B-176486, AUG 9, 1972, 52 COMP GEN 73

B-176486, AUG 9, 1972, 52 COMP GEN 73

FEES - AIRPORT DEPARTURES - REIMBURSEMENT THE AIRPORT FEES MILITARY AND CIVILIAN PERSONNEL ARE REQUIRED TO PAY WHEN DEPARTING FROM AIRPORTS INCIDENT TO THE OFFICIAL TRAVEL OF THEMSELVES AND THEIR IMMEDIATE FAMILIES AND DEPENDENTS ARE REIMBURSABLE, IF THE CHARGES ARE REASONABLE, AS TRANSPORTATION EXPENSES ON THE BASIS THE SUPREME COURT IN 92 S. CT. 1349(1972) HELD THAT A USER FEE IMPOSED ON DEPARTING PASSENGERS DOES NOT INVOLVE AN UNCONSTITUTIONAL BURDEN ON INTERSTATE COMMERCE, AND THAT IF THE FUNDS RECEIVED BY LOCAL AUTHORITIES DO NOT EXCEED AIRPORT COSTS, IT IS IMMATERIAL WHETHER THEY ARE EXPRESSLY EARMARKED FOR AIRPORT USE. HOWEVER, AS FEES IMPOSED ON ARRIVING PASSENGERS ARE HELD TO BE AN UNREASONABLE INTERFERENCE WITH INTERSTATE COMMERCE, THEY MAY NOT BE REIMBURSED, BUT IF FOUND VALID UPON APPEAL, REIMBURSEMENT IS AUTHORIZED ON THE SAME BASIS AS DEPARTURE FEES.

TO THE SECRETARY OF DEFENSE, AUGUST 9, 1972:

WE REFER TO LETTER OF JULY 11, 1972, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), REQUESTING OUR DECISION WHETHER AIRPORT FEES WHICH MILITARY AND CIVILIAN PERSONNEL ARE REQUIRED TO PAY WHEN DEPARTING FROM AND ARRIVING AT CERTAIN AIRPORTS (ESPECIALLY PHILADELPHIA, PA.) OFFICIAL TRAVEL MAY PROPERLY BE REIMBURSED BY THE DEPARTMENT OF DEFENSE.

THE ASSISTANT SECRETARY REFERS TO THE SUPREME COURT DECISION IN EVANSVILLE-VANDERBURGH AIRPORT AUTHORITY DISTRICT V. DELTA AIRLINES, INC., 92 S. CT. 1349(1972) IN WHICH IT WAS HELD THAT THE $1 USER FEE IMPOSED ON PASSENGERS DEPARTING FROM THE AIRPORT OPERATED BY THE EVANSVILLE AUTHORITY AND THE SIMILAR FEE IMPOSED ON PASSENGERS DEPARTING FROM AIRPORTS IN THE STATE OF NEW HAMPSHIRE DID NOT INVOLVE AN UNCONSTITUTIONAL BURDEN ON INTERSTATE COMMERCE. FURTHER, HE INDICATES THAT SEVERAL JURISDICTIONS IN ADDITION TO THE TWO INVOLVED IN THE EVANSVILLE DECISION HAVE IMPOSED AIRPORT FEES ON DEPARTING PASSENGERS AND THAT PHILADELPHIA HAS IMPOSED A $2 AIRPORT FEE ON ARRIVING AS WELL AS DEPARTING PASSENGERS.

THE QUESTIONS PRESENTED ARE WHETHER THE DEPARTMENT OF DEFENSE MAY REIMBURSE CIVILIAN EMPLOYEES AND MEMBERS OF THE UNIFORMED SERVICES FOR AIRPORT FEES THEY ARE REQUIRED TO PAY INCIDENT TO OFFICIAL TRAVEL OF THEMSELVES AND THEIR IMMEDIATE FAMILIES AND DEPENDENTS AND WHETHER THE JOINT TRAVEL REGULATIONS, VOLUME 1, MAY BE AMENDED EFFECTIVE JULY 1, 1972, TO AUTHORIZE REIMBURSEMENT TO THE CATEGORIES OF PERSONNEL ENUMERATED IN 37 U.S.C. 410(A).

IN ARRIVING AT ITS DECISION IN THE CITED CASE THE SUPREME COURT HELD THAT THE $1 AIRPORT FEE IMPOSED BY THE AUTHORITY AND STATE INVOLVED REFLECTED A FAIR APPROXIMATION OF THE COST OF THE SERVICES FURNISHED. SUCH CHARGES WERE NOT CONSIDERED A BURDEN OR TAX ON INTERSTATE COMMERCE AND THUS WERE NOT IN VIOLATION OF THE COMMERCE CLAUSE, ARTICLE 1, SECTION 8, OF THE UNITED STATES CONSTITUTION. ALTHOUGH THE COURT DID NOT FULLY ANALYZE THE RELATIONSHIP OF THE CHARGES TO THE COSTS OF OPERATING THE AIRPORTS IT INDICATED THAT THE PARTIES CONTESTING THE CHARGE HAD NOT SUSTAINED THE BURDEN OF SHOWING THE CHARGES TO BE UNREASONABLE. THE COURT ALSO HELD WITH REGARD TO THE NEW HAMPSHIRE PAYMENT OF ONE-HALF OF THE FEES COLLECTED TO THE GENERAL REVENUES OF THE JURISDICTIONS OWNING THE AIRPORT LAND THAT "SO LONG AS THE FUNDS RECEIVED BY LOCAL AUTHORITIES UNDER THE STATUTE ARE NOT SHOWN TO EXCEED THEIR AIRPORT COSTS, IT IS IMMATERIAL WHETHER THOSE FUNDS ARE EXPRESSLY EARMARKED FOR AIRPORT USE."

ANOTHER MATTER FOR CONSIDERATION IS THE GENERAL RULE OF FEDERAL IMMUNITY FROM STATE AND LOCAL TAXES. SINCE THAT IMMUNITY DOES NOT EXTEND TO REASONABLE USER CHARGES IMPOSED BY STATE OR LOCAL AUTHORITIES FOR SERVICES RENDERED TO OR FACILITIES USED BY THE FEDERAL GOVERNMENT (50 COMP. GEN. 343(1970) AND CASES CITED THEREIN) THE DETERMINATION MADE UNDER THE COMMERCE CLAUSE MAY BE VIEWED AS DISPOSING OF THE QUESTION OF TAX IMMUNITY. THUS, WHILE REASONABLE CHARGES MAY BE PAID BY THE UNITED STATES, AN UNREASONABLE CHARGE WOULD BE CONSIDERED A TAX FROM WHICH THE FEDERAL GOVERNMENT IS IMMUNE.

WITH RESPECT TO THE FEES CHARGED BY THE CITY OF PHILADELPHIA WE HAVE BEEN ADVISED THAT THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY HAS ENJOINED THE CHARGE OF THE $2 FEE ON ARRIVING PASSENGERS FOR THE REASON THAT THIS CHARGE CONSTITUTED AN UNREASONABLE INTERFERENCE WITH INTERSTATE COMMERCE. THE $2 FEE ON DEPARTING PASSENGERS, HOWEVER, WAS ALLOWED TO STAND. UNDERSTAND FURTHER THAT THE PHILADELPHIA CITY COUNCIL IS CONSIDERING AN AMENDMENT TO THE ORDINANCE INVOLVED UNDER WHICH THE ARRIVAL FEE WOULD BE RESCINDED, THE DEPARTURE FEE WOULD BE INCREASED TO $3 AND UNITED STATES MILITARY PERSONNEL ON ACTIVE DUTY WOULD BE EXEMPTED.

IN VIEW OF THE FOREGOING OUR VIEW IS THAT A CIVILIAN EMPLOYEE OF THE UNITED STATES OR MEMBER OF THE UNIFORMED SERVICES TRAVELING BY AIR ON OFFICIAL BUSINESS WHO IS REQUIRED TO PAY A DEPARTURE FEE IMPOSED FOR THE PURPOSE OF RECOVERING AIRPORT OPERATING AND MAINTENANCE COSTS WOULD HAVE NO PROPER BASIS FOR REFUSING TO PAY SUCH FEE. SIMILARLY, SUCH EMPLOYEES AND MEMBERS COULD NOT REFUSE TO PAY THOSE FEES ON BEHALF OF THE MEMBERS OF THEIR IMMEDIATE FAMILIES OR DEPENDENTS TRAVELING AT GOVERNMENT EXPENSE. ACCORDINGLY, DEPARTURE FEES PROPERLY PAID IN CONNECTION WITH OFFICIAL TRAVEL MAY BE REIMBURSED TO SUCH PERSONNEL. HOWEVER, AS THE LANDING FEE IN PHILADELPHIA HAS BEEN HELD BY THE COURTS TO BE INVALID AND ASSUMING THIS DECISION WILL BE SUSTAINED BY SUPERIOR COURTS, REIMBURSEMENT OF THE LANDING FEE TO THOSE WHO MAY HAVE PAID IT IS NOT AUTHORIZED. WE ASSUME THAT PROCEDURES WILL BE ADOPTED BY THE CITY OF PHILADELPHIA OR THE AIRLINES INVOLVED FOR REFUND OF THOSE FEES TO THE INDIVIDUALS WHO HAVE PAID THE SAME. IN THE EVENT THAT THE ARRIVAL FEE IS HELD TO BE VALID UPON APPEAL REIMBURSEMENT TO EMPLOYEES OF THAT FEE WOULD BE AUTHORIZED ON THE SAME BASIS AS REIMBURSEMENT OF DEPARTURE FEES IS AUTHORIZED HEREIN.

WE BELIEVE THE FEES ARE TO BE REGARDED AS A TRANSPORTATION EXPENSE. CONNECTION WITH CIVILIAN TRAVEL SEE SECTIONS 2.1 AND 9.1D OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS.

WHILE WE DO NOT CONSIDER AN AMENDMENT IS NECESSARY TO THE JOINT TRAVEL REGULATIONS, VOLUME 1, TO PERMIT REIMBURSEMENT OF THE DEPARTURE FEES IN CASES WHERE A SPECIFIC EXEMPTION IS NOT APPLICABLE, APPROPRIATE AMENDMENTS COULD BE MADE TO THE REGULATIONS TO SPECIFICALLY AUTHORIZE SUCH PAYMENT IF DEEMED ADMINISTRATIVELY DESIRABLE. REIMBURSEMENT OF FEES PAID BY THE CATEGORIES OF PERSONS COVERED BY 37 U.S.C. 410(A) IS AUTHORIZED ON THE SAME BASIS.