B-197798.OM, APR 29, 1980

B-197798.OM, APR 29, 1980

SUBJECT: ADVANCE REVIEW OF REPORT "NEED TO IMPROVE PROGRAM FOR PROTECTING FEDERAL INTEREST IN AIRPORT LAND - B-197798-O.M.

DIRECTOR, LCD:

WE HAVE REVIEWED THE REFERENCED REPORT AND HAVE NO LEGAL OBJECTION TO ITS ISSUANCE.

AS A PART OF OUR REVIEW, YOU REQUESTED A LEGAL OPINION ON THE IMPACT THE AIRPORT AND AIRWAY SYSTEM DEVELOPMENT ACT OF 1979, S. 1648, 96TH CONG. 2ND SESS., WILL HAVE ON YOUR REPORT IF THAT LEGISLATION IS ENACTED. SPECIFICALLY, YOU ARE INTERESTED IN THE EFFECT SECTION 23 AND 24 OF S. 1648 WILL HAVE ON THE CONCLUSIONS AND RECOMMENDATIONS CONTAINED ON PAGES 26 AND 27 OF THE REPORT. IN ESSENCE THESE CONCLUSIONS AND RECOMMENDATIONS STATE THAT A NUMBER OF SPONSORS OF FEDERALLY OBLIGATED AIRPORTS ARE IMPROPERLY UTILIZING REAL PROPERTY ACQUIRED WITH FEDERAL PARTICIPATION FOR NON-AIRPORT PURPOSES OR ARE NOT DEVELOPING LAND THAT APPEARS TO BE EXCESS TO THEIR NEEDS. UNDER APPLICABLE LAW, REGULATIONS, GRANT PROVISIONS AND PROVISIONS IN INSTRUMENTS OF CONVEYANCE, THE FAA HAS THE OPTION TO RECLAIM FEDERAL REAL PROPERTY DONATED FOR AIRPORT USE OR, IN THE CASE OF REAL PROPERTY ACQUIRED WITH GRANT FUNDS, TO INSIST ON SALE OF THE LAND AND TO OBTAIN REIMBURSEMENT FROM THE PROCEEDS, OR TO REQUIRE REINVESTMENT OF THE PROCEEDS IN AIRPORT FACILITIES. FAA HAS NOT IMPLEMENTED PROCEDURES TO CORRECT THIS UNAUTHORIZED USE OF LAND AND THE REPORT RECOMMENDS THAT THIS BE ACCOMPLISHED.

SUBSECTION 23(C)(1) OF S. 1648 WOULD ALLOW AIRPORT SPONSORS OF AIRPORTS NOT CURRENTLY RECEIVING FEDERAL AIRPORT DEVELOPMENT ASSISTANCE BUT WHO HAVE ACQUIRED REAL PROPERTY WITH FEDERAL PARTICIPATION IN THE PAST, TO TERMINATE OBLIGATIONS REGARDING THE USE OF SUCH LAND CONTAINED IN GRANT AGREEMENTS, DEEDS OR OTHER INSTRUMENTS OF CONVEYANCE. THIS SUBSECTION ALSO DIRECTS THE SECRETARY OF TRANSPORTATION TO ISSUE CRITERIA AND REQUIREMENTS PURSUANT TO WHICH SPONSORS OF QUALIFYING AIRPORTS MAY TERMINATE THEIR OBLIGATIONS. ACCORDINGLY, SUBSECTION 23(C)(1) WOULD PERMIT THESE AIRPORT SPONSORS TO ESCAPE THE RESTRICTIONS ON THE USE OF SUCH PROPERTY. ON THE OTHER HAND, SPONSORS OF AIRPORTS STILL RECEIVING FEDERAL FUNDING FOR AIRPORT DEVELOPMENT WOULD BE UNABLE TO TERMINATE THEIR OBLIGATIONS AND WOULD REMAIN SUBJECT TO THE RESTRICTIONS ON REAL PROPERTY USE.

SINCE S. 1648 HAS NOT AS YET BEEN ENACTED INTO LAW, (FN1) IT DOES NOT AFFECT THE ABOVE-REFERENCED CONCLUSIONS AND RECOMMENDATIONS AT THE PRESENT TIME. MOREOVER, EVEN IF S. 1648 IS ENACTED INTO LAW IN ITS PRESENT FORM, IT WOULD NOT ALLOW ALL AIRPORT SPONSORS TO ESCAPE LAND USE RESTRICTIONS ON LAND ACQUIRED WITH FEDERAL ASSISTANCE AND THEREFORE THE CONCLUSIONS AND RECOMMENDATIONS WOULD STILL BE RELEVANT. HOWEVER, A NUMBER OF THE AIRPORTS COVERED BY YOUR REPORT AND ABOUT WHOM YOU HAVE ASKED THE FAA TO TAKE ACTION MIGHT NOT BE SUBJECT TO THAT ACTION IF THE BILL IS ENACTED. TO THIS EXTENT, YOUR REPORT WILL NEED REVISION IF THE BILL IS ENACTED BEFORE YOUR REPORT IS ISSUED IN FINAL FORM.

SECTION 24 REPEALS THE PROVISIONS OF THE AIRPORT AND AIRWAY DEVELOPMENT ACT OF 1970 EFFECTIVE SEPTEMBER 30, 1980 AND MAKES THIS ACT, THE AIRPORT AND AIRWAY SYSTEM DEVELOPMENT ACT OF 1979, EFFECTIVE AS OF THAT DATE. THIS SECTION ALSO CONTAINS A SAVINGS PROVISION WHICH CONTINUES THE VALIDITY OF ADMINISTRATIVE ORDERS AND REGULATIONS ISSUED UNDER THE 1970 ACT UNTIL THEY ARE MODIFIED. AS EXPLAINED ABOVE SECTION 24 WOULD HAVE THE EFFECT OF REPEALING ALL OLD REQUIREMENTS ON LAND USE WHICH SECTION 23 HAS PARTIALLY REPLACED.

WE ALSO CALL TO YOUR ATTENTION THE FACT THAT THE GAO'S BILL REPORTS ON S. 1648 TO BOTH SENATE AND HOUSE COMMITTEES DO NOT MENTION YOUR CONCERNS ABOUT PROPOSED SECTIONS 23 AND 24 OF THE BILL. THERE MAY STILL BE AN OPPORTUNITY TO MAKE YOUR VIEWS KNOWN TO THE HOUSE IN AN AMENDED BILL REPORT OR PERHAPS IN TESTIMONY, IF HEARINGS ON THE BILL ARE SCHEDULED. ANY EVENT, IT MIGHT BE A GOOD IDEA TO MENTION THE PROPOSED LEGISLATION SOMEWHERE IN THE REPORT.

FINALLY, WE NOTE THAT THE REQUIREMENT THAT A REVERSION PROVISION BE INCLUDED IN FUTURE CONVEYANCES OF FEDERAL LANDS TO AIRPORT SPONSORS WAS INCLUDED IN S. 1648 IN LANGUAGE SIMILAR TO THAT IN THE 1970 LAW. THIS APPEARS TO REAFFIRM CONGRESSIONAL INTENT THAT THE SECRETARY OF TRANSPORTATION SHOULD HAVE THE OPTION OF REQUIRING REVERSION OF DONATED FEDERAL LANDS IN APPROPRIATE CIRCUMSTANCES.

FN1 ALTHOUGH THE SENATE PASSED S. 1648 ON FEBRUARY 5, 1980, THE HOUSE HAS NOT EVEN SCHEDULED THE BILL FOR HEARINGS, AS OF THIS DATE.