B-56358, APRIL 2, 1946, 25 COMP. GEN. 688

B-56358, APRIL 2, 1946, 25 COMP. GEN. 688

SURPLUS PROPERTY - DISPOSAL AGENCIES - LIBRARY OF CONGRESS IN VIEW OF THE PROVISIONS OF SECTION 3 (A) OF THE SURPLUS PROPERTY ACT OF 1944, AS AMENDED, DEFINING, FOR THE PURPOSES OF THE SURPLUS PROPERTY DISPOSAL PROGRAM, A "1GOVERNMENT AGENCY" AS "ANY EXECUTIVE DEPARTMENT * * * OR OTHER AGENCY IN THE EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT," THE LIBRARY OF CONGRESS--- AN AGENCY NOT IN THE EXECUTIVE BRANCH OF THE GOVERNMENT--- MAY NOT ACT AS A ,DISPOSAL AGENCY" AS DEFINED IN SECTION 3 (C) OF SAID ACT FOR THE PURPOSE OF DISTRIBUTING SURPLUS TEXTBOOKS WHICH HAD BEEN USED IN THE ARMY AND NAVY TRAINING PROGRAM.

COMPTROLLER GENERAL WARREN TO THE LIBRARIAN OF CONGRESS, APRIL 2, 1946:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 26, 1946, AS FOLLOWS:

THE LIBRARY OF CONGRESS WAS RECENTLY REQUESTED BY THE SURPLUS PROPERTY ADMINISTRATION TO TAKE OVER 1,500,000 SURPLUS TEXTBOOKS WHICH HAD BEEN USED IN THE ARMY AND NAVY TRAINING PROGRAMS. THE LIBRARY, AS A GRADE 1 PRIORITY CLAIMANT, AGREED TO ACCEPT THE COLLECTION, WHICH IS SCATTERED IN A NUMBER OF WAREHOUSES THROUGHOUT THE COUNTRY, AFTER IT BECAME CLEAR THAT THE SURPLUS PROPERTY ADMINISTRATION WAS TOTALLY UNABLE TO HANDLE THE MATERIAL AND THAT THE OFFICE OF EDUCATION WAS EQUALLY UNPREPARED TO TAKE IT OVER. OUR ACCEPTANCE WAS BASED IN LARGE PART ON THE FACT THAT ABOUT ONE-THIRD OF THE COLLECTION WOULD BE OF DIRECT VALUE TO US IN OUR EXCHANGE AND GIFT PROGRAM AS WELL AS FOR ADDITION TO THE LIBRARY COLLECTIONS. FURTHER IMPORTANT CONSIDERATION WAS THE FACT THAT THE LIBRARY OF CONGRESS WAS THE ONLY GOVERNMENT AGENCY WITH THE NECESSARY FACILITIES FOR DIRECTING THE DISTRIBUTION OF THE REMAINING BOOKS TO GRADE 2 PRIORITY CLAIMANTS, NAMELY TAX-SUPPORTED INSTITUTIONS THROUGHOUT THE COUNTRY.

THE LIBRARY PROPOSES, THEREFORE, TO DISTRIBUTE APPROXIMATELY 1,000,000 TEXTBOOKS TO TAX-SUPPORTED INSTITUTIONS, PROVIDED THAT IT CAN RECEIVE FROM THEM A HANDLING CHARGE WHICH WILL DEFRAY THE COST OF DISTRIBUTION. PROPOSE TO PLACE SUCH RECEIPTS IN A TEMPORARY ACCOUNT FOR THIS PURPOSE, RATHER THAN TO TURN THEM OVER TO THE TREASURY AS MISCELLANEOUS RECEIPTS, SINCE WE ARE UNABLE TO PAY THE DISTRIBUTION COST FROM APPROPRIATED FUNDS. A LEGAL PRECEDENT FOR SUCH PROCEDURE IS FOUND IN THE COMPTROLLER GENERAL'S DECISION A-12900, FEBRUARY 11, 1942, WITH REFERENCE TO THE DISTRIBUTION OF PRINTED CARDS BY THE LIBRARY OF CONGRESS, IN WHICH A VERY SIMILAR BUT CONTINUING ARRANGEMENT WAS APPROVED.

OUR ONLY ALTERNATIVE TO A FAVORABLE DECISION IN YOUR OFFICE WILL BE TO PULP APPROXIMATELY 1,000,000 BOOKS WHICH ARE NOT NEEDED FOR OUR OWN COLLECTIONS AND OUR EXCHANGE AND GIFT PROGRAM. SUCH ACTION WOULD, OF COURSE, BE TRAGIC IN VIEW OF THE PRESENT BOOK FAMINE IN THIS COUNTRY AND THE FACT THAT THE TEXTBOOKS REPRESENTED IN THE COLLECTION ARE NOT AVAILABLE FOR PURCHASE IN THE QUANTITIES REQUIRED BY EDUCATIONAL INSTITUTIONS IN THE NATION.

IT IS CLEAR THAT THE LIBRARY OF CONGRESS IS LEGALLY ENTITLED TO ACCEPT THESE BOOKS; FURTHER, IT MAY DISPOSE OF THEM AS IT SEES FIT. THE ONLY POINT AT ISSUE SEEMS TO BE THE MATTER OF THE CHARGING OF A SMALL FEE TO BE PLACED IN A TEMPORARY ACCOUNT AND USED TO PAY THE COST OF STORAGE, PACKING, AND SHIPPING. THERE IS NO DOUBT THAT A FAVORABLE DECISION WILL BE OF CONSIDERABLE BENEFIT TO THE NATION IN PROVIDING TAX-SUPPORTED INSTITUTIONS WITH NEEDED MATERIALS WHICH COULD NOT OTHERWISE BE OBTAINED FOR A CONSIDERABLE PERIOD OF TIME, AND AT THE SAME TIME WILL CARRY OUT THE SPIRIT OF THE SURPLUS PROPERTY ACT.

ARRANGEMENTS ARE ALREADY BEING EFFECTED TO MOVE 500,000 OF THESE BOOKS TO THE LIBRARY OF CONGRESS AND AN EARLY RECEIPT WOULD BE DEEPLY APPRECIATED.

THE STATEMENT THAT "THE LIBRARY OF CONGRESS WAS THE ONLY GOVERNMENT AGENCY WITH THE NECESSARY FACILITIES FOR DIRECTING THE DISTRIBUTION OF THE REMAINING BOOKS TO GRADE 2 PRIORITY CLAIMANTS, NAMELY, TAX SUPPORTED INSTITUTIONS THROUGH THE COUNTRY" AND THAT THE BOOKS "ARE NOT NEEDED FOR OUR COLLECTIONS AND OUR EXCHANGE AND GIFT PROGRAM" INDICATE QUITE CLEARLY THAT THE PART SOUGHT TO BE PLAYED BY THE LIBRARY OF CONGRESS IN THE INSTANT TRANSACTION IS THAT OF A DISPOSAL AGENCY UNDER THE SURPLUS PROPERTY PROGRAM.

SECTION 3 (C) OF THE SURPLUS PROPERTY ACT OF 1944, APPROVED OCTOBER 3, 1944, 58 STAT. 765, 767, AS AMENDED, DEFINES THE TERM "DISPOSAL AGENCY" AS ANY GOVERNMENT AGENCY DESIGNATED UNDER SECTION 10 OF THE ACT 58 STAT. 769, TO DISPOSE OF ONE OR MORE CLASSES OF SURPLUS PROPERTY. HOWEVER, SECTION 3 (A) OF THE ACT, 58 STAT. 767, DEFINES THE TERM "1GOVERNMENT AGENCY" AS "ANY EXECUTIVE DEPARTMENT, BOARD, BUREAU, COMMISSION, OR OTHER AGENCY IN THE EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT, OR ANY CORPORATION WHOLLY OWNED (EITHER DIRECTLY OR THROUGH ONE OR MORE CORPORATIONS) BY THE UNITED STATES.'

THE LIBRARY OF CONGRESS LONG HAS BEEN RECOGNIZED AS NOT UNDER THE EXECUTIVE BRANCH OF THE GOVERNMENT (21 COMP. DEC. 66), AND, THEREFORE, SUCH AGENCY DOES NOT FALL WITHIN THE TERM ,1GOVERNMENT AGENCY," SO AS TO BE QUALIFIED TO ACT AS A DISPOSAL AGENCY AS DEFINED IN THE SURPLUS PROPERTY ACT, AS AMENDED. 21 COMP. GEN. 987. HENCE, THERE WOULD APPEAR TO BE NO EXPRESS AUTHORITY OF LAW FOR THE LIBRARY OF CONGRESS TO ACT AS A DISPOSAL AGENCY IN THE INSTANT MATTER. MOREOVER, THE SURPLUS PROPERTY ACT, AS AMENDED, PROVIDES SPECIFIC MEASURES FOR THE DISPOSITION OF SURPLUS PROPERTY THROUGH LAWFULLY DESIGNATED DISPOSAL AGENCIES AND FOR THE FINANCING OF AND ACCOUNTING FOR EXPENDITURES INCURRED IN CONNECTION THEREWITH. WHEN A STATUTE LIMITS A THING TO BE DONE IN A PARTICULAR MODE, IT INCLUDES THE NEGATIVE OF ANY OTHER MODE. SEE 15 COMP. GEN. 9. APPARENTLY IT IS FOR THAT REASON THAT FUNDS APPROPRIATED TO DEFRAY EXPENSES OF SURPLUS PROPERTY DISPOSALS HAVE NOT BEEN MADE AVAILABLE TO THE LIBRARY OF CONGRESS. BUT EVEN IF THE AUTHORITY OF THE LIBRARY OF CONGRESS TO DISPOSE OF THE BOOKS, AS A "DISPOSAL AGENCY" OR OTHERWISE, BE SHOWN, ANY RECEIPTS ON ACCOUNT THEREOF WOULD HAVE TO BE COVERED INTO A SPECIAL FUND IN THE TREASURY FOR EXPENSES OF DISPOSAL AGENCIES PURSUANT TO THE ACT OF DECEMBER 28, 1945, PUBLIC LAW 269, 59 STAT. 641, OR AS MISCELLANEOUS RECEIPTS PURSUANT TO SECTIONS 3617 AND 3618, REVISED STATUTES.

ACCORDINGLY, THERE APPEARS TO BE NO AUTHORITY OF LAW FOR THE PROCEDURE PROPOSED.