B-127019, APRIL 26, 1956, 35 COMP. GEN. 588

B-127019, APRIL 26, 1956, 35 COMP. GEN. 588

FEDERAL-AID AIRPORT PROGRAM OF 1946 - MAINTENANCE COSTS LIMITATION - AVAILABILITY FOR RUNWAY RESEALING AIRPORT RUNWAY SEALING PROJECTS WHICH, ON THE BASIS OF ENGINEERING PRINCIPLES EMBODIED IN THE PROPOSED ADMINISTRATIVE REGULATIONS, ARE DETERMINED TO BE INCIDENT TO RECONSTRUCTION, REPAIR OR REPLACEMENT, AS DISTINGUISHED FROM NORMAL MAINTENANCE, ARE ELIGIBLE TO RECEIVE GRANTS IN- AID UNDER THE FEDERAL AIRPORT ACT.

TO THE SECRETARY OF COMMERCE, APRIL 26, 1956:

REFERENCE IS MADE TO LETTER OF FEBRUARY 14, 1956, FROM THE ADMINISTRATOR, CIVIL AERONAUTICS ADMINISTRATION, WITH ENCLOSURES, REQUESTING AN OPINION AS TO THE APPROPRIATENESS OF THE INCLUSION OF RUNWAY SEALING AND JOINT SEALING AS AN ITEM ELIGIBLE FOR A GRANT-IN-AID UNDER THE FEDERAL-AID AIRPORT PROGRAM AUTHORIZED BY THE FEDERAL AIRPORT ACT, APPROVED MAY 13, 1946, 60 STAT. 170, AS AMENDED, 49 U.S.C. 1101 AND FOLLOWING SECTIONS. THE ENCLOSURES INCLUDE A PROPOSED AMENDMENT TO THE REGULATIONS OF THE ADMINISTRATION TO SPECIFY THE TYPES OF RESEALING CONSIDERED ELIGIBLE FOR GRANTS-IN-AID.

WHILE THE INSTANT MATTER WILL BE CONSIDERED AS THOUGH SUBMITTED BY YOU, ATTENTION IS INVITED TO CIRCULAR LETTER B-62476 DATED DECEMBER 13, 1946, 26 COMP. GEN. 993, CONCERNING REQUESTS FOR DECISIONS BY OTHERS THAN THE HEADS OF DEPARTMENTS.

PARAGRAPH 3 OF SECTION 2 (A) OF THE ACT, 49 U.S.C. 1101, AS AMENDED BY PUBLIC LAW 211, APPROVED AUGUST 3, 1955, 69 STAT. 441, 49 U.S.C. 1102, PROVIDES:

(3) " AIRPORT DEVELOPMENT" MEANS (A) ANY WORK INVOLVED IN CONSTRUCTING, IMPROVING, OR REPAIRING A PUBLIC AIRPORT OR PORTION THEREOF, INCLUDING THE CONSTRUCTION, ALTERATION, AND REPAIR OF AIRPORT PASSENGER OR FREIGHT TERMINAL BUILDINGS AND OTHER AIRPORT ADMINISTRATIVE BUILDINGS AND THE REMOVAL, LOWERING, RELOCATION, AND MARKING AND LIGHTING OF AIRPORT HAZARDS, AND (B) ANY ACQUISITION OF LAND OR OF ANY INTEREST THEREIN, OR OF ANY EASEMENT THROUGH OR OTHER INTEREST IN AIR SPACE, WHICH IS NECESSARY TO PERMIT ANY SUCH WORK OR TO REMOVE OR MITIGATE OR PREVENT OR LIMIT THE ESTABLISHMENT OF, AIRPORT HAZARDS; BUT SUCH TERM DOES NOT INCLUDE THE CONSTRUCTION, ALTERATION, OR REPAIR OF AIRPORT HANGARS.

IT IS STATED THAT THE MOST SPECIFIC MATTER OF CONTROVERSY BETWEEN THE CIVIL AERONAUTICS ADMINISTRATION'S STATED POLICY AND STANDARDS ON THE ADMINISTRATION OF THE FEDERAL-AID AIRPORT PROGRAM AND THE STATE AND LOCAL GOVERNMENTS HAS BEEN IN REGARD TO THE ELIGIBILITY OF RESEALING OF PAVEMENT SURFACES AND SEALING JOINTS OF RIGID PAVEMENTS FOR FEDERAL AID. INDICATED IN A MEMORANDUM PROPOSED BY THE GENERAL COUNSEL OF THE ADMINISTRATION, AND TRANSMITTED WITH THE LETTER, THIS CONTROVERSY INVOLVES A DETERMINATION OF WHETHER THE WORK IS ELIGIBLE FOR GRANT-IN AID AS CONSTITUTING "CONSTRUCTING, IMPROVING, OR REPAIRING" WITHIN THE MEANING OF THE ABOVE-QUOTED SECTION, OR WHETHER SUCH WORK IS INELIGIBLE AS BEING "MAINTENANCE" WITHIN THE NORMAL MEANING OF THAT WORD. MAINTENANCE, UNDER THE TERMS OF SECTION 11 OF THE CITED ACT, 49 U.S.C. 1110, IS A RESPONSIBILITY OF THE SPONSOR.

PRESENT REGULATIONS GOVERNING THE FEDERAL-AID AIRPORT PROGRAM PRECLUDE THE COST OF RESEALING BITUMINOUS PAVEMENTS AND THE COST OF REPLACING JOINT SEALING COMPOUNDS IN RIGID PAVEMENTS. (14 C.F.R. 550.4.) HOWEVER, IT APPEARS THAT AS A MATTER OF POLICY THREE ENUMERATED TYPES OF RESEALING ARE NOT CONSIDERED OF AN ORDINARY MAINTENANCE NATURE AND HAVE BEEN SPECIFIED AS ELIGIBLE IN THE ADMINISTRATION'S " POLICIES AND PROCEDURES BOOKLET" ISSUED OCTOBER 1, 1955.

THE PROPOSED CHANGES TO THE REGULATIONS WOULD SUBSTANTIALLY ALIGN THE REGULATIONS WITH THE PRESENT POLICY, I.E., EXCLUDE FROM ELIGIBILITY THE COST OF RESEALING WHEN SUCH WORK IS NORMAL MAINTENANCE AS DISTINGUISHED FROM RECONSTRUCTION, REPAIR OR REPLACEMENT, AND INCLUDE FOR ELIGIBILITY FOR GRANT-IN-AID COSTS OF "/I) BITUMINOUS RESURFACING OF PAVEMENTS WHERE SUCH RESURFACING CONSISTS OF A MINIMUM OF 100 LBS. OF PLANT-MIXED MATERIAL PER SQUARE YARD, (II) THE APPLICATION OF A BITUMINOUS SURFACE TREATMENT (APPLICATION OF BITUMINOUS MATERIAL AND COVER AGGREGATE PER CAA SPECIFICATION P-609) ON A PAVEMENT, THE EXISTING SURFACE OF WHICH CONSISTS OF SUCH A BITUMINOUS SURFACE TREATMENT, (III) THE RESEALING OF A RUNWAY THAT HAS BEEN EXTENDED OR PARTIALLY RECONSTRUCTED, WHERE SUCH RESEALING IS NECESSARY TO ACHIEVE UNIFORM COLOR AND APPEARANCE OF THE ENTIRE RUNWAY, OR (IV) ANY OTHER RESEALING OF PAVEMENTS OR JOINTS WHICH THE SPONSOR CAN SHOW TO THE SATISFACTION OF THE ADMINISTRATOR TO BE RECONSTRUCTION, REPLACEMENT, REPAIR OR IMPROVEMENT AS DISTINGUISHED FROM WORK THAT IS GENERALLY CONSIDERED NORMAL MAINTENANCE.'

THE ADMINISTRATOR'S REQUEST FOR INTERPRETATIONS, RECOMMENDATIONS OR FINDINGS AS TO THE APPROPRIATENESS OF THE INCLUSION OF RUNWAY SEALING AND JOINT SEALING AS AN ITEM ELIGIBLE FOR FEDERAL AID IS MADE FOR THE STATED REASON THAT THE INTENT OF CONGRESS IS NOT ENTIRELY CLEAR.

AS STATED IN OUR DECISION OF SEPTEMBER 9, 1946, B-60032, TO THE SECRETARY OF COMMERCE, ANY QUESTION AS TO WHETHER THE OBJECT OF A GRANT IN A PARTICULAR CASE COMES WITHIN THE STATUTORY POWER OF THE ADMINISTRATOR TO MAKE A GRANT OF FUNDS "FOR AIRPORT DEVELOPMENT" SHOULD BE VIEWED IN THE LIGHT OF THE CONTROLLING INTENT OF THE CONGRESS TO PROVIDE FOR A SYSTEM OF PUBLIC AIRPORTS ADEQUATE TO MEET THE NEEDS OF CIVIL AERONAUTICS. UNDER THE PROVISIONS OF SECTION 11 OF THE ACT SPONSORS ARE REQUIRED TO FURNISH ASSURANCES IN WRITING THAT, AMONG OTHER THINGS,"SUCH AIRPORT AND ALL FACILITIES THEREON OR CONNECTED THEREWITH WILL BE SUITABLE OPERATED OR MAINTAINED, WITH DUE REGARD TO CLIMATIC AND FLOOD CONDITIONS.' CONGRESS HAS THUS, IN THE OVERALL PLAN OF PROVIDING FOR AN ADEQUATE SYSTEM OF PUBLIC AIRPORTS, ESTABLISHED A CRITERION FOR OBLIGATIONS TO BE UNDERTAKEN BY THE SPONSORS AND, THEREFORE, EXPENSES INCIDENT TO SUCH OBLIGATIONS MAY NOT PROPERLY BE CONSIDERED AS ELIGIBLE FOR FEDERAL AID. THE RECORD SHOWS THAT A DETERMINATION HAS BEEN MADE BY THE ENGINEERS OF THE ADMINISTRATION THAT RESEALING GENERALLY CONSTITUTES AN ITEM OF MAINTENANCE. CERTAIN EXCEPTIONS TO THIS HAVE BEEN RECOGNIZED BY THE ENGINEERS AND APPROPRIATE PROVISIONS FOR SUCH EXCEPTIONS HAVE BEEN MADE IN THE PROPOSED REGULATION. UNDER THE CIRCUMSTANCES STATED ABOVE, APPROVALS OF GRANTS-IN-AID IN CASES COVERED BY THE PROPOSED REGULATION WOULD APPEAR TO BE PROPER AND CONSISTENT WITH THE CONTROLLING INTENT OF CONGRESS.