRADE, TECHNICAL, AND SCIENTIFIC PUBLICATIONS AND SERVICES;

YOU STATE THAT THE TYPE OF STUDIES CONTEMPLATED WILL NOT NECESSARILY FALL WITHIN A RESTRICTED MEANING OF "TECHNICAL," THAT IS, IN THE LIMITED SENSE OF APPLIED SCIENCE AND MECHANICAL ARTS AS MIGHT BE INFERRED FROM THE USE OF THE TERM IN THE 1950 ACT, IN CONJUNCTION WITH "SCIENTIFIC" AND ,ENGINEERING.' RATHER, SUCH STUDIES WILL EMBRACE ALL TYPES OF INFORMATION WHICH HAVE A MORE OR LESS DIRECT BEARING ON BUSINESS AND INDUSTRY GENERALLY. SUCH TYPES OF INFORMATION WOULD INCLUDE ECONOMIC INFORMATION, MARKET INFORMATION, AND RELATED INFORMATION SO LONG AS IT IS REASONABLY SPECIFIC AND BEARS SOME DIRECT RELATIONSHIP TO THE ORGANIZATION AND OPERATION OF INDUSTRIAL OR BUSINESS ENTERPRISE.

THE PURPOSE OF THE 1950 ACT AS SET OUT IN SECTION 1 THEREOF, QUOTED ABOVE, IS TO MAKE THE RESULTS OF TECHNOLOGICAL RESEARCH AND DEVELOPMENT MORE READILY AVAILABLE TO INDUSTRY AND BUSINESS AND THE GENERAL PUBLIC. THUS, AS STATED IN YOUR LETTER, SINCE INDUSTRY, BUSINESS AND THE GENERAL PUBLIC ARE BENEFICIARIES OF THE ACT, IT WOULD SEEM THAT THE TECHNICAL INFORMATION AUTHORIZED TO BE COLLECTED AND DISSEMINATED WOULD EMBRACE MATTERS BEYOND THE RESTRICTED FIELD OF APPLIED SCIENCE AND MECHANICAL ARTS. YOUR INTERPRETATION OF THE TERM "TECHNICAL" AS SET FORTH ABOVE APPEARS REASONABLE AND THERE IS NOTHING IN THE LEGISLATIVE HISTORY OF THE ACT WHICH WOULD REQUIRE A CONTRARY VIEW. ACCORDINGLY, THIS OFFICE WOULD NOT QUESTION A DETERMINATION BY YOU THAT THE STUDIES CONTEMPLATED QUALIFY AS "TECHNICAL INFORMATION" WITHIN THE PURVIEW OF THE ACT OF SEPTEMBER 9,

1950.

THE SECOND QUESTION PRESENTED IN YOUR LETTER IS WHETHER, UNDER THE ACT OF SEPTEMBER 9, 1950, FUNDS DEPOSITED IN THE SPECIAL ACCOUNT MAY BE USED TO REIMBURSE THE THEN CURRENT APPROPRIATION FOR THE COSTS OF PREPARATION AS WELL AS COSTS OF REPRODUCTION OF STUDIES CHARGEABLE TO SUCH APPROPRIATIONS.

IN CONNECTION THEREWITH, SECTION 3 OF THE 1950 ACT, 64 STAT. 823, PROVIDES IN PERTINENT PART, AS FOLLOWS:

THE SECRETARY IS AUTHORIZED * * * TO ESTABLISH * * * A SCHEDULE OR SCHEDULES OF REASONABLE FEES OR CHARGES FOR SERVICES PERFORMED OR FOR DOCUMENTS OR OTHER PUBLICATIONS FURNISHED UNDER THIS ACT: PROVIDED, THAT ALL MONEYS HEREAFTER RECEIVED BY THE SECRETARY IN PAYING FOR PUBLICATIONS UNDER THIS ACT SHALL BE DEPOSITED IN A SPECIAL ACCOUNT IN THE TREASURY, SUCH ACCOUNT TO BE AVAILABLE, SUBJECT TO AUTHORIZATION IN ANY APPROPRIATION ACT, FOR REIMBURSING ANY APPROPRIATION THEN CURRENT AND CHARGEABLE FOR THE COST OF FURNISHING COPIES OR REPRODUCTIONS AS HEREIN AUTHORIZED * * * PROVIDED FURTHER, THAT AN APPROPRIATION REIMBURSED BY THIS SPECIAL ACCOUNT SHALL, NOTWITHSTANDING ANY PROVISIONS OF LAW, BE AVAILABLE FOR THE PURPOSES OF THE ORIGINAL APPROPRIATION.

IT IS THE POLICY OF THIS ACT, TO THE FULLEST EXTENT FEASIBLE AND CONSISTENT WITH THE OBJECTIVES OF THIS ACT, THAT EACH OF THE SERVICES AND FUNCTIONS PROVIDED HEREIN SHALL BE SELF-SUSTAINING OR SELF LIQUIDATING AND THAT THE GENERAL PUBLIC SHALL NOT BEAR THE COST OF PUBLICATIONS AND OTHER SERVICES WHICH ARE FOR THE SPECIAL USE AND BENEFIT OF PRIVATE GROUPS AND INDIVIDUALS * * *.

THUS, WHILE THE ACT CONTEMPLATES THAT ALL COSTS OF PUBLICATIONS AND SERVICES FURNISHED TO PRIVATE GROUPS AND INDIVIDUALS SHALL BE RECOVERED, IT IS ONLY THE "MONEYS HEREAFTER RECEIVED BY THE SECRETARY IN PAYMENT FOR PUBLICATIONS UNDER THIS ACT" THAT ARE AVAILABLE FOR REIMBURSING CURRENT APPROPRIATIONS "CHARGEABLE FOR THE COST OF FURNISHING COPIES OR REPRODUCTIONS.' THAT THE ACT DOES NOT AUTHORIZE REIMBURSEMENT TO THE CURRENT APPROPRIATION FOR THE COSTS OF PERSONAL SERVICES IS CLEARLY POINTED OUT IN THE LEGISLATIVE HISTORY OF THE PROVISO CONTAINED IN THE DEPARTMENT OF COMMERCE APPROPRIATION ACT, 1952, 65 STAT. 586, 15 U.S.C. 1153A, WHICH PROVISO READS AS FOLLOWS:

* * * PROVIDED, THAT MONEYS HEREAFTER RECEIVED BY THE SECRETARY PURSUANT TO SECTION 3 OF SAID ACT OF SEPTEMBER 9, 1950, FOR PUBLICATIONS PROVIDED THEREUNDER, SHALL BE AVAILABLE FOR REIMBURSING ANY APPROPRIATION AS PROVIDED BY SAID SECTION. IN THIS CONNECTION, SEE PAGES 65 AND 66 OF THE HEARINGS ON THE DEPARTMENT OF COMMERCE APPROPRIATIONS FOR 1952 BEFORE THE SUBCOMMITTEE OF THE COMMITTEE ON APPROPRIATIONS, HOUSE OF REPRESENTATIVES, 82D CONGRESS, WHEREIN THERE APPEAR THE FOLLOWING STATEMENTS:

MR. ROONEY. TELL ME ABOUT THIS LANGUAGE YOU PROPOSE ON PAGE 5 OF THE COMMITTEE PRINT, WHICH WOULD PROVIDE THAT FUNDS RECEIVED "FOR SERVICES OR PUBLICATIONS PROVIDED THEREUNDER (SEC. 3 OF PUBLIC LAW 776), SHALL BE AVAILABLE FOR REIMBURSING ANY APPROPRIATION AS PROVIDED BY SAID TION.' WHERE DO YOU GET THIS IDEA?

MR. GARNDER. PUBLIC LAW 776, SECTION 3, READS IN PART AS FOLLOWS:

"PROVIDED, THAT ALL MONEYS HEREAFTER RECEIVED BY THE SECRETARY IN PAYMENT FOR PUBLICATIONS UNDER THIS ACT SHALL BE DEPOSITED IN A SPECIAL AMOUNT IN THE TREASURY SUCH ACCOUNT TO BE AVAILABLE SUBJECT TO AUTHORIZATION IN ANY APPROPRIATION ACT.'

MR. ROONEY. YOU DO NOT FIND THE WORD "SERVICES" IN THERE; DO YOU?

MR. GARDNER. NO, SIR.

MR. ROONEY. THIS IS A GIMMICK, IS IT NOT, THIS WORD "SERVICES?

AM I RIGHT?

MR. GARDNER. THAT WAS PUT IN AT THE SUGGESTION OF THE BUREAU OF THE BUDGET.

MR. ROONEY. UNDER THIS LANGUAGE, YOU COULD PERPETUATE YOURSELF FROM NOW ON; YOU COULD JUST SELL THESE PUBLICATIONS WITHOUT THE APPROVAL OF ANYONE AND CONTINUE TO PUT PEOPLE ON THE PAYROLL; IS THAT CORRECT?

MR. GARDNER. THAT COULD BE THE EFFECT.

MR. ROONEY. THAT IS A FAIR STATEMENT FROM AN INTERPRETATION OF THE LANGUAGE. YOU DO NOT REALLY WANT THIS LANGUAGE?

MR. GREEN. NO; WE DO NOT.

MR. GARDNER. I DO NOT THINK SO.

APPARENTLY, AS A RESULT OF SUCH HEARINGS, THE REFERENCE TO FUNDS RECEIVED FOR "SERVICES" WAS NOT INCLUDED IN THE BILL. CF. 15 COMP. GEN. 390 AND B- 99587, DECEMBER 26, 1950.

THE CONTENTIONS CONTAINED IN YOUR LETTER HAVE BEEN CAREFULLY CONSIDERED BUT IN VIEW OF THE CLEAR DISTINCTION WHICH THE CONGRESS HAS MADE BETWEEN THE COST OF SERVICES AND OF PUBLICATIONS IN THE ORIGINAL ACT AND OF THE LEGISLATIVE HISTORY OF THE AMENDING ACT I FEEL REQUIRED TO CONCLUDE THAT AMOUNTS REIMBURSED TO CURRENT APPROPRIATIONS MAY NOT INCLUDE COSTS INCIDENT TO THE INITIAL PREPARATION OF THE MATTER TO BE REPRODUCED. ACCORDINGLY, YOUR SECOND QUESTION IS ANSWERED IN THE NEGATIVE.

THE FINAL QUESTION PRESENTED IN YOUR LETTER IS STATED AS FOLLOWS:

3. MUST THE COSTS TO BE DEPOSITED BY THE PRIVATE PARTY REQUESTING A STUDY AS SPECIAL SERVICE UNDER THE ACT OF SEPTEMBER 9, 1950, REPRESENT THE FULL ACTUAL COST TO GOVERNMENT WHERE IT APPEARS THAT THE PREPARATION AND DISSEMINATION OF THE STUDY TO PERSONS OTHER THAN THE REQUESTER SERVES A PUBLIC INTEREST AS WELL?

THE SITUATION COVERED BY SAID QUESTION ARISES WHERE SERVICES ARE PERFORMED AT THE REQUEST OF A PRIVATE PARTY BUT IT IS FOUND THAT A PORTION THEREOF IS OF GENERAL BENEFIT TO THE PUBLIC. IN ANSWER THERETO, IT WOULD SEEM PROPER THAT THE PRIVATE PARTY BE CHARGED ONLY WITH THAT PORTION OF THE SERVICES THAT IS ATTRIBUTABLE TO HIS SPECIAL BENEFIT.