B-159327, JULY 20, 1966, 46 COMP. GEN. 60

B-159327, JULY 20, 1966, 46 COMP. GEN. 60

PROPERTY - PRIVATE - FEDERAL FUNDS FOR IMPROVEMENTS, REPAIRS, ETC. - RENT - FREE SPACE. THE EXPENDITURE OF APPROPRIATED FUNDS FOR THE REINFORCEMENTS OF BUILDING FOUNDATIONS AND OTHER STRUCTURAL IMPROVEMENTS NECESSITATED BY THE CONSTRUCTION OF AIR NAVIGATION FACILITIES ON RENT-FREE SPACE IN AIRPORT BUILDINGS AUTHORIZED BY SECTION 11/6) OF THE FEDERAL AIRPORT ACT (49 U.S.C. 1110) IS NOT PROHIBITED BY SECTION 322 OF THE ECONOMY ACT, 40 U.S.C. 278A, THE LIMITATION ON OBLIGATING APPROPRIATIONS FOR THE ALTERATION, IMPROVEMENTS, AND REPAIRS OF PREMISES CONTAINED IN SECTION 322 APPLYING ONLY TO RENTED BUILDINGS, AND THE AIRPORT ACT PROVIDING FOR THE CONSTRUCTION AT FEDERAL EXPENSE OF AIR TRAVEL CONTROL AND RELATED FACILITIES AT SELECTED AIRPORTS, PAYMENT MAY BE MADE FROM APPROPRIATED FUNDS FOR THE REINFORCEMENTS OF BUILDING FOUNDATIONS AND OTHER STRUCTURAL IMPROVEMENTS AS PART OF THE COST OF CONSTRUCTING AIR NAVIGATION AND RELATED FACILITIES.

TO THE ADMINISTRATOR, FEDERAL AVIATION AGENCY, JULY 20, 1966:

WE ARE IN RECEIPT OF YOUR LETTER DATED MAY 31, 1966, IN WHICH YOU REQUEST OUR ADVICE "ON THE EXTENT TO WHICH THE FEDERAL AVIATION AGENCY MAY EXPEND APPROPRIATED FUNDS TO ESTABLISH AIR NAVIGATION FACILITIES UNDER SECTION 307/B) OF THE FEDERAL AVIATION ACT, 49 U.S.C. 1348/B), ON AIRPORT TERMINAL BUILDINGS OR OTHER AIRPORT BUILDINGS WHERE THE AIRPORT OPERATOR OR OWNER, UNDER SECTION 11/6) OF THE FEDERAL AIRPORT ACT, 49 U.S.C. 1110/6), HAS GRANTED THE GOVERNMENT THE RIGHT WITHOUT COST TO MAKE THE INSTALLATION;,

SECTION 307/B) OF THE FEDERAL AVIATION ACT AUTHORIZES THE ADMINISTRATOR OF THE FEDERAL AVIATION AGENCY TO ACQUIRE, ESTABLISH, AND IMPROVE AIR- NAVIGATION FACILITIES WHEREVER NECESSARY WITHIN THE LIMITS OF AVAILABLE APPROPRIATIONS MADE BY THE CONGRESS. THE FACILITIES WITH WHICH YOU ARE PRIMARILY CONCERNED ARE AIR TRAFFIC CONTROL TOWER CABS WHICH ARE INSTALLED ON THE ROOFS OF BUILDINGS. THERE ARE NO LIMITATIONS IN THE INDEPENDENT OFFICES APPROPRIATION ACT ON THE GENERAL AVAILABILITY OF THE FUNDS FOR THESE PURPOSES BUT, AS YOU INDICATE, INSTALLATION OF AN AIR TRAFFIC CONTROL TOWER CAB ON THE ROOF OF A BUILDING OFTEN NECESSITATES THE REINFORCEMENT OF THE BUILDING FOUNDATION AND OTHER STRUCTURAL IMPROVEMENTS. YOU QUESTION, THEREFORE, WHETHER THE APPROPRIATED FUNDS ARE AVAILABLE FOR THESE STRUCTURAL CHANGES AND IMPROVEMENTS INASMUCH AS THEY MIGHT NOT BE CONSIDERED AS ACQUIRING, ESTABLISHING OR IMPROVING AIR- NAVIGATION FACILITIES AS THOSE TERMS ARE USED IN THE STATUTE.

IT MAY BE STATED AS A GENERAL RULE THAT APPROPRIATED FUNDS ORDINARILY MAY NOT BE USED FOR PERMANENT IMPROVEMENTS TO PRIVATE PROPERTY UNLESS SPECIFICALLY AUTHORIZED BY LAW. SEE B-152722, DATED AUGUST 16, 1965, AND CASES CITED THEREIN. IN THIS REGARD, SECTION 11/6) OF THE FEDERAL AIRPORT ACT, 49 U.S.C. 1110, PROVIDES AS FOLLOWS:

(6) THE AIRPORT OPERATOR OR OWNER WILL FURNISH WITHOUT COST TO THE FEDERAL GOVERNMENT FOR USE IN CONNECTION WITH ANY AIR TRAFFIC CONTROL ACTIVITIES, OR WEATHER-REPORTING ACTIVITIES AND COMMUNICATION ACTIVITIES RELATED TO AIR TRAFFIC CONTROL, SUCH AREAS OF LAND OR WATER, OR ESTATE THEREIN, OR RIGHTS IN BUILDINGS OF THE SPONSOR AS THE ADMINISTRATOR MAY CONSIDER NECESSARY OR DESIRABLE FOR CONSTRUCTION AT FEDERAL EXPENSE OF SPACE OR FACILITIES FOR SUCH PURPOSES; * * *. (ITALICS SUPPLIED.)

THIS SECTION PROVIDES SPECIFIC AUTHORIZATION FOR CONSTRUCTION, AT FEDERAL EXPENSE, OF AIR TRAFFIC CONTROL AND RELATED ACTIVITIES AT SELECTED AIRPORTS. THE ONLY QUESTION THAT REMAINS, THEN, IS WHETHER THERE ARE LIMITATIONS ON THE AMOUNT WHICH THE FEDERAL AVIATION AGENCY MAY SPEND ON THESE FACILITIES.

SECTION 322 OF THE ECONOMY ACT, 40 U.S.C. 278A, PROVIDES THAT NO APPROPRIATION SHALL BE OBLIGATED FOR:

* * * ALTERATIONS, IMPROVEMENTS, AND REPAIRS OF THE RENTED PREMISES IN EXCESS OF 25 PER CENTUM OF THE AMOUNT OF THE RENT FOR THE FIRST YEAR OF THE RENTAL TERM, OR FOR THE RENTAL TERM IF LESS THAN ONE YEAR: * * *.

THIS SECTION SERVES TO LIMIT FUNDS THAT MAY BE EXPENDED FOR THE STATED PURPOSES ONLY IN SITUATIONS WHERE THE GOVERNMENT IS RENTING A BUILDING OR PART OF A BUILDING. AT FIRST BLUSH IT SEEMS OBVIOUS THE SITUATION AT HAND DOES NOT FALL WITHIN THIS CATEGORY BECAUSE THE GOVERNMENT IS NOT RENTING ANYTHING FROM THE SPONSOR. HOWEVER, IN A RECENT DECISION ISSUED BY THIS OFFICE, B-152722, DATED AUGUST 16, 1965, INVOLVING EXPENDITURES OF APPROPRIATED FUNDS FOR ALTERATIONS, IMPROVEMENTS, AND REPAIRS TO RENT-FREE SPACE PROVIDED BY AIRPORT OWNERS AND OPERATORS IN ACCORDANCE WITH FORMER SECTION 11/5) OF THE FEDERAL AIRPORT ACT, 49 U.S.C. 1110/5), IT WAS HELD THAT PAYMENTS MADE FOR CHANGES IN THE RENT-FREE SPACE FURNISHED BY THE AIRPORT WILL BE REGARDED AS PAYMENTS IN KIND IN LIEU OF RENT AND, THEREFORE, SECTION 322 OF THE ECONOMY ACT APPLIES TO LIMIT THE AMOUNT THE FEDERAL AVIATION AGENCY MAY EXPEND TO IMPROVE THE SPACE.

AS NOTED ABOVE, THIS DECISION WAS BASED ON FORMER SECTION 11/5) OF THE FEDERAL AIRPORT ACT AS THAT SECTION EXISTED PRIOR TO ITS AMENDMENT IN 1961 BY PUBLIC LAW 87-255, 75 STAT. 523. WE FEEL THER ARE SIGNIFICANT CHANGES IN THE WORDING OF THE NEW ACT AS WELL AS A CLEARLY ESTABLISHED LEGISLATIVE INTENT WHICH INDICATE A DIFFERENT INTERPRETATION SHOULD BE GIVEN TO THE AMENDMENT. FOR EXAMPLE, FORMER SECTION 11/5) REQUIRED THE AIRPORT OWNER OR OPERATOR TO FURNISH WITHOUT CHARGE SPACE IN AIRPORT BUILDINGS WHICH WAS REASONABLY ADEQUATE FOR THE USE INTENDED. THUS, THE CONGRESS CONTEMPLATED SPACE IN A BUILDING THAT WAS INITIALLY TAILORED SOMEWHAT FOR AIR TRAFFIC CONTROL WORK, ALTHOUGH NO FUTURE TAILORING OR CHANGES WERE REQUIRED TO BE MADE BY THE SPONSOR. SINCE THE GOVERNMENT WAS OCCUPYING SPACE PROVIDED BY THE SPONSOR AIRPORT WE CONCLUDED THE CHANGES AND IMPROVEMENTS IN THAT SPACE WERE EQUIVALENT TO PAYMENTS OF RENT OR, PAYMENTS IN KIND IN LIEU OF RENT EVEN THOUGH NO RENTAL WAS ACTUALLY CHARGED BY THE SPONSOR. THE AMENDMENT CHANGES THE OLD SECTION AND ADDS TO IT.THAT IS, THE SPONSOR IS NO LONGER REQUIRED TO PROVIDE SPACE IN BUILDINGS, BUT RATHER RIGHTS IN BUILDINGS AS THE ADMINISTRATOR DEEMS NECESSARY OR DESIRABLE. IN ADDITION, THE AMENDMENT PROVIDES SPECIFICALLY, AS THE OLD SECTION DID NOT, THAT CONSTRUCTION OF THESE FACILITIES IS TO BE AT FEDERAL EXPENSE. FURTHERMORE, THE ADMINISTRATOR IS AUTHORIZED:

* * * TO RELIEVE THE SPONSOR FROM ANY CONTRACTUAL OBLIGATION ENTERED INTO UNDER THIS ACT TO PROVIDE FREE SPACE IN AIRPORT BUILDINGS TO THE FEDERAL GOVERNMENT TO THE EXTENT HE FINDS SUCH SPACE NO LONGER REQUIRED FOR THE PURPOSES SET FORTH IN PARAGRAPH (5) OF THIS SECTION. 75 STAT. 526.

IT SEEMS CLEAR THE CONGRESS HAS EXPRESSED ITS INTENT IN UNEQUIVOCAL LANGUAGE THAT THE FEDERAL AVIATION AGENCY NOT BE HAMPERED BY RESTRICTIONS OR LIMITATIONS IN THE CONSTRUCTION OF THOSE VITALLY IMPORTANT AIR TRAFFIC CONTROL FACILITIES.

IN VIEW OF THE ABOVE, THIS OFFICE HAS NO OBJECTION TO PAYMENT FROM FUNDS APPROPRIATED TO THE FEDERAL AVIATION AGENCY FOR REINFORCEMENTS OF BUILDING FOUNDATIONS AND OTHER STRUCTURAL IMPROVEMENTS AS PART OF THE COST OF CONSTRUCTING AIR-NAVIGATION AND RELATED FACILITIES AT SELECTED AIRPORTS.