This chapter discusses statutes that agencies have identified as obsolete and some additional possibilities of obsolete statutes on which we have not received agency comments. When the statute grants a special authority to the agency, we see no reason to question the agency's view of the statute as obsolete. Some statutes, however, impose restrictions and, before repeal, should be evaluated to determine whether they are still needed as a control.

STATUTES IDENTIFIED BY DOD AS OBSOLETE

10 U.S.C. §§ 2271-2279, Development and procurement of military aircraft

10 U.S.C. § 2384, Marking of military supplies

10 U.S.C. § 2389, DOD amendment of contracts for procurement of milk

10 U.S.C. § 4340, Quartermaster for the Corps of Cadets

10 U.S.C. § 4533, Purchasing components of Army rations

10 U.S.C. §§ 4534, 4535, Army subsistence supplies

10 U.S.C. §§ 4776, 9776, DOD emergency construction of fortifications on private land in an emergency declared by the President

10 U.S.C. § 7294, Treaty suspension of authorized naval ship construction

10 U.S.C. § 7342, Certain percentage of aircraft and aircraft engines procured for naval service to be constructed or manufactured in United States plants

10 U.S.C. § 7344, Treaty suspension of authorized naval aircraft

10 U.S.C. §§ 9534, 9535, Air Force subsistence supplies

41 U.S.C. §§ 101-125 (Contract Settlement Act). This act applies to World War II contracts and it is doubtful that any such contracts are still open. With two exceptions, then, this act could be repealed without any substantive impact. The first exception is 41 U.S.C. § 114(b) which has to do with third-party practice in the Court of Claims. The Court of Claims has interpreted the broad language of this section as overcoming any assumption that it is meant to apply only in cases involving claims under the Contract Settlement Act, and the substance of this section is now embodied in Rule 41 of the Court of Claims. The second exception is 41 U.S.C. § 119. This section provides for damages to be paid the United States in the case of fraudulent contract claims. Its language is broad enough to cover fraudulent claims in connection with contracts other than "war contracts."

STATUTES IDENTIFIED BY OTHER DEPARTMENTS AS OBSOLETE

31 U.S.C. § 423, Department of the Treasury contracts to install, maintain, and operate paper money laundering machines

40 U.S.C. § 34, Contracts for rent of build

1 See Bowser, Inc. v. United States, 420 F.2d 1057 (Ct. Cl. 1970), reconsideration, 427 F.2d 740 (Ct. Cl. 1970).

ings to be used by District of Columbia Government

40 U.S.C. § 474 (10), Farm Credit Administration contracts

6% CPFF fee on defense public works, 42 U.S.C. § 1533. Under 42 U.S.C. § 1533, a limitation of six percent is placed on the fixed fee for CPFF contracts for construction of public works necessary to the health, safety, or welfare of persons engaged in national defense as authorized by 42 U.S.C. §§ 1521, 1532, 1561, and 1562. These authorizations were terminated on July 1, 1953 2 and hence the six percent fee limitation would appear to be meaningless.

45 U.S.C. §§ 90, 91, and 92, Department of the Treasury authority to settle transportation claims of railroads

49 U.S.C. § 1636, Department of Transportation protection for common carrier employees under high-speed ground transportation contracts

OTHER STATUTES PROBABLY OBSOLETE

10 U.S.C. § 2381(a)(1), (c). Under 10 U.S.C. § 2381(a)(1), authority is given to the military secretaries to prescribe regulations for the preparation, submission, and opening of bids. However, there is inherent authority to issue such regulations, and 5 U.S.C. § 301 authorizes the issuance of regulations generally. In addition, it may be in conflict with 10 U.S.C. § 2202 which requires the Secretary of Defense to issue regulations for procuring, producing, warehousing, or distributing supplies. Section 2381 (c) provides: "Proceedings under this section are subject to regulations under section 486 of title 40, unless exempted therefrom under section 481 (a) of that title." Since the exemption under 40 U.S.C. § 481 (a) applies to actions taken pursuant to 40 U.S.C. § 481 by the Administrator of GSA and not pursuant to 40 U.S.C. § 486, it is not clear what the effect of this provision is.

See note following 42 U.S.C. § 1541 (1970).

31 U.S.C. § 635. The provison in 31 U.S.C. § 635 that appropriations made under the Bureau of Yards and Docks for public works shall remain available until expended appears redundant to general statutes 31 U.S.C. § 649c and 31 U.S.C. § 682, which provide respectively that money appropriated to the military departments for procurement of certain items, including construction, shall remain available until spent, and that moneys appropriated for the construction of public buildings shall remain available until completion of the work for which they were appropriated.

31 U.S.C. § 638. The provision in § 638 that no money appropriated for ordnance or ordnance material shall be used for any other purpose than that for which the appropriation was made appears redundant to the general statute, found in 31 U.S.C. § 628, which provides that except as otherwise provided by law sums appropriated shall be applied solely to the objects for which they are respectively made. Two other provisions contained in 31 U.S.C. § 638, authorizing the transfer of used or obsolete ordnance material, have effectively been superseded by title II of the FPASA,3 dealing with property transfers and disposal.

41 U.S.C. § 13. This statute,' enacted in 1868, prohibits "executive departments" from entering into contracts for stationery and other supplies for a longer term than one year from the time the contract was entered into. It is inapplicable to agencies procuring under the ASPA 5 and title III of the FPASA. Since most executive agencies procure under these two acts, this statute has a very limited application and significance today.

Navy World War II defense facilities authorization, 50 U.S.C. App. § 1201. This statute as originally enacted authorized the Secretary of the Navy, for the duration of World War II and for six months thereafter, in connection with the procurement of supplies and equipment necessary

for the prosecution of World War II and the maintenance of national defense, to procure necessary buildings, facilities, utilities, and appurtenances thereto on Government-owned land or elsewhere, and to provide for their operation by Government or private personnel. It was permitted to expire as of August 1, 1953. It would therefore appear no longer meaningful. A similar provision for the Army was repealed. At a minimum the Navy statute could be removed from the Code. Second War Powers Act, 50 U.S.C. App.

§§ 643-643c, 645-645b, 1152(a). All but the above sections of the Second War Powers Act have expired and been deleted from the Code. A part of section 1152(a) dealing with the authority of the Navy to negotiate emergency contracts was extended to 1947 and expired then. The remaining portion, providing for a national

See Navy Contract Law (2d ed., 1959), sec. 10.15.

9

priorities system, expired in 1951 with the establishment of a national priority system under the Defense Production Act.R Sections 643-643c, dealing with access to records on emergency contracts, are technically extant for the duration of the Korean emergency, which has never been formally terminated. In any case, these access to records provisions are redundant to permanent ones. 10 The remaining sections 645a and b, providing expiration dates and a short title, have no independent significance once the other sections are deleted.

Renegotiation Acts of 1942 and 1948, 50 U.S.C. App. §§ 1191, 1193. The Renegotiation Acts of 1942 and 1948 have expired. In all likelihood all matters that arose thereunder have been finally disposed of by this time.

50 U.S.C. App. § 2061 (1970).

• Declared by Presidential Proclamation No. 2914, Dec. 16, 1950. 10 See p. 49 supra.