TITLE: B-310023, Forest Service--Light Refreshments for National Trails Day, April 17, 2008
BNUMBER: B-310023
DATE: April 17, 2008
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B-310023, Forest Service--Light Refreshments for National Trails Day, April 17, 2008

   Decision

   Matter of: Forest Service--Light Refreshments for National Trails Day

   File: B-310023

   Date:  April 17, 2008

   DIGEST

   U.S. Forest Service appropriations are not available to provide light
   refreshments for attendees of National Trails Day events. Appropriations
   are not available to pay for food unless specifically authorized, or
   unless the agency can demonstrate that such expenditures are an essential,
   constituent part of accomplishing an authorized agency function. Neither
   of these conditions is present in this case. Providing light refreshments
   to attendees of Trails Day does not contribute materially to the
   accomplishment of an agency function.

   DECISION

   The Seward Ranger District of the Chugach National Forest, U.S. Forest
   Service, requests our decision under 31 U.S.C. sect. 3529 on whether its
   appropriations are available to pay for light refreshments for
   nongovernmental attendees of its National Trails Day (Trails Day) events.
   Letter from Nancy S. O'Brien, Acting Administrative Officer, Chugach
   National Forest, to General Counsel, GAO, Aug. 3, 2007 (Request Letter).
   The Forest Service is an agency of the Department of Agriculture (USDA).
   As explained below, we conclude that its appropriations are not available
   for this purpose.

   Our practice when rendering decisions is to obtain the views of the
   relevant agency to establish a factual record and the agency's legal
   position on the subject matter of the request. GAO, Procedures and
   Practices for Legal Decisions and Opinions, GAO-06-1064SP (Washington,
   D.C.: Sept. 2006), available at www.gao.gov/legal/resources.html. In this
   regard, USDA provided its views on the legal issues involved. Letter from
   L. Benjamin Young, Jr., Assistant General Counsel, USDA, to Thomas H.
   Armstrong, Assistant General Counsel for Appropriations Law, GAO, Subject:
   Forest Service--Light Refreshments for National Trails Day, Sept. 28, 2007
   (Young Letter). The agency also provided additional information regarding
   this matter. Letter from Nancy S. O'Brien, Acting Administrative Officer,
   Chugach National Forest, to Thomas H. Armstrong, Assistant General Counsel
   for Appropriations Law, GAO, Sept. 25, 2007 (O'Brien Letter).

   BACKGROUND

   National Trails Day (Trails Day) is an annual national event sponsored by
   the American Hiking Society (Society), a private nonprofit organization
   dedicated to preserving and promoting hiking. The Society holds Trails Day
   to "introduce people to the many enjoyments and benefits of trails."
   American Hiking Society, Our Work: National Trails Day, available at
   http://americanhiking.org/NTDGeneralInfoFaq.aspx (last visited Apr. 11, 
   2008). The Society provides guidance and publicity for other organizations
   such as community groups, businesses, and government agencies that hold
   Trails Day events locally. Executive  Order No. 13195, entitled Trails for
   America in the 21^st Century, directs federal agencies, to the extent
   permitted by law, to participate in National Trails Day, coordinating
   events with the American Hiking Society. Exec. Order No. 13195, Trails for
   America in the 21^st Century, 66 Fed. Reg. 7391 (Jan. 18, 2001).

   The Seward Ranger District has participated in Trails Day every year since
   its inception. O'Brien Letter. The District's participation consists of
   activities it conducts throughout the year--not just on Trails Day.
   Chugach Forest personnel lead visitors on hikes and serve as guides on
   walks and instructors for educational activities. Telephone Conversation
   between Nancy S. O'Brien, Acting Administrative Officer, Chugach National
   Forest, and Jonathan Barker, Senior Attorney, GAO, Nov. 5, 2007. In the
   past, attendees brought their own lunches to the event. For future Trails
   Day events, the District would like to provide snacks for attendees. The
   agency states that the snacks would be especially appropriate for hiking
   (including, for example, apples, raisins, dried fruit). Request Letter.

   DISCUSSION

   In general, an agency may not pay for food because it is a personal
   expense, and the public's money is not available for personal expenses.
   B-288266, Jan. 27, 2003; 57 Comp. Gen. 806 (1978). There are exceptions,
   however; an agency may provide food if it has specific statutory
   authority, or where it can demonstrate that such expenditures are an
   essential, constituent part of accomplishing an authorized agency
   function. Id.  The Forest Service has not identified any statutory
   authority to use its appropriations for food in these circumstances. Thus,
   if funds are available for these snacks, it must be under the second
   exception.

   In considering the second exception, we examine the facts on a
   case-by-case basis, making our determination in light of circumstances
   presented. For example, in 57 Comp. Gen. 806 (1978), we concluded that the
   Administrative Office of the U.S. Courts (AOUSC) could not use the
   appropriation for "expenses of jurors" to provide snacks to nonsequestered
   jurors.[1] AOUSC had argued that providing snacks at government expense
   would help maintain jurors' morale and attention during trial. 57 Comp.
   Gen. at 807. We pointed out that jurors already had access to snack bar
   facilities via the marshals and that the marshal's staff could collect
   money from the jurors to pay for the snacks. Id.

   We have applied the second exception, however, where the expenditure will
   contribute materially to the effective accomplishment of a statutory
   responsibility or authorized function. In B-304718, Nov. 9, 2005, we
   concluded that the Veterans Benefits Administration (VBA) could use its
   appropriations to provide refreshments to nonemployee veterans and their
   families who participate in its focus groups. VBA is required by statute
   to measure and evaluate the effectiveness of its programs, including the
   delivery of services to veterans and their families. VBA explained that
   the expenditure of funds for light refreshments and meals served as an
   effective incentive to obtain information, and given the target population
   and their availability, providing refreshments was necessary to obtain
   focus group participation. Accordingly, we did not object to VBA's
   determination since the expenditures "contribute[d] materially to the
   effective accomplishment of the function." Id.

   The determining distinction between these two cases is that VBA
   demonstrated that the proposed expenditure was integral to the
   accomplishment of an authorized agency function. AOUSC could not
   demonstrate that, given the ready alternatives for individual jurors to
   obtain individual snacks and refreshments, the use of appropriated funds
   to provide snacks to nonsequestered jurors was otherwise integral to
   successfully carrying out the jury function.

   In the case before us, the Forest Service has not demonstrated how
   providing refreshments to Trails Day attendees is an essential,
   constituent part of accomplishing an authorized agency function. The
   Forest Service receives an appropriation for the "necessary expenses of
   the Forest Service . . . for management, protection, improvement, and
   utilization of the National Forest System." See, e.g., Consolidated
   Appropriations Act, 2008, Pub. L. No. 110-161, div. F, title I, 121 Stat.
   1844, 2129 (Dec. 26, 2007). The agency states that the purpose of the
   event is to make people "aware of the recreational activities in their
   area and to get them involved in building, maintaining and enjoying trails
   and recreation areas with a focus on getting kids and their caregivers
   outdoors to enjoy the health benefits of being active." O'Brien Letter.
   Clearly, the Forest Service appropriation is available for Trails Day
   activities. Indeed, the activities that Forest Service offers Trails Day
   attendees are the same as those that it offers routinely the rest of the
   year. However, the Forest Service can successfully carry out all of the
   planned activities (e.g., guided hikes, crafts) without light
   refreshments, just as it does at other times of the year and just as it
   has for previous Trails Days. Unlike the VBA case, providing light
   refreshments is not an essential, constituent part of accomplishing an
   authorized agency function, any more so than in the AOUSC case.

   USDA Office of General Counsel agrees that the Forest Service's
   appropriation is not available to pay for light refreshments for Trails
   Day. Young Letter. USDA believes that 31 U.S.C. sect. 1345 prohibits
   agencies from paying for refreshments for nongovernmental persons who
   attend events like Trails Day. Although we agree with USDA's conclusion,
   we disagree with its reason. [2] Section 1345 provides, "Except as
   specifically provided by law, an appropriation may not be used for travel,
   transportation, and subsistence expenses for a meeting. . . ." Congress
   enacted the statute in 1935 to prohibit the use of appropriations to
   underwrite "conventions or other form of assemblage or gathering" that
   various private organizations were seeking to hold at government expense.
   See 79 Cong. Rec. 709-11 (1935).[3] In the 1982 codification of title 31,
   United States Code, the more generic term "meeting" was substituted for
   "conventions or other form of assemblage or gathering." Out of context,
   the word "meeting" suggests a broader coverage than the principal focus of
   section 1345. When Congress enacted the codification, it specified that
   provisions that were restated, as section 1345 was, "may not be construed
   as making a substantive change in the laws replaced." 31 U.S.C. note prec.
   sect. 101.

   We have held previously that section 1345's application is not as broad as
   USDA believes. For instance, we held that section 1345 did not apply to
   the use of Department of Defense (DOD) appropriations to pay the travel
   and lodging expenses of public school recruiters attending overseas job
   fairs for teachers at DOD Dependents Schools. 72 Comp. Gen. 229 (1993).
   See also B-300826, Mar. 3, 2005 (light refreshments and meals at National
   Institutes of Health conference on Parkinson's disease); 45 Comp. Gen. 476
   (1966) (transportation of female guests to provide social and recreational
   services to Job Corps enrollees). The use of the words "travel,
   transportation, and subsistence" in section 1345 indicates Congress's
   desire to curb those costs incident to someone in government travel.
   Where, as here, no one is in travel status, we need not even reach the
   question of whether Trails Day is a "meeting" within the meaning of
   section 1345.

   CONCLUSION

   Providing light refreshments to Trails Day attendees is not an essential,
   constituent part of accomplishing an authorized agency function.
   Accordingly, Forest Service appropriations are not available to pay for
   light refreshments for nongovernmental attendees of Trails Day events
   hosted by the Forest Service.

   Gary L. Kepplinger's signature

   Gary L. Kepplinger
   General Counsel

   ------------------------

   [1] The U.S. courts do have statutory authority for payment of subsistence
   expenses for sequestered juries. 28 U.S.C. sect. 1871.

   [2] In support of its position, USDA cites an Office of Legal Counsel
   opinion, Memorandum Opinion for the Deputy Secretary, Department of
   Commerce, Use of Appropriations to Pay Travel Expenses for an
   International Trade Administration Fellowship Program, OLC Opinion, Oct.
   7, 2004. OLC applies section 1345 broadly, such that use of appropriations
   for travel, transportation, and subsistence for nongovernmental employees
   for any kind of meeting is prohibited. As noted, we read section 1345 more
   narrowly, consistent with Congress' original intent.

   [3] The Chairman of the House Committee on Expenditures explained that it
   would address "the activities of national organizations of all characters
   that are continually making requests of governmental agencies to advance
   money for the purpose of paying their transportation, lodging, food and so
   forth, in order that they may come to Washington in support of or in
   opposition to legislation pending before Congress, and also matters
   pending before Congress, and also matters pending before some of our
   emergency organizations." 79 Cong. Rec. at 709.