B-27628, AUGUST 14, 1942, 22 COMP. GEN. 146

B-27628: Aug 14, 1942

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1942: I HAVE YOUR LETTER OF JULY 23. AS FOLLOWS: REFERENCE IS MADE TO SECTION 6 OF THE INDEPENDENT OFFICES APPROPRIATION ACT FOR THE FISCAL YEAR 1943. WHERE APPROPRIATIONS IN THIS ACT ARE EXPENDABLE FOR THE PURCHASE OF NEWSPAPERS AND PERIODICALS AND NO SPECIFIC LIMITATION HAS BEEN PLACED THEREON. OR TRAFFIC PERIODICALS NECESSARY IN CONNECTION WITH THE PERFORMANCE OF THE AUTHORIZED FUNCTIONS OF THE AGENCIES FOR WHICH FUNDS ARE HEREIN PROVIDED.'. SINCE ITS CREATION THE TARIFF COMMISSION HAS ANNUALLY SUBSCRIBED TO A NUMBER OF PUBLICATIONS THAT ARE NECESSARY IN CONNECTION WITH THE PERFORMANCE OF ITS AUTHORIZED FUNCTIONS. IN THE PAST THE COMMISSION HAS NOT BEEN LIMITED IN ITS EXPENDITURES FOR PUBLICATIONS BECAUSE IT HAS BEEN GENERALLY AGREED THAT AUTHENTIC INFORMATION OBTAINED THROUGH THE MEDIUM OF PUBLISHED DATA IS NECESSARY IN ITS RESEARCH ACTIVITIES.

B-27628, AUGUST 14, 1942, 22 COMP. GEN. 146

STATUTORY LIMITATION ON NEWSPAPER AND PERIODICAL PURCHASES - SCOPE OF TERM "PERIODICAL" THE WORD "PERIODICALS" AS USED IN SECTION 6 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1943, WHICH, IN IMPOSING A $50 LIMITATION ON THE AMOUNT OF AN AGENCY'S FUNDS APPROPRIATED BY THE ACT WHICH MAY BE USED FOR THE PURCHASE OF NEWSPAPERS AND PERIODICALS, EXCEPTS FROM THE LIMITATION SCIENTIFIC, TECHNICAL, TRADE OR TRAFFIC PERIODICALS NECESSARY IN THE PERFORMANCE OF AN AGENCY'S AUTHORIZED FUNCTIONS, DOES NOT INCLUDE NEWSPAPERS ADMINISTRATIVELY CONSIDERED NECESSARY FOR THE SCIENTIFIC, TECHNICAL, TRADE OR TRAFFIC INFORMATION TO BE GLEANED THEREFROM.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, UNITED STATES TARIFF COMMISSION, AUGUST 14, 1942:

I HAVE YOUR LETTER OF JULY 23, 1942, AS FOLLOWS:

REFERENCE IS MADE TO SECTION 6 OF THE INDEPENDENT OFFICES APPROPRIATION ACT FOR THE FISCAL YEAR 1943, AS FOLLOWS:

"SEC. 6. WHERE APPROPRIATIONS IN THIS ACT ARE EXPENDABLE FOR THE PURCHASE OF NEWSPAPERS AND PERIODICALS AND NO SPECIFIC LIMITATION HAS BEEN PLACED THEREON, THE EXPENDITURES THEREFOR UNDER EACH SUCH APPROPRIATION MAY NOT EXCEED THE AMOUNT OF $50, BUT THIS LIMITATION SHALL NOT APPLY TO THE OFFICE OF GOVERNMENT REPORTS AND THE SELECTIVE SERVICE SYSTEM: PROVIDED, THAT THIS LIMITATION SHALL NOT APPLY TO THE PURCHASE OF SCIENTIFIC, TECHNICAL, TRADE, OR TRAFFIC PERIODICALS NECESSARY IN CONNECTION WITH THE PERFORMANCE OF THE AUTHORIZED FUNCTIONS OF THE AGENCIES FOR WHICH FUNDS ARE HEREIN PROVIDED.'

SINCE ITS CREATION THE TARIFF COMMISSION HAS ANNUALLY SUBSCRIBED TO A NUMBER OF PUBLICATIONS THAT ARE NECESSARY IN CONNECTION WITH THE PERFORMANCE OF ITS AUTHORIZED FUNCTIONS. IN THE PAST THE COMMISSION HAS NOT BEEN LIMITED IN ITS EXPENDITURES FOR PUBLICATIONS BECAUSE IT HAS BEEN GENERALLY AGREED THAT AUTHENTIC INFORMATION OBTAINED THROUGH THE MEDIUM OF PUBLISHED DATA IS NECESSARY IN ITS RESEARCH ACTIVITIES. AMONG THE PUBLICATIONS REQUIRED BY THE COMMISSION ARE PERIODICALS SUCH AS THE NEW YORK JOURNAL OF COMMERCE, THE WALL STREET JOURNAL, THE MANCHESTER GUARDIAN, AND THE MONTREAL GAZETTE. ALTHOUGH THESE PERIODICALS ARE ISSUED DAILY AND IN THE FORM OF NEWSPAPERS, THEY, LIKE PERIODICALS IN MAGAZINE FORM, ARE PURCHASED BY THE TARIFF COMMISSION SOLELY FOR THE SCIENTIFIC, TECHNICAL, TRADE, OR TRAFFIC INFORMATION CONTAINED IN THEM. EACH ISSUE IS CLIPPED OR CIRCULATED AS A WHOLE AMONG THE COMMODITY SPECIALISTS AND TRADE ANALYSTS OF THE STAFF TO KEEP THEM CURRENTLY INFORMED ON THE COMMODITY AND TECHNICAL SUBJECTS ASSIGNED TO THEM. IN SOME CASES PROMPT AND EFFECTIVE RESULTS CAN BE ACCOMPLISHED ONLY BY THE DISTRIBUTION OF MORE THAN ONE COPY. UNLESS THESE SOURCES OF INFORMATION ARE CONSIDERED AS SCIENTIFIC, TECHNICAL, TRADE, OR TRAFFIC PERIODICALS FOR THE USE OF THE TARIFF COMMISSION, THE PERFORMANCE OF OUR STATUTORY FUNCTIONS WILL BE MATERIALLY HAMPERED, SINCE $50 IS INADEQUATE TO PURCHASE OUR NEEDS IN THE PREMISES.

THE QUESTION ARISES WHETHER THE COMMISSION IS AUTHORIZED TO EXCLUDE THE COST OF THESE OR SIMILAR PUBLICATIONS FROM THE $50 LIMITATION PRESCRIBED IN SECTION 6 PROVIDED VOUCHERS THEREFOR BEAR A CERTIFICATE THAT THEY ARE REQUIRED FOR THE SCIENTIFIC, TECHNICAL, TRADE, OR TRAFFIC INFORMATION CONTAINED THEREIN.

BECAUSE OF PENDING SUBSCRIPTIONS FOR THE CURRENT YEAR, YOUR EARLY DECISION IN THIS MATTER WILL BE APPRECIATED.

THERE WOULD APPEAR NO REASON TO DOUBT THAT THE PUBLICATIONS REFERRED TO ARE NEWSPAPERS, IN THE COMMON ACCEPTATION OF THAT TERM, AS DISTINGUISHED FROM PERIODICALS. HOUGHTON V. PAYNE, 194 U.S. 88, 97; 4 COMP. GEN. 384. AT LEAST, IT IS NOT ESTABLISHED THAT THEY ARE "PERIODICALS.' NOR DOES THERE APPEAR ANY REASON TO ASSUME THAT THE WORDS "NEWSPAPERS" AND "PERIODICALS" WERE USED IN ANY OTHER THAN THEIR COMMONLY ACCEPTED MEANING IN SECTION 6 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1943, 56 STAT. 422, QUOTED IN YOUR LETTER. THE QUESTION IS, THEREFORE, WHETHER THE CONGRESS IN EXCEPTING NECESSARY "SCIENTIFIC, TECHNICAL, TRADE, OR TRAFFIC PERIODICALS" FROM THE $50 LIMITATION ON THE PURCHASE OF "NEWSPAPERS AND PERIODICALS" INTENDED THEREBY TO EXCEPT, ALSO, NEWSPAPERS ADMINISTRATIVELY CONSIDERED NECESSARY FOR THE SCIENTIFIC, TECHNICAL, TRADE, OR TRAFFIC INFORMATION TO BE GLEANED THEREFROM. I THINK THAT QUESTION MUST BE ANSWERED IN THE NEGATIVE. IN THE FIRST PLACE, THE PROVISO MAKING THE EXCEPTION EXPRESSLY STIPULATES ONLY "PERIODICALS," WHEREAS THE PRECEDING LIMITATION--- TO WHICH THE EXCEPTION IS MADE--- EXPRESSLY APPLIES TO BOTH "NEWSPAPERS AND PERIODICALS," AS IN DISTINCT CLASSIFICATIONS, AND IT IS NOT TO BE ASSUMED THAT THE WORD ,PERIODICALS" IN THE PROVISO WAS INTENDED TO INCLUDE NEWSPAPERS WHERE THE PRECEDING LANGUAGE USED SUCH APPELLATIONS AS DISTINCT AND DIFFERENT. ANY DOUBT AS TO THIS WOULD HAVE TO BE RESOLVED AGAINST EXPANDING THE TERM "PERIODICALS" TO INCLUDE NEWSPAPERS IN OBEDIENCE TO THE SETTLED RULES OF STATUTORY INTERPRETATION THAT A PROVISO IS TO BE STRICTLY CONSTRUED AND TAKES NO CASE OUT OF THE ENACTING CLAUSE WHICH DOES NOT FALL FAIRLY WITHIN ITS TERMS, WHERE THE ENACTING CLAUSE IS GENERAL IN ITS LANGUAGE AND THE PROVISO IS AFTERWARD INTRODUCED, AND THAT THOSE WHO SET UP AN EXCEPTION UNDER A PROVISO MUST ESTABLISH IT AS BEING WITHIN THE WORDS AS WELL AS THE REASON THEREOF. UNITED STATES V. DICKSON, 15 PET. 141, 163; RYAN V. CARTER, 93 U.S. 78; UNITED STATES V. EWING, 140 U.S. 142; SCHLEMMER V. BUFFALO, R. AND P. RAILWAY CO., 205 U.S. 1. SEE, ALSO, GEORGE MOORE ICE CREAM CO. V. ROSE, 289 U.S. 373.

IN THE SECOND PLACE, IF THE MATTER WERE OTHERWISE DOUBTFUL, THE LEGISLATIVE HISTORY OF THE SECTION CLEARLY INDICATES THAT NEWSPAPERS WERE PURPOSELY AND DELIBERATELY OMITTED FROM THE EXCEPTION, EVEN THOUGH THEY MIGHT ADMINISTRATIVELY BE DEEMED ESSENTIAL IN OBTAINING HELPFUL INFORMATION AND TECHNICAL DATA. THE SAID SECTION 6, WITHOUT THE PROVISO, WAS OFFERED BY SENATOR TYDINGS AS AN AMENDMENT TO THE APPROPRIATION BILL AND WAS AGREED TO BY THE SENATE. CONGRESSIONAL RECORD, MAY 1, 1942, P. 3994. ON MAY 6 ( CONGRESSIONAL RECORD, P. 4130), THE FOLLOWING DISCUSSION TOOK PLACE ON THE FLOOR OF THE SENATE:

MR. LA FOLLETTE. MR. PRESIDENT, SEVERAL DAYS AGO, AS I UNDERSTAND, THERE WAS ADOPTED AN AMENDMENT, PROPOSED BY THE SENIOR SENATOR FROM MARYLAND ( MR. TYDINGS), RELATING TO THE PURCHASE OF NEWSPAPERS AND PERIODICALS BY VARIOUS AGENCIES AND DEPARTMENTS OF THE GOVERNMENT. I HAD HOPED IT WOULD BE POSSIBLE FOR ME TO GET IN TOUCH WITH THE SENATOR FROM MARYLAND TO DISCUSS THE POSSIBILITY OF A RECONSIDERATION OF THE VOTE BY WHICH THE AMENDMENT WAS AGREED TO, BUT, DUE TO HIS BEING OCCUPIED IN ONE COMMITTEE AND I IN ANOTHER, I HAVE NOT BEEN ABLE TO CONFER WITH HIM, AND I BELIEVE THE TIME HAS PASSED FOR ENTERING A MOTION TO RECONSIDER THE VOTE. I AM NOT COMPLAINING ABOUT THAT; BUT REPRESENTATION HAS BEEN MADE TO ME BY A MEMBER OF THE FEDERAL POWER COMMISSION, COMMISSIONER MANLY, TO THE EFFECT THAT, FOR THE PURPOSE OF SECURING INFORMATION AS TO THE LOCAL RATES ON PUBLIC UTILITIES, ESPECIALLY GAS AND ELECTRICITY, IT IS THE PRESENT PRACTICE OF THAT COMMISSION TO PURCHASE NEWSPAPERS PUBLISHED THROUGHOUT THE UNITED STATES. THOSE RATES ARE COMPILED FOR USE IN THE WORK OF THE COMMISSION, AS WELL AS IN THE WORK OF OTHER AGENCIES, AND ARE SO UTILIZED.

MR. TYDINGS. WILL THE SENATOR YIELD?

MR. LA FOLLETTE. I SHALL YIELD IN A MOMENT. FURTHERMORE, I AM ALSO ADVISED THAT THE COMMISSION PURCHASES A LARGE NUMBER OF SO-CALLED TRADE JOURNALS, WHICH ARE NOT AT ALL SIMILAR TO ORDINARY MAGAZINES, BUT ARE SPECIFIC JOURNALS WHICH HAVE TO DO WITH THE POWER INDUSTRY, THE GAS INDUSTRY, AND SO ON.

IN ORDER THAT THERE MAY BE CONSIDERATION IN CONFERENCE OF THE PURCHASE OF NEWSPAPERS AND PERIODICALS WHICH ARE PURELY FOR THE PURPOSE OF HELPING A PARTICULAR AGENCY AND OTHERS IN THE GOVERNMENT TO CARRY ON CERTAIN ENFORCEMENT AND REGULATORY WORK WHICH THE CONGRESS HAS IMPOSED UPON THEM, I SHALL READ A SUBSTITUTE FOR THE AMENDMENT OF THE SENATOR FROM MARYLAND TO WHICH I HOPE THE CONFEREES AND THE SENATOR FROM MARYLAND WILL GIVE DUE CONSIDERATION, BECAUSE I FEEL QUITE CERTAIN THAT IT WAS NOT THE PURPOSE OF THE SENATOR FROM MARYLAND IN OFFERING HIS AMENDMENT TO PREVENT THE PURCHASE OF PERIODICALS AND NEWSPAPERS WHICH MAY BE USED IN CONNECTION WITH THE DISCHARGE OF OFFICIAL RESPONSIBILITY BY THE VARIOUS AGENCIES AFFECTED BY THE BILL. MY PROPOSED SUBSTITUTE READS AS FOLLOWS: "OR TO THE PURCHASE OF NEWSPAPERS EXCLUSIVELY USED IN THE PREPARATION OF DIGESTS OF INFORMATION FOR OFFICIAL USE OR TO PURCHASE OF TECHNICAL, FINANCIAL, AND LEGAL PERIODICALS, OR TO TRADE JOURNALS AND OTHER PERIODICALS RELATING SPECIFICALLY TO THE INDUSTRY OR INDUSTRIES SUBJECT TO REGULATION BY SUCH INDEPENDENT AGENCIES.'

I FEEL QUITE CERTAIN THAT WHEN THE SENATOR COMES TO STUDY THE PROPOSAL HE WILL FIND THAT IT WOULD NOT INTERFERE AT ALL WITH THE PURPOSE AND OBJECTIVE OF HIS AMENDMENT, AND I HOPE THE CONFEREES WILL GIVE IT CONSIDERATION.

I NOW YIELD TO THE SENATOR FROM MARYLAND.

MR. TYDINGS. MR. PRESIDENT, AS I STATED AT THE TIME THE AMENDMENT WAS AGREED TO, THERE MAY BE CASES IN WHICH A BLANKET CLAUSE MIGHT WORK TO THE DISADVANTAGE OF THE GOVERNMENT. I DO NOT BELIEVE THAT WILL BE TRUE IN MOST CASES, BUT WHERE IT IS TRUE, OBVIOUSLY AN EXCEPTION SHOULD BE MADE. HOWEVER, MY RECOLLECTION IS THAT IN THE CASE OF THE FEDERAL POWER COMMISSION IT HAS EITHER SIX OR SEVEN THOUSAND DOLLARS A YEAR FOR THE PURCHASE OF NEWSPAPERS AND PERIODICALS, AND IT SEEMED TO ME THAT SOME ECONOMY COULD BE EFFECTED BY THIS AGENCY IN THAT ITEM.

SO FAR AS THE RATES ARE CONCERNED, THE FEDERAL POWER COMMISSION CAN OBTAIN INFORMATION AS TO THE RATES OF EVERY PUBLIC UTILITY IN THE COUNTRY, IN MY JUDGMENT, BY WRITING TO THE PUBLIC UTILITY COMMISSION OR SIMILAR AGENCY IN EACH STATE. HOWEVER, IF THERE IS ANY CASE IN WHICH THE PURCHASE OF NEWSPAPERS OR PERIODICALS IS ESSENTIAL TO THE EFFICIENT FUNCTIONING OF A GOVERNMENTAL AGENCY, I THINK THE SENATOR'S SUGGESTION IN SOME FORM OR OTHER SHOULD BE ADOPTED AS TO THAT PARTICULAR AGENCY; BUT, BASICALLY, I DO NOT BELIEVE THAT WOULD BE NECESSARY IN MANY CASES, IF AT ALL.

MR. LA FOLLETTE. I HAPPEN TO KNOW SOMETHING ABOUT SOME OF THE WORK WHICH THE FEDERAL POWER COMMISSION HAS DONE IN RELATION TO THE QUESTION OF RATES, AND RATHER RECENTLY I SPONSORED A RESOLUTION WHICH SECURED THE PUBLICATION OF A PUBLIC DOCUMENT RELATING TO THE VARYING COSTS TO THE CONSUMER OF NATURAL GAS IN THE UNITED STATES. I HOPE THE PARTICULAR WORK OF THE COMMISSION, ABOUT WHICH I KNOW SOMETHING, IS NOT TO BE PREVENTED OR HAMPERED BY THE SENATOR'S AMENDMENT. I WISH AGAIN TO SAY THAT I HOPE THE CONFEREES WILL GIVE CONSIDERATION TO THE PROPOSAL I HAVE MADE. I THINK THEY WILL FIND, AS I THINK THE SENATOR FROM MARYLAND WILL FIND IF HE WILL STUDY IT, THAT IT IS DRAWN RATHER TIGHTLY IN CONNECTION WITH THE OFFICIAL USE OF THE NEWSPAPERS AND PERIODICALS FOR THE PURPOSE OF REGULATION. COURSE, WE ALL KNOW THAT RESPONSIBILITY HAS BEEN FIXED BY LAW UPON SOME OF THE AGENCIES AFFECTED BY THE PENDING APPROPRIATION BILL. THUS, ALTHOUGH SENATOR LA FOLLETTE MADE A PARTICULAR POINT OF THE NEED OF AN EXCEPTION FOR NEWSPAPERS AS WELL AS PERIODICALS REQUIRED FOR ADMINISTRATIVE PURPOSES, AND EXPRESSLY INCORPORATED "THE PURCHASE OF NEWSPAPERS," SUBJECT TO CERTAIN CONDITIONS, AS WELL AS "PERIODICALS" IN THE LANGUAGE SUGGESTED FOR CONSIDERATION IN CONFERENCE, AND SENATOR TYDINGS AGREED THAT THE MATTER WAS ONE THAT SHOULD HAVE CONSIDERATION IN CONFERENCE, THE PROVISO SUBSEQUENTLY ADOPTED AND ENACTED RESTRICTED THE EXCEPTION TO "SCIENTIFIC, TECHNICAL, TRADE, OR TRAFFIC PERIODICALS," NO MENTION WHATEVER BEING MADE OF NEWSPAPERS IN SUCH PROVISO. IN THE LIGHT OF THIS LEGISLATIVE HISTORY OF THE MATTER, ANY INTERPRETATION OF THE PROVISO WHICH WOULD PERMIT THE PURCHASE OF NEWSPAPERS, AS DISTINGUISHED FROM PERIODICALS, IN EXCESS OF THE LIMITATION IMPOSED BY THE PRECEDING LANGUAGE, WOULD SEEM CLEARLY CONTRARY TO THE LEGISLATIVE INTENT. THE NEED FOR A LARGER EXEMPTION FOR THE TARIFF COMMISSION WOULD APPEAR TO BE A MATTER FOR SUBMISSION TO THE CONGRESS. THIS OFFICE, OF COURSE, HAS NO POWER TO GRANT EXCEPTIONS NOT AUTHORIZED BY LAW.

ACCORDINGLY, THE QUESTION STATED IN THE NEXT TO LAST PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE NEGATIVE.