B-164426, JULY 22, 1968, 48 COMP. GEN. 24

B-164426, JULY 22, 1968, 48 COMP. GEN. 24

CUSTOMS - SERVICES IN FOREIGN PORTS - RECOVERY BUREAU OF CUSTOMS COSTS OTHER THAN OVERTIME COMPENSATION FOR FURNISHING SERVICES TO AIRLINE CARRIERS AT CANADIAN AIRPORTS TO TENTATIVELY CLEAR AIR PASSENGERS AND BAGGAGE BOUND FOR THE UNITED STATES IS FOR RECOVERY FROM THE CARRIERS UNDER 31 U.S.C. 483A--- THE SO CALLED "USER CHARGES" STATUTE- -- WHICH AUTHORIZES GOVERNMENT AGENCIES TO CHARGE FOR SERVICES NOT PREVIOUSLY CHARGED AND TO REVISE CHARGES NOT FIXED BY LAW. THE PRECLEARANCE OPERATION IN CANADA ESSENTIALLY OF ADVANTAGE TO THE AIRLINES AND NOT THE BUREAU, COSTS, INCLUDING EMPLOYEES COMPENSATION, MAY BE RECOVERED TO THE EXTENT THEY ARE IN EXCESS OF COSTS THAT WOULD BE INCURRED IF ALL THE CUSTOMS OPERATIONS INVOLVED WERE PERFORMED IN THE UNITED STATES, THE COSTS TO BE FIXED IN ACCORDANCE WITH 31 U.S.C. 483A. FEES - SERVICES TO PUBLIC - COLLECTION AND DISPOSITION IN VIEW OF THE FACT THAT THE "USER CHARGES" STATUTE, 31 U.S.C. 483A, DID NOT REPEAL OR MODIFY EXISTING STATUTES, CHARGES COLLECTED FROM AIRLINE CARRIERS FOR PRECLEARANCE OF PASSENGERS AND BAGGAGE AT CANADIAN AIRPORTS ARE FOR DEPOSIT TO THE APPROPRIATION FROM WHICH THE CHARGES WERE PAID IN ACCORDANCE WITH THE REQUIREMENT IN 19 U.S.C. 1524 RELATING TO DEPOSIT OF CUSTOMS CHARGES. OFFICERS AND EMPLOYEES - CONTRIBUTIONS FROM SOURCES OTHER THAN THE UNITED STATES - PROHIBITION THE FACT THAT 18 U.S.C. 209, WHICH PROHIBITS GOVERNMENT OFFICERS AND EMPLOYEES FROM RECEIVING ANY SALARY FROM SOURCES OTHER THAN THE UNITED STATES, IS A CRIMINAL STATUTE ENFORCEABLE BY THE DEPARTMENT OF JUSTICE AND THE COURTS, THE ATTORNEY GENERAL HAS THE FINAL DETERMINATION OF ISSUES ARISING UNDER THE PROVISION AND, THEREFORE, THE COMPTROLLER GENERAL DOES NOT HAVE AUTHORITY TO MAKE A BINDING DETERMINATION AS TO THE PROPER INTERPRETATION OF THE PROHIBITION.

TO THE SECRETARY OF THE TREASURY, JULY 22, 1968:

LETTER DATED MAY 21, 1968 (REFERENCE CC 191.8 G), FROM THE ASSISTANT SECRETARY OF THE TREASURY, CONCERNS THE RECOVERY OF COSTS BY THE BUREAU OF CUSTOMS (CUSTOMS) FOR SERVICES FURNISHED CERTAIN AIRLINES AT AIRPORTS IN CANADA.

THE FACTS AND CIRCUMSTANCES GIVING RISE TO THE QUESTIONS PRESENTED, AS DISCLOSED BY THE ASSISTANT SECRETARY'S LETTER, ARE SET FORTH BELOW.

AT THE REQUEST OF CERTAIN AIRLINES, CUSTOMS OFFICERS HAVE BEEN STATIONED AT MAJOR AIRPORTS IN CANADA FOR SOME YEARS PAST TO PROVIDE TENTATIVE CLEARANCE FOR AIR PASSENGERS BOUND TO THE UNITED STATES. UNDER THIS PROGRAM CUSTOMS PERFORMS CERTAIN OF ITS BAGGAGE EXAMINATION, INSPECTION AND OTHER FUNCTIONS IN CANADA, BUT RESIDUAL FUNCTIONS REMAIN TO BE PERFORMED AFTER THE AIRCRAFT REACH THE UNITED STATES. THUS, EACH PLANE COMING INTO THE UNITED STATES HAS TO BE ENTERED AND BOARDED AND ITS CARGO, OTHER THAN BAGGAGE, HAS TO BE CLEARED. THE PRECLEARANCE OPERATION IS ESSENTIALLY OF ADVANTAGE TO THE AIRLINES RATHER THAN TO THE BUREAU OF CUSTOMS AND THE AIRLINES ARE DESIROUS OF SEEING IT EXPANDED. PRECLEARANCE OPERATIONS REDUCE A NUMBER OF THE ADMINISTRATIVE EXPENSES WHICH THE AIRLINES WOULD OTHERWISE INCUR AND THUS CONFERS A FINANCIAL BENEFIT UPON THEM. IN ADDITION, THE AIRLINES BELIEVE THAT THIS SERVICE ATTRACTS PASSENGERS AND, ACCORDINGLY, PROVIDES THEM WITH A COMPETITIVE ADVANTAGE OVER OTHER MEANS OF TRANSPORTATION.

ALTHOUGH CUSTOMS COSTS WITHIN THE UNITED STATES ARE TO SOME EXTENT DECREASED BY THIS PROGRAM, THE COSTS (INCLUDING RELATED COSTS) OF STATIONING MEN AND PERFORMING SERVICES IN CANADA ARE CONSIDERABLY GREATER THAN THE TOTAL COST TO CUSTOMS WOULD BE IF ALL OF THE CUSTOMS OPERATIONS WERE PERFORMED IN THE UNITED STATES.

AT THE PRESENT TIME, THE AIRLINES REIMBURSE THE GOVERNMENT FOR EXTRA COMPENSATION UNDER THE CUSTOMS OVERTIME LAWS AS THEY WOULD FOR SIMILAR SERVICES PERFORMED WITHIN THE UNITED STATES BUT THEY PAY NO PART OF THE OTHER COSTS OF THE CUSTOMS OPERATION. WHEN THESE SERVICES WERE ORIGINALLY PROVIDED, THE COSTS TO THE CUSTOMS APPROPRIATION WERE RELATIVELY SMALL. THE ASSISTANT SECRETARY STATES, HOWEVER, THAT WITH THE INCREASE IN AIR TRAVEL, REQUESTS FOR ADDITIONAL MANPOWER TO PROVIDE THESE SERVICES CONTINUE TO INCREASE; AND THAT WITH THE PRESENT LIMITS ON YOUR APPROPRIATION IT THEREFORE BECOMES NECESSARY TO CONSIDER WHETHER THE AIRLINES MAY NOT BE REQUIRED TO REIMBURSE THE GOVERNMENT IF THEY WANT PRECLEARANCE SERVICES.

THE ASSISTANT SECRETARY'S LETTER CONTINUES:

THERE IS NO STATUTE WHICH IN TERMS EXPRESSLY AUTHORIZES US TO REQUIRE (OR SPECIFICALLY PROHIBITS US FROM REQUIRING) REIMBURSEMENT FOR THE TENTATIVE PRE-CLEARANCE SERVICES, DIFFERING FROM OVERTIME COMPENSATION AUTHORIZED BY 19 U.S.C. 267, AND 1451. BEFORE 1931 THE SALARIES OF CUSTOMS OFFICERS STATIONED IN CANADA WERE REIMBURSED BY THE TRANSPORTATION COMPANIES (PRINCIPALLY RAIL) WHO WERE SERVICED. IT WOULD SEEM THAT THE SERVICES PERFORMED THEN WERE SIMILAR IN NATURE TO THOSE NOW EXERCISED AT THE AIRPORTS. IN OBJECTING TO THE 1931 PRACTICE IN 11 COMP. GEN. 153, YOUR OFFICE QUOTED THE ACT OF MARCH 3, 1917 (NOW 18 U.S.C. 209), DISTINGUISHED (1922) 33 OP. ATTY. GEN. 273, AND CITED TWO OTHER COMPTROLLER GENERAL DECISIONS (1923) 2 COMP. GEN. 775 AND (1923) 3 COMP. GEN. 128. EACH OF THOSE DECISIONS TOOK THE VIEW THAT REIMBURSEMENT FROM PRIVATE PARTIES FOR SPECIAL SERVICES OF CUSTOMS OFFICERS WAS PROHIBITED BY THE 1917 ACT UNLESS THERE IS A STATUTE AUTHORIZING REIMBURSEMENT. THE DEPARTMENT ACCEPTED YOUR DECISION AND DISCONTINUED THE PRACTICE.

SINCE THESE DECISIONS, HOWEVER, THE CONGRESS HAS ENACTED AS PART OF SECTION 501 OF THE INDEPENDENT OFFICES APPROPRIATION ACT THE SO-CALLED "USER CHARGES" STATUTE, SECTION 501 OF THE INDEPENDENT OFFICES APPROPRIATION ACT OF 1952 (31 U.S.C. 483A) WHICH APPEARS TO BE MORE THAN A MERE EXPRESSION OF THE "SENSE OF CONGRESS THAT ANY WORK, SERVICE, * * * BENEFIT, PRIVILEGE, AUTHORITY, USE, * * * OR SIMILAR THING OF VALUE OR UTILITY PERFORMED, FURNISHED, PROVIDED, GRANTED * * * BY ANY FEDERAL AGENCY * * * TO ANY PERSON * * * SHALL BE SELF SUSTAINING TO THE FULL EXTENT POSSIBLE.' THE STATUTE PROVIDES SUBSTANTIVE AUTHORITY FOR "THE HEAD OF EACH FEDERAL AGENCY * * * BY REGULATION * * * TO PRESCRIBE THEREFOR SUCH FEE, CHARGE, OR PRICE, IF ANY, AS HE SHALL DETERMINE, IN CASE NONE EXISTS, OR REDETERMINE, IN THE CASE OF AN EXISTING ONE, TO BE FAIR AND EQUITABLE TAKING INTO CONSIDERATION DIRECT AND INDIRECT COST TO THE GOVERNMENT, VALUE TO THE RECIPIENT, PUBLIC POLICY OR INTEREST SERVED AND OTHER PERTINENT FACTS.'

THE ASSISTANT SECRETARY EXPRESSES THE VIEW THAT IN THE LANGUAGE OF 31 U.S.C. 483A, THE SERVICES PROVIDED IN CANADA ARE EMBRACED FAIRLY WITHIN THE TERMS "WORK," "SERVICE," "BENEFIT," "PRIVILEGE," AND "USE" "OR SIMILAR THING OF VALUE" "PERFORMED," "FURNISHED," "PROVIDED," OR "GRANTED.' STATES THAT THE HEAD OF THE FEDERAL AGENCY IS AUTHORIZED BY REGULATION "TO PRESCRIBE THEREFOR SUCH FEE, CHARGE, OR FINE, IF ANY, AS HE SHALL DETERMINE, IN CASE NONE EXISTS* * *; " AND THAT IN DOING SO HE SHALL MAKE THE CHARGE "FAIR AND EQUITABLE TAKING INTO CONSIDERATION DIRECT AND INDIRECT COST TO THE GOVERNMENT VALUE TO THE RECIPIENT, PUBLIC POLICY OR INTEREST SERVED AND OTHER PERTINENT FACTS.' THIS, HE FEELS, INDICATES THAT THE CHARGE SHOULD COVER THE SPECIAL BENEFIT CONFERRED; AND HE POINTS OUT THAT ALTHOUGH THE AUTHORITY CONTAINED IN 31 U.S.C. 483A IS SUBJECT TO THE PROVISO THAT ITS PROVISIONS DO NOT "REPEAL OR MODIFY EXISTING STATUTES PROHIBITING THE COLLECTION * * * OF ANY FEE, CHARGE, OR PRICE," THERE IS NO STATUTE WHICH IN TERMS PROHIBITS THE COLLECTION OF A CHARGE FOR THE SERVICES INVOLVED.

ACCORDINGLY, OUR DECISION IS REQUESTED WHETHER A CHARGE FOR ALL OR PART OF THE EXPENSES OF CUSTOMS FOR PROVIDING THE REQUESTED SERVICES TO BE PERFORMED IN CANADA IN CONNECTION WITH THE TENTATIVE PRECLEARANCE OF AIRCRAFT PASSENGERS AND BAGGAGE BOUND FOR THE UNITED STATES WOULD BE AUTHORIZED OR REQUIRED BY 31 U.S.C. 483A, OR OTHERWISE.

IN ADDITION, IF WE DETERMINE THAT SUCH CHARGE IS SO AUTHORIZED OR REQUIRED, OUR DECISION IS ALSO REQUESTED WHETHER THE PROVISIONS OF 19 U.S.C. 1524, DIRECTING THE DEPOSIT OF THE RECEIPTS FOR REIMBURSABLE CHARGES AS A REIMBURSEMENT TO THE APPROPRIATION OUT OF WHICH THEY WERE PAID, WOULD AUTHORIZE REFUND TO THE APPROPRIATION FOR COLLECTING THE REVENUE FROM CUSTOMS OF THE AMOUNTS COLLECTED. IN THIS CONNECTION THE ASSISTANT SECRETARY POINTS OUT THAT THE PROVISO TO 31 U.S.C. 483A SAVES FROM REPEAL OR MODIFICATION "EXISTING STATUTES PROHIBITING THE COLLECTING, FIXING THE AMOUNT, OR DIRECTING THE DISPOSITION OF ANY FEE, CHARGE, OR PRICE," AND WOULD APPEAR TO ALLOW SUCH REFUND.

IN 37 COMP. GEN. 776 WE STATED THAT WHILE IN FREQUENT INSTANCES PRIOR TO THAT DECISION WE HAD DISCUSSED 18 U.S.C. 1914 (WHICH WAS BASED ON THE ACT OF MARCH 3, 1917, AND IS NOW 18 U.S.C. 209), AND ON MANY OCCASIONS HAD CAUTIONED AGAINST POSSIBLE VIOLATIONS OF ITS PROVISIONS, WE HAD MANY TIMES EXPLAINED (SUBSEQUENT TO 11 COMP. GEN. 153) THAT SINCE SECTION 1914 WAS A CRIMINAL STATUTE, ITS ENFORCEMENT WAS PRIMARILY A FUNCTION OF THE DEPARTMENT OF JUSTICE AND THE COURTS, AND HAD EXPRESSLY POINTED THAT OUR OPINIONS WITH RESPECT THERETO MAY OR MAY NOT BE SHARED BY THE DEPARTMENT. WE FURTHER STATED THEREIN THAT WE HAVE NO AUTHORITY TO MAKE A BINDING DETERMINATION AS TO THE PROPER INTERPRETATION OF 18 U.S.C. 1914, AND, THEREFORE, THAT ANY CONTRARY CONSTRUCTION OF OUR ROLE IN THIS AREA IS AND SHOULD BE REGARDED AS INCORRECT. ACCORDINGLY, ANY DETERMINATIONS MADE IN THE DECISIONS OF THIS OFFICE REFERRED TO IN THE ASSISTANT SECRETARY'S LETTER CONCERNING THE APPLICABILITY OF THE ACT OF MARCH 3, 1917 (NOW 18 U.S.C. 209), WOULD NOT BE BINDING. FINAL DETERMINATION ON SUCH AN ISSUE WOULD BE FOR THE ATTORNEY GENERAL.

INSOFAR AS THIS OFFICE IS CONCERNED, AS INDICATED IN THE ASSISTANT SECRETARY'S LETTER, SUBSEQUENT TO OUR DECISIONS CITED IN THE LETTER, THERE WAS ENACTED INTO LAW SECTION 501 OF THE INDEPENDENT OFFICES APPROPRIATION ACT OF 1952, 65 STAT. 290, 31 U.S.C. 483A, WHICH READS AS FOLLOWS--- QUOTING FROM THE CODE:

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 (INCLUDING WHOLLY OWNED GOVERNMENT CORPORATIONS AS DEFINED IN THE GOVERNMENT CORPORATION CONTROL ACT OF 1945) TO OR FOR ANY PERSON (INCLUDING GROUPS, ASSOCIATIONS, ORGANIZATIONS, PARTNERSHIPS, CORPORATIONS, OR BUSINESSES), EXCEPT THOSE ENGAGED IN THE TRANSACTION OF OFFICIAL BUSINESS OF THE GOVERNMENT, SHALL BE SELF-SUSTAINING TO THE FULL EXTENT POSSIBLE, AND THE HEAD OF EACH FEDERAL AGENCY IS AUTHORIZED BY REGULATION (WHICH, IN THE CASE OF AGENCIES IN THE EXECUTIVE BRANCH, SHALL BE AS UNIFORM AS PRACTICABLE AND SUBJECT TO SUCH POLICIES AS THE PRESIDENT MAY PRESCRIBE) TO PRESCRIBE THEREFOR SUCH FEE, CHARGE, OR PRICE, IF ANY, AS HE SHALL DETERMINE, IN CASE NONE EXISTS, OR REDETERMINE, IN CASE OF AN EXISTING ONE, TO BE FAIR AND EQUITABLE TAKING INTO CONSIDERATION DIRECT AND INDIRECT COST TO THE GOVERNMENT, VALUE TO THE RECIPIENT, PUBLIC POLICY OR INTEREST SERVED, AND OTHER PERTINENT FACTS, AND ANY AMOUNT SO DETERMINED OR REDETERMINED SHALL BE COLLECTED AND PAID INTO THE TREASURY AS MISCELLANEOUS RECEIPTS: PROVIDED, THAT NOTHING CONTAINED IN THIS SECTION SHALL REPEAL OR MODIFY EXISTING STATUTES PROHIBITING THE COLLECTION, FIXING THE AMOUNT, OR DIRECTING THE DISPOSITION OF ANY FEE, CHARGE OR PRICE: PROVIDED FURTHER, THAT NOTHING CONTAINED IN THIS SECTION SHALL REPEAL OR MODIFY EXISTING STATUTES PRESCRIBING BASES FOR CALCULATION OF ANY FEE, CHARGE OR PRICE, BUT THIS PROVISO SHALL NOT RESTRICT THE REDETERMINATION OR RECALCULATION IN ACCORDANCE WITH THE PRESCRIBED BASES OF THE AMOUNT OF ANY SUCH FEE, CHARGE OR PRICE.

THE LEGISLATIVE HISTORY OF SECTION 501 DISCLOSES THAT THE PURPOSE THEREOF IS TO PROVIDE AUTHORITY FOR GOVERNMENT AGENCIES TO MAKE CHARGES FOR SERVICES IN CASES WHERE NO CHARGE WAS MADE AT THE TIME OF ITS ENACTMENT, AND TO REVISE CHARGES WHERE CHARGES THEN IN EFFECT WERE TOO LOW, EXCEPT IN CASES WHERE THE CHARGE IS SPECIFICALLY FIXED BY LAW OR THE LAW SPECIFICALLY PROVIDES THAT NO CHARGE SHALL BE MADE PAGE 3, H.REPT. NO. 384, 82D CONG., 1ST SESS.).

WE AGREE WITH THE ASSISTANT SECRETARY THAT THE LANGUAGE OF 31 U.S.C. 483A IS VERY BROAD, AND THAT THE SECTION CONTEMPLATES THAT THOSE WHO RECEIVE THE BENEFIT OF SERVICES RENDERED BY THE GOVERNMENT ESPECIALLY FOR THEM SHOULD PAY THE COSTS THEREOF, AT LEAST TO THE EXTENT THAT IT APPEARS THAT A SPECIAL BENEFIT IS CONFERRED. IN THE INSTANT CASE THE ASSISTANT SECRETARY'S LETTER DISCLOSES THAT THE COSTS (INCLUDING RELATED COSTS) OF STATIONING MEN AND PERFORMING SERVICES IN CANADA ARE CONSIDERABLY GREATER THAN TOTAL COSTS TO CUSTOMS WOULD BE IF ALL OF THE CUSTOMS OPERATIONS WERE PERFORMED IN THE UNITED STATES. ALSO, AS INDICATED ABOVE, THE PRECLEARANCE OPERATION IN CANADA IS ESSENTIALLY OF ADVANTAGE TO THE AIRLINE RATHER THAN THE BUREAU OF CUSTOMS. ACCORDINGLY, IT IS OUR VIEW THAT TO THE EXTENT THE COSTS (INCLUDING EMPLOYEES' COMPENSATION) OF THE REQUESTED PRECLEARANCE SERVICES IN CANADA ARE IN EXCESS OF THE COSTS THAT CUSTOMS WOULD INCUR IF ALL OF THE CUSTOMS OPERATIONS INVOLVED WERE PERFORMED IN THE UNITED STATES, A CHARGE COVERING SUCH EXCESS COSTS WOULD BE AUTHORIZED BY 31 U.S.C. 483A, IF FIXED IN ACCORDANCE WITH THE PROVISIONS OF SUCH SECTION.

CONCERNING THE DISPOSITION OF THE CHARGES PROPOSED TO BE COLLECTED FROM THE AIRLINES, WHILE 31 U.S.C. 483A PROVIDES THAT ANY FEE, CHARGE OR PRICE PRESCRIBED BY AN AGENCY SHALL BE COLLECTED AND DEPOSITED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS, IT FURTHER PROVIDES THAT NOTHING IN SECTION 483A SHALL REPEAL OR MODIFY EXISTING STATUTES DIRECTING THE DISPOSITION OF ANY FEE, CHARGE OR PRICE. AS INDICATED IN THE ASSISTANT SECRETARY'S LETTER, 19 U.S.C. 1524 PROVIDES THAT RECEIPTS FOR ANY REIMBURSABLE CHARGES WHICH HAVE BEEN PAID OUT OF ANY APPROPRIATION FOR COLLECTING THE REVENUE FROM CUSTOMS SHALL BE DEPOSITED AS A REFUND TO SUCH APPROPRIATION. ACCORDINGLY, THE CHARGES COLLECTED FROM THE AIRLINES BY CUSTOMS FOR THE SERVICES RENDERED IN CANADA MAY BE DEPOSITED AS A REFUND TO THE APPROPRIATION FROM WHICH SUCH CHARGES WERE PAID, WITH THE UNDERSTANDING THAT THE APPROPRIATION COMMITTEES OF THE CONGRESS WILL BE ADVISED OF THIS FACT.