On August 5, 1991, plaintiffs filed a request, pursuant to the Freedom of Information Act, for much of the information on which the fees were based. On September 17, 1991, plaintiffs sought more information, this time requesting data from the 1989 G-MP Workload Analysis Survey used to determine the number of full-time equivalent employees at each Regional Examination Center and data substantiating the number of new merchant marine licenses, certificates of registry and merchant mariner documents issued annually at each Regional Examination Center. Ad. Rec. 461.
The Coast Guard provided information from the 1989 G-MP Workload Analysis Survey for all of the Regional Examination Centers but provided data about the volume of documents issued during the 1989 Fiscal Year for only seven of the Regional Examination Centers: Baltimore, Charleston, New Orleans, Houston, Toledo, Seattle/Puget Sound, Honolulu. These data only included merchant mariner documents and certificates of registry and did not include the number of merchant marine licenses. Ad. Rec. 503-519; 521.
Based on these data, plaintiffs were able to calculate the average number of person hours spent in order to issue one document at each of the Regional Examination Centers. This number varied from one Regional Examination Center to another. In Baltimore, the issuance of a single document took an average of 13.46 person hours; in Charleston, 27.01 hours; in New Orleans, 5.41 hours; in Houston, 2.80 hours; in Toledo, 20.32 hours; in Puget Sound/Seattle, 7.66 hours; in Honolulu, 4.22 hours. Levin Affidavit P 17.
On March 19, 1993, the Coast Guard issued a final rule entitled "User Fees for Marine Licensing, Certification of Registry and Merchant Mariner Documentation" to become effective on April 19, 1993. 58 Fed. Reg. 15228. The rule established the fees that had been proposed in the Notice of Proposed Rulemaking.
Between the Notice of Proposed Rulemaking and the Final Rule, the Coast Guard reduced the total charges. Among the reductions to the total were a decrease in the upper level examination fee from $ 225 to $ 150 and a fee exemption for youth-oriented, not-for-profit, charitable organizations involved in teaching maritime skills. 58 Fed. Reg. 15230 (1993). These resulted in total reductions of approximately $ 900,000. The estimate of the annual collection cost was increased slightly, but that increase was not incorporated into the final fees. Thus, the final regulation resulted in a total of $ 5.2 million estimated to be collected from those seeking licenses, certificates and merchant marine documents.
In addition to setting the fees, the regulation further stated that "the Coast Guard will review the fees annually to determine if adjustments or changes to the fees are necessary, and it will revise these fees when costs change due to inflation, deflation, or changes in the way the services are provided." 58 Fed. Reg. at 15231.
On April 15, 1993, plaintiffs brought suit seeking a Declaratory Judgment and a Preliminary and Permanent Injunction. On August 25, 1993, defendants filed a Motion for Summary Judgment. Plaintiffs filed an Opposition on October 13, 1993 and simultaneously filed their own Motion for Summary Judgment. A hearing on the cross-motions was held on February 24, 1994.
Plaintiffs argue that the user fees are based on an unconstitutional delegation of the taxing power by Congress to the Executive Branch.
In order for a delegation of the taxing power to be constitutional, Congress needs only set standards with sufficient specificity for a court to be able to determine whether the will of Congress has been obeyed. Skinner v. Mid-America Pipeline Co., 490 U.S. 212, 218-19, 104 L. Ed. 2d 250, 109 S. Ct. 1726 (1989).
The 1990 Budget Act, pursuant to which defendants issued the user fees, amended 46 U.S.C. § 2110(a) as follows:
(a)(1) Except as otherwise provided in this title, the Secretary shall establish a fee or charge for a service or thing of value provided by the Secretary under this subtitle, in accordance with section 9701 of title 31.