B-128056, AUGUST 2, 1956, 36 COMP. GEN. 75

B-128056, AUGUST 2, 1956, 36 COMP. GEN. 75

FEES - SERVICES FURNISHED TO THE PUBLIC - COLLECTION AND DISPOSITION THE DEPARTMENT OF STATE MAY ESTABLISH AND COLLECT IN ADVANCE A FLAT FEE FOR COMMUNICATION SERVICES PERFORMED FOR PRIVATE INDIVIDUALS AND FIRMS, AND THAT PORTION OF THE FEE REPRESENTING AN ESTIMATED AMOUNT FOR THE COST OF THE SERVICES MAY BE CREDITED TO THE APPROPRIATION IN ACCORDANCE WITH 5 U.S.C. 169, PROVIDED THE ESTIMATES REASONABLY APPROXIMATE THE COSTS, AND THE PORTION REPRESENTING ADMINISTRATIVE COSTS MAY BE DEPOSITED INTO MISCELLANEOUS RECEIPTS PURSUANT TO 5 U.S.C. 140. THE REQUIREMENT IN 5 U.S.C. 140 FOR THE DEPOSIT OF FEES, FOR FURNISHING SERVICES TO THE PUBLIC, INTO MISCELLANEOUS RECEIPTS IS NOT APPLICABLE TO AMOUNTS FOR OUT-OF-POCKET EXPENSES COLLECTED IN ADVANCE BY THE STATE DEPARTMENT FOR MISCELLANEOUS SERVICES AND, THEREFORE, A DEPOSIT FUND ACCOUNT MAY BE ESTABLISHED FOR SUCH COLLECTIONS FROM WHICH OUT-OF-POCKET EXPENSES MAY BE PAID AND THE BALANCE TRANSFERRED INTO MISCELLANEOUS RECEIPTS.

TO THE SECRETARY OF STATE, AUGUST 2, 1956:

REFERENCE IS MADE TO LETTER OF MAY 21, 1956, FROM THE ASSISTANT SECRETARY -1CONTROLLER OF YOUR DEPARTMENT CONCERNING THE PRESCRIPTION OF FEES IN COMPLIANCE WITH 5 U.S.C. 140 FOR CERTAIN SERVICES RENDERED THE GENERAL PUBLIC. IN CONNECTION THEREWITH THERE ARE PRESENTED TWO PLANS FOR OUR CONSIDERATION AND APPROVAL.

SECTION 140, TITLE 5, OF THE U.S. CODE, PROVIDES, IN PART, AS FOLLOWS:

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 GROUPS, ASSOCIATIONS, ORGANIZATIONS, PARTNERSHIPS, CORPORATIONS, OR BUSINESSES) * * * SHALL BE SELF-SUSTAINING TO THE FULL EXTENT POSSIBLE, AND THE HEAD OF EACH FEDERAL AGENCY IS AUTHORIZED BY REGULATION * * * 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 * * * 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 * * * DIRECTING THE DISPOSITION OF ANY FEE, CHARGE, OR PRICE * * *. ( ITALICS ADDED.)

IT APPEARS THAT YOUR DEPARTMENT IN ORDER TO CARRY OUT THE DESIRES OF THE CONGRESS AS EXPRESSED IN 5 U.S.C. 140 IS CONSIDERING PRESCRIBING FLAT FEES PAYABLE IN ADVANCE TO COVER THE ESTIMATED COST OF RENDERING COMMUNICATION AND OTHER SPECIAL SERVICES IN THE UNITED STATES AND ELSEWHERE FOR INDIVIDUALS, FIRMS, CORPORATIONS AND OTHERS. BEFORE PRESCRIBING THESE FEES YOUR DEPARTMENT REQUESTS THAT WE CONSIDER AND APPROVE TWO PLANS, ENTITLED "A" AND "B," WHICH ARE SET FORTH IN THE LETTER.

PLAN "A" CONCERNS FEES FOR COMMUNICATION SERVICES. IT APPEARS THAT UNDER 5 U.S.C. 169 YOUR DEPARTMENT IS AUTHORIZED TO OBTAIN INFORMATION ON BEHALF OF CORPORATIONS, FIRMS AND INDIVIDUALS AND TO CHARGE THE RESPECTIVE APPROPRIATIONS WITH THE COST OF THE CABLEGRAM AND TELEPHONE SERVICES UTILIZED. THE CITED CODE SECTION PROVIDES THAT REIMBURSEMENT "SHALL BE REQUIRED (FOR THE CABLEGRAM AND TELEPHONE COST) FROM THOSE FOR WHOM THE INFORMATION WAS PROCURED AND, WHEN MADE, BE CREDITED TO THE APPROPRIATION UNDER WHICH THE EXPENDITURE WAS CHARGED.' IT IS STATED IN THE LETTER THAT THE ADMINISTRATIVE EXPENSES INCURRED IN MAKING AND ACCOUNTING FOR THESE COLLECTIONS ARE EQUIVALENT TO A LARGE PORTION OF THE AMOUNTS COLLECTED. IN ORDER TO COMPLY WITH 5 U.S.C. 140, AND TO REDUCE COLLECTION COSTS, YOUR DEPARTMENT DESIRES TO ESTABLISH A SINGLE FLAT FEE FOR THESE SERVICES, THAT IS, A FEE INCLUDING BOTH THE DIRECT COMMUNICATION COST AND THE OVERHEAD AND OTHER COSTS INCURRED INCIDENT TO RENDERING THE SERVICE.

IT IS STATED THAT THE PROBLEM OF REIMBURSING THE RESPECTIVE APPROPRIATIONS FOR THE COSTS OF TELEGRAPH AND TELEPHONE SERVICE AS REQUIRED BY 5 U.S.C. 169 MUST BE MET BEFORE PRESCRIBING A FLAT FEE FOR THESE SERVICES. HENCE, IN CONNECTION WITH PLAN "A," THE FOLLOWING QUESTION IS PRESENTED:

* * * IF THE FLAT FEE COLLECTED IN ADVANCE SHOULD BE DETERMINED TO CONSIST OF AN ESTIMATED AMOUNT FOR TELEPHONE OR TELEGRAPH COSTS AND ANOTHER ESTIMATED AMOUNT TO COVER OPERATING AND OVERHEAD COSTS, WOULD THERE BE OBJECTION TO USING THE PORTION OF THE RESULTING REVENUE REPRESENTING ESTIMATED TELEPHONE OR TELEGRAPH CHARGES TO REIMBURSE THE APPROPRIATION FOR TELEGRAPH AND TELEPHONE SERVICES AND DEPOSITING THE AMOUNT OF THE FEE REPRESENTING OVERHEAD AND OTHER COSTS INTO MISCELLANEOUS RECEIPTS PERIODICALLY? * * *

IT IS STATED THAT THE SUGGESTED PROCEDURE WOULD ACCOMPLISH YOUR DEPARTMENT'S OBJECTIVES AND AVOID THE ESTABLISHMENT AND MAINTENANCE OF COSTLY SMALL ACCOUNTS, AS WELL AS EXPENSIVE COST ACCOUNTS FOR DISTRIBUTION OF THE PROCEEDS OF COLLECTION.

WHILE GENERALLY FEES COLLECTED IN COMPLIANCE WITH 5 U.S.C. 140 ARE FOR DEPOSIT INTO MISCELLANEOUS RECEIPTS, AS REQUIRED BY THAT CODE PROVISION, THE AUTHORITY IN 5 U.S.C. 169 FOR YOUR DEPARTMENT TO CREDIT TO THE APPROPRIATION CHARGED WITH THE COST OF "INTERESTED PARTY" MESSAGES AMOUNTS SUBSEQUENTLY COLLECTED FROM THOSE FOR WHOM THE INFORMATION WAS PROCURED IS LEFT UNCHANGED UNDER THE FIRST PROVISO OF 5 U.S.C. 140. THE ABOVE REFERRED-TO 5 U.S.C. 169 CONTEMPLATES THAT THE COST OF THE TELEPHONE AND CABLEGRAM SERVICES IN QUESTION WILL BE CHARGED AGAINST THE PROPER APPROPRIATION WITH SUBSEQUENT REIMBURSEMENT OF THAT APPROPRIATION AFTER COLLECTION OF SUCH COST FROM THOSE FOR WHOM THE SERVICES WERE RENDERED. UNDER PLAN "A" IT APPEARS THAT UNEARNED MONEYS WILL BE CREDITED TO THE APPROPRIATION IN THOSE INSTANCES WHERE THE APPROPRIATION IS CREDITED BEFORE THE SERVICES ARE RENDERED. THUS, IT APPEARS THAT THE PROCEDURE SET FORTH IN PLAN "A" WOULD NOT BE IN STRICT COMPLIANCE WITH 5 U.S.C. 169. HOWEVER, THE END RESULT WILL, IN EFFECT, BE SUBSTANTIALLY THE SAME UNDER THE SUGGESTED PROCEDURE. FURTHERMORE, WHILE IN SOME INSTANCES THE ESTIMATED AMOUNT CREDITED TO THE APPROPRIATION MAY BE MORE OR LESS THAN THE ACTUAL COST OF THE COMMUNICATION SERVICE FURNISHED, OVER A PERIOD OF TIME THESE OVERAGES AND SHORTAGES SHOULD BALANCE OUT. ACCORDINGLY, THE SUGGESTED PROCEDURE MAY BE CONSIDERED A SUFFICIENT COMPLIANCE WITH 5 U.S.C. 140, 169, PROVIDED THE ESTIMATES REASONABLY APPROXIMATE THE ACTUAL COST OF SUCH SERVICES. IN VIEW OF THE ADMINISTRATIVE REPRESENTATIONS THAT THE PROCEDURE SUGGESTED IN PLAN "A" WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, WE WILL NOT OBJECT TO IT. YOUR QUESTION CONCERNING PLAN "A" IS ANSWERED ACCORDINGLY.

PLAN "B" INVOLVES FEES FOR MISCELLANEOUS SERVICES. IT APPEARS THAT YOUR DEPARTMENT DESIRES TO PRESCRIBE A FLAT FEE FOR EACH OF VARIOUS TYPES OF MISCELLANEOUS SERVICES RENDERED TO THE PUBLIC IN OBTAINING, AUTHENTICATING, AND FURNISHING COPIES OF DOCUMENTS SUCH AS MARRIAGE, BIRTH, OR BAPTISMAL CERTIFICATES, ETC., OR IN PROVIDING CERTAIN SERVICES, SUCH AS EMERGENCY ASSISTANCE TO AMERICAN CITIZENS ABROAD. IT IS REPORTED THAT YOUR DEPARTMENT NOW PARTIALLY RECOVERS CERTAIN OUT-OF POCKET EXPENSES AND OTHER COSTS IN RENDERING THESE SERVICES (EXCLUDING OPERATING AND OVERHEAD EXPENSES) FROM DEPOSIT FUNDS WHICH THE APPLICANTS ARE REQUIRED TO MAKE TO COVER THE ANTICIPATED DIRECT EXPENSES. IT IS STATED THAT THESE RECOVERIES INVOLVE CONSIDERABLE COSTS FOR CORRESPONDENCE, RECORD KEEPING, MAINTAINING MANY SMALL ACCOUNTS, AND EITHER REFUNDING UNEXPENDED BALANCES OR MAKING ADDITIONAL COLLECTIONS. IT IS ALSO STATED THAT THE NECESSITY FOR PROVIDING A MEANS FOR PAYING OUT-OF-POCKET EXPENSES IN CONNECTION WITH THE PERFORMANCE OF THESE SERVICES PRESENTS A PROBLEM THAT MUST BE SOLVED BEFORE A FLAT FEE COVERING BOTH DIRECT AND INDIRECT EXPENSES CAN BE PRESCRIBED FOR THESE SERVICES. IT IS SUGGESTED THAT A NEW DEPOSIT FUND ACCOUNT BE ESTABLISHED TO RECEIVE THE PROPOSED FLAT FEE FROM WHICH THE DIRECT EXPENSES UNDER REFERENCE COULD BE PAID AND THE BALANCE COVERED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS AT SPECIFIED TIMES. IT IS STATED THAT IF THIS CAN BE DONE APPROPRIATE SINGLE FLAT FEES CAN BE DEVELOPED TO CARRY OUT THIS PLAN; AND A CONSIDERABLE SIMPLIFICATION OF PROCEDURES WITH RESULTANT SAVINGS CAN BE ACHIEVED.

IT IS UNDERSTOOD THAT FURNISHING THE SERVICES SET FORTH IN PLAN "B" AND REQUIRING THE PERSONS REQUESTING THE SERVICES TO DEPOSIT IN ADVANCE AN AMOUNT SUFFICIENT TO COVER OUT-OF-POCKET EXPENSES EXPECTED TO BE INCURRED BY YOUR DEPARTMENT IN RENDERING THE SERVICES IS A PRACTICE OF LONG STANDING AND WAS IN EFFECT PRIOR TO THE ENACTMENT OF 5 U.S.C. 140. WE DO NOT FEEL THAT THE MISCELLANEOUS RECEIPTS DEPOSIT REQUIREMENT OF 5 U.S.C. 140 WAS INTENDED TO APPLY TO THESE ADVANCE DEPOSITS, SINCE IT APPEARS THAT THE PURPOSE OF THE CITED CODE SECTION WAS TO PROVIDE FOR REIMBURSEMENT TO THE GOVERNMENT OF AMOUNTS SPENT FROM APPROPRIATED FUNDS IN RENDERING SERVICES TO THE GENERAL PUBLIC, WHICH AMOUNTS IT HAD NOT BEEN THE PRACTICE TO RECOUP. WE ARE OF THE VIEW THAT THE AMOUNTS PAID TO YOUR DEPARTMENT TO COVER ANTICIPATED OUT OF-POCKET EXPENSES INCIDENT TO RENDERING THE SERVICES IN QUESTION ARE IN THE NATURE OF TRUST FUNDS AND ARE AVAILABLE FOR DISBURSEMENT UNDER THE TERMS OF THE TRUST PURSUANT TO THE AUTHORITY OF 31 U.S.C. 725R AND 725S. ALSO, AS INDICATED IN THE LETTER OF THE ASSISTANT SECRETARY 1CONTROLLER, THAT PART OF THE ADVANCE FEE COLLECTED FOR SUCH SERVICES WHICH REPRESENTS OTHER THAN OUT-OF-POCKET EXPENSES WOULD BE FOR DEPOSIT TO MISCELLANEOUS RECEIPTS. ACCORDINGLY, AND SINCE THE PROCEDURE IN PLAN "B" WOULD BE ADVANTAGEOUS TO THE GOVERNMENT FROM AN EXPENSE STANDPOINT, WE WILL NOT OBJECT OT THE ESTABLISHMENT OF A DEPOSIT FUND ACCOUNT TO RECEIVE THE PROPOSED FLAT FEES FROM WHICH THE ABOVE REFERRED TO OUT-OF-POCKET EXPENSES MAY BE PAID AND THE BALANCE COVERED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS AT SPECIFIED TIMES.