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on those who use services the benefits of which are shared by others in the general community."2

Consistent with these principles, courts have allowed user fees to be charged for specific government services provided to identified individuals at their request, such as occupational licenses, patents, crop insurance, certificates of compliance, passports, and similar documents. The classic example of an authorized user fee is one for the cost of processing an application for a license required by federal law. As the Supreme Court said, "the 'fee' presupposes an application, whether by a single company or a group of companies." On the other hand, the Supreme Court and the lower courts have struck down user fee schemes that imposed fees based on broader costs of regulating industries.

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The payers of the user fee, by the Administration's own definition, must include those receiving the special benefit of the federal program." The Navigational Assistance User Fee, though, would only be imposed on a small segment of all the beneficiaries and, thus, fails to pass muster. As stated by the U.S. Supreme Court, the basic user fee legislation authorizes federal agencies to impose reasonable charges on each identifiable recipient for a measurable unit or amount of Government service or property from which that recipient derives a special benefit. No charge should be made for services rendered by the agency when the identification of the ultimate beneficiary is obscure and the service can be primarily considered as benefiting broadly the general public."

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The General User Fee Statute

The general user fee statute, in pertinent part, provides:

The head of each agency... may prescribe regulations establishing the charge for a service or thing of value provided by the agency. Regulations prescribed by the heads of executive agencies are subject to policies prescribed by the President and shall be as uniform as practicable. Each charge shall be

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(1974).

12 National Cable Television Ass'n v. United States (NCTA I), 415 U.S. 336, 340-41

13 NEPCO, 414 U.S. at 351.

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**FY99 Budget, User Fees and Other Collections, p. 79.

15 NEPCO. The court relied in large measure on the Government's internal directive regarding the assessment of user fees, Budget Circular No. A-25 of September 23, 1959, entitled "User Charges". See also, NCTA I.

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Because the proposed Navigational Assistance User Fee would be assessed against only a small minority of the direct beneficiaries of the governmental services, the proposed fee fails to pass muster under the statute.

OMB Circular A-25 - User Charges

As authorized by the general user fee statute, the President has prescribed a uniform policy, by means of a Circular promulgated by the Office of Management and Budget (OMB), applicable to federal agencies in prescribing user fee regulations." This Circular incorporates the decision of the Supreme Court in NEPCO and provides, in pertinent part:

When a service (or privilege) provides special benefits to an identifiable recipient beyond those that accrue to the general public, a charge will be imposed (to recover the full cost to the Federal Government for providing this special benefit, or the market price). For example, a special benefit will be considered to accrue and a user charge will be imposed when a Government service:

(a) Enables the beneficiary to obtain more immediate or substantial gains or values (which may or may not be measurable in monetary terms) than those that accrue to the general public (e.g., receiving a patent, insurance, or guarantee provision, or a license to carry on a particular activity or business or various kinds of public land use); or

(b) Provides business stability or contributes to public confidence in the business activity of the beneficiary (e.g., insuring deposits in commercial banks); or

(c) Is performed at the request of or for the convenience of the recipient, and is beyond services regularly received by other members of the same industry or group or by the general public (e.g., receiving a passport, visa, airman's certificate, or a Custom's

16 31 U.S.C. § 9701(b). This section was originally enacted as section 501 of the Independent Offices Appropriations Act of 1952, ch. 376, 65 Stat. 290 (August 31, 1951) and was originally codified at 31 U.S.C. § 483a. The section was amended and recodified by Pub.L. 97-258, 96 Stat. 1051 (September 13, 1982).

17 Circular A-25, "User Charges" revised, 58 Fed. Reg. 38142 (July 15, 1993).

inspection after regular duty hours). 18

The courts have held that the assessed user fee must reasonably reflect the value of the direct and indirect special benefit conferred upon the identifiable beneficiary and that the fee need not be discounted to reflect general benefits secondarily accruing to the public." There must be a certain nexus or threshold level of private benefit between the regulatee and the agency before a fee can be assessed against the recipient of the service.20 If a service provides both a specific benefit to an identifiable beneficiary and an independent benefit to the public, then the agency must prorate its costs, lest the specific beneficiary be charged for agency costs attributable to public benefit." User fees can not be charged based on perceived furtherance of public policy goals if those goals are unrelated to the specific service provided to an identifiable recipient.2

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18 Circular A-25 (revised), § 6(a)(1).

19 NCTA II. In this case, the Federal Communications Commission assessed fees against all cable television operators. The court held that such fees were proper to the extent that the fees were clearly based on specific expenses incurred by the FCC in granting cable operating authority. See also, Miss. Power & Light v. U.S. Nuclear Regulatory Com'n, 601 F.2d 223 (5th Cir. 1979); Cent. & Southern Motor Freight Tariff Ass'n v. United States, 777 F.2d 722 (D.C.Cir. 1985); Engine Mfrs. Ass'n v. E.P.A., 20 F.3d 1177 (D.C.Cir. 1994); Seafarers Intern. Union of No. Am. v. Coast Guard (SIU), 81 F.3d 179 (D.C.Cir. 1996). In the Cent. & Southern case, the court held that the public benefits of orderly publication of tariffs and shipper participation in rate making were relatively minor and not independent of the major benefit accruing to the regulated carriers. See, Measure of Fees Assessable by Agency under 31 U.S.C. § 483a providing that Federal Agencies shall be Self-Sustaining to Full Extent Possible, 51 A.L.R. Fed. 588 (1997).

20 Electronic Industries Ass'n, Etc. v. F.C.C., 554 F.2d 1109 (D.C.Cir. 1976). In this case, the FCC established its fee schedule, at least in part, by calculating the total projected costs of the particular bureau, multiplying by the percentage representing the portion of the bureau's activities devoted to the service, and adding a portion of the costs of a related bureau. The court struck down this cost allocation methodology. See also, National Ass'n of Broadcasters v. E.C.C., 554 F.2d 1118 (D.C.Cir. 1976); Capital Cities Communications, Inc. v. E.C.C., 554 F.2d 1135 (D.C.Cir. 1976).

21 Engine Mfrs. Ass'n v. E.P.A., 20 F.3d 1177 (D.C.Cir. 1994). For a discussion of the private v. public benefit issue, see, Graven, Recoupment of Regulatory Costs through User Fees, 55 Geo. Wash. L. Rev. 1000 (1987).

22 SIU. The court effectively eliminated the "public policy or interest served" basis for fee determination, citing the Supreme Court's decision in NCTA I, which held that such policy decisions would "carr[y] an agency far from its customary orbit” and infringe on Congress's exclusive power to levy taxes. 81 F.3d at 183. For an economic and public policy analysis of user fees, see, Gillette & Hopkins, Federal User Fees: A Legal and Economic Analysis, 67

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The President, through the OMB Circular, has directed that: "No charge should be made for a service when the identification of the specific beneficiary is obscure, and the service can be considered primarily as benefiting broadly the general public." This provision has been cited with approval by the U.S. Supreme Court as keeping such assessments properly within the parameters of the "user fee" system and away from the domain of “taxes." Because the services encompassed by the proposed Navigational Assistance User Fee broadly benefit the general public and the identification of specific beneficiaries would be difficult (if not impossible), the proposed fee fails to pass muster under the Presidential mandate.

Coast Guard User Fee Authority

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In furtherance of the authority provided by the general statute, the Coast Guard has two specific grants of authority relating to user fees. The first, 46 U.S.C. § 2110, authorizes the Coast Guard to establish a fee or charge for a service or thing of value provided under Subtitle II of Title 46, U.S. Code. This subtitle relates to inspection and regulation of vessels and seamen, which the Coast Guard broadly defines as marine safety. This statute provides no authority for the assessment of a navigational assistance user fee, as defined in the Administration's FY99 Budget.

The second Coast Guard statute relating to user fees, 14 U.S.C. § 664, omits the limiting language from above and provides, in pertinent part, that a “fee or charge for a service or thing of value provided by the Coast Guard shall be prescribed as provided in section 9701 of title 31."

Neither of the Coast Guard user fee statutes provide the agency with any broader authority than that contained in 31 U.S.C. § 9701 and both of the specific statutes cite to the general statute. Thus, the cases interpreting the federal government's user fee authority under the general statute are equally applicable to the Coast Guard's authority under its specific statutes.2

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In those instances where the Coast Guard has promulgated regulations imposing user fees, it has

B.U.L. Rev. 795 (1987).

23 OMB Circular A-25, § 6.a.(4).

24 NEPCO, 415 U.S. at 350-51.

25 The Coast Guard is specifically prohibited from collecting a fee or charge under this provision that is in conflict with the international obligations of the United States and from collecting a fee or charge under this provision for any search or rescue service. 46 U.S.C. § 2110(a)(4) and (5).

26 Cases interpreting the user fee authority of the Coast Guard include: Seafarers Intern. Union of No. Am. v. Coast Guard, 81 F.3d 179 (D.C.Cir. 1996); Boat Owners Ass'n of U.S. (BOAT/US) v. United States, 834 F.Supp. 7 (D.D.C. 1993).

worked to remain within the bounds provided for in the general user fee statute, its individual user fee statutes, OMB Circular A-25, and applicable court decisions. Fees and charges for certain records and services are provided for in 33 CFR Part 1, Subpart 1.25.27 Vessel inspection fees are provided for at 46 CFR Part 2, Subpart 2.10. Fees for licensing of merchant marine personnel and certification of seamen are provided for at 46 CFR § 10.109 and 46 CFR § 12.0218 respectively.28 Fees for documentation and measurement of vessels are provided for at 46 CFR Part 67, Subpart Y. Regulations currently promulgated by the Coast Guard impose no fees for any service resembling navigational assistance as envisioned in the Administration's FY99 Budget (i.e., the placement and maintenance of buoys and other short-range aids-to-navigation, radio navigation, and vessel traffic services).

Coast Guard Wreck Buoy Charges

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A close analogy to the proposed navigational assistance user fees arises in the instance where a vessel is sunk in the navigational waters of the United States and the owner fails to properly mark the wreck as required by law." In that case, the Coast Guard may mark the wreck and charge the owner for such service.30 This is an instance of the Coast Guard performing a duty initially imposed on the owner of the wrecked vessel. Undertaking this wreck-marking function constitutes the provision of a special benefit to a particular beneficiary and is clearly consistent with the goal envisioned in the general user fee legislation.

NOAA User Fee Authority

Unlike the Coast Guard, NOAA lacks broad user fee authorization specifically tailored to that agency. Rather, there are two narrow statutes addressing fees for particular services provided by the agency. NOAA is authorized to assess fees, based on fair market value, for access to environmental data and information and products derived therefrom collected or archived by the

27 These fees consist of charges under the Freedom of Information Act (33 CFR § 1.2540), charges for special admeasurement services (33 CFR § 1.25-45), and charges related to oceanographic research (33 CFR § 1.25-48).

28 These maritime personnel licensing fees were sustained in the SIU decision.

29 33 U.S.C. § 409.

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The Secretary [of Transportation] may mark for the protection of navigation any sunken vessel or other obstruction existing on the navigable waters or waters above the continental shelf of the United States in such manner and for so long as, in his judgment, the needs of maritime navigation require. The owner of such an obstruction shall be liable to the United States for the cost of such marking until such time as the obstruction is removed or its abandonment legally established or until such earlier time as the Secretary may determine. 14 U.S.C. § 86. See also, 33 CFR § 64.33.

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