B-124120, JULY 28, 1955, 35 COMP. GEN. 52

B-124120: Jul 28, 1955

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APPROPRIATION - FOREST SERVICE - AVAILABILITY FOR PUBLICATION OF ARTICLES IN SCIENTIFIC JOURNALS THE PROHIBITION IN 16 U.S.C. 556 AGAINST THE USE OF FOREST SERVICE APPROPRIATIONS FOR THE PREPARATION OR PUBLICATION OF NEWSPAPER OR MAGAZINE ARTICLES IS NOT RESTRICTED TO ARTICLES COMMONLY REFERRED TO AS AGENCY PROPAGANDA BUT INCLUDES SCIENTIFIC AND TECHNICAL ARTICLES AND. FOREST SERVICE APPROPRIATIONS ARE NOT AVAILABLE FOR PAYMENT OF COSTS OF PUBLISHING RESEARCH ARTICLES IN SCIENTIFIC JOURNALS. 1955: REFERENCE IS MADE TO THE ASSISTANT SECRETARY'S LETTER OF MAY 25. WHEREIN IT WAS HELD (QUOTING FROM THE SYLLABUS) THAT. PROMOTION AND INFORMATION DISSEMINATION DUTIES PLACED UPON THE SURGEON GENERAL BY SECTION 301 OF THE PUBLIC HEALTH SERVICE ACT ARE AVAILABLE FOR PAYMENT OF PART OF THE COST OF DISSEMINATING THROUGH PRIVATE SCIENTIFIC PUBLICATIONS THE RESULTS OF RESEARCH CONDUCTED BY PUBLIC HEALTH SERVICE SCIENTISTS.

B-124120, JULY 28, 1955, 35 COMP. GEN. 52

APPROPRIATION - FOREST SERVICE - AVAILABILITY FOR PUBLICATION OF ARTICLES IN SCIENTIFIC JOURNALS THE PROHIBITION IN 16 U.S.C. 556 AGAINST THE USE OF FOREST SERVICE APPROPRIATIONS FOR THE PREPARATION OR PUBLICATION OF NEWSPAPER OR MAGAZINE ARTICLES IS NOT RESTRICTED TO ARTICLES COMMONLY REFERRED TO AS AGENCY PROPAGANDA BUT INCLUDES SCIENTIFIC AND TECHNICAL ARTICLES AND, THEREFORE, FOREST SERVICE APPROPRIATIONS ARE NOT AVAILABLE FOR PAYMENT OF COSTS OF PUBLISHING RESEARCH ARTICLES IN SCIENTIFIC JOURNALS.

TO THE SECRETARY OF AGRICULTURE, JULY 28, 1955:

REFERENCE IS MADE TO THE ASSISTANT SECRETARY'S LETTER OF MAY 25, 1955, REQUESTING A DECISION AS TO WHETHER FUNDS APPROPRIATED FOR THE FOREST SERVICE MAY BE USED TO PAY CERTAIN PUBLICATION COSTS REQUIRED BY PUBLISHERS IN CONNECTION WITH THE PUBLICATION OF RESEARCH FINDINGS IN SCIENTIFIC JOURNALS.

THE ACT OF MAY 11, 1922, 42 STAT. 521, 16 U.S.C. 556, PROVIDES IN PART AS FOLLOWS:

THAT HEREAFTER NO PART OF ANY FUNDS APPROPRIATED FOR THE FOREST SERVICE SHALL BE PAID OR USED FOR THE PURPOSE OF PAYING FOR, IN WHOLE OR IN PART, THE PREPARATION OR PUBLICATION OF ANY NEWSPAPER OR MAGAZINE ARTICLE, BUT THIS SHALL NOT PREVENT THE GIVING OUT TO ALL PERSONS, WITHOUT DISCRIMINATION, INCLUDING NEWSPAPERS AND MAGAZINE WRITERS AND PUBLISHERS, OF ANY FACTS OR OFFICIAL INFORMATION OF VALUE TO THE PUBLIC.

THE ASSISTANT SECRETARY'S LETTER REFERS TO 32 COMP. GEN. 487, WHEREIN IT WAS HELD (QUOTING FROM THE SYLLABUS) THAT---

FUNDS APPROPRIATED TO CARRY OUT THE RESEARCH, PROMOTION AND INFORMATION DISSEMINATION DUTIES PLACED UPON THE SURGEON GENERAL BY SECTION 301 OF THE PUBLIC HEALTH SERVICE ACT ARE AVAILABLE FOR PAYMENT OF PART OF THE COST OF DISSEMINATING THROUGH PRIVATE SCIENTIFIC PUBLICATIONS THE RESULTS OF RESEARCH CONDUCTED BY PUBLIC HEALTH SERVICE SCIENTISTS. IT IS STATED THAT, IN APPLYING THE DECISION TO YOUR AGENCY'S FUNCTIONS, THE DEPARTMENT ISSUED REGULATION 3 AR 35. THE REGULATION, UNDER CERTAIN CONDITIONS, PROVIDES FOR THE USE OF FUNDS OF THE DEPARTMENT FOR SUCH COSTS OF PUBLICATION WHENEVER IT IS ADMINISTRATIVELY DETERMINED THAT THE RESULTS OF SCIENTIFIC RESEARCH CAN MOST ADVANTAGEOUSLY BE PUBLISHED IN SCIENTIFIC JOURNALS WHICH REQUIRE THE AUTHORS OR SPONSORING INSTITUTIONS TO ASSUME PART OF THE COST OF PRINTING ALL PAPERS PUBLISHED THEREIN, OR THE COST OF PRINTING THE EXCESS OVER A SPECIFIED NUMBER OF PAGES, OR ALL OR PART OF THE COST OF TABULAR OR ILLUSTRATIVE MATTERS.

THE VIEW IS EXPRESSED IN THE LETTER OF MAY 25 THAT PUBLICATION OF THE NATURE AND UNDER THE CIRCUMSTANCES DESCRIBED IN THE ABOVE CITED REGULATION DOES NOT CONSTITUTE A "NEWSPAPER OR MAGAZINE ARTICLE" OF THE KIND WHICH THE CONGRESS INTENDED TO PROHIBIT IN THE ACT OF MAY 11, 1922. IN SUPPORT OF THIS VIEW, IT IS POINTED OUT THAT THE AVAILABILITY OF PUBLICATION SERVICE IN THE TYPE OF SCIENTIFIC JOURNAL REFERRED TO IN THE REGULATION IS A RELATIVELY RECENT DEVELOPMENT. FURTHER, IT IS STATED, THAT FOR CERTAIN TYPES OF RESEARCH FINDINGS, SUCH TYPE OF PUBLICATION IS THE MOST EFFECTIVE AND THE CUSTOMARY MEANS OF REACHING AN IMPORTANT SEGMENT OF THE PUBLIC FOR WHICH THE INFORMATION IS INTENDED, AND THAT IT IS HIGHLY DESIRABLE THAT THE FOREST SERVICE ALONG WITH OTHER AGENCIES OF THE DEPARTMENT UTILIZE THIS MEANS WHENEVER APPROPRIATE.

CONCERNING THE PROHIBITION AGAINST THE FOREST SERVICE PAYING FOR THE PREPARATION OR PUBLICATION OF NEWSPAPER OR MAGAZINE ARTICLES AS SET FORTH IN THE ACT OF MAY 11, 1922, IT IS POINTED OUT IN THE ASSISTANT SECRETARY'S LETTER THAT THE PROHIBITION FIRST APPEARED IN THE DEPARTMENT OF AGRICULTURE APPROPRIATION ACT FOR THE FISCAL YEAR 1909, 35 STAT. 1047, AND THAT THE HEARINGS BEFORE THE SENATE COMMITTEE ON AGRICULTURE AND FORESTRY ON THE INVOLVED BILL, H.R. 19158, INDICATE THE PURPOSE OF THE LANGUAGE WAS TO PREVENT THE EXPENDITURE OF FUNDS FOR "IMPROPER USE OF THE PRESS," IN OTHER WORDS, TO PREVENT EXPENDITURE FOR PUBLICATION OF ARTICLES COMMONLY REFERRED TO AS AGENCY PROPAGANDA. HOWEVER, IN ORDER TO REMOVE ANY DOUBT AS TO THE PROPRIETY OF APPLYING THE PROCEDURE OUTLINED IN THE REGULATION TO THE FOREST SERVICE, OUR DECISION IS REQUESTED ON THE QUESTION.

IN VIEW OF THE PLAIN AND UNCOMPROMISING PROHIBITION CONTAINED IN THE ACT OF MAY 11, 1922, AGAINST THE USE OF FOREST SERVICE FUNDS FOR PREPARATION OR PUBLICATION OF ANY NEWSPAPER OR MAGAZINE ARTICLE, IT IS BELIEVED THAT THE TERMS THEREOF SHOULD NOT BE VARIED OR ITS APPLICATION RESTRICTED IN THE MANNER SUGGESTED, UNLESS IT CAN BE SAID THAT THE LEGISLATIVE HISTORY OF THE PROHIBITION CLEARLY DISCLOSES A LEGISLATIVE PURPOSE TO DO SO. WHILE IT IS TRUE THAT THE COMMITTEE HEARINGS ON H.R. 19158 INDICATE THAT THE PURPOSE OF THE PROHIBITION WAS TO PREVENT IMPROPER USE OF THE PRESS, IT IS EQUALLY CLEAR FROM THE LEGISLATIVE HISTORY OF THE PROHIBITION AS ORIGINALLY CONTAINED IN THE ACT OF MAY 23, 1908, 35 STAT. 251, 259, THAT CONGRESS WAS APPRISED OF THE FACT THAT NEWSPAPERS AND MAGAZINES WERE BEING USED TO DISSEMINATE INFORMATION ON THE OBJECTS AND METHODS OF FORESTRY WHICH COULD NOT EFFECTIVELY BE ACCOMPLISHED THROUGH THE DISTRIBUTION OF OFFICIAL PUBLICATIONS ALONE. SEE HOUSE CONGRESSIONAL RECORD, MARCH 30, 1908, PAGE 4137, 42 CONG. REC. 4137, AND PAGE 14, SENATE HEARINGS BEFORE THE COMMITTEE ON AGRICULTURE AND FORESTRY, ON H.R. 19158. HENCE, AND IN THE ABSENCE OF A CLEAR EXPRESSION THAT A DISTINCTION WAS TO BE MADE, IT APPEARS THAT REGARDLESS OF THE NATURE OR THE PURPOSE OF THE INFORMATION TO BE DISSEMINATED, THE PROHIBITION WAS TO APPLY. CONCERNING THE STATEMENT IN THE ASSISTANT SECRETARY'S LETTER THAT THE AVAILABILITY OF PUBLICATION SERVICE IN THE TYPE OF SCIENTIFIC JOURNAL REFERRED TO IN THE REGULATION IS A RELATIVELY RECENT DEVELOPMENT, IT IS NOTED THAT AT THE TIME THE PROVISION IN QUESTION WAS UNDER CONSIDERATION, PAYMENTS WERE NOT THEN BEING MADE IN ANY INSTANCE FOR COSTS OF PUBLICATION OF ARTICLES. SENATE CONGRESSIONAL RECORD, MAY 9, 1908, PAGES 6020, 6021, 42 CONG. REC. 6020, 6021. NEVERTHELESS, THE CONGRESS DEEMED IT NECESSARY TO PROVIDE FOR SUCH A CONTINGENCY BY AMENDING THE PROPOSED PROVISION WHICH ORIGINALLY WAS TO PROHIBIT THE USE OF FOREST SERVICE FUNDS FOR COSTS OF PREPARATION, TO INCLUDE WITHIN THE PROHIBITION THE COSTS OF PUBLICATION OF ARTICLES AS WELL.

IN VIEW OF THE FOREGOING, IT IS CONCLUDED THAT AN AUTHORIZATION TO RESTRICT THE APPLICATION OF THE PROHIBITION TO A CLASS OF ARTICLE OR TO A TYPE OF PUBLICATION WOULD CONTRAVENE THE UNAMBIGUOUS TERMS OF THE STATUTE. ACCORDINGLY, AND WHILE THERE HAS NOT BEEN OVERLOOKED THE ADVANTAGES TO BE GAINED BY DISSEMINATION OF FOREST SERVICE TECHNICAL AND SCIENTIFIC INFORMATION UNDER PROCEDURES AS AUTHORIZED BY THE REGULATION, IT MUST BE HELD THAT FOREST SERVICE APPROPRIATIONS MAY NOT BE USED UNDER EXISTING LAW FOR THE PAYMENT OF ANY PART OF THE COSTS OF PUBLICATION OF THE ARTICLES IN SCIENTIFIC JOURNALS.