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the State agencies are required to listen to four Federal agencies. The association can see no particular reason why DOD or OCDM, or any other Federal agency should expect or want to retain certain prerogatives and powers that pertain to the distribution of surplus property to health, education, and civil defense. Such an attitude means that these Federal agencies and departments do not believe that the State agencies are capable of administering and operating the program. Furthermore, such a position has, and will continue to give certain tax-supported and private nonprofit institutions and organizations a priority in acquiring surplus property. The Federal departments and agencies involved cannot defend such priorities. All eligible entities should be treated as coequals and each should have the same objective consideration and treatment by both the Federal Government and the State agencies. Under section 203 (j) (2) priorities have been established. They should be eliminated. Furthermore, certain considerations have been given to civil defense which have never been enjoyed by health and educational institutions. Such requirements make it exceedingly difficult for State agencies to administer the program. The association can think of no particular sound or logical reason why the Department of Defense should expect Congress to give them the exclusive privilege of making property available on a priority basis to certain activities which creates inequities.

5. The second sentence of paragraph (2), section 203 (j) of the Federal Property and Administrative Services Act of 1949 (63 Stat. 377), as amended, reads: "If such Secretary shall determine that such property is usable and necessary for such purposes, he shall allocate it for transfer by the Administrator to the appropriate State agency for distribution to such educational activities." Similar language is contained in Senate bill 3489, page 2, lines 13 through 18, which reads: "If, upon application made by any such institution or organization, the Secretary of Defense determines that such property is usable and necessary for any such purpose, he shall allocate it for transfer by the Administrator to the appropriate State agency for distribution to such institution or organization." The association is led to believe that the language quoted from the bill (that would amend sec. 203 (j) (2)) would again be implemented by a DOD instruction which would again violate the law and disregard the statutory provision which requires that all property be distributed through a single State agency. Senate bill 3489 follows:

"[S. 3489, 86th Cong., 2d sess.]

"A BILL To amend section 203 (j) of the Federal Property and Administrative Services Act of 1949, as amended (40 U.S.C. 484 (j)), to provide that the Department of Defense may allocate surplus property under its control for transfer under that Act only to educational institutions conducting approved military training programs

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 203 (j) of the Federal Property and Administrative Services Act of 1949, as amended (40 U.S.C. 484 (j)), is amended

"(1) by amending paragraph (2) to read as follows:

"(2) In the case of any surplus property under the control of the Department of Defense, the Secretary of Defense shall determine whether such property is usable and necessary for activities of educational institutions which are of special interest to the armed services because they maintain military training programs which are approved by the Secretary of the Army, Navy, or Air Force, as the case may be, and which apply for such property: Provided, That any organization established by law of the United States whose object is to encourage and foster the development of aviation that was eligible to receive surplus property under this paragraph on the day before the date of enactment of this proviso shall continue thereafter to be eligible to receive surplus property under this paragraph. If, upon application made by any such institution or organization, the Secretary of Defense determines that such property is usable and necessary for any such purpose, he shall allocate it for transfer by the Administrator to the appropriate State agency for distribution to such institution or organization. If the Secretary determines that such property is not usable and necessary for such purposes, it may be disposed of in accordance with paragraph (3) or paragraph (4) of this subsection.'; and

"(2) by amending the first sentence of paragraph (3) by striking out the word 'and' before the designation (B)', and inserting before the period at the end thereof a comma and the words 'and (C) any other tax-supported or nonprofit activity which, before the date of enactment of this clause, was eligible

to receive property under paragraph (2) but which is not eligible to receive property under that paragraph after that date.'"

6. The Department of Defense, Assistant Secretary of Defense, Manpower, Personnel, and Reserve, has, by DOD Instruction No. 4160.18, dated February 10, 1959, established criteria for designating activities of special interest to the armed services. It is the opinion of this association, after examining Senate bill 3489, page 2, lines 1 through 7, that the Department of Defense would still be privileged, if this amendment became law, to advise the services that instruction 4160.18 was still in effect or DOD would be privileged to amend or revise this instruction and, by so doing, enlarge upon the number of institutions and organizations that would be entitled to a priority in acquiring surplus property for use by military orgainzational units of educational institutions. An examination of two of the six categories of educational activities in DOD 4160.18 that have been determined to be of special interest to the Department of Defense ("A" through "B") indicates that the Department of Defense is granting priority to educational institutions to acquire surplus property for those schools that require all miiltary students to be habitually in uniform when on the post, reservation, or campus. This means that the services can transfer surplus property directly to any military school, college, or university that offers ROTC. It is possible, under current DOD regulations, to transfer property on a priority basis to these schools for use not only by the military organizational unit of the college or university, but for use by the college or university in general. Should this procedure ever be expanded it would lead to chaos, since any institution of higher learning having an ROTC program could obtain property from a State agency via the “front door" and also could obtain property through the military organizational unit via the "back door." It is also possible that the same chaotic conditions could occur for any public or private secondary school that offers a national defense cadet corps training program. There is nothing in the language of Senate bill 3489 that guarantees the discontinuance of these possibilities. DOD Instruction 4160.18 follows:

"Number: 4160.18
"Date: February 10, 1959
"ASD (MP&R)

"DEPARTMENT OF DEFENSE INSTRUCTION

"Subject: Establishment of Criteria for the Designation of Activities of Special Interest to the Armed Forces. "References: (a) DOD Directive 5100.13, 'Donation of Surplus Personal Property to Educational Activities of Special Interest to the Armed Services.'

(b) DOD Instruction 4160.14, 'Policy and Procedures Relating to Donation of Surplus Personal Property to Designated Activities of Special Interest to the Armed Services.'

(c) Federal Property and Administrative Services Act of 1949, as amended (63 Stat. 377; 40 U.S.C. 471, 484).

"I. Authority and purpose

"This Instruction is issued pursuant to and in amplification of reference (a). It establishes criteria by which eligibility to receive surplus personal property may be determined within the Department of Defense.

"II. Scope

"Education activities qualifying under Section III desiring to participate in the donation program must first make application to that effect. The application must be forwarded to the cognizant Secretary for nomination and be approved by the Secretary of Defense prior to the activity being added to the eligibility list. Donation agreements currently in effect between the Department of Defense and certain educational activities need not be renegotiated. "III. Criteria of eligibility

"Only ‘educational activities which are of special interest to the armed services' as authorized in Section 203 (j) (2) of reference (c) are eligible to receive surplus personal property. The following categories of educational activities have been determined to be of special interest to the Department of Defense:

"A. Military Schools Division-ROTC. The military schools division is composed of units at designated schools which have been specifically authorized one of the following type units

"1. Class MJC. Units established at essentially military schools which provide high school and junior college instruction, but do not confer baccalaureate degrees. These units require all military students to be habitually in uniform when on the post, reservation or campus; organize their military bodies as corps of cadets under constantly maintained military discipline; have as their objectives the development of military students' character by means of military training and the regulation of their conduct in accordance with military principles; and in general meet military standards similar to those maintained at the service academies. Additionally, these units accept and maintain the specifically designated program of instruction prescribed by the cognizant Secretary for this class of instruction.

"2. Class MI. Units established at essentially military schools of secondary level of instruction which meet the military training requirements of Class MJC, above.

"B. Other Secondary School Units. Those military training units established at high schools and other educational institutions of comparable level which require all military students to be habitually in uniform when in school or on campus; organize their military bodies as corps of cadets; accept and maintain the specifically designated program of instruction prescribed by the cognizant Secretary for such institutions.

"C. National Defense Cadet Corps (NDCC) Program Schools. "D. Naval Honor Schools.

"E. State Maritime Academies. "F. Civilian Youth Organizations. These are limited to organizations (1) whose primary goal is education; (2) whose membership is national in scope; (3) which are open to youths predominantly in the 8 to 18 year old category; and (4) which have been chartered by the Congress. Civilian youth organizations which were on the eligible list in effect on the day before the effective date of this Instruction, and which would be eligible under this Instruction but for the fact that they do not have a Federal charter, must obtain a charter within two years of that effective date or become ineligible to receive property under this Instruction. In the meantime, they may be retained on the eligible list. "IV. Kinds of Property Available

"An eligible educational activity may receive only the kinds of surplus personal property that are specified by written donation agreement between the educational activity and the Department of Defense.

"V. Implementation and Effective Date

"This Instruction is effective immediately. The military departments will revise their regulations, procedures and instructions as necessary to implement the provisions of this Instruction and forward copies of such implementations to the Assistant Secretary of Defense (Manpower, Personnel and Reserve) within sixty days.

"CHARLES C. FINUCANE,

"Assistant Secretary of Defense (Manpower, Personnel and Reserve).” 7. Section 203(j) (3) and 203 (j) (4) of the Federal Property and Administrative Services Act of 1949 (63 Stat. 377), as amended, authorizes the Secretary of DHEW and the Director of OCDM to determine what surplus property is usable and necessary for health, education, and civil defense purposes, and also authorizes them to allocate such property for transfer by the Administrator of GSA to the State agency for distribution to these three classes of public and private institutions and organizations. The Director of OCDM has delegated his authority to the Secretary of DHEW to make these determinations and allocations. The Secretary has redelegated these responsibilities to the State agencies. These agencies actually select and determine what property is needed and can be utilized by health, education, and civil defense. The various agencies' functions are, therefore, not confined solely to distributing property. The term "State surplus property distribution agency" is a misnomer. The State agencies perform many functions that require judgment, wisdom, and commonsense. These agencies are not automatons that can or do operate "by remote control." It, therefore, is not logical to expect State agencies to function if exclusive jurisdiction is given to the Secretary of Defense to determine what property and how much property is usable and necessary for educational activities which the Secretary has decided are of special interest to the armed services. Furthermore, as Senate bill 3489 is written, these activities would have a priority which would mean that all property that the Secretary determined that they should

have would need to be set aside and earmarked or placed in a special warehouse for the exclusive use of these organizations. Such a situation would create conditions that make it impossible for any State agency to administer and operate a sound program. Such guidance as the State agencies need (or are required to accept) should come from only one Federal agency. No State agency can serve two or more masters. Every State agency must have the privilege and right to operate on an independent basis with a minimum of Federal dictation, guidance, or control.

8. Instructions and directives issued by the Department of Defense are implemented by the Department of the Army, Department of the Navy, and Department of the Air Force. These implementations vary greatly in many respects. If the Secretary of Defense is given the authority he requests under Senate bill 3489 and, in turn, the services are permitted to implement DoD Instruction 4160.18 (or revision thereof) the State agencies would be faced with a situation in which they would be required to follow the determinations made by the three respective services rather than by one Federal agency. This would create an impossible situation.

9. To permit the Secretary of Defense the authority requested in Senate bill 3489 would mean in sum and substance that he could, literally, "invade" the public and private secondary school systems of the Nation and practically negate the services now being performed by the State agencies for surplus property.

It appears to the Association that the single State agency concept was the intent of Congress. This intention is revealed in the Hearings on H.R. 7227. To establish a dual or multiple State agency operation is contrary to the single manager concept which Congress is endeavoring to get the DoD to adopt for procuring supplies and equipment. The single manager concept is discussed at great length in the Hearings before the Subcommittee on Defense Procurement of the Joint Economic Committee, Eighty-Sixth Congress, 2d Session. These Hearings were held January 28, 29, and 30, 1960.

Senate bill 3493 would amend the foregoing basic act to authorize the use of surplus personal property by State distribution agencies. This bill was introduced (by request) on May 5, 1960, by Senator McClellan. The House companion measure is H.R. 11499, which was introduced by the majority leader of the House, the Honorable John W. McCormack, on March 31, 1960. The language of the two bills shows some variations. The association favors the passage of this bill but believes that it should be amended to read as follows:

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 203 (n) of the Federal Property and Administrative Services Act of 1949, as amended (40 U.S.C. 484(n)), is hereby amended by adding at the end thereof the following new sentences: 'Under such cooperative agreements, the Administrator may, subject to such conditions as may be prescribed by the Secretary of Health, Education, and Welfare, transfer any excess or surplus property to the organizational unit of the agency of that State so designated for the distribution of surplus property, for its own use, if the Secretary has determined that such property is necessary to, or would facilitate, the effective operation of that organizational unit of the State agency in performing its functions in connection with the appropriate program. Upon a determination by the Secretary that such action is necessary to, or would facilitate, the effective use of such property so made available under the terms of such a cooperative agreement, and with the approval of the Administrator, title to property so transferred shall be vested in that State agency.'

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The reasons for amending Senate bill 3493 are as follows:

1. Excess and surplus property is now transferred by the International Cooperation Administration to foreign institutions and organizations. Some of these entities include educational institutions.

2. Public Law 85-934 (72 Stat. 1793), approved September 6, 1958, authorizes the head of various Federal agencies who have research contracts with nonprofit institutions of higher education, to transfer title to equipment purchased with grant or contract funds. Such property is in excess status when it is so transferred, since GSA has nothing to do with determining that such property is surplus, nor can GSA remove such property from such institutions for further Federal utilization.

3. The USDA, Forest Service, under Memorandum 6410, dated November 30, 1959, may transfer excess property to the State forester of the several States. This procedure has the concurrence of GSA.

4. The USDA, Soil Conservation Service, under Memorandum AS 16, Rev., dated December 8, 1958, may transfer excess property to State soil conservation districts through the State conservationist. This procedure has the concurrence of GSA.

5. The United States Department of Commerce, Bureau of Public Roads, under Administrative Memorandum 2-12(1), dated January 14, 1960, may transfer excess property to State highway departments. This procedure has the concurrence of GSA.

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6. Public Law 85-835 (72 Stat. 988) approved August 28, 1958, authorizes the Secretary of Agriculture, through the Commodity Credit Corporation, by the provisions of section 505 of this act, to donate excess cotton (acquired through its price support operations) to educational institutions for use in the training of students in the processing and manufacture of cotton into textiles.

7. The Department of the Air Force Air Force Manual 67-1, volume XIII, amendment 31, dated December 21, 1959, authorizes excess radio and electronic equipment to be transferred to private individuals that are a part of an organization known as the Military Affiliate Radio System (MARS).

8. All of the entities, referred to under the preceding seven points can acquire Federal excess property on a priority basis before such property is made available to State distribution agencies. It is, therefore, logical to conclude that State property distribution agencies should be permitted to acquire either excess or surplus property for the purpose of conducting the program under their jurisdiction.

9. Many State agencies are an organizational unit of State departments of government. In many States the State property distribution agency is an organizational unit of a State department other than the State deparment of education, the State department of health, and the State department that administers and operates the statewide civil defense program. Unless the distribution and use of Federal property is confined to the organizational unit that administers the surplus property program, such property can be made available on a departmental-wide basis to entities of State government that have nothing whatsoever to do with the surplus property program. Senate bill 3493, if enacted as written, would create confusion in this area. It does not seem logical

to conclude that the DHEW would have legal authority, by regulations or otherwise, to exclude a department of State government from receiving property unless such a proviso was contained in Senate bill 3493.

There is no reason why the Director of OCDM should be included in Senate bill 3493 since all State agencies would, if they chose to do so, enter into a cooperative agreement only with the Secretary of the DHEW.

To summarize and conclude I should like to say that the National Association of State Agencies for Surplus Property, at its 12th annual conference, Jackson Lake Lodge, Grand Teton National Park, Wyo., June 22-25, 1959, went on record as being opposed to increasing the types or categories of institutions and organizations which would become eligible to acquire surplus property if the Federal Property and Administrative Services Act of 1949 (63 Stat. 377), as amended, is further amended.

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The three basic reasons for the association's position are as follows:

1. Addition of eligibles would make for a thin distribution of the property now available.

2. Increasing the number of eligibles would not increase the amount of surplus property available.

3. Increasing the number of eligibles would complicate and make impracticable the administration and operation of the program.

The association is well aware of the fact that Congress, in its wisdom, can continue to add to the number of eligibilities. If Congress chooses to do so the association believes that all eligibile entities should be specifically named or "spelled out" in section 203 (j) (3) of Public Law 152, as amended.

The association believes that a single Federal agency should administer the program.

The association believes that a single State agency should administer the program.

The association believes that section 203 (j) (2) of Public Law 152, as amended, should be repealed.

The association believes that section 203 (k) should be amended so that somewhere in the language of subsection (k) an amendment should be included which will give the State agencies a voice in the transfer of real property to

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