Use of Appropriated Funds to Provide Light Refreshments to Non-Federal Participants at EPA Conferences

Use of Appropriated Funds to Provide
Light Refreshments to Non-Federal
Participants at EPA Conferences
Light refreshments are “subsistence expenses” to which the prohibition of 31 U.S.C. § 1345 applies,
and various statutory provisions that authorize the Environmental Protection Agency to hold
meetings, conduct training, and provide grants do not satisfy the “specifically provided by law”
exception to the prohibition.
A violation of section 1345 does not, by its own force, also violate the Anti-Deficiency Act.

April 5, 2007

MEMORANDUM OPINION FOR THE GENERAL COUNSEL
ENVIRONMENTAL PROTECTION AGENCY

You have asked whether the Environmental Protection Agency (“EPA”) may,
consistent with 31 U.S.C. § 1345 (2000), use appropriations to provide light
refreshments to non-federal participants at EPA conferences. We conclude that
light refreshments, as you have described them, are “subsistence expenses” to
which the prohibition of section 1345 applies, and that the various provisions you
have cited that authorize the EPA to hold meetings, conduct training, and provide
grants do not, in the words of section 1345, “specifically provide[]” for the EPA to
use an appropriation for subsistence expenses for a meeting. You have further
asked that, if we reach these conclusions, we determine whether a violation of
section 1345 also would violate the Anti-Deficiency Act (“ADA” or “Act”), as
codified at 31 U.S.C. § 1341(a)(1) (2000). Because the prohibition in section 1345
is not, in the words of that Act, “in an appropriation . . . for the expenditure or
obligation,” id. § 1341(a)(1)(A), we conclude that a violation of section 1345 does
not, by its own force, also violate the Anti-Deficiency Act.

I.

The EPA’s various statutory missions, you have explained, are furthered by the
EPA’s providing opportunities for federal officials and employees and persons
who are not federal employees to exchange information at meetings, including
conferences. You have noted several sources of statutory authority, which we
discuss below, under which the EPA holds such meetings and conferences. To
facilitate these activities, the EPA wishes, when appropriate, to provide light
refreshments—bottled water, coffee, bagels, and the like—to all participants,
including those attendees who are not federal employees.
Section 1345 provides as follows:

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 Use of Appropriated Funds to Provide Light Refreshments at EPA Conferences

Except as specifically provided by law, an appropriation may not be
used for travel, transportation, and subsistence expenses for a meet-
ing. This section does not prohibit—

(1) an agency from paying the expenses of an officer or employee
of the United States Government carrying out an official duty;
and

(2) the Secretary of Agriculture from paying necessary expenses
for a meeting called by the Secretary for 4-H Boys and Girls
Clubs as part of the cooperative extension work of the Depart-
ment of Agriculture.

31 U.S.C. § 1345. In 2005, the Comptroller General opined that the National
Institutes of Health could pay for light refreshments at a government-sponsored
conference because, among other things, “formal conferences” are not “meetings”
under this section. National Institutes of Health—Food at Government-Sponsored
Conferences, B-300826, 2005 WL 502825, at *4 (Mar. 3) (“NIH Opinion”).
This Office, however, concluded in 2004 that a “fellowship program that would
bring representatives from various countries to the United States” is a “meeting”
under section 1345. Use of Appropriations to Pay Travel Expenses of Internation-
al Trade Administration Fellows, 28 Op. O.L.C. 269, 269 (2004) (“ITA Opinion”).
Focusing on the statutory text, we reasoned that such a fellowship program would
“[i]n everyday usage . . . involve a ‘meeting’—indeed, several meetings.” Id. at
270. We distinguished, and questioned the reasoning of, a 1993 Comptroller
General opinion interpreting the term “meeting” in light of the floor statements of
a few members of Congress at the time of the statute’s original enactment, see id.
at 273–74, and instead agreed with the Comptroller General’s pre-1993 interpreta-
tions, see id. at 271-72. In his NIH Opinion, the Comptroller General relied on his
1993 opinion, even while recognizing that it “effectively overrul[ed] prior
[Government Accountability Office (“GAO”)] decisions that applied section 1345
to meetings and conferences other than assemblages and gatherings that private
organizations sought to hold at government expense.” NIH Opinion, 2005 WL
502825, at *5 n.5.
For the Executive Branch, this Office’s interpretation of the term “meeting” in
the ITA Opinion necessarily continues to control notwithstanding the subsequent
decision of the Comptroller General. 1 Because, under this interpretation, section
1345 applies in more instances than it would under the Comptroller General’s

1
The Comptroller General is an agent of Congress. Therefore, although his views often provide
helpful guidance on appropriations matters and related issues, they do not bind the Executive Branch.
See, e.g., Submission of Aviation Insurance Program Claims to Binding Arbitration, 20 Op. O.L.C.
341, 343 n.3 (1996).

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view, and given the different approaches by this Office and the GAO to interpret-
ing section 1345, you have sought our views on the scope of that section’s
reference to “subsistence expenses.” You have further asked whether, if light
refreshments are “subsistence expenses,” various statutory provisions applicable to
the EPA “specifically provide[]” for use of an appropriation for such expenses for
a meeting; and whether, if section 1345 does prohibit such use of an appropriation,
a violation of section 1345 also would violate the Anti-Deficiency Act. We answer
each question in turn.

II.

The answer to your first question is not beyond debate, but the better reading is
that the costs of light refreshments, such as you have described them, are “subsist-
ence expenses” under section 1345. This conclusion rests on the text, context, and
statutory history of section 1345, and is consistent with the views of the Comptrol-
ler General.
Dictionaries define “subsistence” to mean “the irreducible minimum (as of food
and shelter) necessary to support life.” Webster’s Third New International
Dictionary 2279 (1993); see also Webster’s Ninth New Collegiate Dictionary 1176
(1984) (“the minimum (as in food and shelter) necessary to support life”); The
American Heritage Dictionary of the English Language 1791 (3d ed. 1992) (“[a]
means of subsisting, especially means barely sufficient to maintain life”). Thus,
“food” of some sort is included within “subsistence.” These definitions do not
obviously indicate a distinction between food that could be called a “meal” and
food that could be called a light refreshment, and many sorts of food could be used
for either purpose. In one sense, light refreshments fall more readily within the
meaning of “subsistence” than do meals, as the former may be thought of as
minimal (or marginal) resources for subsistence, in contrast to more substantial
“meals.” On the other hand, one could view light refreshments as supplementing
meals. But these definitions at least do not exclude light refreshments from the
category of “subsistence” and do suggest the possibility of including them.
Although simple dictionary definitions are thus inconclusive, the use of the
term “subsistence” elsewhere in the U.S. Code in analogous circumstances, and
particularly its use elsewhere in title 31, indicates that “subsistence” as used in
section 1345 does include light refreshments. Under 31 U.S.C. § 326(b) (2000),
the Secretary of the Treasury “may approve reimbursement to agents on protective
missions for subsistence expenses authorized by law without regard to rates and
amounts established under section 5702 of title 5,” which sets the per diem rates
for federal employees on travel. Those per diem rates, in turn, incorporate a
definition of “subsistence” as “lodging, meals, and other necessary expenses for
the personal sustenance and comfort of the traveler.” 5 U.S.C. § 5701(3) (2000);
see also 2 U.S.C. § 68b (2000) (incorporating this definition of “subsistence” from
section 5701 for officers and employees of the Senate). The use of the phrase
“other necessary expenses” after the word “meals” in section 5701’s definition of

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“subsistence” indicates that “subsistence expenses” include more than just “meals”
(or lodging). In context, the definition of the term “subsistence” permits the
government to reimburse employees for the amount of food that a typical employ-
ee eats in one day, without reference to whether the employee consumes the food
in two or three meals or, instead, two or three meals supplemented with a snack or
two. Light refreshments are therefore fairly included within the terms of the
residual category of “necessary expenses” for “personal sustenance and comfort”
for which employees may be reimbursed and, by extension, fairly included within
the broader term “subsistence expenses.”
In addition, 31 U.S.C. § 3903(c) (2000) permits agencies to procure by contract
“subsistence items.” See also 31 U.S.C. § 1501(a)(4)(B) (2000) (authorizing
recording amounts as obligations of the United States government when supported
by an order purchasing “perishable subsistence supplies”). And 31 U.S.C.
§ 1353(a) (2000) authorizes the Administrator of General Services to “prescribe by
regulation the conditions under which an agency in the executive branch . . . may
accept payment, or authorize an employee of such agency to accept payment on
the agency’s behalf, from non-Federal sources for . . . subsistence.” We are aware
of no authority suggesting that contracts for “subsistence items,” orders for
“perishable subsistence supplies,” and acceptance of payment for “subsistence”
under these sections can include meals, or the ingredients for meals—that is,
food—yet somehow exclude food that is or may be used as light refreshments, nor
do we see a basis for such a view. Thus, the use of the term “subsistence” in these
provisions as well is better read to include light refreshments.
The statutory history of section 1345 further indicates that “subsistence expens-
es” include the cost of light refreshments. What is now section 1345 was enacted
as section 551 of title 31 in 1935. See Pub. Res. No. 74-2, 49 Stat. 19, 19 (1935)
(codified at 31 U.S.C. § 551 (Supp. I 1935)). Section 551 provided, “[u]nless
specifically provided by law, no moneys from funds appropriated for any purpose
shall be used for the purpose of lodging, feeding, conveying, or furnishing
transportation to, any conventions or other form of assemblage or gathering to be
held in the District of Columbia or elsewhere.” Id. (emphasis added). According to
the statutory findings, “numerous applications [were] being received from various
organizations requesting lodging, food, and transportation for the purpose of
holding conventions or meetings at Washington and elsewhere,” and “the expendi-
ture of Government funds for such purposes is against the policy of Congress.” Id.
(emphasis added). The terms “feeding” and particularly “food” include light
refreshments, and when Congress in 1982 as part of recodifying title 31 moved
section 551 to section 1345 and substituted the current language, including the
term “subsistence,” see Pub. L. No. 97-258, sec. 1, § 1345, 96 Stat. 877, 925
(1982), it explained that such revisions should “not be construed as making a
substantive change in the laws replaced,” id. sec. 4(a), 96 Stat. at 1067.
Our conclusion regarding the term “subsistence expenses” under section 1345
also is consistent with the views of the Comptroller General regarding both section

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1345 and its predecessor. Most significantly, soon after Congress enacted section
551, the Comptroller General opined that, because of section 551, appropriations
for the American Battle Monuments Commission “are not available for such items
of expenditure as ‘transportation to and from monument sites’ and ‘light refresh-
ments.’” Conventions and Gatherings—Lodging, Feeding, and Transporting, 14
Comp. Gen. 851, 852 (1935) (emphasis added). More recently, the Comptroller
General has opined that section 1345 prohibits expenditures for “food and
lodging.” National Highway Traffic Safety Administration—Travel and Lodging
Expenses, 62 Comp. Gen. 531, 531–32 (1983) (“NHTSA Opinion”) (emphasis
added). The Comptroller General also has used the term “subsistence” in related
contexts without distinguishing between meals and light refreshments. For
example, he has opined that authority in a statute to conduct a meeting “is not
sufficient to authorize payment from appropriated funds of the attendees’ subsis-
tence expenses,” by which he meant both “meals” and “refreshments.” Coast
Guard—Coffee Break Refreshments at Training Exercise—Non-Federal Person-
nel, B-247966, 1993 WL 266761, at *2–3 (June 16). And he has said that the
general rule that “the government may not pay, in addition to an employee’s
regular compensation, per diem or subsistence expenses to a civilian employee at
his official duty station” applies to expenditures “for coffee and doughnuts.” FBI
Payment for Refreshments During Organized Crime Investigation, B-234813,
1989 WL 241372, at *2–3 (Comp. Gen. Nov. 9). Finally, the NIH Opinion,
discussed above with regard to the meaning of “meeting” in section 1345, does not
consider the term “subsistence expenses” in that section, so we have no reason to
believe that these prior opinions have ceased to reflect the Comptroller General’s
views.
Several federal regulations do distinguish between light refreshments and
meals—as does 5 U.S.C. § 5701, noted above. But, as our discussion of section
5701 indicated, our conclusion does not depend on equating the two, only on
recognizing that both fall within the term “subsistence,” and none of the regula-
tions of which we are aware distinguishes between the two in using the word
“subsistence” or a similar statutory term. Rather, the regulations involve statutory
language that gives regulatory agencies flexibility in a particular context. For
example, the federal ethics regulations provide that “[m]odest items of food and
refreshments such as soft drinks, coffee and donuts, offered other than as part of a
meal” do not qualify as gifts. 5 C.F.R. § 2635.203(b)(1) (2006). One of the
statutory authorities on which this regulation rests, 5 U.S.C. § 7353(a), (b)(1)
(2000 & Supp. III 2003), states that employees of the Executive Branch may not
“accept anything of value from a person,” except as permitted in “such reasonable
exceptions as may be appropriate.” The statute, in other words (and the quoted
regulations), provides for the “reasonable exceptions” that section 1345 does not
acknowledge. Government regulations also provide that federal travelers at federal
conferences need not deduct the cost of government-furnished light refreshments
from their per diem claims, but do need to deduct the cost of meals. See 41 C.F.R.
§ 301-74.21(b) (2006). But those regulations rest on the General Services Admin-

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istration’s discretion to reimburse federal employees either on a per diem basis, or
on an “actual and necessary expenses” basis, or with any combination of the two.
See 5 U.S.C. § 5702(a)(1) (2000).
Similarly, the apparently common practice among federal agencies of allowing
attendees at certain events to partake of light refreshments rests on specific
authority under the Government Employees’ Incentive Awards Act, not on any
premise that light refreshments are not subsistence expenses. See 5 U.S.C. § 4503
(2000) (permitting an agency head to “incur necessary expense for the honorary
recognition of, an employee”). Nor could this practice support a distinction
between “light refreshments” and “meals” for purposes of interpreting “subsis-
tence” (such that the term would include meals yet not light refreshments),
because meals also are served at such receptions. As the Comptroller General has
explained, “[t]he provision of food or refreshments at an awards ceremony is an
exception to the general rule prohibiting an agency from feeding its employees at
taxpayer expense.” Defense Reutilization and Marketing Service Awards Ceremo-
nies, B-270327, 1997 WL 108952, at *2 (Mar. 12) (emphasis added).
In sum, although it is undoubtedly true that, as a matter of degree, food when
served for “meals” is more significant than food served for “light refreshments,”
section 1345 in its application to “subsistence expenses” does not draw this
distinction between different uses of food. We therefore conclude that the
prohibition on “the use of appropriated funds for subsistence expenses” in section
1345 applies to light refreshments as well as meals.

III.

Section 1345’s prohibition on the use of an appropriation for subsistence ex-
penses applies “[e]xcept as specifically provided by law.” You have directed us to
eight sections of the U.S. Code as possibly satisfying this exception with regard to
light refreshments for persons at conferences who are not federal employees.
Among these are section 103 of the Clean Air Act, 42 U.S.C. § 7403 (2000);
section 104 of the Clean Water Act, 33 U.S.C. § 1254 (2000); and the Government
Employees Training Act, 5 U.S.C. § 4110 (2000). In an appendix, we have
identified all eight sections, as well as the particular subsections and text in them
that most bear on this question; here, it is sufficient to summarize the relevant text
as authorizing various sorts of programs, training, and grants that may include
private parties and state and local governments. Four of them generally authorize
the EPA to fund the training of non-federal persons (see 42 U.S.C. § 7403 (2000),
id. § 9604(k)(6) (2000 & Supp. III 2003), id. § 9660 (2000), and 33 U.S.C. § 1254
(2000)) and the remainder simply allow the EPA to encourage or fund research,
where appropriate. Besides authorizing such actions, however, these provisions
say nothing in particular about the “travel, transportation, and subsistence”
expenses that section 1345 regulates. As we explain, these general authorizations
do not suffice to authorize an exception from section 1345.

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In the context of section 1345, the word “specifically” is best read to mean
“with exactness and precision” or “in a definite manner.” Webster’s Third New
International Dictionary 2187 (1993). A general authorization of a meeting is not
an exact, precise, or definite authorization of an agency to use appropriated funds
for “travel, transportation, and subsistence” expenses.
The structure and context of section 1345 confirm this understanding. A federal
agency that expends appropriated funds on a meeting must derive its authority to
spend that money from some statutory source. If every statute that authorized the
federal funding of meetings attended by non-federal participants also permitted the
expenditure of funds for the purposes prohibited by section 1345, then section
1345 never would prohibit expending funds for “travel, transportation, and
subsistence” for lawful meetings. While it may not be possible to detail a general
rule for exactly how “specific[]” is specific enough, it is thus clear that general
authority to fund a meeting is insufficient.
Our ITA Opinion supports the above interpretation. The Department of Com-
merce had not identified any statute that it thought would provide specific
authority under section 1345 for the expenses of the proposed fellowship program.
See ITA Opinion, 28 Op. O.L.C. at 275. We recognized that it had cited as
“general authority” 22 U.S.C. § 2351(b) (2000), which authorizes the President to
“make arrangements to find, and draw the attention of private enterprise to,
opportunities for investment and development in less-developed friendly countries
and areas,” but we pointed out that the Department of Commerce did “not
contend . . . that section 2351 speaks with sufficient specificity to satisfy section
1345.” ITA Opinion, 28 Op. O.L.C. at 275 n.4.
This reading also is consistent with a series of Comptroller General decisions
under section 1345 and its predecessor. Most notably, the Comptroller General
opined in 1979 that, “[b]y using the word ‘specifically,’ Congress indicated that
authority to pay travel and subsistence expenses of non-government employees
attending conventions or other assemblages should not be inferred from other laws
but rather that there should be a definite indication in an enactment that the
payment of such expenses was contemplated, intended and authorized.” Mine
Safety and Health Administration—Payment of Travel Expenses at Seminars, B-
193644, 1979 WL 12354, at *2 (Comp. Gen. July 2) (emphasis added). Such a
requirement “is not satisfied merely by showing that an agency has legislative
authority to hold conventions or other assemblages” or “authority to train private
individuals.” Id. The Comptroller General therefore reasoned that a statute that
authorized an agency to “expand programs for the education and training” of mine
operators and agents did not speak with sufficient specificity to establish an
exception to section 1345. Id. at *1 (internal quotation marks omitted).
Similarly, in the 1935 opinion discussed above in Part II, the Comptroller Gen-
eral opined that a statute authorizing “every expenditure requisite for or incident to
the work of the American Battle Monuments Commission” did not provide
specific authority for purposes of the identically phrased exception in section 551,

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the predecessor of section 1345: “General terms such as [those] quoted . . . are not
sufficient to make an appropriation available for such purposes.” Conventions and
Gatherings, 14 Comp. Gen. at 851, 852 (internal quotation marks omitted in first
quotation). In the 1983 NHTSA Opinion, also discussed above, he likewise opined
that a statute permitting the Secretary of Transportation to “cooperate with
appropriate State and local officials to the greatest extent possible consistent with
the purposes of this subsection” did not speak with sufficient specificity: “[T]here
is a distinction between the general authority to hold a conference and the specific
authority to overcome the prohibition in 31 U.S.C. § 1345.” 62 Comp. Gen. at
531–32 (internal quotation marks omitted in first quotation). And in 1975, the
Comptroller General opined that a statute permitting an agency, for various
purposes, to “conduct, and encourage, cooperate with, and render financial and
other assistance to appropriate public (whether federal, state, interstate, or local)
authorities, agencies, and institutions, private agencies and institutions, and
individuals” did not provide the specific authority for an exception to section 551.
Use of Appropriated Funds in Connection with National Solid Waste Management
Association Convention, B-166506, 1975 WL 8253, at *1–2 (July 15) (internal
quotation marks omitted). Although he acknowledged that such a statute may give
the agency “the authority to hold conventions,” the statute did not permit “the
payment from appropriated funds of transportation and lodging expenses of state
officials or employees to attend such conventions.” Id. at *3.
The Comptroller General has twice found sufficient specificity, in statutes
requiring (rather than merely authorizing) a conference, and requiring it to have
wide representation. In 1991, he opined that the Commission on Interstate Child
Support could spend appropriated funds on transportation and subsistence
expenses of conference invitees under a statute requiring that it hold one or more
national conferences on child support reform, directing that it ensure wide
representation at the conference, and permitting the Commission to adopt such
rules and procedures as it deemed appropriate. Commission on Interstate Child
Support—Payment of Lodging and Meal Expenses of Certain Attendees at the
National Conference on Interstate Child Support, B-242880, 1991 WL 71686, at
*2–3 (Mar. 27). According to the Comptroller General, “The main difference
between [such a] conference and the other section 1345 cases is between a general
grant of authority that may be broad enough to permit an agency to hold a
conference as opposed to a specific statutory directive to hold a conference in
order to implement the law.” Id. at *2. This 1991 opinion relied on a 1955
precedent stating that “[t]he express provision in the enabling act that the White
House Conference on Education be ‘broadly representative of educators and other
interested citizens from all parts of the Nation,’ when considered in conjunction
with the provision authorizing the appropriation of such sums as the Congress
determines to be necessary for the ‘administration’ of that act, is considered to be
sufficiently broad to authorize the appropriation of funds for necessary travel
expenses.” Appropriations—Availability—Travel Expenses of Delegates to White
House Conference on Education, 35 Comp. Gen. 129, 132 (1955). Even assuming

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that these decisions are correct, which we have no occasion to consider, they do
not apply here because none of the statutes that you have cited requires that a
conference be held or that any conference have wide representation. Similarly, the
Comptroller General in his 1983 NHTSA Opinion declined to apply the 1955
opinion where the statutory provision at issue did “not mandate that a conference
be held,” 62 Comp. Gen. at 532, a view he reiterated in 1991, see Commission on
Interstate Child Support, 1991 WL 71686, at *1 (distinguishing the workshops in
the NHTSA Opinion because the act in question “did not mandate that workshops
be held”).

IV.

Finally, given our answers in Parts II and III to your questions regarding light
refreshments and section 1345, you have asked whether a violation of that
provision also violates the Anti-Deficiency Act, codified at 31 U.S.C. §§ 1341–
1342, 1349–1351, 1511–1519 (2000). We conclude that a violation of section
1345 does not, by that fact alone, also violate the ADA, because section 1345 is
not part of an appropriation. This conclusion rests on the text, structure, and
history of the Act, which together establish that the Act proscribes violations of
limits in the relevant appropriation, not violations of all statutory law. This
conclusion should not be construed as in any way condoning violations of section
1345, and we do not consider other sanctions that may apply to a violation of
section 1345. 2
The provision of the ADA primarily at issue prohibits “[a]n officer or employee
of the United States Government or of the District of Columbia government” from
“mak[ing] or authoriz[ing] an expenditure or obligation exceeding an amount
available in an appropriation or fund for the expenditure or obligation.” 31
U.S.C. § 1341(a)(1)(A) (emphasis added). A knowing and willful violation is
subject to a fine of up to $5,000 and up to two years in prison. Id. § 1350. The
ADA also requires reporting to the President and Congress violations of section
1341(a), which provide grounds for administrative discipline including removal

2
Congress has ample authority and means to impose penalties, whether derived from the ADA or
not, for violating statutory restrictions on spending such as section 1345. Among other things, it may
incorporate into such a statute by reference the penalties of the ADA, or it may incorporate the statute
by reference into a given appropriation, thus making the ADA apply to a violation pursuant to our
reasoning below and in our 2001 ADA opinion discussed below. “[A] statute may refer to another and
incorporate part or all of it by reference.” Norman J. Singer, 2B Sutherland on Statutes and Statutory
Construction § 51.07, at 267 (6th ed. 2000). “There are two general types of reference statutes: statutes
of specific reference and statutes of general reference.” Id. at 269. The former type “refers specifically
to a particular statute by its title or section number.” Id. The latter type “refers to the law on the subject
generally,” for example by stating that “contracts made under the statute are to be made ‘in the manner
now provided by law.’” Id. at 269–70. We do not have before us any particular appropriation (which
might be said, depending on its text, to incorporate section 1345 through an internal cap or condition),
nor does section 1345 by its terms either specifically or generally incorporate the penalties of the ADA.

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from office. Id. §§ 1349, 1351. You have stated that, if we conclude that a
violation of section 1345 violates the ADA, you would “report . . . immediately”
pursuant to this provision any violations that may have resulted from the legal
uncertainty. (Our conclusion that the ADA does not apply to require reporting a
violation of section 1345 says nothing, of course, about the advisability of EPA’s
doing so, to the President and, with appropriate permission, the Congress.)
An officer or employee most clearly would violate the ADA if an appropria-
tions statute appropriated $X for some account or object, and he spent more than
$X—in other words, “excess” or “deficiency” spending. That is the scenario that
nearly all judicial interpretations of the Act have considered. In Hooe v. United
States, 218 U.S. 322 (1910), for example, the Supreme Court noted that an agency
would have violated an earlier version of the Act had it incurred an obligation for
the rental of a building in excess of an appropriation authorizing a certain amount
of moneys “in full compensation for” that rental in a particular fiscal year. Id. at
332; see also Sutton v. United States, 256 U.S. 575, 580–81 (1921) (holding under
earlier version of Act that the Secretary of War did not have, among other things,
“authority . . . to obligate the Government” to pay more for improving a channel
than Congress had appropriated for that purpose); Bradley v. United States, 98
U.S. 104 (1878) (similar to Hooe); Office of Personnel Mgmt. v. Richmond, 496
U.S. 414, 430 (1990) (citing sections 1341 and 1350 for the proposition that it is a
crime to “knowingly spend money in excess of that appropriated”); Hercules, Inc.
v. United States, 516 U.S. 417, 427 (1996) (“The [ADA] bars a federal employee
or agency from entering into a contract for future payment of money in advance
of, or in excess of, an existing appropriation.”). And the Federal Circuit has noted
that a federal agency could not fund certain entitlements beyond the amount that
Congress had appropriated for them, because the ADA “makes it clear that an
agency may not spend more money for a program than has been appropriated for
that program.” Highland Falls-Fort Montgomery Cent. Sch. Dist. v. United States,
48 F.3d 1166, 1171 (1995); see also E. Band of Cherokee Indians v. United States,
16 Cl. Ct. 75 (1988) (similar).
In 2001, this Office faced the question whether the ADA extended to a different
scenario: an expenditure of funds that did not exceed the applicable appropriated
amount but did violate certain kinds of restrictions contained in the appropria-
tion—namely, a “condition” (which “would prohibit an agency from expending
any of its funds for a particular purpose”) or an “internal cap” (which “would
prohibit an agency from expending any of its funds in excess of a designated
amount for a particular purpose”). Applicability of the Antideficiency Act to a
Violation of a Condition or Internal Cap Within an Appropriation, 25 Op. O.L.C.
33, 33–34 (2001) (“2001 ADA Opinion”). We gave “a narrow definition” to these
categories, excluding from our consideration, for example, “ceilings within
particular appropriations acts,” which would apply to all funds appropriated by an
act. Id. at 34. As an example of an “internal cap,” we quoted an appropriation act
for the Department of Justice that, in a single paragraph, appropriated approxi-

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mately $1 billion for “salaries and expenses for the Border Patrol program, the
detention and deportation program, the intelligence program, and the inspections
program” and “[p]rovided . . . [t]hat none of the funds available to the [Immigra-
tion and Naturalization Service] shall be available to pay any employee overtime
pay in an amount in excess of $30,000” in a particular period. Id. (internal
quotation marks omitted).
We concluded that to violate a “condition” or “internal cap” in an appropriation
would be to “make or authorize an expenditure or obligation exceeding an amount
available in an appropriation or fund for the expenditure or obligation.” 31 U.S.C.
§ 1341(a)(1)(A). We acknowledged that one might read this text (together with the
language of other parts of the Act) as simply barring “those expenditures that
exceed the total amount of funds Congress has provided within a particular
account,” 2001 ADA Opinion, 25 Op. O.L.C. at 36—that is, as mandating “no
spending ‘after funds are exhausted,’” id.—but reasoned that “Congress’s obvious
concern with overall deficiencies caused by expenditures in excess of appropriated
funds does not, however, exclude the possibility that it also intended through the
[ADA] to enforce its appropriations power by exercising control over the purposes
for which agencies may use their appropriated funds,” id. at 37 (emphasis in
original). We relied on two primary arguments to conclude that Congress had so
intended with regard to conditions and internal caps.
First, we stated that the word “available” in section 1341(a)(1)(A) “is modified
by the phrase ‘for the expenditure or obligation.’” Id. at 37–38; see also id. at 35,
36, 48 (indicating this view by adding emphases to statutory text). We thought that
the inclusion of this phrase “suggests” an intent to incorporate a “legal permissibil-
ity” component, because “[i]f Congress had intended to address solely the problem
of overall deficiency spending, this phrase would appear somewhat superfluous.
Congress could have simply prohibited any expenditure or obligation ‘exceeding
an amount available in an appropriation.’” Id. at 37–38. Congress’s use of
additional language, we reasoned, “suggests that the term ‘available’ should be
construed more broadly to encompass the concept of legal permissibility.” Id. at
38. Second, we cited several statutes (both appropriations acts and provisions of
title 31 codified near the ADA and referring to appropriations) in which “Congress
used the term ‘available’ in a manner that is not dependent on whether funds are
actually ‘unobligated,’ and that instead limits the permissible purposes for which
funds may be spent.” Id. Section 1343(d), for example, provides that an appropria-
tion “is available to buy, maintain, or operate an aircraft only if the appropriation
specifically authorizes the purchase, maintenance, or operation.” 31 U.S.C.
§ 1343(d) (2000); see 2001 ADA Opinion, 25 Op. O.L.C. at 38; but cf. id. at 36–
37 & n.5 (acknowledging authority suggesting a different sense of “available” in
this context). In addition, although describing the question before us as “a difficult
issue of first impression for this Office,” we noted that the Office in a 1984
memorandum had assumed without discussion that the violation of “a condition
within an appropriation” ordinarily would violate the ADA. Id. at 35 n.2 (describ-

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ing Memorandum for the Attorney General, from Theodore B. Olson, Assistant
Attorney General, Office of Legal Counsel, Re: Application of the Independent
Counsel Provisions of the Ethics in Government Act to Alleged Violations of the
Boland Amendment and the Antideficiency Act (Apr. 27, 1984)). 3
Our 2001 ADA Opinion did not address, among other things, “ceilings” (as
noted above), the application of the ADA to amounts in a “fund,” or, most
importantly for present purposes, “restrictions . . . not found in appropriations
acts.” Id. at 34 n.1. Nor, as this caveat indicated, does the general recognition that
the term “available” in section 1341(a)(1)(A) incorporates a concept of “validity”
and suggests “legal permissibility” resolve the scope of such a concept under the
terms of the statute and thereby answer the question whether the ADA applies to a
restriction not found in an appropriation.
The ADA prohibits “an expenditure or obligation exceeding an amount availa-
ble in an appropriation . . . for the expenditure or obligation.” 31 U.S.C.
§ 1341(a)(1)(A) (emphasis added). Much as we thought in the 2001 ADA Opinion
that reading this statute not to include some legal permissibility standard would
have left the phrase “for the expenditure or obligation” “somewhat superfluous,”
here reading the statute to apply to the violation of a codified statute such as
section 1345—not part of an appropriation making an amount available for
expenditure or obligation—would leave the phrase “in an appropriation” without
any clear purpose. Congress could have prohibited simply expenditures or
obligations “exceeding an amount available for the expenditure or obligation,”
which might, given our reading of “available” in our earlier opinion, have
suggested a broad inquiry into all possible legal constraints on the “availab[ility]”
of an amount for an expenditure or obligation. The inclusion of the phrase “in an
appropriation” suggests a more restrictive intent, such that one should answer the
question of “availab[ility]” by determining “availab[ility]” within the terms of a
particular “appropriation.”
Moreover, and related, the concluding prepositional phrase “for the expenditure
or obligation” in section 1341(a)(1)(A) is better read as modifying the noun
“appropriation” (or “fund”) rather than, as our prior opinion asserted, the earlier
adjective “available.” The full relevant portion of the ADA refers to “an expendi-
ture or obligation exceeding an amount available in an appropriation or fund for

3
We rejected the holding of Southern Packaging & Storage Co. v. United States, 588 F. Supp. 532
(D.S.C. 1984), that violation of a “buy American” condition in an appropriations act did not violate the
ADA. That court so held because it had “no evidence . . . that [the Defense Department] authorized
expenditures beyond the amount appropriated by Congress for the procurement of” the items in
question. Id. at 550. We disagreed with “the court’s apparent conclusion that, even though the
appropriation forbade the purchase of non-American food items, there remained funds ‘available’ in
that appropriation for such purchases.” The court’s decision, we thought, was “inconsistent with the
Antideficiency Act’s legislative history and evolution and with the rest of the (limited) caselaw.” 2001
ADA Opinion, 25 Op. O.L.C. at 52.

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the expenditure or obligation.” Based on proximity, it is more credible to read the
statute as referring to amounts “available” in an appropriation that is “for the
expenditure or obligation” in question, rather than as essentially stating that the
amount must be broadly “available for the expenditure or obligation” and also “in
an appropriation.” The statutory history (discussed further below) also suggests
this construction, as recognized in the 2001 ADA Opinion. In finding support for
our reading of “available” in the existence of the phrase “for the expenditure or
obligation,” we acknowledged, based on the version of the Act in force from 1950
to 1982, that the entire phrase “an amount available in an appropriation or fund for
the expenditure or obligation” could be interchangeable with “the amount
available []in” the “appropriation or fund” under which an expenditure or obliga-
tion was made. 2001 ADA Opinion, 25 Op. O.L.C. at 39; see also id. at 47–48.
Because in the earlier opinion we limited our consideration to “internal caps”
and “conditions,” this interpretation of the textual structure gives us no reason to
question our ultimate conclusion there, even though that opinion purported to rely
on a different interpretation of the structure: Once one identifies the “appropriation
or fund for the expenditure or obligation” that is at issue, there is still the question
of what amount is “available in” that appropriation, and our prior opinion deter-
mined that a limitation on spending that is “in an appropriation” is one whose
violation also would violate the ADA. The assertion of how the phrase “for the
expenditure or obligation” related to the rest of the provision was not necessary to
reach that conclusion, given that the opinion provided additional bases for its
reading of “available.” But the different understanding of the textual structure does
make a difference here, because a proper reading reinforces that the ADA does not
impose a roving requirement of “availability” under all possibly applicable law,
but rather requires “availability” in the particular “appropriation . . . for the ex-
penditure or obligation”—whether “availability” in the narrow sense of the
existence of “unobligated” amounts “in” the appropriation or in the more extended
sense of amounts not being subject to a restriction that is “in” the appropriation,
such as the “internal cap” addressed in the 2001 ADA Opinion. One can readily
accept our prior reading of “available” as having, since that term was introduced
into the ADA in 1950, “incorporated the concept of legal permissibility,” 25 Op.
O.L.C. at 39, and still conclude that the question of permissibility applies only “in
an appropriation.”
A proper understanding of the term “appropriation” as used in the ADA further
supports this interpretation of section 1341. That term refers not to a particular pot of
money—such that one might say availability is determined by all laws that apply to
that pot—but rather to a particular legislative authorization of a federal agency to
spend a particular amount of money for some purpose. An “appropriation” is a
“legislative body’s act of setting aside a sum of money for a public purpose.”
Black’s Law Dictionary 110 (8th ed. 2004). The congressional GAO (formerly
known as the General Accounting Office) has defined the word similarly to mean
“[a]uthority given to federal agencies to incur obligations and to make payments

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from the Treasury for specified purposes.” General Accounting Office,
GAO/AFMD-2.1.1, A Glossary of Terms Used in the Federal Budget Process 21
(1993). The GAO also has explained that “[a]ppropriations do not represent cash
actually set aside in the Treasury. They represent legal authority granted by Con-
gress to incur obligations and to make disbursements for the purposes, during the
time periods, and up to the amount limitations specified in the appropriation acts.”
1 General Accounting Office, Principles of Federal Appropriations Law 2-5 (3d ed.
2004) (“Federal Appropriations Law”). The courts of appeals have adopted a similar
definition. See, e.g., United States ex rel. Becker v. Westinghouse Savannah River
Co., 305 F.3d 284, 286 n.1 (4th Cir. 2002) (citing the GAO definition). And section
1341(b), although not defining “appropriation,” contemplates that purchases may be
made using money from “an appropriation made to a regular contingent fund”—a
legislative authorization of a particular amount for a fund.
Two sections of title 31 define the term “appropriations” similarly to the above
authority. See 31 U.S.C. §§ 701, 1511 (2000). Although both of these provisions
define the term only for the chapter or subchapter in which they appear, of which
section 1341 is not a part, it is nevertheless reasonable to turn to them for guidance
regarding the same term used elsewhere in that title. Section 1511, which concerns
apportioning an appropriation across the period of the appropriation and, as indicated
above, is part of the ADA, see generally 2001 ADA Opinion, 25 Op. O.L.C. at 36–
37, defines “appropriations” to mean “appropriated amounts,” “funds,” and “authori-
ty to make obligations by contract before appropriations.” 31 U.S.C. § 1511(a); see
also id. §§ 1512–1514 (similar, part of the subchapter to which section 1511
applies). Section 701, which concerns the work of the GAO, defines “appropria-
tions” as “appropriated amounts,” which includes, depending on the “appropriate
context,” “funds,” “authority to make obligations by contract before appropriations,”
and “other authority making amounts available for obligation or expenditure.” Id.
§ 701(2); see also id. § 1341(a)(1)(B) (providing that an employee may not involve
the government “in a contract or obligation for the payment of money before an
appropriation is made unless authorized by law”) (emphasis added). Thus, it is an
“appropriation” that makes an amount available; the appropriation is not the physical
amount that is available. Amounts are appropriated by proper authority, and an
appropriation is something that is made. See, e.g., 2001 ADA Opinion, 25 Op.
O.L.C. at 37 (referring to “appropriated funds”); id. at 45, 50 (same); id. at 52
(referring to a use of funds that “the appropriation forbade”). Accordingly, to
determine under the ADA the “amount available in an appropriation . . . for [an]
expenditure or obligation,” we must look to the applicable legislative act making the
amounts in question available for obligation or expenditure—that is, to the applica-
ble appropriation.
A rule of construction that Congress has codified in title 31, and that applies to
section 1341, reinforces this understanding of what an “appropriation” is, and thus
where one looks to determine the amount available “in an appropriation.” Section
1301(d) provides that “[a] law may be construed to make an appropriation out of

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the Treasury or to authorize making a contract for the payment of money in excess
of an appropriation only if the law specifically states that an appropriation is made
or that such a contract may be made” (emphasis added). Enabling legislation, for
example, has typically been viewed as not an “appropriation.” See, e.g., 1 Federal
Appropriations Law at 2-40 (noting that “appropriation acts” “must be distin-
guished from” enabling or organic legislation, which typically “does not provide
any money”). We do not see why the interpretive rule of section 1301(d) would
not also apply to resolve any doubt about the scope of the ADA, such that a
provision limiting the government’s ability to perform certain functions, including
limiting expenditures, is not “in an appropriation” for purposes of section 1341—
and thus does not alter the “amount available in an appropriation” for a given
expenditure or obligation—unless it is found in a “law specifically stat[ing] that an
appropriation is made” for the object in question.
The statutory history of the ADA further supports our conclusion that a viola-
tion of a statutory restriction on spending does not violate that Act where the
restriction is not “in an appropriation.” Throughout the four versions it has had in
its long history, and even as Congress has broadened its scope somewhat, the
ADA always has focused on expenditures in excess of sums in “appropriations” or
“an appropriation,” and thus respected the distinction between appropriations and
other legislation. The initial 1870 version prohibited “any department of the
government” from “expend[ing] in any one fiscal year any sum in excess of
appropriations made by Congress for that fiscal year.” Act of July 12, 1870, ch.
251, § 7, 16 Stat. 230, 251 (emphasis added). The 1905 version similarly required
that “[n]o Department of the Government shall expend, in any one fiscal year, any
sum in excess of appropriations made by Congress for that fiscal year.” Act of
Mar. 3, 1905, ch. 1484, sec. 4, § 3679, 33 Stat. 1214, 1257 (emphasis added). The
1950 revision stated: “No officer or employee of the United States shall make or
authorize an expenditure from or create or authorize an obligation under any
appropriation or fund in excess of the amount available therein.” Pub. L. No. 81-
759, sec. 1211, § 3679, 64 Stat. 595, 765 (1950) (emphases added). The current
language of section 1341 was enacted as part of a general recodification of title 31
in 1982 and thus was not intended to work any substantive change, as we have
recognized. See, e.g., 2001 ADA Opinion, 25 Op. O.L.C. at 39. The preamble to
the recodification stated that the bill’s purpose was “[t]o revise, codify, and enact
without substantive change certain general and permanent laws, related to money
and finance, as title 31, United States Code, ‘Money and Finance.’” Pub. L. No.
97-258, 96 Stat. 877, 877 (1982); see also Finley v. United States, 490 U.S. 545,
554 (1989) (“Under established canons of statutory construction, ‘it will not be
inferred that Congress, in revising and consolidating the laws, intended to change
their effect unless such intention is clearly expressed.’”); see generally 2001 ADA
Opinion, 25 Op. O.L.C. at 42–49 (canvassing the statutory and legislative histories
of the Act in greater detail). Thus, the 1950 and current versions should be read in
harmony, and the 1950 version, together with its predecessors, confirms the need

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to focus on what an appropriation from which an expenditure is to be made (or
under which an obligation is to be incurred) does or does not make “available.”
The major substantive change during this history (apart from the addition of the
word “fund” in 1950) was, as we explained in the 2001 ADA Opinion, the shift in
1950, continued in the current version, from a focus on “overall spending” by a
particular department for a fiscal year, under appropriations made for that depart-
ment, to a focus on “spending out of particular appropriations” and on “expenditures
in excess of any single appropriation or fund.” Id. at 47, 48. Congress thus did
broaden the Act. But, as our earlier explanation indicates, the ADA continued to
focus, indeed even more than before, on particular legislative authorizations of
spending—on the “appropriation . . . for the expenditure or obligation.” Congress, in
making the ADA’s requirements more stringent, did not silently add to the ADA a
new sanction for all violations of statutory restrictions on spending, whether in an
appropriation or ordinary legislation. 4
Finally, to the extent that the above analysis leaves any ambiguity about whether
violations of restrictions on spending not in the appropriation violate section
1341(a), our reading finds further support in the rule of lenity—the canon that if
ambiguity remains in a criminal statute after textual, structural, historical, and
precedential analyses have been exhausted, the narrower construction should prevail.
See, e.g., Leocal v. Ashcroft, 543 U.S. 1, 11 n.8 (2004) (“Even if [the relevant
statute] lacked clarity on this point, we would be constrained to interpret any
ambiguity in the statute in petitioner’s favor.”). As noted above, the ADA carries
both administrative (section 1351) and criminal (section 1350) penalties for its
violations. The Supreme Court in Leocal unanimously held that, where (as here) a
statute has “both criminal and noncriminal applications,” the rule of lenity applies in
all applications, to ensure a consistent interpretation. Id. Our 2001 ADA Opinion did
consider and reject the applicability of the rule of lenity to the distinct question
whether to “equat[e] the terms ‘available’ and ‘unobligated,’” such that a cap or
condition in an appropriation would not affect the “amount available in an appropria-

4
It is not clear how the term “fund” (added to the ADA in 1950) would be read in harmony with the
term “appropriation.” and, thus, whether one could understand the phrase “amount available in a . . . fund
for the expenditure or obligation” in precisely the same sense as the phrase “amount available in an
appropriation . . . for the expenditure or obligation.” We are unaware of any judicial cases, opinions of this
Office, or decisions of the Comptroller General interpreting section 1341(a)(1)(A) as applied to a “fund.”
Although under normal rules of construction one presumptively should seek to read two seemingly parallel
words in a statute, such as “appropriation” and “fund,” to have similar meanings, there may be reasons not
to do so in section 1341. One can, as explained above, refer to an “appropriation made by Congress” and
to “appropriated funds,” but it is not clear how one might use “fund” (or “funded”) in the same sense.
Similarly, section 1341(b) refers to “an appropriation made to a regular contingent fund,” 31 U.S.C.
§ 1341(b) (emphasis added), and one would not ordinarily refer to “a fund made to a regular contingent
fund” (or an appropriation made to an appropriation). Nor is it clear what it would mean to “authorize an
obligation under . . . [a] fund.” We need not resolve such questions here, just as our 2001 ADA Opinion
did not resolve them, because the facts that you have provided do not suggest the involvement of any
“fund” as a possible source of expenditures for light refreshments.

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tion” for a given “expenditure or obligation.” 25 Op. O.L.C. at 41. We did so
because, although the language of the ADA “admits of some ambiguity,” we found
no serious ambiguity or “complete equipoise” on this question. Id. But, as noted
above, to conclude simply that “available” means more than “unobligated,” such that
the ADA would apply to an internal cap or condition—“in an appropriation”—does
not answer just how far beyond “obligated” that term reaches, and in particular the
critical question whether it reaches beyond the “appropriation” that makes “an
amount available . . . for [an] expenditure or obligation,” or not. 5
For all of the above reasons, we conclude that the ADA does not reach beyond
the “appropriation” that makes “an amount available . . . for [an] expenditure or
obligation.” Because section 1345 of title 31 is not part of an appropriation, it does
not determine the amount available in a particular appropriation for an expenditure
or obligation; the ADA therefore does not apply by its own force to a violation of
section 1345.

C. KEVIN MARSHALL
Deputy Assistant Attorney General
Office of Legal Counsel

5
As in our 2001 ADA Opinion, we need not here resolve the applicability of the ADA to restrictions
other than internal caps and conditions that may appear in an appropriations act. The 2001 ADA Opinion
mentioned “ceilings” as an example. 25 Op. O.L.C. at 34. It is enough that section 1345 plainly is not “an
appropriation” under any possible scope of that term. The Comptroller General has stated that an
appropriation may be “exhausted” for purposes of section 1341(a) upon (1) the “[d]epletion of [an]
appropriation account”; (2) the “depletion of a maximum amount specifically earmarked in a lump-sum
appropriation”; or (3) the “[d]epletion of an amount subject to a monetary ceiling imposed by some other
statute (usually, but not always, the relevant program legislation).” 2 Federal Appropriations Law at 6-41.
The first category is, as we have explained, the paradigmatic violation of the ADA. The second is similar
to the scenario addressed in our 2001 ADA Opinion, although we expressly did not reach specific
earmarks. 25 Op. O.L.C. at 34. The third, although not directly on point for section 1345, is arguably in
tension with our conclusion. We have considered the Comptroller’s limited precedent and brief reasoning
in support of this third category and do not find them persuasive regarding whether the ADA applies to
section 1345. See, e.g., Monetary Ceilings on Minor Military Construction (10 U.S.C. § 2805), 63 Comp.
Gen. 422, 424 (1984) (indicating, without further explanation, that the monetary limit in section 2805(c)
limited the “amount available in an appropriation” under the ADA); Reconsideration of B-214172, 64
Comp. Gen. 282, 289 (1985) (without citing Monetary Ceilings, extending earlier precedents that
“involved limitations that were contained in an appropriation act” to apply “to a limitation contained in
authorizing legislation”).

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APPENDIX

• Clean Air Act section 103, 42 U.S.C. § 7403 (2000). The EPA has authority to
“establish a national research and development program for the prevention and
control of air pollution,” and, among other things, may “promote the coordination”
of research with private organizations, and may “provide financial assistance to,”
“make grants to,” or “contract with” appropriate public or private agencies. EPA
also may “provide training for, and make training grants to,” appropriate public or
private organizations or individuals. Id. § 7403(a)–(b).

• Clean Water Act section 104, 33 U.S.C. § 1254 (2000). The EPA has authority
to “establish national programs for the prevention, reduction, and elimination of
pollution” and, among other things, may “promote the coordination” of relevant
activities with appropriate public and private organizations, may “render technical
services” to appropriate organizations, and may “cooperate with,” “make grants
to,” or “contract with” those organizations. Id. § 1254(a)–(b). EPA also may
“finance pilot programs,” in cooperation with appropriate public and private
parties, of “manpower development and training and retraining.” Id. § 1254(g).

• Solid Waste Disposal Act section 8001, 42 U.S.C. § 6981 (2000). EPA may
“encourage, cooperate with, and render financial and other assistance to appropri-
ate” public or private organizations and individuals. Id. § 6981(a).

• National Environmental Policy Act section 102(2)(G), 42 U.S.C. § 4332(2)(G)
(2000). Federal agencies shall “make available to States, counties, municipalities,
institutions, and individuals, advice and information useful in restoring, maintain-
ing, and enhancing the quality of the environment.”

• Comprehensive Environmental Response, Compensation, and Liability Act
section 104(k)(6), 42 U.S.C. § 9604(k)(6) (2000 & Supp. III 2003). The EPA may
“provide, or fund eligible entities or nonprofit organizations to provide, training,
research, and technical assistance to individuals and organizations, as appropri-
ate.” In addition, under section 311, the EPA may “enter into contracts and
cooperative agreements with, and make grants to, persons, public entities, and
nonprofit private entities,” id. § 9660(b)(3) (2000), and conduct “a program of
training,” id. § 9660(b)(9).

• Intergovernmental Personnel Act, 42 U.S.C. § 4742 (2000). A federal agency
“may admit State and local government employees and officials to agency training
programs established for Federal professional, administrative, or technical
personnel.” Id. § 4742(a).

• Government Employees Training Act, 5 U.S.C. § 4110 (2000). A federal agency
may expend travel expenses “for expenses of attendance at meetings which are

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concerned with the functions or activities for which the appropriation is made or
which will contribute to improved conduct, supervision, or management of the
functions or activities.”

72