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B-320998 1 (2011-05-04)

handle is hein.gao/gaobadbud0001 and id is 1 raw text is: I , Accountability * Integrity * Reliability United States Government Accountability Office Washington, DC 20548 D .. Decision Matter of: Administrative Office of the U.S. Courts-California E-Waste Recycling Fee File: B-320998 Date: May 4, 2011 DIGEST Appropriated funds are not available to pay the e-waste recycling fee assessed by the State of California against the Administrative Office of the United States Courts because the fee constitutes a tax, the legal incidence of which falls on the federal government as a vendee. While section 6001(a) of the Resource Recovery and Conservation Act of 1976 (RCRA), 42 U.S.C. § 6961(a), waives sovereign immunity from state and local requirements respecting hazardous waste disposal and management, including reasonable service charges such as permit fees, it does not waive immunity from taxation. Such a waiver must clearly and expressly confer the privilege of taxing the federal government. Domenech v. National City Bank of New York, 294 U.S. 199, 205 (1935). The e-waste recycling fee is not a regulatory fee constituting a reasonable service charge within the scope of section 6001(a) of RCRA, but is, instead, a vendee tax. Other states that have enacted e-waste recycling legislation impose the financial burden of e-waste recycling on manufacturers (vendors) of electronic products who then pass on this business cost to consumers through an increased purchase price for the products. DECISION The Associate Director and General Counsel of the Administrative Office of the United States Courts (AOUSC) has requested an advance decision under 31 U.S.C. § 3529 on the propriety of using appropriated funds to pay electronic waste (e-waste) recycling fees assessed by the State of California in connection with AOUSC's purchase of computer monitors. Letter from Associate Director and General Counsel, AOUSC, to Acting General Counsel, GAO (Oct. 5, 2011) (Request Letter). Specifically, AOUSC has asked whether the e-waste recycling fee is a tax and, if so, whether the United States has waived its sovereign immunity with respect to its payment. Request Letter, at 3. As we explain below, we conclude that, under the