Disclosure by Government Agency

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7213- Criminal Penalties for Unauthorized Disclosure of Information: Disclosure by Government Agency

 

 

 

[74-1 USTC ¶9263]Association of American Railroads, Plaintiffs v. The United States of America and the Interstate Commerce Commission, Defendants

U. S. District Court, Dist. of Col., Civil Action No. 540-73, 371 FSupp 114, 2/20/74

[Code Secs. 6103 and 7213]

Disclosure of tax information: Interstate Commerce Commission: Data relating to federal income taxes: Railroads.--While the Interstate Commerce Commission had the right as a government agency to obtain Federal income tax information from railroads on Schedules 351-353, it did not have the right to make that information public on Rail Form A. Under Sec. 7213, it is a crime for any officer or employee of the United States to make an unauthorized disclosure of tax information. Public disclosure is not required under the Freedom of Information Act since that Act does not apply if disclosure is barred by another statute. As Rail Form A is used only in ordinary rate cases and not in a proceeding for a general rate increase, the railroads were found not to have placed their income at issue and thus had not waived their right to confidentiality.

Richard J. Flynn, 1730 Pennsylvania Ave. , Washington , D. C., for plaintiffs. Hanford O'Hara, Interstate Commerce Commission, Washington, D. C., for defendants.

Before TAMM, Circuit Judge, and HART and PRATT, District Judges.

HART, District Judge:

By notice of proposed rulemaking in Docket No. 35344, dated November 25, 1970 , the Interstate Commerce Commission (Commission) stated that it had under consideration the revision of the annual reports of Class I railroad companies (Rail Form A), to require the reporting of additional data relating to transactions between carriers and their affiliates, additional financial data relating to Federal income taxes, and data concerning the source and application of funds, effective with reports of the year ending December 31, 1970 . The Association of American Railroads (Association) has challenged the new Schedules insofar as they relate to the disclosure of Federal Income tax information. The implementation of the disputed Schedules has been stayed by the Commission pending a determination by this Three-Judge Court convened pursuant to 28 U. S. C. §2325.

The Commission proposes to replace the current Schedule 350C, Analysis of Federal Income Taxes, with new Schedules 351 through 353. Schedule 351 calls for the reconciliation of net income used in computing Federal income tax accruals. In addition, this Schedule requires a breakdown of the taxable income figure into ordinary income and capital gains components. Schedules 352 and 353 request a variety of tax information, including a computation of tax accruals showing total tax divided between tax on ordinary income and tax on capital gains, the distribution of tax accruals among certain accounts, and the effects of accelerated depreciation, the investment tax credit, and accelerated amortization of facilities. The Commission would put this information in Rail Form A, which is a public document.

[Contentions]

The plaintiff Association of American Railroads is an unincorporated association whose members operate more than ninety-five percent of the total railroad mileage in the United States . The Association concedes that the Commission has the right to obtain the information requested in the expanded tax schedules, but it objects to making such data public by its inclusion in Rail Form A. ¹ Plaintiff contends that the open disclosure of Federal income tax data contained in this Form would be contrary to the statutory protection provided by 26 U. S. C. §6103 and 26 U. S. C. §7213. ²

For its part the Commission makes the following argument: First, the sections of the Internal Revenue Code, cited above and relied upon by the plaintiff extend the protection of confidentiality only to the original return filed with the Internal Revenue Service, and not to tax data or tax returns filed with other government agencies. 341 I. C. C. 205, 210. Second, since there is no privilege attached to tax data in the hands of the Commission, the Freedom of Information Act, 5 U. S. C. §552, mandates the disclosure of this information to the public. Thus defendants conclude that:

"We have reviewed those statutes and conclude that they do not apply to a situation where, as here, a regulatory agency requires information as part of a regulated carrier's annual report and is obligated to make such a report available to the public." 341 I. C. C. 205, 210.

[Protection of Federal Income Tax Data]

The crux of this case is the right of a government agency to obtain income tax information as distinguished from the right of that same agency to disclose such information to the public. As we noted above, the Commission has broad powers to require the submission of particular data under 49 U. S. C. §20(1). This statute, however, does not require information so obtained to be made public. ³ The Commission's determination that this tax data is to be made public follows a fortiori from their decision to include the new Schedules as a part of Rail Form A.

The protection of the data contained in Federal tax returns is an essential part of our scheme of taxation. Individuals and corporations have the right to expect that information contained in tax returns will not be made available by the government to the public. The policy of confidentiality for income tax data encourages the full disclosure of income by taxpayers in that the individual or corporate taxpayer is assured that his neighbor or competitor will not be apprised of the intimate details of his financial life. ⁴

The statutory mandate for this protection is found in 26 U. S. C. §6103 and 26 U. S. C. §7213. Section 6103 sets forth the general proposition that access to income tax returns shall be denied except under Presidential Order or pursuant to published regulations. ⁵ Section 7213, while generally making unauthorized disclosure of tax information a crime, specifically extends such prohibition to "any officer or employee of the United States ." [Emphasis added] This section not only forbids divulging the contents of the filed tax return, but also the contents of copies of such returns or any "source of income, profits, losses, or expenditures appearing in any income return . . ." It is clear that the purpose of this statutory protection would be meaningless if such protection were not extended to copies of tax returns and to the pertinent data and information in the hands of the taxpayer.

[Freedom of Information Act]

We turn now to the Commission's argument that the tax data submitted pursuant to the new Schedules must be made public because the Freedom of Information Act, 5 U. S. C. §552, demands such disclosure. The purpose of this Act is to increase public access to information of legitimate concern, yet at the same time to prevent wholesale disclosure. Therefore, while the Act generally favors disclosure, it also bars disclosure in certain specifically enumerated instances. One such exception is set out at 5 U. S. C. §552(b)(3) which provides that the Act shall not apply if disclosure is barred by another statute. ⁶ As has been previously discussed Sections 6103 and 7213 present a strong statutory bar to the disclosure of income tax information. Therefore, the Freedom of Information Act cannot be used in the instant case to compel the disclosure to the public of income tax data legally obtained and in the hands of the Commission.

[St. Regis Paper Distinguished]

In further support of their position, the Commission places great reliance on the case of St. Regis Paper Co. v. United States, 368 U. S. 208 (1961). This case does not support the Commission's view, but rather makes clear the distinction between the right to obtain information and the right to divulge that which had been obtained. In St. Regis, the company had been ordered by the Federal Trade Commission to submit a variety of data including its file copies of census reports. St. Regis refused to furnish these reports, claiming that they were confidential. The F. T. C., through the Department of Justice, brought suit to obtain compliance. We note that the statute relied upon by the F. T. C. in making its request for information from St. Regis is analogous to 49 U. S. C. §20(1) of the Interstate Commerce Act. ⁷ Moreover, the F. T. C. was under the same prohibition against disclosure as was the I. C. C. in the instant case. ⁸

The problem in St. Regis, however, was not one of public disclosure--a secondary step, but rather one of disclosure to the F. T. C.--a primary step. The Supreme Court held that the census reports should be furnished to the F. T. C. but did not reach or consider the question of whether the F. T. C. could make such submissions available to the public. The Court noted that "the prohibitions against disclosure contained in §9 [of the Census Act] run only against the officials receiving such information and do not purport to generally clothe such census information with secrecy." 368 U. S. 208, 217-218. This was emphasized when the Court stated that "Congress did not prohibit the use of the [census] reports per se but merely restricted their use while in the hands of those persons receiving them, i. e., the government officials." 368 U. S. 208, 218.

Thus, in St. Regis, the Court found that protection against public disclosure was assured when the information was placed in the hands of government officials. The Federal income tax information in the instant case requires the same protection, and such protection is provided by 26 U. S. C. §6103 and 26 U. S. C. §7213.

[No Waiver of Confidentiality Right]

Finally, in this case we must determine whether the plaintiffs have in any way placed their income at issue and thereby waived their right to confidentiality. We find that they have not. The Commission asserts that Rail Form A is used to determine rate increases and therefore the railroads do put their income at issue. However, this Court finds that Rail Form A is only used in ordinary rate cases where the question is one of whether the rate charged is just and reasonable in light of the services provided. In such a proceeding total income is not at issue. However, in a proceeding for a general increase, revenue needs are a factor. Although we do not decide the question, it is possible that in such a situation the Commission might find that a carrier had put its income at issue and thus had waived the right to confidentiality.

Therefore, it is

ORDERED, That information submitted to the Interstate Commerce Commission, pursuant to Schedules 351, 352 and 353 shall remain confidential and it is

FURTHER ORDERED, That counsel will each submit an Order in conformity with this Opinion; or, if they are able to agree, they shall submit an agreed form of Order within 10 days.

¹ The Interstate Commerce Act gives the Commission broad powers to obtain information:

"Reports from carriers, lessors and associations

The Commission is authorized to require annual, periodical, or special reports from carriers, lessors, and associations (as defined in this section), to prescribe the manner and form in which such reports shall be made, and to require from such carriers, lessors and associations, specific and full, true and correct answers to all questions upon which the Commission may deem information to be necessary, classifying such carriers, lessors, and associations as it may deem proper for any of these purposes. Such annual reports shall give an account of the affairs of the carrier, lessor or association in such form and detail as may be prescribed by the Commission." 49 U. S. C. §20(1).

² 26 U. S. C. §6103 (in part)

"(a) Public record and inspection

(1) Returns made with respect to taxes imposed by chapters 1, 2, 3 and 6 upon which the tax has been determined by the Secretary or his delegate shall constitute public records; but, except as hereinafter provided in this section, they shall be open to inspection only upon order of the President and under rules and regulations prescribed by the Secretary . . ."

26 U. S. C. §7213 (in part)

"(a) Income returns

(1) Federal employees and other persons--It shall be unlawful for any officer or employee of the United States to divulge or to make known in any manner whatever not provided by law to any person the amount or source of income, profits, losses, expenditures, or any particular thereof, set forth or disclosed in any income return, or to permit any income return or copy thereof or any book containing any abstract or particulars thereof to be seen or examined by any person except as provided by law; and it shall be unlawful for any person to print or publish in any manner whatever not provided by law any income return, or any part thereof or source of income, profits, losses, or expenditures appearing in any income return; . . ."

³ In fact there is a prohibition against disclosure at 49 U. S. C. §20(7)(f) (in part):

"Any special agent, accountant, or examiner who knowingly and willfully divulges any fact or information which may come to his knowledge during the course of any examination or inspection made under authority of this section, except insofar as he may be directed by the Commission or by a court or judge thereof, shall be guilty of a misdemeanor . . ."

⁴ "This policy [against disclosure of income tax returns] is grounded in the interest of the government in full disclosure of all the taxpayer's income which thereby maximizes revenue." Federal Savings and Loan Insurance Corp. v. Krueger, 55 F. R. D. 512, 514 (N. D. Ill. 1972).

"The interests of persons, compelled under the revenue laws to furnish information as to their private business affairs would often be seriously affected if the disclosures so made were not properly guarded." Boske v. Comingore, 177 U. S. 459, 469-470 (1900).

⁵ See internal Revenue Service Regulations §301.6103 ff.

⁶ 5 U. S. C. §552 (in part)

"(b) This section does not apply to matters that are--

* * *

(3) specifically exempted from disclosure by statute; . . ."

⁷ 15 U. S. C. §46(b) (in part)

"The commission shall also have power--

(b) To require, by general or special orders, corporations engaged in commerce, excepting banks, and common carriers subject to the Act to regulate commerce, . . . to file with the commission in such form as the commission may prescribe annual or special, or both annual and special, reports or answers in writing to specific questions, furnishing to the commission such information as it may require . . ."

⁸ 15 U. S. C. §50 (in part)

"Any officer or employee of the commission who shall make public any information obtained by the commission without its authority, unless directed by a court, shall be deemed guilty of a misdemeanor . . ."

 

 

 

[84-2 USTC ¶9844]Janet Olsen, Plaintiff v. Roscoe L. Egger, Jr., Commissioner of the United States Internal Revenue Service, and the United States of America , Defendants

U. S. District Court, So. Dist. N. Y., 84 Civ. 0826 (DNE), 594 FSupp 644, 10/3/84

[Code Secs. 6103(c) and 7213]

Returns: Confidentiality of returns: Inspection of returns: Unauthorized disclosure: Waiver: Separation agreement.--The court held that the IRS properly withheld the ex-husband's tax returns from the ex-wife because the separation agreement entered into by the parties which directed the husband to supply the wife with a copy of such returns failed to meet the necessary requirements for disclosure of tax returns to third parties. The separation agreement was not a written document pertaining solely to the authorized disclosure, it did not specify the taxable years covered, and it was not received by the IRS within 60 days following the date upon which the request or consent was signed and dated by the taxpayer. The court declined to disregard the legislative regulation which established the necessary requirements for disclosure of tax returns to third parties. Furthermore, the court rejected the wife's additional argument that the separation agreement constituted a waiver of the statutory right of confidentiality. Code Sec. 7213, as amended, does not provide for disclosure beyond that specifically authorized and does not permit court to create judicial exceptions to the general prohibitions against disclosure.

Bonnie P. Josephs, New York , New York , for plaintiff. Rudolf W. Giuliani, United States Attorney, Denny Chin, Assistant United States Attorney, New York, New York 10007, Craig A. Etter, Internal Revenue Service, Washington, D. C. 20224, for defendants.

Memorandum and Order

EDELSTEIN, District Judge:

Plaintiff, Janet Olsen brought this action for a mandamus or a mandatory injunction requiring defendants, Roscoe L. Egger, Jr. and the United States of America , to produce copies of Mr. James Thorwold Olsen's tax returns for the years 1975-1982 inclusive. Jurisdiction is conferred on this court by 28 U. S. C. §§ 1331, 1340, 1346, 1361.

Plaintiff moved for summary judgment and defendants cross-moved for summary judgment. Plaintiff's motion is denied; defendants' motion is granted.

Background

Plaintiff was married to James Thorwold Olsen. On September 24, 1975 , a judgment of divorce was entered. The divorce judgment incorporated the separation agreement entered into by the couple dated August 29, 1975 . The relevant portion of the separation agreement provides:

On the first Monday in May 1976, and on the first Monday in May in succeeding years the Husband shall send to the Wife a copy of his Federal income tax returns for the prior calendar year and a statement prepared by an independent certified public accountant itemizing the Husband's gross income . . . in the prior calendar year.

Plaintiff claims that Mr. Olsen has not provided her with any of his income tax returns. On April 14, 1983 , an Order was entered by the Supreme Court of the State of New York , County of New York , compelling Mr. Olsen to turn over his tax returns. ¹ On November 30, 1983 , an Order was entered by the Supreme Court of the State of New York , County of New York , holding Mr. Olsen in contempt of court for his failure to turn over his income tax returns. A warrant was issued for his arrest on January 6, 1984 .

On December 8, 1983 , plaintiff requested defendants to provide her with copies of Mr. Olsen's income tax returns for the years 1975-1982, inclusive. Defendants refused to comply with the request. Plaintiff then filed the present action.

Discussion

In refusing to furnish the tax returns to plaintiff, defendants contend that the requirements for disclosure of tax returns to third parties in Section 6103(c) of the Internal Revenue Code have not been satisfied. Defendant contends that such disclosure would subject them to liability under 26 U. S. C. §7213. ² Section 6103(c) provides that:

The Secretary may, subject to such requirements and conditions as he may prescribe by regulations, disclose the return of any taxpayer, or return information with respect to such taxpayer, to such person or persons as the taxpayer may designate in a written request for or consent to such disclosure, or to any other person at the taxpayer's request to the extent necessary to comply with a request for information or assistance made by the taxpayer to such other person. . . .

26 U. S. C. §6103(c):

The form of a request or consent to disclosure under Section 6103(c) is addressed by Treasury Regulation §301.6103(c)-1 which provides that:

A request for or consent to disclosure must be in the form of a written document pertaining solely to the authorized disclosure. The written document must be signed and dated by the taxpayer who filed the return or to whom the return information relates. The taxpayer must also indicate in the written document--

(1) The taxpayer's taxpayer identity information described in section 6103(b)(6);

(2) The identity of the person to whom disclosure is to be made;

(3) The type of return (or specified portion of the return) or return information (and the particular data) that is to be disclosed; and

(4) The taxable year covered by the return or return information.

[Disclosure] authorized by a request for or consent to the disclosure shall not be made unless the request or consent is received by the Service within 60 days following the date upon which the request or consent was signed and dated by the taxpayer.

26 C. F. R. §301.6103(c)-1(a) (1984).

The separation agreement does not comply with the requirements set forth in the regulation. It is not "a written document pertaining solely to the authorized disclosure," it does not specify the taxable years covered, and it was not received by the Internal Revenue Service "within 60 days following the date upon which the request or consent was signed and dated by the taxpayer."

Plaintiff contends that the separation agreement constitutes a "waiver" of the statutory right of confidentiality and the returns may thus be released. Specifically, plaintiff contends that Mr. Olsen has waived his right to confidentiality by agreeing to deliver the returns and by his income being at issue in the state court action to recover alimony and child support. To support this claim, plaintiff relies on a number of cases decided prior to the enactment of the Tax Reform Act of 1976, which amended the statutes relating to disclosure of tax returns. See, e.g., Flitts' Estatc v. Commissioner, 237 F. 2d 729 (8th Cir. 1956); United States v. Liebert [75-1 USTC ¶9263], 383 F. Supp. 1060 (E. D. Pa. 1974), vacated on other grounds, [75-2 USTC ¶9576] 519 F. 2d 542 (3d Cir.), cert. denied, 423 U. S. 985 (1975); Association of American Railroads v. United States [74-1 USTC ¶9263], 371 F. Supp. 114 (D. D. C. 1974). Plaintiff also refers to the unamended statutes themselves. This reliance on outdated support is fatal to plaintiff's "waiver" theory. ³ Prior to enactment of The Tax Reform Act of 1976, Section 7213 of the Internal Revenue Code prohibited disclosure "in any manner not provided by law." 26 U. S. C. §7213(a) (amended by P. L. 94-455, Sec. 1202(d), 90 Stat. 1686). This language permitted courts to find a waiver of the right to confidentiality of the tax returns and to permit disclosure even though the regulations had not been complied with. See United States v. Liebert [75-2 USTC ¶9576], 519 F. 2d 542, 546 (3d Cir.), cert. denied, 423 U. S. 985 (1975). The amended version of Section 7213 states that disclosure is prohibited "except as authorized in this title." 26 U. S. C. §7213 (1980). Thus, the statute, as amended, does not provide for disclosure beyond that specifically provided for in the "title" and does not permit the court to create judicial exceptions to the general prohibition against disclosure. Dowd v. Calabrese, No. 80-0911, slip op. at 23-25 (D. D. C. Jan. 26, 1984); see Sen. Rep. No. 938, 94th Cong., 2d Sess. 318, reprinted in 1976 U. S. Code Cong. & Ad. News at 3747 ("the committee felt that returns and return information should generally be treated as confidential and not subject to disclosure except in those limited situations delineated in the newly amended section 6103 where the committee decided that disclosure was warranted.") (emphasis added). This prohibition against disclosure of the returns, except as provided by the statute, may not be circumvented even when the returns relate to a matter in issue during a litigation. See Garity v. United States, 81-2 USTC (CCH) ¶9599, at 88,006-08 (E. D. Mich. 1980) (returns subject to discovery only if disclosure is permissable under Section 6103). While it is true, as plaintiff suggests, that all that is needed is a "knowing and intelligent waiver," Tierney v. Schweiker [83-2 USTC ¶9589], 718 F. 2d 449, 456 (D. C. Cir. 1983), this waiver must be made within the confines of the statute. The statute delegates this judgment to the Secretary so that the regulation promulgated by the Secretary provides the basis for determining whether such a waiver has been made.

This leads to the plaintiff's final theory. Plaintiff seeks to have the court disregard the regulation and hold that Mr. Olsen's agreement to send copies of the tax returns satisfies Section 6103(c). Courts generally give deference to agency regulations. EPA v. National Crushed Stone Ass'n, 449 U. S. 64, 83 (1980); Doe v. General Services Admin., 544 F. Supp. 530, 537 (D. Md. 1982); see Bowles v. Seminole Rock Co., 325 U. S. 410, 413-15 (1945). The degree of deference given to a regulation depends on whether the regulation is characterized as "interpretive" or "legislative."

A "legislative" regulation is one which `is the product of an exercise of delegated legislative power to make law through rules,' whereas an 'interpretative rule is any rule an agency issues without exercising delegated legislative power to make law through rules.'" New Jersey v. Department of Health and Human Services, 670 F. 2d 1262, 1281 (3d Cir. 1981) (quoting 2 K. Davis, Administrative Law Treatise §7:8, at 36 (1979)); accord Batterton v. Francis, 432 U. S. 416, 425 n. 9 (1977); Chamber of Commerce of the United States v. OSHA, 636 F. 2d 464, 468 (D. C. Cir. 1980); Board of Ed. v. Harris, 622 F. 2d 599, 613 (2d Cir. 1979), cert. denied, 449 U. S. 1124 (1981). ⁴ The regulations regarding disclosure of tax returns are legislative regulations because they are an exercise of legislative power delegated by Congress in Section 6103(c). ⁵

Courts are hesitant to disregard legislative regulations and do so in very limited circumstances. Fawcus Machine Co. v. United States [5 USTC ¶1518], 282 U. S. 375, 378 (1931); Board of Ed., supra, 622 F. 2d at 613; see Joseph v. United States Civil Service Comm., 554 F. 2d 1140, 1154 n. 26 (D. C. Cir. 1977). For example, a regulation may be disregarded where the regulation is arbitrary and capricious, Board of Ed., supra, 622 F. 2d at 613; Joseph, supra, 554 F. 2d at 1154 n. 26; see Batterton v. Francis, 432 U. S. 416, 426 (1977), where the regulation conflicts with earlier pronouncements by the agency, General Electric v. Gilbert, 429 U. S. 125, 143 (1976), or where the regulation is promulgated in excess of the granted power or in contravention of the proper procedure, Board of Ed., supra, 622 F. 2d at 613. Plaintiff's only contention to support a disregard of the regulation is that the "consent" given by Mr. Olsen was an intentional relinquishment of a known right and should therefore be accepted. This contention simply does not warrant a disregard of the regulation in light of the strong presumption in favor of deference to the regulation and the circumstances which have prompted courts to disregard regulations in the past. ⁶

Conclusion

Plaintiff's motion for summary judgment is denied. Defendants' cross-motion for summary judgment is granted. This action is dismissed. Each party shall bear its own costs.

¹ The action is captioned Olsen v. Olsen, Docket number 33023/74.

² Section 7213 relating to unauthorized disclosure of information provides:

(a) Returns and return information.

(1) Federal employees and other persons. It shall be unlawful for any officer or employee of the United States or any person described in section 6103(n) (or an officer or employee of any such person), or any former officer or employee, willfully to disclose to any person, except as authorized by this title, any return or return information (as defined in section 6103(b)). Any violation of this paragraph shall be a felony punishable upon conviction by a fine in any amount not exceeding $5,000, or imprisonment of not more than 5 years, or both, together with the costs of prosecution, and if such offense is committed by any officer or employee of the United States, he shall, in addition to any other punishment, be dismissed from office or discharged from employment upon conviction for such offense.

³ It is puzzling indeed that an attorney admitted to practive before this court could overlook this legislation.

⁴ In other words, an interpretive rule gives guidance to the "parties as to how the agency intends to administer a statute or regulation." Daughters of Miriam Center for the Aged v. Mathews, 590 F. 2d 1250, 1258 (3d Cir. 1978). A legislative rule, "rather than merely setting forth an agency's own interpretation of the meaning of a statute it administers, actually implements that statute and, in so doing, 'creates' new law 'affecting individual rights and obligations.'" New Jersey v. Department of Health and Human Services, 670 F. 2d 1262, 1282 (3d Cir. 1981).

⁵ The grant of power in Section 6103(c) is more than a mere procedural assurance that decisions will be made on the basis of standards publicly elaborated by the Secretary, see Board of Ed., supra, 622 F. 2d at 613, and does more than carry out a delegation of authority to interpret the language of a statute, see Batterton v. Francis, 432 U. S. 416, 425 (1977), which have prompted courts to disregard regulations promulgated under express congressional authority. Section 6103(c) intimates that the Secretary's regulations are to have the force and effect of law and will be treated as such.

⁶ Even if 26 C. F. R. §301.6103(c)-1 is deemed an interpretive regulation, the regulation still would be upheld. The deference given to interpretive regulations is less than that given to legislative regulations. Board of Ed., supra, 622 F. 2d at 613; see Joseph, supra, at 1154, but are upheld absent extraordinary circumstances. Interpretive regulations are to be examined in light of the "circumstances of their promulgation, the consistency with which the agency has adhered to the position announced, the evident consideration which has gone into its formulation and the nature of the agency's expertise." Board of Ed., supra, 622 F. 2d at 613. Interpretive regulations have been disregarded where the promulgating agency is not specifically charged with administering the statute nor is the sole agency responsible for interpreting the statute, see Doe v. General Services Administration, 544 F. Supp. 530, 537 (D. Md. 1982), and where the agency has failed to meet the requirements of the Administrative Procedures Act when enacting the statute, see Chamber of Commerce of the United States v. OSHA, 636 F. 2d 464, 470 (D. C. Cir. 1980). Plaintiff has not presented a sufficient basis to disregard even an interpretive regulation.