b"December 21, 1979\n\n79-88\n\nMEMORANDUM OPINION FOR THE\nDIRECTOR, UNITED STATES WATER\nRESOURCES COUNCIL\nDepartment of Transportation Act of 1966 (49\nU.S.C. \xc2\xa7 1656(a))\xe2\x80\x94Water Resources Council\xe2\x80\x94\nCalculation o f Primary Direct Navigation Benefits\no f a Water Resources Project (\xc2\xa7 7(a) of the Act)\n\nThis responds to your request for our opinion whether the factors set\nforth in the formula for determining the primary direct navigation benefits\no f a water resource project, second paragraph o f \xc2\xa7 7(a) o f the Department\no f Transportation Act o f 1966, 49 U.S.C. \xc2\xa7 1656ta) (1976), are exclusive.\nYour question, as we understand it, is whether the W ater Resources C oun\xc2\xad\ncil (Council) may provide in its standards and criteria for economic evalu\xc2\xad\nation o f water resource projects that factors in addition to those specific\xc2\xad\nally set forth in the formula may be considered in the determination of\nprimary direct navigation benefits. With the caveats that the formula does\nnot address costs or benefits other than primary direct navigation benefits,\nwe believe that its factors are exclusive. Therefore, the Council may not\nadopt standards and criteria directing such benefits to be calculated in a\nmanner different from that dictated by the formula.\nSection 7(a) provides, in relevant part:\nThe standards and criteria for economic evaluation o f water\nresource projects shall be developed by the Water Resources\nCouncil established by Public Law 89-80. For the purpose o f such\nstandards and criteria, the primary direct navigation benefits o f a\nwater resource project are defined as the product o f the savings to\nshippers using the waterway and the estimated traffic that would\nuse the waterway; where the savings to shippers shall be construed\nto mean the difference between (a) the freight rates or charges pre\xc2\xad\nvailing at the time o f the study for the movement by the alternative\nmeans and (b) those which would be charged on the proposed\nwaterway; and where the estimate o f traffic that would use the\nwaterway will be based on such freight rates, taking into account\nprojections o f the economic growth of the area.\n478\n\n\x0cThe language concerning primary direct navigation benefits is clear. The\nbenefits \xe2\x80\x9c are defined as\xe2\x80\x9d and the definition that follows is set out in a for\xc2\xad\nmula precise enough to be reduced to a mathematical statement. Thus,\n\xe2\x80\x9c Primary Direct Navigation Benefit = Traffic (Prevailing Nonwater\nRates minus Projected W ater Rates).\xe2\x80\x9d 1 We do not know o f any principle\no f statutory construction permitting the Council to vary so unambiguous a\ndefinition by adding to it, unless its legislative history were to show un\xc2\xad\nequivocally a contrary intent on the part o f Congress. The legislative\nhistory shows the opposite.\nThe definition o f primary direct navigation benefits was added to S.\n3010, 89th Cong., 2d sess. (1966) by amendment o f the Senate Committee\non Government Operations, after its hearings on that bill. As introduced,\nS. 3010 and the corresponding House bill H .R. 13200, 89th Cong., 2d sess.\n(1966), would have allowed the Secretary o f Transportation, after con\xc2\xad\nsultation with the W ater Resources Council, to establish the standards and\ncriteria for economic evaluation o f the transportation aspects o f water\nresource projects.2 The proposal, placing such authority in the Secretary\nrather than the Council, and permitting the executive rather than the C on\xc2\xad\ngress to establish the standards and criteria for economic evaluation o f\nnavigational benefits, encountered a hostile reception at both the House\nand Senate hearings from interested witnesses and communicants and also\n\n'T he term \xe2\x80\x9c estimated traffic\xe2\x80\x9d is not precisely defined by the statute. It is an estimate that\nmust take into account both the water rates and the projected economic growth in the area to\nbe served by the water project. In addition, it must apparently also include the projected\nuseful life for the transportation facilities o f the project. During the Senate hearings some\ndissatisfaction was expressed concerning a then-recent decision o f the Corps o f Engineers to\nreduce from 100 years to 50 years the life expectancy o f transportation-related water resource\nprojects for the purpose o f calculating cost-benefit ratios. Hearings on S. 3010 before the\nSenate Committee on Government Operations (Part 4), 89th C ong., 2d sess. 654 (1966)\n(Statement o f Senator M undt). However, section 7(a) itself does not establish a lifespan for\nwater transportation facilities.\nJAs originally presented, S. 3010, an Adm inistration bill, provided in its \xc2\xa7 7(a), inter alia,\nthat:\nThe standards and criteria for economic evaluation o f the transportation features o f\nmultipurpose water resource projects shall be developed by the Secretary after consulta\xc2\xad\ntion with the W ater Resources Council, and shall be compatible with the standards and\ncriteria for economic evaluation applicable to nontransportation features o f such pro j\xc2\xad\nects. [Senate Hearings, supra (Part 1) at 21.]\nThe House version, as introduced as H .R . 13200, 89th Cong., 2d sess. (1966), contained\nidentical language. Creating a D epartm ent o f Transportation: Hearings on H.R. 13200\nbefore the House Com mittee on Governm ent O perations (Part 1), 89th Cong., 2d sess. 20\n(1966). The bill H .R . 15963, as reported out by the House committee, contained no m ention\no f standards and criteria for economic evaluation o f m ultipurpose water resource projects,\nexcept to exempt such projects from the jurisdiction o f the Secretary o f T ransportation for\nsuch purposes. Am ong the stated reasons for striking the language, was that \xe2\x80\x9c [tjhe com m it\xc2\xad\ntee has been inform ed that the Com mittee on Public W orks o f the House o f Representatives\nis now considering whether to hold hearings dealing with the evaluation o f benefits in con\xc2\xad\nnection with inland waterway projects.\xe2\x80\x9d H . Rept. 1701, 89th C ong., 2d sess. 18 (1966)\n(House Report).\n\n479\n\n\x0cfrom a num ber o f Members o f Congress. Hearing on S. 3010 before the\nSenate Committee on Government Operations, 89th Cong., 2d sess.\npassim (1966) (Senate Hearings); Creating a Department o f Transporta\xc2\xad\ntion: Hearings on H.R. 13200 before the House Committee on Govern\xc2\xad\nment Operations, 89th Cong., 2d sess. passim (1966) (House Hearings).\nThe Senate Committee took cognizance o f these objections.\nAt the Senate hearings a num ber o f witnesses and several Senators\npointed out that on November 20, 1964, the Corps o f Engineers, at the\ndirection o f the Bureau o f the Budget, had modified the existing formula\nfor computing primary direct navigation benefits. Previously, the Corps\no f Engineers determined savings to shippers by comparing the anticipated\nwater rate to the prevailing rates charged on other modes o f transportation\nat the time o f the determ ination. The new m ethod involved comparing the\nwater rate to projected rates which the competing modes o f transportation\ncould be expected to adopt to meet the com petition from the water proj\xc2\xad\nect. It was pointed out to the Senate committee, and noted, e.g., 112 C o n \xc2\xad\ng r e s s i o n a l R e c o r d 24375 (1966) (remarks o f Senator McClellan), that\nno proposed water project had met the test o f the new formula since its is\xc2\xad\nsuance in 1964. Although the committee was informed, during the pen\xc2\xad\ndency o f the hearings (see Senate Hearings (Part 3) at 474 (remarks of\nSenator Harris)), that the Bureau o f the Budget had reconsidered and\nreinstated the pre-1964 formula, it decided, in the words o f its report, to\n\xe2\x80\x9c establish a definition o f primary direct navigation benefits o f water\nresource projects, thus restoring the criteria followed by the Corps of\nEngineers prior to November 1964, when the Bureau issued new criteria\nfor the evaluation o f such projects.\xe2\x80\x9d S. Rept. 1659, 89th Cong., 2d sess.\n13 (1966) (Senate Report). The committee \xe2\x80\x9c deemed\xe2\x80\x9d such a definition\n\xe2\x80\x9c necessary in order to insure that future projects will be evaluated on the\nsame basis as those which have resulted in the development o f this\nN ation\xe2\x80\x99s outstanding system o f inland navigation which has served so well\nin peace and w ar.\xe2\x80\x9d Senate Report at 14. The intent o f the committee and\nthe Senate is best summed up by a statem ent made during the floor debate\nby Senator Jackson, a member o f the Senate Committee on Government\nOperations and a supporter o f the committee amendment:\nWe have not only negated the 1964 directive o f the Bureau o f the\nBudget but we have, by statute, also written into section 7 what\nthe criteria are, should be, and must be, in connection with water\nnavigation projects. Much o f that, in the past, has been o f a\npolicy nature. We have now, by statute, made clear that we insist\nthe policy be that o f the executive branch prior to the directive o f\nthe Bureau o f the Budget o f 1964. [112 C o n g r e s s i o n a l Re c \xc2\xad\no r d 24380 (emphasis added).]\nNothing else in the legislative history o f the definition indicates that the\nSenate intended it to be interpreted differently. Rather, the hearings, the\ndebate, and the Senate report all confirm that Senator Jackson\xe2\x80\x99s interpreta\xc2\xad\ntion o f the Congressional intent underlying the definition is the correct one.\n480\n\n\x0cThe version o f the Transportation Act that passed the House did not\ncontain a definition o f primary direct navigation benefits.3 The conference\ncommittee, however, adopted the Senate definition without modification.\nH. Conf. Rept. 2236, 89th Cong., 2d sess. 27 (1966). Nothing further in\nthe conference report, or in the House debate, indicates that the House in\xc2\xad\nterpreted the definition any differently than the Senate.\nIn sum, the legislative history demonstrates that Congress intended to\nestablish by statute the pre-1964 method for computing primary direct\nnavigation benefits so that the executive could not vary it. Congress be\xc2\xad\nlieved that the formula set forth in \xc2\xa7 7(a) specified this method. Thus, any\nattem pt to vary that formula by adding extraneous factors would violate\nnot only the text o f \xc2\xa7 7(a), but also its intent\xe2\x80\x94that o f freezing the defini\xc2\xad\ntion of primary direct navigation benefits as it existed (in Congress\xe2\x80\x99 inter\xc2\xad\npretation) prior to November 1964.\nThe definition speaks only to primary direct navigation benefits and it is\nsilent concerning the m ethod for determining other benefits of m ultipur\xc2\xad\npose water resource projects and for determining costs. It is clear from the\nlegislative history that Congress realized that primary direct navigation\nbenefits were not the only benefits associated with most water resources\nprojects.4 Thus, the definition in the second paragraph o f \xc2\xa7 7(a) does not\nprevent the Council from considering, in establishing its overall standards\nand criteria for economic evaluation o f water resource projects, other\nbenefits in addition to primary direct navigation benefits.5\nLeon U\n\nlm an\n\nD eputy Assistant A ttorney General\nOffice o f Legal Counsel\n\n1See n. 2, supra.\n'W e have reviewed the legal m em orandum prepared by the National Wildlife Federation in\n1977 which you made available. We believe that the cited evidence does not support an o p \xc2\xad\nposite conclusion but only establishes that Congress recognized other types o f benefits.\n\xe2\x80\x99For examples o f recognized benefits o f water resource projects that are not classified as\nprimary direct navigation benefits, see S. Doc. 97, 87th C ong., 2d sess. 8-10 (1962), a docu\xc2\xad\nment entitled \xe2\x80\x9c Policies, Standards, and Procedures in the Form ulation, Evaluation, and\nReview o f Plans for Use and Development o f W ater and Related Land Resources.\xe2\x80\x9d This\ndocum ent, prepared by the President\xe2\x80\x99s W ater Resources Council, was m entioned frequently\nduring both the House and Senate hearings and is alluded to in the House Report.\n\n481\n\n\x0c"


b"Reimbursement for Costs o f Attending Certain Banquets\n\nE m p lo y e e s in th e U n ite d S ta te s A tto rn e y s o ffice s m a y p ro p e rly b e re im b u rse d fo r the c o s ts o f a tte n d in g\nre tire m e n t b a n q u e ts fo r s ta te la w e n fo rc e m e n t o ffic ia ls u n d e r a p p ro p ria te c irc u m s ta n c e s. H o w ev e r,\nre im b u r s e m e n t fo r a tte n d a n c e a t such fu n c tio n s sh o u ld b e lim ite d to c irc u m s ta n c e s w h e re the n a \xc2\xad\ntu re o f th e c e re m o n ia l e v e n t in q u estio n p ro v id e s g o o d re a s o n to b e lie v e th a t the e m p lo y e e \xe2\x80\x99s a tte n \xc2\xad\nd a n c e a d v a n c e s th e a u th o riz e d fu n ctio n s o r p ro g ra m s o f th e o ffice\n\nSeptem ber 23, 1993\n\nM e m o r a n d u m O p in io n f o r t h e D ir e c t o r\nE x e c u t i v e O f f ic e f o r U n i t e d S t a t e s A t t o r n e y s\n\nY o u have asked for our opinion w hether employees in the United States A ttor\xc2\xad\nneys offices may be reimbursed for the cost of attending retirement banquets for\nstate officials. Y our inquiry focuses on the Opinion of the Comptroller General in\nRichard W. H eld, B -249249, 1992 W L 387431 (C.G. Dec. 17, 1992), which con\xc2\xad\ncluded that the cost of an FBI official\xe2\x80\x99s attending such a banquet is properly reim \xc2\xad\nbursable. W e believe that the Com ptroller G eneral\xe2\x80\x99s holding was correct and\nwould be applicable to an employee o f a United States Attorney\xe2\x80\x99s O ffice attending\nthe sam e kind o f event under like circum stances. However, we caution that appli\xc2\xad\ncation of the Held ruling should be carefully limited to closely sim ilar factual cir\xc2\xad\ncumstances, where the nature of the ceremonial event in question provides good\nreason to believe that the official or em ployee\xe2\x80\x99s attendance advances the office\xe2\x80\x99s\nauthorized functions.\n\nI. THE H E L D OPINION\nIn the H eld ruling, the Comptroller General concluded that a FBI Special Agent\nin Charge could properly be reimbursed for the cost ($35) of attending a retirement\nbanquet for the Police C h ief of Frem ont, California. The opinion noted that the\nFBI had \xe2\x80\x9ca long-standing tradition to recognize state and local police officials\xe2\x80\x99\ncontributions to the F B I\xe2\x80\x99s public service mission\xe2\x80\x9d and that the Special Agent, who\nwas invited to the function in his capacity as head of the FB I\xe2\x80\x99s San Francisco Of\xc2\xad\nfice, \xe2\x80\x9cwould be expected to participate in such cerem onies.\xe2\x80\x9d Id. 1992 W L 387431,\nat *1. At the banquet, the Special A gent presented the retiring Police Chief with a\nplaque provided by the FBI and a personal letter from the FBI Director.\nThe C om ptroller General ruled that reimbursem ent for the cost o f attendance\nwas proper even though the banquet took place within the limits o f the Special\nA gent\xe2\x80\x99s official station area and Federal Travel Regulations generally do not\nauthorize reim bursem ent for employee meal or lodging expenses incurred within\n\n70\n\n\x0cR eim bursem ent f o r Costs o f A ttending Certain B anquets\n\nthose area limits. 41 C.F.R. \xc2\xa7\xc2\xa7 301-7.5(a), 301-8.1(d) (1992). In support of this\nruling, the Comptroller General relied upon a num ber of his prior opinions which\nhave upheld reimbursement for meals within the station area where such meals are\nnecessitated by attendance at certain \xe2\x80\x9cmeetings\xe2\x80\x9d for which expenses are reimburs\xc2\xad\nable under 5 U.S.C. \xc2\xa7 4110. E.g., Internal Revenue Service - Meal Costs, 68\nComp. Gen. 348 (1989); Gerald Goldberg, B -198471, 1980 W L 16668 (C.G. May\n1, 1980). Applying \xc2\xa7 4 1 10\xe2\x80\x99s standards to the FBI Special A gent\xe2\x80\x99s attendance at\nthe banquet in question, the Comptroller General concluded:\n[I]t is clear that his attendance was in furtherance of the functions or\nactivities for which the agency\xe2\x80\x99s appropriations are made, and we\nhave no objection to reimbursing Mr. Held the $35 cost o f the ban\xc2\xad\nquet.\nHeld, 1992 WL 387431, at *2.\nII. ANALYSIS\nA. Applicability o f 5 U.S.C. \xc2\xa7 4110\n5 U.S.C. \xc2\xa7 4110 provides:\nAppropriations available to an agency for travel expenses are avail\xc2\xad\nable for expenses of attendance at meetings which are concerned\nwith the functions or activities for which the appropriation is made\nor which will contribute to improved conduct, supervision, or m an\xc2\xad\nagement of the functions or activities.\nThe applicability of this section to attendance at banquets honoring state and lo\xc2\xad\ncal law enforcement officials first depends upon whether such banquets can prop\xc2\xad\nerly be considered as \xe2\x80\x9cmeetings.\xe2\x80\x9d The term \xe2\x80\x9cmeeting\xe2\x80\x9d is a very broad one. For\nexample, W ebster\xe2\x80\x99s Third New International Dictionary (1986) defines it to in\xc2\xad\nclude \xe2\x80\x9ca gathering for business, social, or other purposes.\xe2\x80\x9d Id. at 1404. Interpreted\nin this ordinary sense, the term \xe2\x80\x9cmeeting\xe2\x80\x9d appears broad enough to encompass re\xc2\xad\ntirement banquets and similar ceremonial functions.\nAn argument for a narrower interpretation might be based upon the fact that\n\xc2\xa7 4110 was enacted as part o f the Government Employees Training Act, Pub. L.\nNo. 85-507, \xc2\xa7 19(b), 72 Stat. 327. 336 (1958), and is located in chapter 41, entitled\n\xe2\x80\x9cTraining,\xe2\x80\x9d of title 5, United States Code. Since the sections surrounding it are\nprimarily concerned with \xe2\x80\x9ctraining\xe2\x80\x9d activities for government employees, it might\nbe argued that the term \xe2\x80\x9cm eeting\xe2\x80\x9d as used in \xc2\xa7 4110 refers only to meetings at\n\n71\n\n\x0cOpinions o f th e O ffice o f Legal C ounsel\n\nwhich som e kind o f \xe2\x80\x9ctraining\xe2\x80\x9d occurs. However, two fundamental considerations\nm ilitate against that narrowing interpretation.1\nFirst, the text of the section limits the broad term \xe2\x80\x9cmeetings\xe2\x80\x9d only to the extent\nthat they m ust be concerned with, o r supportive of, agency functions or activities\nfor which the agency\xe2\x80\x99s appropriations are made; language requiring that covered\nmeetings m ust specifically be concerned with \xe2\x80\x9ctraining\xe2\x80\x9d could easily and naturally\nhave been included (as in the sections surrounding \xc2\xa7 4110), but was not. Second,\nthe legislative history does not provide any clear evidence that, contrary to the\nplain w ording o f the section, the term \xe2\x80\x9cm eeting\xe2\x80\x9d was intended to be limited to\nmeetings concerned with training.2\nIn addition to qualifying as \xe2\x80\x9cm eetings,\xe2\x80\x9d banquets of the kind described in Held\nmust also satisfy the functional-relationship criteria of \xc2\xa7 4110. It is reasonable to\nconclude that banquets honoring law enforcem ent personnel will generally be\n\xe2\x80\x9cconcerned with the functions or activities\xe2\x80\x9d covered by FBI or U.S. Attorney ap\xc2\xad\npropriations, since they are likely to include speeches and discussions concerning\nlaw enforcem ent. We also believe that attendance by federal law enforcement\nagency personnel at such banquets would generally \xe2\x80\x9ccontribute to improved con\xc2\xad\nduct, supervision, or management\xe2\x80\x9d of functions encompassed by their agency\xe2\x80\x99s\nappropriations. Attendance by suitable federal representatives at such events is\nlikely to prom ote the exchange of information and ideas about the interaction of\nfederal and state law enforcement offices and thus to help cultivate and maintain\ngood w orking relationships between federal officials, on the one hand, and state\nand local law enforcem ent agencies and their personnel on the other. Such good\nrelationships advance the broad law enforcement functions of the FBI and the U.S.\nA ttorneys\xe2\x80\x99 offices.3\n\n1 T h is O ffice has p reviously opined that 5 U S C. \xc2\xa7 4110 is n o t lim ited to m eetings attended or conducted fo r training purposes. M em orandum fo r Edw in M. Z im m erm an, A ssistant A ttorney G eneral, A nti\xc2\xad\ntrust D ivision, from Frank M W ozencraft, A ssistant A ttorney G eneral, O ffice o f Legal C ounsel, Re:\nA u th o rin ' o f F e d e ra l A g en cies to Becom e M em b ers o f P rivate O rga n izations (N ov. 14, 1968)\n2 H R. R ep. N o 85-1951, at 26 (1958), rep rin te d in 1958 U S C C A N. 2909, 2931-32 T he sectionby-sectio n an aly sis in the H ouse Report describ es the section o f the G overnm ent E m ployees Training Act\n(\xc2\xa7 19(b)) that w as c o d ified as 5 U.S C \xc2\xa7 4110 as follows:\nSectio n 19(b) p rovides that, on and a fte r the date o f en actm ent o f the bill, any appropriation\nav ailab le to any dep artm en t (as defined in and to the extent covered by the bill) for travel ex\xc2\xad\npenses also shall be available for ex p en ses o f attendance at m eetings, if these m eetings are co n \xc2\xad\ncern ed w ith the functions o r activities fo r w hich the appropriation is m ade or will contribute to\nim p ro v ed conduct, su p erv isio n , or m anagem ent o f those functions or activities\nId\n1 T h e D ep artm en ts o f C o m m erce. Justice, an d State, the Ju d iciary, and R elated A gencies A ppropriations\nAct, 1993, Pub. L No. 102-395, 106 Stal 1828 (1992), broadly provides appropriations for, inter alia,\n\xe2\x80\x9cexpenses n ecessary for the legal activities o f the D epartm ent o f Justice,\xe2\x80\x9d id. at 1831, and for \xe2\x80\x98\xe2\x80\x98necessary\nexpenses o f the O ffice o f the U nited States A tto rn ey s,\xe2\x80\x9d id at 1832.\n\n72\n\n\x0cReim bursem ent f o r Costs o f A ttending Certain B anquets\n\nB. Legitim acy o f the Expense\nHaving determined that ceremonial banquets of the kind described may consti\xc2\xad\ntute \xe2\x80\x9cmeetings\xe2\x80\x9d covered under 5 U.S.C. \xc2\xa7 4110, we must decide whether the cost\nof attending the banquet (which we assume will normally be in the form o f a single\ncharge for the entire event, with no lesser or separate charge for the \xe2\x80\x9cm eal\xe2\x80\x9d) is\nproperly reimbursable.\nThe Com ptroller G eneral\xe2\x80\x99s opinion states that the test for determining whether\nan employee may be reimbursed for the cost of such a banquet is \xe2\x80\x9cwhether the meal\nwas an incidental part of the event or the event was incidental to the m eal.\xe2\x80\x9d Held,\n1992 WL 387431, at *2. Under this test, the availability of reim bursem ent de\xc2\xad\npends upon whether the meal is found to be merely' \xe2\x80\x9cincidental\xe2\x80\x9d to what might be\ncalled the main event. W hile that test may be appropriate when applied to\n\xe2\x80\x9cworking lunches\xe2\x80\x9d or meals taken during the course of a conference or training\nevent, we consider it inapposite when applied to ceremonial banquets. A banquet\nis a meal, albeit a ceremonial and elaborate one, and it is therefore not readily un\xc2\xad\nderstandable how it can be concluded that \xe2\x80\x9cthe meal is clearly incidental to the\n[banquet].\xe2\x80\x9d Id.\nIn the case of an official ceremonial banquet, we believe that the question\nwhether the meal is \xe2\x80\x9cincidental to the event\xe2\x80\x9d is subsumed by the broader question\nwhether the particular banquet qualifies as a \xe2\x80\x9cm eeting\xe2\x80\x9d that is legitimately related\nto the agency\xe2\x80\x99s functions under 5 U.S.C. \xc2\xa7 4110. In the case of a banquet for\nwhich a single cost of attendance is paid, the event is inseparable from the meal.\nWe therefore believe that determinations whether such events are eligible for reim \xc2\xad\nbursement should focus upon the legitimacy of their relationship to the functions of\nthe attendee\xe2\x80\x99s agency rather than abstract consideration of whether a meal may be\n\xe2\x80\x9cincidental\xe2\x80\x9d to a banquet.\nIn the H eld ruling, there was strong reason to believe that the Special A gent\xe2\x80\x99s\nattendance at the banquet would help to foster or maintain good working relation\xc2\xad\nships with the local law enforcement community. Id. Therefore, the costs of at\xc2\xad\ntendance were properly reimbursable. We believe that an employee of a United\nStates A ttorney\xe2\x80\x99s office could properly be reimbursed for attending a similar ban\xc2\xad\nquet under like circumstances, since we see no fundamental difference between the\nFB I\xe2\x80\x99s need to maintain good working relationships and exchange information\nabout official duties with state and local law enforcement agencies and the com pa\xc2\xad\nrable need of United States A ttorneys\xe2\x80\x99 offices.\nC. Lim itations\nW hile we agree that the cost of attending the banquet described in the Held rul\xc2\xad\ning was properly reimbursable, we would caution that the ruling does not necessar\xc2\xad\nily apply to a law enforcement agency em ployee\xe2\x80\x99s attendance at all arguably\n\n73\n\n\x0cOpinions o f th e O ffice o f L egal C ounsel\n\ncom parable functions. In that regard, we would suggest that the following factors\nreflected in the C om ptroller General\xe2\x80\x99s opinion are pertinent in determining whether\nthe expenses o f attendance at a given banquet or ceremonial meal are properly re\xc2\xad\nim bursable under 5 U.S.C. \xc2\xa7 4110:\n1) the function was held to honor or com m emorate the personnel, achievements,\nor operations o f a law enforcement agency with which the attending em ployee\xe2\x80\x99s\nagency has significant working relationships;\n2) the function was officially sponsored, formally scheduled, and ceremonial in\nnature;\n3) the agency official or employee was invited to the function or attends the\nfunction in a representative capacity;\n4) the attendance of a representative o f the em ployee\xe2\x80\x99s agency was to some de\xc2\xad\ngree expected by the agency sponsoring the function; and\n5) the attending em ployee was a suitable representative of the agency.\nA pplication of such criteria should help to identify the circumstances where at\xc2\xad\ntendance at a banquet or similar function is legitimately related to the agency\xe2\x80\x99s\nauthorized functions. In particular, w here the agency-function criterion is based on\ncultivating good relationships with state or local agencies \xe2\x80\x94 as opposed to the\ntraining or information-gathering purposes normally served by meetings covered\nby 5 U.S.C. \xc2\xa7 4110 \xe2\x80\x94 it is reasonable to require that the event be of significant\nofficial stature. Otherw ise there w ould be no manageable standard for distin\xc2\xad\nguishing informal social functions from those ceremonial events where representa\xc2\xad\ntion o f the agency is truly important from the standpoint of inter-agency working\nrelationships.\nFinally, we would note that an agency is not required to authorize an em\xc2\xad\nployee\xe2\x80\x99s reim bursable attendance at functions o f this kind merely because the ex\xc2\xad\npenses may be properly reimbursable. See U.S. General Accounting Office, I\nPrinciples o f Federal Appropriations Laws 4-31 (2d ed. 1991). Thus, an agency\nmay adopt a general policy against authorizing reimbursable attendance at such\nfunctions even if attendance at particular functions o f that kind may be reimburs\xc2\xad\nable under the governing statute.\n\nW ALTER DELLINGER\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n74\n\n\x0c"


b'Authority of State Officials to Share Motor\nVehicle Record Information with the\nDepartment of Defense or Its Contractors\nThe Drivers\xe2\x80\x99 Privacy Protection Act permits state Department of Motor Vehicles offices to release\ncovered information in motor vehicle records to both the Department of Defense and private entities\nacting on DoD\xe2\x80\x99s behalf, provided that the records are used for a statutorily approved purpose of\nDoD, such as military recruitment.\n\nMay 24, 2001\n\nMEMORANDUM OPINION FOR THE ACTING GENERAL COUNSEL\nDEPARTMENT OF DEFENSE\nThis memorandum responds to your request for our opinion whether the Drivers\xe2\x80\x99 Privacy Protection Act (\xe2\x80\x9cDPPA\xe2\x80\x9d), 18 U.S.C. \xc2\xa7\xc2\xa7 2721-2725 (1994 & Supp. V\n1999), precludes state officials from providing certain information related to motor\nvehicle records to the Department of Defense (\xe2\x80\x9cDoD\xe2\x80\x9d) or its contractors in\nconjunction with military recruiting efforts.\nAccording to your memorandum, the Joint Recruiting Advertising Program\n(\xe2\x80\x9cJRAP\xe2\x80\x9d) in the DoD conducts military recruiting. See Letter for Randolph D.\nMoss, Assistant Attorney General, Office of Legal Counsel, from Douglas A.\nDworkin, General Counsel, Department of Defense at 1 (Nov. 6, 2000). To\nfacilitate this effort, JRAP provides lists of names and contact information of\nprospective recruits to the military services which in turn use these lists as the\nbasis for direct mail advertising in support of military recruitment. Id. Pursuant to\ncontract, a private organization, Bates Advertising USA, Inc., provides the lists to\nJRAP. Id. Bates Advertising prepares these lists based on information contained in\nlists it purchases from another private organization, American Students Lists\n(\xe2\x80\x9cASL\xe2\x80\x9d), which acquires its information from a variety of sources, including\ninformation from state Department of Motor Vehicles (\xe2\x80\x9cDMV\xe2\x80\x9d) offices. Id.\nRecently, some state DMV offices have refused to make this information available\nto ASL because of concern that the DPPA \xe2\x80\x9cprohibits them from selling or giving\npersonal information to ASL and JRAP.\xe2\x80\x9d 1 Id.\nThe DPPA provides generally as follows:\nExcept as provided in subsection (b), a State department of motor\nvehicles, and any officer, employee, or contractor, thereof, shall not\nknowingly disclose or otherwise make available to any person or\n\n1\nJRAP sometimes purchases information from those state DMV offices that have not provided the\ninformation to ASL. Id.\n\n118\n\n227-329 VOL_25_PROOF.pdf 128\n\n10/22/12 11:10 AM\n\n\x0cAuthority of State Officials to Share Motor Vehicle Record Information with DoD\n\nentity personal information about any individual obtained by the\ndepartment in connection with a motor vehicle record.\n18 U.S.C. \xc2\xa7 2721(a). 2 One of the exceptions contained in subsection (b) provides\nthat the covered personal information may be disclosed \xe2\x80\x9c[f]or use by any government agency, including any court or law enforcement agency, in carrying out its\nfunctions, or any private person or entity acting on behalf of a Federal, State, or\nlocal agency in carrying out its functions.\xe2\x80\x9d Id. \xc2\xa7 2721(b)(1).\nBecause military recruitment is a function of the DoD, a government agency,\nthe plain language of this statutory exception\xe2\x80\x94sanctioning the release of covered\ninformation to government agencies carrying out agency functions\xe2\x80\x94permits state\nofficials to release such information to the DoD for military recruiting purposes.\nThe statutory exception by its terms also permits the release of protected information to private entities acting on the behalf of government agencies in carrying\nout government agency functions. Thus, the DPPA permits State DMV offices to\nrelease protected information to both the DoD and private entities acting on the\nDoD\xe2\x80\x99s behalf, as long as the requesters will use the covered information for a\npermissible purpose such as military recruitment. 3 The DPPA further provides that\n\xe2\x80\x9c[a]n authorized recipient of personal information . . . may resell or redisclose the\ninformation only for a use permitted\xe2\x80\x9d under the statute. See 18 U.S.C. \xc2\xa7 2721(c).\nThus, once the DoD and the private entities receive such information, both entities\nmust be careful to use the information only for a statutorily approved purpose. See\nid. \xc2\xa7 2721(b)(1)-(14) (setting forth permissible uses of information).\nSHELDON BRADSHAW\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n2\nPersons who knowingly violate any provision of the DPPA are subject to criminal fines, see 18\nU.S.C. \xc2\xa7 2723(a), and a state DMV that has \xe2\x80\x9ca policy or practice of substantial noncompliance\xe2\x80\x9d is\nsubject to a civil penalty by the Attorney General, see id. \xc2\xa7 2723(b).\n3\nWhether a particular private entity is in fact acting on the DoD\xe2\x80\x99s behalf under the terms of this\nstatute would require an analysis of the application of criminal and agency law to the set of facts in\nquestion, an inquiry which is beyond the scope of this opinion.\n\n119\n\n227-329 VOL_25_PROOF.pdf 129\n\n10/22/12 11:10 AM\n\n\x0c'