B-167087, JUL. 25, 1969

B-167087: Jul 25, 1969

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HOLDING THAT CHARGES LEVIED BY INTERSTATE COMMERCE COMMISSION FOR REPRODUCTION AND CERTIFICATION OF IN VIEW OF PERMISSIVE NATURE OF 31 U.S.C. 483A THE ICC HAS A RIGHT RECORDS ARE AUTHORIZED UNDER 31 U.S.C. 483A. TO PRESCRIBE FEES FOR SERVICES TO THE PUBLIC EVEN THOUGH OTHER AGENCIES HAVE NOT LEVIED SUCH CHARGES. PRESIDENT: THIS IS IN REFERENCE TO YOUR LETTER OF APRIL 18. IT IS YOUR CONTENTION THAT THE ICC IS NOT AUTHORIZED UNDER 31 U.S.C. 483A TO LEVY SUCH CHARGES AND THAT UNDER 28 U.S.C. 2112 (AMENDED 1966) YOU ARE ENTITLED TO THE RECORDS FREE OF COST. YOU HAVE MISCONSTRUED SECTION 2112. SUBSECTION (D) OF SECTION 2112 STATES: "/D) THE PROVISIONS OF THIS SECTION ARE NOT APPLICABLE TO PROCEEDINGS * * * TO REVIEW OR ENFORCE THOSE ORDERS OF ADMINISTRATIVE AGENCIES.

B-167087, JUL. 25, 1969

MISCELLANEOUS - USER CHARGES FOR INTERSTATE COMMERCE COMMISSION DOCUMENTS DECISION TO INTERSTATE INVESTORS, INC., HOLDING THAT CHARGES LEVIED BY INTERSTATE COMMERCE COMMISSION FOR REPRODUCTION AND CERTIFICATION OF IN VIEW OF PERMISSIVE NATURE OF 31 U.S.C. 483A THE ICC HAS A RIGHT RECORDS ARE AUTHORIZED UNDER 31 U.S.C. 483A. TO PRESCRIBE FEES FOR SERVICES TO THE PUBLIC EVEN THOUGH OTHER AGENCIES HAVE NOT LEVIED SUCH CHARGES, THIS DOES NOT PRECLUDE ICC FROM DOING SO.

TO MR. WILLIAM R. BURT, PRESIDENT:

THIS IS IN REFERENCE TO YOUR LETTER OF APRIL 18, 1969, REQUESTING AN INTERPRETATION OF 5 U.S.C. 140, RECODIFIED 31 U.S.C. 483A, AS IT RELATES TO THE INTERSTATE COMMERCE COMMISSION'S LEVY OF CHARGES FOR THE REPRODUCTION AND CERTIFICATION OF THE RECORDS SUBMITTED IN INTERSTATE INVESTORS, INC. V UNITED STATES AND INTERSTATE COMMERCE COMMISSION AND TRANSCONTINENTAL BUS SYSTEM, INC., 66 CIV. 3004.

IT IS YOUR CONTENTION THAT THE ICC IS NOT AUTHORIZED UNDER 31 U.S.C. 483A TO LEVY SUCH CHARGES AND THAT UNDER 28 U.S.C. 2112 (AMENDED 1966) YOU ARE ENTITLED TO THE RECORDS FREE OF COST. HOWEVER, YOU HAVE MISCONSTRUED SECTION 2112, BECAUSE THIS SECTION APPLIES ONLY TO PROCEEDINGS IN THE COURTS OF APPEALS. SUBSECTION (D) OF SECTION 2112 STATES: "/D) THE PROVISIONS OF THIS SECTION ARE NOT APPLICABLE TO PROCEEDINGS * * * TO REVIEW OR ENFORCE THOSE ORDERS OF ADMINISTRATIVE AGENCIES, BOARDS, COMMISSIONS, OR OFFICERS WHICH ARE BY LAW REVIEWABLE OR ENFORCEABLE BY THE DISTRICT COURTS.' AND HENCE SPECIFICALLY DENIES APPLICATION OF SECTION 2112 TO PROCEEDINGS IN THE DISTRICT COURTS. THUS, THE COST OF PREPARING THE MATERIALS, BASED ON THE SECTION, DOES NOT REST WITH THE ICC AND IS NOT "A CHARGE UPON THE FEDERAL TREASURY.'

IN CONSIDERING YOUR ALLEGATIONS THAT THE ICC HAS EXCEEDED ITS AUTHORITY UNDER 31 U.S.C. 483A, THIS OFFICE CANNOT CONCUR. SECTION 483A STATES THAT: "IT IS THE SENSE OF THE CONGRESS THAT ANY WORK, SERVICE, PUBLICATION, REPORT, DOCUMENT, BENEFIT, PRIVILEGE, AUTHORITY, USE, FRANCHISE, LICENSE, PERMIT, CERTIFICATE, REGISTRATION, OR SIMILAR THING OF VALUE OR UTILITY PERFORMED, FURNISHED, PROVIDED, GRANTED, PREPARED, OR ISSUED BY ANY FEDERAL AGENCY * * * TO OR FOR ANY PERSON (INCLUDING * * * CORPORATIONS * * *) * * * SHALL BE SELF-SUSTAINING * * * AND THE HEAD OF EACH FEDERAL AGENCY IS AUTHORIZED * * * TO PRESCRIBE THEREFOR SUCH FEE, CHARGE, OR PRICE, IF ANY, AS HE SHALL DETERMINE, * * *.' AND THIS DETERMINATION IS TO BE BASED ON FAIRNESS AND EQUITY WITH CONSIDERATION FOR THE COSTS, DIRECT AND INDIRECT, TO THE GOVERNMENT,"VALUE TO THE RECIPIENT, (AND) PUBLIC POLICY OR INTEREST (TO BE) SERVED.' CONSEQUENTLY, IT IS OUR OPINION, DUE TO THE PERMISSIVE NATURE OF THIS SECTION, THAT THE ICC HAS THE RIGHT TO PRESCRIBE SUCH FEES FOR SERVICES RENDERED AS IT DEEMS NECESSARY TO BE "SELF SUSTAINING," IN ACCORDANCE WITH THE ABOVE-STATED GUIDELINES. EVEN THOUGH YOU CLAIM NO OTHER AGENCY HAS INTERPRETED THE SECTION AS AUTHORITY FOR LEVYING SUCH CHARGES, THIS DOES NOT PRECLUDE THE ICC FROM DOING SO; FOR EACH AGENCY HAS THE RIGHT TO MAKE ITS OWN DETERMINATION AS TO WHETHER OR NOT TO ESTABLISH FEES FOR A PARTICULAR SERVICE. SEE AERONAUTICAL RADIO, INC. V UNITED STATES, 335 F.2D 304, CERTIORARI DENIED 85 S.CT. 379, 379 U.S. 966. IN THIS CONNECTION, IT IS OF INTEREST TO NOTE THAT OUR OFFICE HAS ESTABLISHED FEES FOR FURNISHING COPIES OF RECORDS UNDER A SUBPOENA OR REQUEST FROM A COURT. SEE 4 CFR 82.

THEREFORE, IT IS THE OPINION OF THIS OFFICE THAT THE CHARGES LEVIED BY THE ICC FOR THE REPRODUCTION AND CERTIFICATION OF CERTAIN RECORDS, WERE AUTHORIZED UNDER 31 U.S.C. 483A (5 U.S.C. 140) AND THAT YOU ARE IN DEBT TO THE UNITED STATES IN THE AMOUNT OF $928.90. IF THIS DEBT IS NOT SETTLED IMMEDIATELY, WE WILL HAVE NO ALTERNATIVE BUT TO TURN THE MATTER OVER TO THE DEPARTMENT OF JUSTICE FOR LEGAL ACTION, WITHOUT FURTHER NOTICE TO YOU.

Oct 29, 2020

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  • Silver Investments, Inc.
    We dismiss the protest as untimely because it was filed more than 10 days after the protester knew, or should have known, the basis for its protest.
    B-419028

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