Congress moves to divert agency fees, but not Patent Office fees


In early February 2017, Congressman Gary Palmer (R-AL) and Senator Mike Lee (R-UT)(shown left) introduced the Agency Accountability Act of 2017 (AAA) in both the House of Representatives (HR 850) and the Senate (S. 299), respectively. The AAA is a bill that would direct most fines, fees, and other unappropriated proceeds to the Treasury, making them subject to the appropriations process.

Senator Lee and Congressman Palmer explained that the Agency Accountability Act is designed to reestablish Congressional authority over agencies. Palmer and Lee believe that at least some agencies have been spending money on programs that Congress has not approved.

“Over time, Congress has given away their power to raise funds to the executive, allowing federal agencies to collect fines, fees, and other revenues outside of the normal appropriations process,” Senator Lee said. “While a significant portion of these fees and funds are used to offset appropriations, agencies have been known to use some of the fees to self-fund programs that have not necessarily been approved by Congress. This bill is an important step towards increasing transparency, simply by bringing all funds back where they belong – under congressional oversight and authority.”

“For too long Congress has granted federal agencies the authority to collect fines, fees and other revenues outside of their appropriated funds with little to no Congressional oversight on how the monies are spent,” Congressman Palmer explained. “Congress’ power of the purse is exclusive and absolute and we must begin reclaiming our Article I authority. I am proud to team up with my colleague Senator Mike Lee on this important piece of legislation in both the House and Senate. ”

The text of the AAA, which is not long, starts by saying that regardless of any other provision of law, proceeds from agencies shall be deposited in the general fund of the Treasury. The text specifically reads:

Notwithstanding any other provision of law, and consistent with subsection (c), an agency that receives a fee, fine, penalty, or proceeds from a settlement shall deposit such amount in the general fund of the Treasury.

The exception under subsection (c) says that amounts that otherwise must be paid to whistleblowers are exempt from being deposited in the general fund of the Treasury.

Interestingly, only two government entities are exempt from the requirement that proceeds be turned over to the Treasury — the United States Postal Service or the United States Patent and Trademark Office. See Section 2 (e). The USPTO, however, would be required no later than March 1 of each year to submit to Congress a report that describes any fee, fine, penalty, or proceeds from a settlement collected by the Office for the previous fiscal year.

So why would the USPTO be exempted from having its funds deposited in the general fund of the Treasury? Perhaps because of language found in the America Invents Act (AIA), which purports to put an end to fee diversion.

The AIA says:

There is established in the Treasury a Patent and Trademark Fee Reserve Fund. If fee collections by the Patent and Trademark Office for a fiscal year exceed the amount appropriated to the Office for that fiscal year, fees collected in excess of the appropriated amount shall be deposited in the Patent and Trademark Fee Reserve Fund. To the extent and in the amounts provided in appropriations Acts, amounts in the Fund shall be made available until expended only for obligation and expenditure by the Office in accordance with paragraph (3).

However, 35 U.S.C. 42(c) says that the USPTO can only use the funds to the extent that they have been appropriated. So fee diversion has not been ended as much as the industry has achieved an uneasy armistice.

So why was the USPTO exempted in the AAA? That is a very good question and one that warrants further consideration as these bills move forward through the legislative process.

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