B-174903, APR 4, 1972, 51 COMP GEN 627

B-174903, APR 4, 1972, 51 COMP GEN 627

AIRPORTS - FEDERAL AID - DEVELOPMENT PROJECTS - LAND TITLE A GRANT UNDER THE AIRPORT AND AIRWAY DEVELOPMENT ACT OF 1970 (49 U.S.C. 1701 ET SEQ.) TO FUND AN AIR STATION IN GUAM FOR BOTH CIVIL AND MILITARY USE PURSUANT TO A JOINT-USE AGREEMENT BETWEEN THE DEPARTMENT OF THE NAVY AND THE TERRITORY OF GUAM WHERE THE LANDING AREA IS OWNED BY THE UNITED STATES GOVERNMENT, EXCLUDED BY THE ACT FROM SPONSORING AN AIRPORT DEVELOPMENT, WHICH PURSUANT TO SECTION 16(C)(1) OF THE ACT MAY ONLY BE APPROVED IF A "PUBLIC AGENCY" HOLDS GOOD TITLE TO THE LANDING AREA, MAY BE APPROVED BY THE SECRETARY OF TRANSPORTATION, PROVIDED HE DETERMINES THE GRANT WILL EFFECTUATE THE PURPOSE OF THE ACT, ON THE BASIS THE JOINT-USE AGREEMENT WILL GIVE GUAM "GOOD TITLE" AND, MOREOVER, LEGISLATION HAS BEEN INTRODUCED TO CLARIFY GRANT ASSISTANCE WHERE THE LANDING AREA IS OWNED BY THE UNITED STATES.

TO THE SECRETARY OF TRANSPORTATION, APRIL 4, 1972:

REFERENCE IS MADE TO THE LETTER DATED JANUARY 7, 1972, FROM THE GENERAL COUNSEL OF THE FEDERAL AVIATION ADMINISTRATION (FAA) REQUESTING OUR OPINION CONCERNING A PROPOSED GRANT UNDER THE AIRPORT AND AIRWAY DEVELOPMENT ACT OF 1970 (AADA) APPROVED MAY 21, 1970, PUBLIC LAW 91 258, 84 STAT. 219, 49 U.S.C. 1701 ET SEQ.

THE PROPOSED GRANT WOULD FUND A PROJECT TO BE SPONSORED BY THE TERRITORY OF GUAM FOR THE DEVELOPMENT OF AGANA NAVAL AIR STATION, LOCATED ON THE ISLAND OF GUAM, WHICH WOULD BE MADE AVAILABLE FOR JOINT CIVIL AND MILITARY USE PURSUANT TO THE TERMS OF A PROPOSED JOINT-USE AGREEMENT BETWEEN THE DEPARTMENT OF THE NAVY AND THE GOVERNMENT OF GUAM. THE GENERAL COUNSEL STATES:

THE GOVERNMENT OF GUAM OWNS THE LAND ADJACENT TO THE AIRPORT WHICH WILL BE THE SITE OF THE PROPOSED DEVELOPMENT. THE LANDING AREA AT AGANA NAVAL AIR STATION IS OWNED BY THE UNITED STATES GOVERNMENT. THE JOINT USE AGREEMENT PROVIDES THAT NAVY WILL ISSUE AVIATION FACILITY LICENSES LIMITED TO THE FOLLOWING OPERATIONS: A. SCHEDULED PASSENGER AND CARGO OPERATIONS APPROVED BY THE CAB; B. NON-SCHEDULED OPERATIONAL AND CHARTER OPERATIONS IN AIRCRAFT OF U.S. REGISTRY; C. SCHEDULED AND NON-SCHEDULED AIR TAXI OPERATIONS IN AIRCRAFT OF U.S. REGISTRY; AND D. GENERAL AVIATION IN TRANS- PACIFIC OPERATIONS IN AIRCRAFT OF U.S. REGISTRY. OTHER CIVIL AIRCRAFT OPERATIONS SUCH AS NON-TRANS-PACIFIC GENERAL AVIATION OPERATIONS MAY BE PERMITTED AT THE ELECTION OF THE NAVY. LANDING FEES COLLECTED BY GUAM FOR CIVIL OPERATIONS IN ACCORDANCE WITH NAVY REGULATIONS SHALL BE PAID TO THE TREASURER OF THE UNITED STATES. GUAM WILL BE PERMITTED TO CLEAR THE APPROACHES AND TO ENTER THE LANDING AREA FOR MAINTENANCE PURPOSES WHEN DETERMINED NECESSARY FOR CIVIL OPERATIONS AND IT IS NOT FEASIBLE FOR THE NAVY TO DO THE WORK. THE NAVY WILL DETERMINE THE HOURS OF OPERATION FOR THE AIRPORT. THE AGREEMENT IS TO RUN FOR 30 YEARS SUBJECT TO CERTAIN RIGHTS OF TERMINATION GRANTED TO THE PARTIES.

THE AADA AUTHORIZES THE SECRETARY OF TRANSPORTATION TO DEVELOP A SYSTEM OF PUBLIC AIRPORTS BY GRANTING FUNDS FOR PROJECTS SPONSORED BY PUBLIC AGENCIES. SECTION 11(11) OF THE AADA, 49 U.S.C. 1711(11), DEFINES "PUBLIC AGENCY" TO INCLUDE, INTER ALIA, A STATE, THE COMMONWEALTH OF PUERTO RICO, THE VIRGIN ISLANDS, GUAM, OR ANY AGENCY OF ANY OF THE FOREGOING. SECTION 16(C)(1), 49 U.S.C. 1716(C)(1), PROVIDES, IN PART:

NO AIRPORT DEVELOPMENT PROJECT MAY BE APPROVED BY THE SECRETARY WITH RESPECT TO ANY AIRPORT UNLESS A PUBLIC AGENCY HOLDS GOOD TITLE SATISFACTORY TO THE SECRETARY, TO THE LANDING AREA OF THE AIRPORT OR THE SITE THEREOF, OR GIVES ASSURANCE SATISFACTORY TO THE SECRETARY THAT GOOD TITLE WILL BE ACQUIRED.

THE GENERAL COUNSEL COMMENTS UPON THIS STATUTORY PROVISION AS FOLLOWS:

SIGNIFICANTLY, THE U.S. GOVERNMENT OR AN AGENCY THEREOF IS NOT CONSIDERED TO BE A PUBLIC AGENCY FOR PURPOSES OF AADA. THE FEDERAL AIRPORT ACT, P.L. 70-377, 60 STAT. 170 REPEALED (BY) P.L. 91-258 SEC 52(A), WAS THE BASIS FOR A SIMILAR GRANT PROGRAM FOR AIRPORT DEVELOPMENT IN WHICH A PUBLIC AGENCY WAS DEFINED AS INCLUDING "THE U.S. GOVERNMENT OR AN AGENCY THEREOF" (P.L. 70-377 SEC 2(7), 60 STAT. 170).

THE CONGRESS IN ENACTING THE AADA OF 1970 STRUCK THE REFERENCE TO THE U.S. GOVERNMENT OR AGENCY THEREOF IN THE DEFINITION OF "PUBLIC AGENCY," (AADA SEC 11(11), 49 U.S.C. 1711(11)), BECAUSE IT WAS INTENDED THAT THE U.S. OR AN AGENCY THEREOF NO LONGER BE ELIGIBLE TO ACT AS A "SPONSOR" FOR A PROJECT FOR AIRPORT DEVELOPMENT (HOUSE CONFERENCE REPORT 91-1074, P. 32). BOTH THE OLD AND NEW AIRPORT ACTS DEFINED "SPONSOR" IN TERMS OF "PUBLIC AGENCY."

AS A CONCOMITANT TO THE CHANGE IN SPONSOR ELIGIBILITY, THE ALTERED DEFINITION OF PUBLIC AGENCY ALSO AFFECTS THE PROVISION REQUIRING A PUBLIC AGENCY TO HOLD GOOD TITLE SATISFACTORY TO THE SECRETARY. THE RESULT IS THAT AIRPORTS AT WHICH THE LANDING AREA (AS DEFINED IN AADA, SEC 11(6), 49 U.S.C. 1711(6)) IS OWNED BY THE UNITED STATES MAY NO LONGER BE CONSIDERED ELIGIBLE FOR GRANT ASSISTANCE UNDER AADA BECAUSE THE UNITED STATES IS NO LONGER A "PUBLIC AGENCY." THIS RESULT, ALBEIT CONSISTENT WITH THE DELETION OF THE U.S. AS AN ELIGIBLE SPONSOR, WORKS PERHAPS UNINTENDED CONSEQUENCES UPON THE PROGRAM FOR THE DEVELOPMENT OF MILITARY AIRPORTS FOR JOINT MILITARY AND CIVIL USE. ***

THE GENERAL COUNSEL SUBMITS IN THIS CONNECTION THAT THE FEDERAL AIRPORT ACT, THE PREDECESSOR OF THE AADA, REFLECTED THE INTENT OF CONGRESS TO FOSTER JOINT USE OF MILITARY AIRPORTS, AND THAT THE SAME INTENT CONTINUES UNDER THE AADA. SEE SECTION 12 OF THE AADA, PARTICULARLY SUBSECTION E, 49 U.S.C. 1712(E). IT IS EXPLAINED THAT UNDER THE AUTHORITY OF THE FEDERAL AIRPORT ACT, THE FAA HAD GIVEN GRANT ASSISTANCE TO MILITARY AIRPORTS WHICH WERE SUBJECT TO JOINT-USE AGREEMENTS. IN SUCH CASES, THE GRANT AGREEMENT WAS BETWEEN THE FAA AND THE CIVILIAN PARTY TO THE JOINT-USE AGREEMENT, WHICH SERVED AS SPONSOR FOR THE DEVELOPMENT PROJECT. THE TITLE TO THE LANDING AREA REMAINED IN THE FEDERAL GOVERNMENT, WHICH WAS RECOGNIZED AS A "PUBLIC AGENCY" UNDER THE PREDECESSOR STATUTE. THE GENERAL COUNSEL RECITES THE FAA INTERPRETATION OF THE GOOD TITLE REQUIREMENT APPLIED UNDER THE FEDERAL AIRPORT ACT AS FOLLOWS:

THE FAA HAS TO DATE CONSIDERED "GOOD TITLE" AS REQUIRING A FEE INTEREST BUT ONE SHORT OF FEE SIMPLE ABSOLUTE. THE FAA HAS NOT, IN THE CONTEXT OF A JOINT USE AGREEMENT, HAD TO CONSIDER WHETHER A LEASE-HOLD INTEREST OR MERE LICENSES IN THE LANDING AREA WERE GOOD TITLE FOR PURPOSES OF THE FEDERAL AIRPORT ACT. THE AGENCY HAS ACCEPTED A LEASE HOLD AS A SUFFICIENT PROPERTY INTEREST FOR A SPONSOR (14 CFR 151.25(C)(2)), PROVIDED, HOWEVER, THAT THE SPONSOR'S LESSOR IS A PUBLIC AGENCY WITH

TITLE FREE AND CLEAR OF ANY REVERSIONARY INTEREST, LIEN, EASEMENT, LEASE, OR OTHER ENCUMBERANCE THAT, IN THE OPINION OF THE ADMINISTRATOR, WOULD CREATE AN UNDUE RISK THAT IT MIGHT DEPRIVE THE SPONSOR OF POSSESSION OR CONTROL, INTERFERE WITH ITS USE FOR PUBLIC AIRPORT PURPOSES, OR MAKE IT IMPOSSIBLE FOR THE SPONSOR TO CARRY OUT THE AGREEMENTS AND COVENANTS IN THE APPLICATION." 14 CFR 151.25(C)(1). ***

WHILE THE TERM "PUBLIC AGENCY" AS USED IN THE ABOVE-CITED REGULATION IS NOT DEFINED THEREIN, THE GENERAL COUNSEL OBVIOUSLY INTERPRETS IT WITH REFERENCE TO THE APPLICABLE STATUTORY DEFINITION.

THE FAA IS WILLING TO CONSIDER WHETHER A JOINT-USE AGREEMENT, PARTICULARLY THE PROPOSED AGREEMENT BETWEEN THE DEPARTMENT OF THE NAVY AND THE TERRITORY OF GUAM, VESTS SUCH GOOD TITLE TO THE LANDING AREA IN A PUBLIC AGENCY AS MAY BE ACCEPTABLE TO THE SECRETARY. WE ARE ASKED WHETHER CERTIFICATION OF A VOUCHER TO PAY THE FEDERAL SHARE OF DEVELOPMENT OF A POINT-USE AIRPORT IN WHICH A PUBLIC AGENCY HOLDS ONLY SUCH INTEREST AS PROVIDED IN THE AGANA JOINT-USE AGREEMENT WOULD BE OBJECTIONABLE.

THE GENERAL COUNSEL STATES THAT "THE ISSUE FOR RESOLUTION IS WHETHER THE TERMS OF THE PROPOSED JOINT-USE AGREEMENT (ATTACHED) WILL VEST IN GUAM 'GOOD TITLE' TO THE LANDING AREA AS REQUIRED BY" SECTION 16(C)(1) OF THE AADA, 49 U.S.C. 1716(C)(1).

UNDER THE AADA SPONSORS ARE ELIGABLE TO RECEIVE GRANTS FOR AIRPORT PROJECTS OR PURPOSES; AND THE AADA DEFINES THE TERM "SPONSOR" IN TERMS OF "PUBLIC AGENCY." THE REASON FOR EXCLUDING THE "UNITED STATES GOVERNMENT OR ANY AGENCY THEREOF" FROM THE DEFINITION OF "PUBLIC AGENCY" WAS TO PRECLUDE ANY AGENCY OF THE UNITED STATES FROM ACTING AS A SPONSOR OF A PROJECT SO AS TO BE ENTITLED TO A GRANT UNDER THE AADA. THIS IS MADE CLEAR BY THE ACTIONS TAKEN BY THE CONGRESS IN ENACTING THE AADA AS DISCLOSED BY ITS LEGISLATIVE HISTORY. THE BILL WHICH BECAME THE AADA, AS PASSED BY THE HOUSE, DID NOT INCLUDE IN THE DEFINITION OF "PUBLIC AGENCY" THE "UNITED STATES GOVERNMENT OR ANY AGENCY THEREOF." THE REASON THEREFOR IS DISCLOSED BY HOUSE REPORT NO. 91-601 TO BE AS FOLLOWS:

THE DEFINITION OF THE TERM "PUBLIC AGENCY" CONTAINED IN EXISTING LAW IS EXPANDED TO INCLUDE ANY INDIAN TRIBE OR PUEBLO. THE DEFINITION IS OTHERWISE ALTERED BY THE DELETION OF REFERENCE TO THE U.S. GOVERNMENT OR ANY AGENCY THEREOF. UNDER EXISTING LAW, THE SECRETARY OF THE INTERIOR MAY SUBMIT PROJECT APPLICATIONS IN THE CASE OF A PROJECT FOR AIRPORT DEVELOPMENT IN, OR IN CLOSE PROXIMITY TO, A NATIONAL PARK, NATIONAL RECREATION AREA, OR NATIONAL MONUMENT, OR IN A NATIONAL FOREST, OR A SPECIAL RESERVATION FOR GOVERNMENT PURPOSES AND MONEY IN THE DISCRETIONARY FUND IS MADE AVAILABLE FOR APPROVED PROJECTS FOR AIRPORT DEVELOPMENT BY THE DEPARTMENT OF THE INTERIOR.

HOWEVER, THOSE PROVISIONS ARE NOT INCORPORATED IN THE REPORTED BILL, AND THEREFORE, THE DEFINITION OF "PUBLIC AGENCY" IS NARROWED AS A CONFORMING CHANGE. UNDER THE REPORTED BILL THE VARIOUS DEPARTMENTS OF THE EXECUTIVE BRANCH CANNOT BECOME INVOLVED AS A SPONSOR OF A PROJECT FOR AIRPORT DEVELOPMENT UNDER THE FEDERAL-AID AIRPORT PROGRAM. PROVISION IS RETAINED AS IN THE CASE OF THE EXISTING PROGRAM FOR THE SPONSORSHIP OF AIRPORT DEVELOPMENT PROJECTS BY THE VIRGIN ISLANDS, GUAM, AND THE COMMONWEALTH OF PUERTO RICO.

THE SAME BILL AS PASSED BY THE SENATE WAS AMENDED TO INCLUDE THE "UNITED STATES GOVERNMENT OR ANY AGENCY THEREOF" WITHIN THE DEFINITION OF "PUBLIC AGENCY." THE BILL THEN WENT TO CONFERENCE AND THE CONFEREES ADOPTED THE HOUSE DEFINITION OF "PUBLIC AGENCY" AND THE BILL WAS THEN ENACTED INTO LAW. THE STATEMENT OF THE MANAGERS ON THE PART OF THE HOUSE APPEARING IN THE CONFERENCE REPORT (HOUSE REPORT NO. 91-1074) DISCLOSES THAT:

SECTION 11(11) OF THE HOUSE BILL DEFINED THE TERM "PUBLIC AGENCY" AS A STATE, PUERTO RICO, THE VIRGIN ISLANDS, OR GUAM, OR ANY AGENCY OF ANY OF THEM; A MUNICIPALITY OR OTHER POLITICAL SUBDIVISION; OR A TAX SUPPORTED ORGANIZATION; OR AN INDIAN TRIBE OR PUEBLO.

SECTION 201(12) OF THE SENATE AMENDMENT CONTAINED A SIMILAR DEFINITION OF THE SAME TERM EXCEPT THAT, UNDER THE SENATE AMENDMENT, THE TERM ALSO INCLUDED THE UNITED STATES GOVERNMENT OR ANY AGENCY THEREOF.

SECTION 11(11) OF THE CONFERENCE AGREEMENT FOLLOWS THE HOUSE VERSION AND OMITS ANY REFERENCE TO THE UNITED STATES GOVERNMENT OR ANY AGENCY THEREOF BECAUSE, UNDER THE AGREEMENT REACHED BY THE CONFEREES, NO UNITED STATES AGENCY CAN ACT AS A SPONSOR OF A PROJECT FOR AIRPORT DEVELOPMENT UNDER THE AIRPORT AND AIRWAY DEVELOPMENT ACT OF 1970. IT WAS NECESSARY TO OMIT THE REFERENCE TO UNITED STATES AGENCIES IN THIS DEFINITION BECAUSE THE DEFINITION OF THE TERM "SPONSOR" USES THE TERM "PUBLIC AGENCY."

SECTION 206(B) OF THE SENATE AMENDMENT PROVIDED THAT NOTHING IN THE SENATE AMENDMENT WOULD AUTHORIZE THE SUBMISSION OF A PROJECT APPLICATION BY THE UNITED STATES OR ANY AGENCY THEREOF, EXCEPT IN THE CASE OF A PROJECT IN PUERTO RICO, THE VIRGIN ISLANDS, GUAM, OR IN, CLOSE PROXIMITY TO, A NATIONAL PARK, NATIONAL RECREATION AREA, OR NATIONAL MONUMENT, OR IN A NATIONAL FOREST, OR A SPECIAL RESERVATION FOR GOVERNMENT PURPOSES.

THE HOUSE BILL CONTAINED NO CORRESPONDING PROVISION.

IN ACCORDANCE WITH THE AGREEMENT REACHED BY THE CONFEREES THAT NO UNITED STATES AGENCY CAN ACT AS A SPONSOR OF AN AIRPORT DEVELOPMENT PROJECT UNDER THE AIRPORT AND AIRWAY DEVELOPMENT ACT OF 1970, THIS PROVISION OF THE SENATE AMENDMENT IS OMITTED FROM THE CONFERENCE AGREEMENT.

FROM THE FOREGOING LEGISLATIVE HISTORY IT IS CLEAR - AS INDICATED ABOVE - THAT THE REASON FOR EXCLUDING THE "UNITED STATES GOVERNMENT OR ANY AGENCY THEREOF" FROM THE DEFINITION OF "PUBLIC AGENCY" WAS TO PRECLUDE A FEDERAL AGENCY FROM ACTING AS A SPONSOR OF A PROJECT FOR AIRPORT DEVELOPMENT. FOUND NOTHING IN THE LEGISLATIVE HISTORY TO INDICATE THAT IN EXCLUDING FEDERAL AGENCIES FROM THE DEFINITION OF "PUBLIC AGENCY" IT WAS INTENDED THAT OTHERWISE ELIGIBLE SPONSORS WOULD BE PRECLUDED FROM RECEIVING GRANTS BECAUSE THE SPONSOR'S ENTITLEMENT TO USE THE LAND INVOLVED WAS BASED ON A JOINT-USE AGREEMENT, WITH A MILITARY DEPARTMENT, TITLE TO THE LAND INVOLVED REMAINING IN THE UNITED STATES. IN FACT, AS INDICATED IN THE LETTER OF FAA'S GENERAL COUNSEL IT APPEARS FROM SECTION 12(E) OF THE AADA THAT THE CONGRESS INTENDED TO FOSTER THE JOINT (CIVIL) USE OF MILITARY AIRPORTS.

THUS, WHILE THE MATTER IS NOT FREE FROM DOUBT, IN LIGHT OF THE FOREGOING WE WOULD NOT QUESTION A DETERMINATION BY THE SECRETARY OF TRANSPORTATION IN THE INSTANT CASE THAT THE PROPOSED JOINT-USE AGREEMENT INVOLVED HERE WILL GIVE GUAM "GOOD TITLE SATISFACTORY TO THE SECRETARY" FOR PURPOSES OF THE AADA, PROVIDED THE SECRETARY DETERMINES THE GRANT WILL EFFECTUATE THE PURPOSES OF THE AADA. WE NOTE THE INTRODUCTION ON MARCH 7, 1972, OF A BILL, S. 3302, WHICH WOULD AMEND SECTION 16(C)(1) OF THE AADA SO AS TO CLARIFY THE EFFECT OF THE SECTION IN CASES OF GRANT ASSISTANCE TO AIRPORTS WHERE THE LANDING AREA IS OWNED BY THE UNITED STATES.