B-210555.11, APR 1, 1986, OFFICE OF GENERAL COUNSEL

B-210555.11, APR 1, 1986, OFFICE OF GENERAL COUNSEL

SAINT LAWRENCE SEAWAY - DEVELOPMENT CORPORATION - APPROPRIATIONS - USER FEES - STATUS DIGEST: 1. THE SAINT LAWRENCE SEAWAY DEVELOPMENT CORPORATION OPERATES WITH APPROPRIATED FUNDS, DESPITE THE FACT THAT THE SOURCE OF THOSE FUNDS IS USER FEES. FURTHER THE CORPORATION IS A WHOLLY OWNED GOVERNMENT CORPORATION, SUBJECT TO THE HOME-TO-WORK TRANSPORTATION PROHIBITION OF 31 U.S.C. SEC. 1344. AN ANALYSIS OF THE ORIGINAL 1946 ACT WHICH ENACTED THE PROHIBITION CLEARLY INDICATES THAT WHOLLY OWNED GOVERNMENT CORPORATIONS ARE SUBJECT TO THE PROHIBITION. SUBSEQUENT CODIFICATION OF TITLE 31 DID NOT EFFECT ANY CHANGE IN SUBSTANTIVE LAW.

FREDERICK A. BUSH, ESQ.:

CHIEF COUNSEL

SAINT LAWRENCE SEAWAY

DEVELOPMENT CORPORATION

THIS IS IN RESPONSE TO YOUR LETTER DATED SEPTEMBER 30, 1985 TO MR. WILLIAM J. ANDERSON, DIRECTOR OF OUR GENERAL GOVERNMENT DIVISION. IN YOUR LETTER, YOU ARGUED THAT THE SAINT LAWRENCE SEAWAY DEVELOPMENT CORPORATION SHOULD BE TREATED SIMILARLY TO OTHER GOVERNMENT CORPORATIONS WHICH WE FOUND IN A RECENT REPORT TO BE NOT SUBJECT TO THE HOME-TO-WORK TRANSPORTATION PROHIBITION OF 31 U.S.C. SEC. 1344. SEE USE OF GOVERNMENT MOTOR VEHICLES FOR THE TRANSPORTATION OF GOVERNMENT OFFICIALS AND THE RELATIVES OF GOVERNMENT OFFICIALS, GAO/GGD-85-76, SEPTEMBER 16, 1985. YOU CONCLUDE THAT "IT WOULD SEEM TO FOLLOW THAT THE GENERAL ACCOUNTING OFFICE WOULD RAISE NO OBJECTION TO THE SEAWAY DEVELOPMENT CORPORATION PROVIDING HOME-TO-WORK TRANSPORTATION ON THE BASIS THAT 'NO APPROPRIATED FUNDS ARE USED.'" AS SET FORTH BELOW, WE CONCLUDE THAT THE SEAWAY DEVELOPMENT CORPORATION DOES OPERATE WITH APPROPRIATED FUNDS AND IS THEREFORE SUBJECT TO THE HOME-TO-WORK TRANSPORTATION PROHIBITION OF 31 U.S.C. SEC. 1344. /1/

THIS OFFICE DEALT WITH THE STATUS OF THE FUNDS AVAILABLE TO THE SAINT LAWRENCE SEAWAY DEVELOPMENT CORPORATION IN B-193573, DECEMBER 19, 1979, MODIFYING IN PART, B-193573, JANUARY 8, 1979. IN THAT CASE, WE REAFFIRMED OUR EARLIER CONCLUSION THAT "THE CORPORATION'S FUNDS ARE APPROPRIATED FUNDS, DESPITE THE FACT THAT THE SOURCE OF SUCH FUNDS IS USER FEES." HOWEVER, WE ALSO CONCLUDED THAT THE SEAWAY DEVELOPMENT CORPORATION HAD "BROAD DISCRETION IN THE OBLIGATION AND EXPENDITURE OF ITS FUNDS" IN VIEW OF A PROVISION IN ITS ENABLING LEGISLATION, 33 U.S.C. SEC. 984(A)(9), WHICH PERMITS THE CORPORATION TO:

"*** DETERMINE THE CHARACTER OF AND THE NECESSITY FOR ITS OBLIGATIONS AND EXPENDITURES, AND THE MANNER IN WHICH THEY SHALL BE INCURRED, ALLOWED AND PAID, SUBJECT TO PROVISIONS OF LAW SPECIFICALLY APPLICABLE TO GOVERNMENT CORPORATIONS ***."

WE FURTHER CONCLUDED THAT THIS PROVISION LEFT THE CORPORATION "SUBJECT ONLY TO RESTRICTIONS ON ITS USE OF APPROPRIATIONS THAT CAN BE DIRECTLY IMPLIED FROM ITS ENABLING LEGISLATION, THAT ARE INCLUDED IN APPROPRIATION ACTS APPLICABLE TO THE CORPORATION, OR THAT ARE MADE SPECIFICALLY APPLICABLE TO GOVERNMENT CORPORATIONS."

WE NOW CONCLUDE THAT THE HOME-TO-WORK TRANSPORTATION PROHIBITION OF 31 U.S.C. SEC. 1344 IS APPLICABLE TO THE SEAWAY DEVELOPMENT CORPORATION BECAUSE IT CONSTITUTES AN APPROPRIATION RESTRICTION "MADE SPECIFICALLY APPLICABLE TO GOVERNMENT CORPORATIONS." THE PROHIBITION AS CODIFIED AT 31 U.S.C. SEC. 1344 IS SILENT AS TO ITS APPLICABILITY. HOWEVER, WHEN THE PROHIBITION WAS FIRST ENANCTED, PUB.L. NO. 600, SEC. 5, AUGUST 2, 1946, 60 STAT. 806, 810, IT PROVIDED AS FOLLOWS:

"(C) UNLESS OTHERWISE SPECIFICALLY PROVIDED, NO APPROPRIATION AVAILABLE FOR ANY DEPARTMENT SHALL BE EXPENDED--

"(2) FOR THE MAINTENANCE, OPERATION, AND REPAIR OF ANY GOVERNMENT OWNED PASSENGER MOTOR VEHICLE OR AIRCRAFT NOT USED EXCLUSIVELY FOR OFFICIAL PURPOSES; AND 'OFFICIAL PURPOSES' SHALL NOT INCLUDE THE TRANSPORTATION OF OFFICERS AND EMPLOYEES BETWEEN THEIR DOMICILES AND PLACES OF EMPLOYMENT, EXCEPT (MEDICAL OFFICERS AND FIELD WORKERS) AND THEN ONLY AS TO SUCH LATTER CASES WHEN THE SAME IS APPROVED BY THE HEAD OF THE DEPARTMENT CONCERNED."

SECTION 18 OF THE 1946 ACT, 60 STAT. 811, PROVIDED FURTHER:

"THE WORD 'DEPARTMENT' AS USED IN THIS ACT SHALL BE CONSTRUED TO INCLUDE INDEPENDENT ESTABLISHMENTS, OTHER AGENCIES, WHOLLY OWNED GOVERNMENT CORPORATIONS *** AND THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, BUT SHALL NOT INCLUDE THE SENATE, HOUSE OF REPRESENTATIVES, OR OFFICE OF THE ARCHITECT OF THE CAPITOL, OR THE OFFICERS OR EMPLOYEES THEREOF."

ACCORDINGLY, THE HOME-TO-WORK TRANSPORTATION PROHIBITION IS EXPRESSLY APPLICABLE TO WHOLLY OWNED GOVERNMENT CORPORATIONS. ALTHOUGH THE CURRENT CODIFICATION OF TITLE 31 DOES NOT INCLUDE THE APPLICABILITY DISTINCTIONS CONTAINED IN THE ORIGINAL ACT, THE CODIFICATION WAS NOT INTENDED TO EFFECT ANY CHANGE IN SUBSTANTIVE LAW. SEE PUB.L. NO. 97 258, SEC. 4(A) 96 STAT. 877, 1067 (1982). ACCORDINGLY, WE CONCLUDE THAT WHOLLY OWNED CORPORATIONS ARE SUBJECT TO THE HOME-TO-WORK PROHIBITION OF 31 U.S.C. SEC. 1344. THE SAINT LAWRENCE SEAWAY DEVELOPMENT CORPORATION IS A WHOLLY OWNED GOVERNMENT CORPORATION. 31 U.S.C. SEC. 9101(3)(K) (1982); B-190275, OCTOBER 12, 1977. IT IS, THEREFORE, SUBJECT TO THE HOME-TO-WORK RESTRICTION.

/1/ WE NOTE THAT THE LEGAL CONCLUSIONS IN OUR JUNE 28 REPORT REGARDING THE AUTHORITY, OR LACK OF AUTHORITY, FOR THE HOME-TO-WORK TRANSPORTATION OF SPECIFIC INDIVIDUALS REPRESENTED THE PRELIMINARY VIEWS OF THE GENERAL ACCOUNTING OFFICE, OFFICE OF GENERAL COUNSEL, BASED ON ITS REVIEW OF INFORMATION PROVIDE BY AGENCIES IN RESPONSE TO OUR INQUIRIES. THOSE CONCLUSIONS SHOULD NOT BE TREATED AS FORMAL DECISIONS OF THE COMPTROLLER GENERAL.