B-148946, AUGUST 19, 1969, 49 COMP. GEN. 104

B-148946, AUGUST 19, 1969, 49 COMP. GEN. 104

STATES -- FEDERAL AID, GRANTS, ETC. -- DISASTER RELIEF -- ELIGIBILITY AS PUBLIC FACILITY THE PHRASE "ESSENTIAL PUBLIC FACILITIES" AS USED IN THE SO-CALLED FEDERAL DISASTER ACT (42 U.S.C. 1855-1855G), WHICH AUTHORIZES ASSISTANCE IN ANY MAJOR DISASTER TO STATES AND LOCAL GOVERNMENTS FOR EMERGENCY REPAIRS TO AND TEMPORARY REPLACEMENTS OF PUBLIC FACILITIES, DOES NOT MEAN ALL PUBLIC FACILITIES. TO HOLD OTHERWISE WOULD MAKE THE WORD "ESSENTIAL" SUPERFLUOUOS OR VOID, CONTRARY TO THE RULE OF STATUTORY CONSTRUCTION. THE PHRASE MAY BE DEFINED AS RELATING TO THOSE ESSENTIAL PUBLIC FACILITIES THAT ARE DESIGNED TO SERVE THE PUBLIC AT LARGE, BUT LIMITED TO THE EXTENT OF PUBLIC ENTITY RESPONSIBILITY, SO THAT WHEN A CONTRACT BETWEEN A PUBLIC ENTITY AND PRIVATE ENTITY EXISTS, THE ESSENTIAL PUBLIC FACILITY INVOLVED SHALL BE REGARDED AS WHATEVER THE PUBLIC ENTITY'S RESPONSIBILITIES ARE UNDER THE CONTRACT. STATES -- LEASED PROPERTY -- DAMAGES -- DISASTER ASSISTANCE THE COST OF THE EMERGENCY REPAIRS OCCASIONED BY TORNADO DAMAGE TO MUNICIPAL AIRPORT BUILDINGS THAT ARE 80 PERCENT LEASED AND RENTAL INCOME USED TO MAINTAIN THE FACILITIES WHICH ARE AVAILABLE FOR USE BY UNITED STATES MILITARY AND NAVAL AIRCRAFT MAY BE REIMBURSED UNDER THE SO-CALLED FEDERAL DISASTER ACT (42 U.S.C. 1855-1855G), AUTHORIZING ASSISTANCE TO STATES AND LOCAL GOVERNMENTS TO REPAIR OR PROVIDE REPLACEMENTS OF ESSENTIAL PUBLIC FACILITIES DAMAGED DURING A MAJOR DISASTER, TO THE INVOLVED MUNICIPAL AIRPORT AUTHORITY TO THE EXTENT OF ITS RESPONSIBILITY UNDER THE LEASE TO REPAIR THE LEASED BUILDINGS OR TERMINATE THE LEASE.

TO THE DIRECTOR, OFFICE OF EMERGENCY PREPAREDNESS, AUGUST 19, 1969:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 5, 1969, WHICH, YOU STATE, HAS A TWO-FOLD PURPOSE: FIRST, TO OBTAIN REFINEMENT OF THE MEANING WE ASCRIBE TO THE PHRASE "ESSENTIAL PUBLIC FACILITIES" AS THAT PHRASE IS EMPLOYED IN THE ADMINISTRATION OF THE SO-CALLED FEDERAL DISASTER ACT, PUBLIC LAW 875 OF THE 81ST CONGRESS, 64 STAT. 1109, AS AMENDED, 42 U.S.C. 1855-1855G; AND SECOND, WITHIN THE CONTEXT OF THAT REFINEMENT, TO OBTAIN A DECISION AS TO WHETHER WE WOULD TAKE EXCEPTION TO THE GRANT OF FINANCIAL ASSISTANCE UNDER THE ACT PURSUANT TO A REQUEST FILED BY THE SALINA AIRPORT AUTHORITY, KANSAS.

ONE OF THE PURPOSES OF PUBLIC LAW 875 OF THE 81ST CONGRESS, APPROVED SEPTEMBER 30, 1950, 64 STAT. 1109, AS AMENDED, 42 U.S.C. 1855-1855G, AS DISCLOSED BY SECTION 1 THEREOF, IS TO PROVIDE FOR FEDERAL ASSISTANCE TO STATES AND LOCAL GOVERNMENTS "TO REPAIR ESSENTIAL PUBLIC FACILITIES IN MAJOR DISASTERS." SUBSECTION (D) OF SECTION 3 OF THE ACT, AS AMENDED, 42 U.S.C. 1855B, AUTHORIZES FEDERAL AGENCIES, WHEN DIRECTED BY THE PRESIDENT, TO PROVIDE ASSISTANCE IN ANY MAJOR DISASTER BY "MAKING EMERGENCY REPAIRS TO AND TEMPORARY REPLACEMENTS OF PUBLIC FACILITIES OF STATES AND LOCAL GOVERNMENTS DAMAGED OR DESTROYED IN SUCH MAJOR DISASTER *** AND MAKING CONTRIBUTIONS TO STATES AND LOCAL GOVERNMENTS *** " FOR SUCH PURPOSES. UNDER SECTION 3, ACCORDING TO YOUR LETTER, FEDERAL FUNDS HAVE BEEN MADE AVAILABLE FOR EMERGENCY REPAIRS TO AND TEMPORARY REPLACEMENT OF SUCH ESSENTIAL PUBLIC FACILITIES OF LOCAL GOVERNMENTS AS WATER SYSTEMS, SEWAGE SYSTEMS, STREETS, BRIDGES, PUBLIC BUILDINGS AND THE LIKE. YOU ADVISE THAT OEP REGULATIONS PROVIDE THAT "A PUBLIC FACILITY TO BE ELIGIBLE FOR ASSISTANCE MUST BE ESSENTIAL TO THE HEALTH, SAFETY OR WELFARE OF THE PEOPLE." (32 CFR 1710.10)

IN 1962, YOU REQUESTED A DECISION FROM THE COMPTROLLER GENERAL AS TO WHETHER EXCEPTION WOULD BE TAKEN IF FINANCIAL ASSISTANCE WERE PROVIDED UNDER PUBLIC LAW 875 FOR THE REPAIR OF CERTAIN BUILDINGS AT A COUNTY AIRPORT IN TEXAS DAMAGED DURING A MAJOR DISASTER. IN THAT CASE A NUMBER OF THE BUILDINGS WERE ENTERED TO COMMERCIAL ENTERPRISES NOT DIRECTLY RELATED TO THE OPERATION OF THE AIRPORT AS SUCH, AND SOME WERE VACANT. YOU POINT OUT THAT IN REACHING OUR DECISION, WE TOOK NO EXCEPTION TO PAYMENTS FOR THE REPAIR OF THE AFORESAID BUILDINGS, AND MADE THE FOLLOWING STATEMENT (42 COMP. GEN. 6 (1962)):

THE TERM "PUBLIC FACILITIES" IS NOT DEFINED IN THE ACT ITSELF. HOWEVER, THERE IS NOTHING IN THE BASIC ACT OR ITS LEGISLATIVE HISTORY TO INDICATE A CONGRESSIONAL INTENT TO ASCRIBE ANY SPECIAL OR TECHNICAL MEANING TO THE TERM. HENCE, TO EFFECTUATE THE POLICY WHICH THE CONGRESS HAS FORMULATED WITH REFERENCE TO THE OPERATION OF THIS PROGRAM, SUCH TERM MUST BE INTERPRETED IN ITS ORDINARY AND POPULAR SENSE AS RELATING TO ESSENTIAL PUBLIC FACILITIES WHICH PRIMARILY ARE DESIGNED TO SERVE THE PUBLIC AT LARGE.

YOUR EXPERIENCES HAVE LED YOU TO CONCLUDE THAT "ESSENTIAL PUBLIC FACILITIES" UNDER PUBLIC LAW 875 SHOULD BE DEFINED AS RELATING TO FACILITIES WHICH ARE DESIGNED TO SERVE THE PUBLIC AT LARGE, BUT LIMITED TO THE EXTENT OF PUBLIC ENTITY RESPONSIBILITY THEREFOR, SO THAT WHEN A CONTRACT BETWEEN A PUBLIC ENTITY AND A PRIVATE ENTITY EXISTS, THE ESSENTIAL PUBLIC FACILITY SHALL BE REGARDED AS WHATEVER ARE THE PUBLIC ENTITY'S RESPONSIBILITIES UNDER SAID CONTRACT. YOU ASK FOR OUR CONCURRENCE WITH SUCH DEFINITION.

IN VIEW OF OUR INFORMAL SUGGESTION THAT YOU PRESENT A SPECIFIC CASE TO SERVE AS AN EXAMPLE OF THE DEFINITION, YOU SUBMIT THE FOLLOWING SPECIFIC CASE: ON JULY 15, 1969, THE PRESIDENT DECLARED A MAJOR DISASTER IN KANSAS AS A RESULT OF DAMAGE CAUSED BY A TORNADO. THE MUNICIPAL AIRPORT IN SALINA, KANSAS, SUFFERED EXTENSIVE DAMAGE. THE SALINA AIRPORT AUTHORITY IS A MUNICIPAL CORPORATION ORGANIZED UNDER THE LAWS OF KANSAS. THE AIRPORT WAS DEEDED TO THE AUTHORITY BY THE GENERAL SERVICES ADMINISTRATION WITH THE UNDERSTANDING THAT REVENUE FROM AIRPORT BUILDINGS WOULD BE USED TO MAINTAIN THE FACILITY. THE AIRPORT AUTHORITY LEASES APPROXIMATELY 80% OF THE AIRPORT BUILDINGS TO BEECH AIRCRAFT CORPORATION OF WICHITA, KANSAS. THE LEASE OBLIGATES LESSOR (SALINA AIRPORT AUTHORITY) TO REPAIR OR TERMINATE. A NUMBER OF THESE BUILDINGS WERE DAMAGED IN THE DISASTER. THE AIRPORT AUTHORITY HAS REQUESTED FEDERAL ASSISTANCE UNDER THE ACT FOR THE REPAIR OF THE LEASED BUILDINGS. THIS CASE IS QUITE SIMILAR TO THE 1962 CASE INVOLVING THE TEXAS AIRPORT. WHILE THE SALINA AIRPORT DOES NOT REVERT TO THE UNITED STATES IN THE EVENT OF A NATIONAL EMERGENCY, IT IS REQUIRED TO BE AVAILABLE FOR USE BY UNITED STATES MILITARY AND NAVAL AIRCRAFT. RENTAL INCOME DERIVED FROM THE AIRPORT BUILDINGS PROVIDED 75% OF TOTAL INCOME OF THE AIRPORT IN 1968.

YOU ARE INCLINED TO CONSIDER THE LEASED BUILDINGS AS INTEGRAL TO THE AIRPORT AND AN ESSENTIAL PUBLIC FACILITY WITHIN THE MEANING OF THE ACT AND YOUR REGULATIONS ISSUED THEREUNDER TO THE EXTENT OF SALINA AIRPORT AUTHORITY'S RESPONSIBILITY TO MAKE REPAIRS. YOU INQUIRE AS TO WHETHER WE WOULD TAKE EXCEPTION TO SUCH FINANCIAL ASSISTANCE.

INSOFAR AS YOUR FIRST PROBLEM IS CONCERNED, WE WOULD LIKE TO POINT OUT THAT IT IS CLEAR FROM SECTION I OF PUBLIC LAW 875, AS WELL AS ITS LEGISLATIVE HISTORY, THAT ONE OF THE PURPOSES OF THE ACT IS TO MAKE FEDERAL FUNDS AVAILABLE FOR EMERGENCY REPAIRS TO AND TEMPORARY REPLACEMENT OF "ESSENTIAL PUBLIC FACILITIES," OF LOCAL GOVERNMENTS. HAD THE ACT BEEN INTENDED TO ENCOMPASS ALL "PUBLIC FACILITIES" IT APPEARS THAT THE WORD "ESSENTIAL" WOULD HAVE BEEN OMITTED. IT IS A WELL-ESTABLISHED RULE OF STATUTORY CONSTRUCTION THAT EFFECT MUST BE GIVEN, IF POSSIBLE, TO EVERY WORD, CLAUSE, AND SENTENCE OF A STATUTE. A STATUTE SHOULD BE CONSTRUED SO THAT EFFECT IS GIVEN TO ALL ITS PROVISIONS, SO THAT NO PART WILL BE INOPERATIVE OR SUPERFLUOUS, VOID OR INSIGNIFICANT, AND SO THAT ONE SECTION WILL NOT DESTROY ANOTHER. SECTION 4705, SUTHERLAND, STATUTORY CONSTRUCTION. TO HOLD THAT "ESSENTIAL PUBLIC FACILITIES" MEANS ALL "PUBLIC FACILITIES" WOULD GIVE NO EFFECT TO THE WORD "ESSENTIAL" AS USED IN SECTION 1 OF PUBLIC LAW 875 AND WOULD MAKE SUCH WORD SUPERFLUOUS OR VOID.

KEEPING THE FOREGOING IN MIND, WE WOULD HAVE NO OBJECTION TO A DEFINITION OF "ESSENTIAL PUBLIC FACILITIES" UNDER PUBLIC LAW 875, WHICH WOULD RELATE SUCH FACILITIES TO THOSE "ESSENTIAL PUBLIC FACILITIES" DESIGNED TO SERVE THE PUBLIC AT LARGE, BUT LIMITED TO THE EXTENT OF PUBLIC ENTITY RESPONSIBILITY THEREFOR SO THAT WHEN A CONTRACT BETWEEN A PUBLIC ENTITY AND A PRIVATE ENTITY EXISTS THE ESSENTIAL PUBLIC FACILITY INVOLVED SHALL BE REGARDED AS WHATEVER THE PUBLIC ENTITY'S RESPONSIBILITIES ARE UNDER SUCH CONTRACT. CF. 44 COMP. GEN. 746 (1965).

SUBJECT TO WHAT IS STATED ABOVE, WE CONCUR WITH YOUR PROPOSED REFINEMENT OF THE PHRASE "ESSENTIAL PUBLIC FACILITIES" AS SET FORTH IN YOUR LETTER.

INSOFAR AS THE SALINA AIRPORT IS CONCERNED, IT APPEARS FROM YOUR LETTER THAT THE SALINA AIRPORT AUTHORITY LEASES 80 PERCENT OF THE AIRPORT BUILDINGS TO BEECH AIRCRAFT CORPORATION (BEECH); THAT THE AIRPORT WAS DEEDED TO THE AUTHORITY BY THE GENERAL SERVICES ADMINISTRATION WITH THE UNDERSTANDING THAT REVENUE FROM THE AIRPORT BUILDINGS WOULD BE USED TO MAINTAIN THE FACILITY; THAT IN 1968 RENTAL INCOME FROM THE AIRPORT BUILDINGS PROVIDED 75 PERCENT OF THE TOTAL INCOME OF THE AIRPORT; THAT UNDER THE LEASE WITH BEECH THE AIRPORT AUTHORITY IS REQUIRED TO REPAIR THE LEASED BUILDINGS (OR TERMINATE THE LEASE); AND THAT THE AIRPORT IS REQUIRED TO BE AVAILABLE FOR USE BY THE UNITED STATES MILITARY AND NAVAL AIRCRAFT.

THUS, AS STATED IN YOUR LETTER, THE INSTANT CASE IS QUITE SIMILAR TO THAT CONSIDERED IN 42 COMP. GEN. 6. ACCORDINGLY, IN VIEW OF THE FACTS AND CIRCUMSTANCES DISCLOSED BY THE PRESENT RECORD, THE RATIONALE OF OUR ABOVE- CITED DECISION WOULD APPEAR EQUALLY APPLICABLE TO THE INSTANT CASE. HENCE, WE WOULD NOT TAKE EXCEPTION TO THE EXPENDITURE OF FUNDS UNDER PUBLIC LAW 875 TO PROVIDE FINANCIAL ASSISTANCE TO THE SALINA AIRPORT AUTHORITY FOR EMERGENCY REPAIRS TO THE LEASED AIRPORT BUILDINGS, TO THE EXTENT OF THE AIRPORT AUTHORITY'S RESPONSIBILITY TO MAKE REPAIRS TO SUCH BUILDINGS.