Congressional Directives: Selected Agencies' Processes for	 
Responding to Funding Instructions (31-JAN-08, GAO-08-209).	 
                                                                 
In recent years, congressional concern and public debate have	 
increased about the nature and growing number of earmarks. This  
report seeks to provide Congress and the public with an 	 
understanding of how agencies respond to congressional funding	 
directions by examining how selected executive branch agencies	 
translate these directions from Congress into governmental	 
activities. There have been numerous calls in and out of Congress
for earmark reform in response to concerns about the nature and  
number of earmarks. Both Houses of Congress have taken steps to  
increase disclosure requirements. The President has also called  
for earmark reform. In January 2007, the Office of Management and
Budget (OMB) directed agencies to collect and submit data to it  
on fiscal year 2005 earmarks in appropriations bills and certain 
authorization bills. GAO collected and analyzed information on	 
four agencies' processes (i.e., the Department of Defense,	 
Department of Energy, Department of Transportation, and U.S. Army
Corps of Engineers' Civil Works programs). Our objectives were to
identify, for these agencies, (1) their processes for identifying
and categorizing congressional directives; (2) their processes	 
for tracking, implementing, and reporting on congressional	 
directives; and (3) agency officials' views on the trends and	 
impact of congressional directives.				 
-------------------------Indexing Terms------------------------- 
REPORTNUM:   GAO-08-209 					        
    ACCNO:   A80332						        
  TITLE:     Congressional Directives: Selected Agencies' Processes   
for Responding to Funding Instructions				 
     DATE:   01/31/2008 
  SUBJECT:   Appropriations					 
	     Budget administration				 
	     Budget authority					 
	     Congressional powers				 
	     Data collection					 
	     Federal agencies					 
	     Federal funds					 
	     Financial management				 
	     Financial management systems			 
	     Funds management					 
	     Policy evaluation					 
	     Requirements definition				 
	     Strategic planning 				 
	     Program goals or objectives			 

******************************************************************
** This file contains an ASCII representation of the text of a  **
** GAO Product.                                                 **
**                                                              **
** No attempt has been made to display graphic images, although **
** figure captions are reproduced.  Tables are included, but    **
** may not resemble those in the printed version.               **
**                                                              **
** Please see the PDF (Portable Document Format) file, when     **
** available, for a complete electronic file of the printed     **
** document's contents.                                         **
**                                                              **
******************************************************************
GAO-08-209

   

     * [1]Definitions

          * [2]Lump Sum and Line Item
          * [3]Appropriations in the Beginning of the Republic
          * [4]Congressional Directives and Restrictions in Legislative His

     * [5]Recent Guidance to Agencies on Collecting Data on Earmarks
     * [6]Definition DOD Used for Identifying and Tracking Congression
     * [7]DOD's Process for Identifying and Categorizing Congressional
     * [8]DOD's Process for Tracking, Implementing, and Reporting on C
     * [9]DOD Officials' Views on Trends and Impact of Congressional D
     * [10]Definition DOE Used for Identifying and Tracking Congression
     * [11]DOE's Process for Identifying and Categorizing Congressional
     * [12]DOE's Process for Tracking, Implementing, and Reporting on C
     * [13]DOE Officials' Views on Trends and Impact of Congressional D
     * [14]Definitions FHWA and FTA Used for Identifying and Tracking C
     * [15]FHWA and FTA Processes for Identifying and Categorizing Cong
     * [16]FHWA and FTA Processes for Tracking, Implementing, and Repor
     * [17]FHWA and FTA Officials' Views on Trends and Impact of Congre
     * [18]Definition Corps Civil Works Used for Identifying and Tracki
     * [19]Corps Civil Works' Process for Identifying and Categorizing
     * [20]Corps Civil Works' Process for Tracking, Implementing, and R
     * [21]Corps Civil Works Officials' Views on Trends and Impact of C
     * [22]Agency-Specific Contacts
     * [23]GAO's Mission
     * [24]Obtaining Copies of GAO Reports and Testimony

          * [25]Order by Mail or Phone

     * [26]To Report Fraud, Waste, and Abuse in Federal Programs
     * [27]Congressional Relations
     * [28]Public Affairs

Report to Congressional Addressees

United States Government Accountability Office

GAO

January 2008

CONGRESSIONAL DIRECTIVES

Selected Agencies' Processes for Responding to Funding Instructions

GAO-08-209

Contents

Letter 1

Section 1 Background 5
Definitions 5
Recent Guidance to Agencies on Collecting Data on Earmarks 11
Section 2 Department of Defense 13
Definition DOD Used for Identifying and Tracking Congressional Directives
13
DOD's Process for Identifying and Categorizing Congressional Directives 15
DOD's Process for Tracking, Implementing, and Reporting on Congressional
Directives 17
DOD Officials' Views on Trends and Impact of Congressional Directives 19
Section 3 Department of Energy 21
Definition DOE Used for Identifying and Tracking Congressional Directives
21
DOE's Process for Identifying and Categorizing Congressional Directives 22
DOE's Process for Tracking, Implementing, and Reporting on Congressional
Directives 22
DOE Officials' Views on Trends and Impact of Congressional Directives 24
Section 4 Department of Transportation: Highways and Transit 26
Definitions FHWA and FTA Used for Identifying and Tracking Congressional
Directives 27
FHWA and FTA Processes for Identifying and Categorizing Congressional
Directives 28
FHWA and FTA Processes for Tracking, Implementing, and Reporting on
Congressional Directives 29
FHWA and FTA Officials' Views on Trends and Impact of Congressional
Directives 32
Section 5 U.S. Army Corps of Engineers' Civil Works Programs 35
Definition Corps Civil Works Used for Identifying and Tracking
Congressional Directives 37
Corps Civil Works' Process for Identifying and Categorizing Congressional
Directives 38
Corps Civil Works' Process for Tracking, Implementing, and Reporting on
Congressional Directives 41
Corps Civil Works Officials' Views on Trends and Impact of Congressional
Directives 41
Appendix I Objectives, Scope, and Methodology 43
Appendix II GAO Contacts 47

Table

Table 1: Data Fields and Summaries of the Information Provided on the
Corps' Fact Sheet 39

Figures

Figure 1: DOD's Process for Identifying and Categorizing Congressional
Directives 16
Figure 2: Mission and Structure of FHWA and FTA 27
Figure 3: FHWA and FTA Processes for Administering Congressional
Directives 31
Figure 4: U.S. Army Corps of Engineers' Civil Works Divisions and
Districts 36

Abbreviations

CRS Congressional Research Service
DISA Defense Information Systems Agency
DOD Department of Defense
DOE Department of Energy
DOT Department of Transportation
DTRA Defense Threat Reduction Agency
EERE Office of Energy Efficiency and Renewable Energy
FHWA Federal Highway Administration
FTA Federal Transit Administration
FTE full-time equivalent
NNSA National Nuclear Security Administration
OMB Office of Management and Budget
OSD Office of the Secretary of Defense
SAFETEA-LU Safe, Accountable, Flexible, Efficient Transportation
Equity Act: A Legacy for Users
SOCOM U.S. Special Operations Command
TEA-21 Transportation Equity Act for the 21st Century

This is a work of the U.S. government and is not subject to copyright
protection in the United States. It may be reproduced and distributed in
its entirety without further permission from GAO. However, because this
work may contain copyrighted images or other material, permission from the
copyright holder may be necessary if you wish to reproduce this material
separately.

United States Government Accountability Office
Washington, DC 20548

                                                          Comptroller General
                                                         of the United States

January 31, 2008

Congressional Addressees

In recent years, both congressional concern and public debate about
earmarks have increased. Specifically, congressional concern has focused
on both the nature of earmarks as well as the increase in the number of
earmarks. At the same time, a great deal of misunderstanding exists about
what the term earmark means, about the wide variation in the nature of
earmarks, and about how earmarks fit into the broader budget context. This
report seeks to move beyond the public debate surrounding earmarks to
examine how executive branch agencies translate spending directions in law
and committee reports into governmental activities by explaining how
executive branch agencies respond to these congressional directives. In
recent years, both congressional concern and public debate about earmarks
have increased. Specifically, congressional concern has focused on both
the nature of earmarks as well as the increase in the number of earmarks.
At the same time, a great deal of misunderstanding exists about what the
term earmark means, about the wide variation in the nature of earmarks,
and about how earmarks fit into the broader budget context. This report
seeks to move beyond the public debate surrounding earmarks to examine how
executive branch agencies translate spending directions in law and
committee reports into governmental activities by explaining how executive
branch agencies respond to these congressional directives.

Congress or its committees may use formal vehicles to provide written
funding instructions for agencies or to express preferences to agencies on
the use of funds. These formal vehicles include laws (i.e., authorization
or appropriations acts) or House, Senate, and conference reports
comprising significant parts of the legislative history of a given law.
These instructions are often referred to as earmarks and range from broad
directions on policy priorities to specific instructions. The range of
these congressional funding directions collectively is so broad that for
the purpose of this report, we refer to these directions as "congressional
directives" in order to avoid confusion associated with varied legal and
common usage definitions and connotations of the term "earmarks." We
identify and use agency-specific terms when discussing definitions
agencies use for congressional directives. Congress or its committees may
use formal vehicles to provide written funding instructions for agencies
or to express preferences to agencies on the use of funds. These formal
vehicles include laws (i.e., authorization or appropriations acts) or
House, Senate, and conference reports comprising significant parts of the
legislative history of a given law. These instructions are often referred
to as earmarks and range from broad directions on policy priorities to
specific instructions. The range of these congressional funding directions
collectively is so broad that for the purpose of this report, we refer to
these directions as "congressional directives" in order to avoid confusion
associated with varied legal and common usage definitions and connotations
of the term "earmarks." We identify and use agency-specific terms when
discussing definitions agencies use for congressional directives.

The current focus on the number and amount of earmarks overshadows the
limited information available about the agency role in this aspect of the
appropriations process. This report seeks to fill that knowledge gap and
clarify what actually happens after agencies identify their respective
congressional funding directives. To provide Congress and the public with
a better understanding of how agencies respond to congressional funding
directives, the objective of this report is to describe the processes used
in selected agencies to identify, categorize, track, implement, and report
back on congressional directives as well as how selected officials within
these agencies characterize trends in the number and types of directives
and the impact of directives on agency budgets and program implementation.
The selected agencies were the Department of Defense, The current focus on
the number and amount of earmarks overshadows the limited information
available about the agency role in this aspect of the appropriations
process. This report seeks to fill that knowledge gap and clarify what
actually happens after agencies identify their respective congressional
funding directives. To provide Congress and the public with a better
understanding of how agencies respond to congressional funding directives,
the objective of this report is to describe the processes used in selected
agencies to identify, categorize, track, implement, and report back on
congressional directives as well as how selected officials within these
agencies characterize trends in the number and types of directives and the
impact of directives on agency budgets and program implementation. The
selected agencies were the Department of Defense, Department of Energy,
Department of Transportation, and U.S. Army Corps of Engineers' Civil
Works programs.

In summary, we found that each agency responds to directives in a manner
consistent with the nature of its programs and operations. Each agency
reported that it had a definition it believed was consistent with and
responsive to its own authorizing and appropriations committees in
Congress. The agencies also have recently adopted their own approaches for
responding to the Office of Management and Budget's (OMB) January 2007
direction to agencies to collect and submit data on fiscal year 2005
earmarks in appropriations bills and certain authorization bills,
including report language.1 OMB's guidance to agencies excludes from its
definition of earmarks funds requested in the President's Budget.
Following the issuance of this OMB guidance on earmarks, each agency
developed an approach to provide OMB the data it requested. The agencies
reported that to respond to OMB's data request, they did not use the
definitions they previously used for monitoring congressional directives.
Rather, they provided data based on either OMB's definition of earmarks or
what was agreed to in a negotiation with OMB.

With a few exceptions, officials representing the selected agencies
generally expressed the view that the number of congressional directives
had increased over time. Agency officials provided a range of views on the
impact of these directives on budget and program execution. Some agency
officials said that the impact of congressional directives on their
mission requirements or ability to accomplish their goals was limited.
Some told us that congressional directives provided money for projects
they wanted but had been unable to get funded in their agencies' budget
requests. In other agencies, officials reported that implementation of
these directives could displace agencies' program priorities as the
agencies redirect resources to comply with congressional directives.
Agency officials also reported that directives can add uncertainty as
agencies respond to congressional priorities identified months after their
planning for items in the President's Budget.

This report provides background and context on congressional directives
and the use of the term earmarks. Agencies' approaches to defining,
identifying, categorizing, tracking, implementing, and reporting on
congressional directives are discussed in separate sections for the four
selected agencies. Appendix I describes our methodology for reviewing
congressional directives. Appendix II lists key GAO contacts. Contact
points for our Offices of Congressional Relations and Public Affairs may
be found on the last page of this report. This report will be available at
no charge on GAO's Web site at http://www.gao.gov.

1Because OMB's guidance uses and provides a specific definition for the
term earmarks, when referring to OMB's efforts to collect information from
agencies we use the term earmarks.

David M. Walker
Comptroller General of the United States

List of Addressees


The Honorable Daniel K. Inouye: 
Chairman: 
Subcommittee on Defense: 
Committee on Appropriations: 
United States Senate: 

The Honorable Carl Levin: 
Chairman: 
The Honorable John McCain: 
Ranking Member: 
Committee on Armed Services: 
United States Senate: 

The Honorable Christopher J. Dodd: 
Chairman: 
The Honorable Richard Shelby: 
Ranking Member: 
Committee on Banking, Housing, and Urban Affairs: 
United States Senate: 

The Honorable James M. Inhofe: 
Ranking Member: 
Committee on Environment and Public Works: 
United States Senate: 

The Honorable Dave Obey: 
Chairman: 
Committee on Appropriations: 
House of Representatives: 

The Honorable Ike Skelton: 
Chairman: 
Committee on Armed Services: 
House of Representatives: 

Section 1: Background

This section provides context for understanding the history and use of
congressional direction for appropriated funds. It traces the development
of authority for congressional direction of funds from the U.S.
Constitution to the current focus on reducing the number and amount of
earmarks in appropriations legislation.

The Constitution gives Congress the power to levy taxes and raise revenue
for the government, to finance government operations through appropriation
of federal funds, and to prescribe the conditions governing the use of
those appropriations.1 This power is generally referred to as the
congressional "power of the purse." The linchpin of congressional control
over federal funds is found in article I, section 9, clause 7 of the
Constitution, which provides that "No money shall be drawn from the
Treasury, but in Consequence of Appropriations made by Law." Thus, no
officer or employee of the government may draw money out of the Treasury
to fund agency operations unless Congress has appropriated the money to
the agency. At its most basic level, this means that it is up to Congress
to decide whether to provide funds for a particular program or activity
and to fix the level of that funding.

It is also well established that Congress can, within constitutional
limits, determine the terms and conditions under which an appropriation
may be used.2 In other words, Congress can specify (or direct) in an
appropriation the specific purposes for which the funds may be used, the
length of time the funds may remain available for these uses, and the
maximum amount an agency may spend on particular elements of a program. In
this manner, Congress may use its appropriation power to accomplish policy
objectives and to establish priorities among federal programs. It is then
the obligation of the agencies under Presidential supervision to ensure
that these policy objectives and priorities are faithfully executed.3

Definitions

Historically, the term "earmark" has described legislative language that
designates a specified amount of a larger appropriation as available only
for a particular object. The term earmark derives from ancient England
where English farmers would mark the ears of their swine, oxen, and other
livestock to cull them from the village herd and demonstrate ownership.4
In common usage, however, the term earmark soon developed a broader
meaning.

1U.S. Const. art. I, S 8, cl. 1; S 9, cl. 7.

2See, for example, New York v. United States, 505 U.S. 144, 167 (1992);
Cincinnati Soap Co., 301 U.S. 308, and 321 (1937); Oklahoma v. Schweiker,
655 F.2d 401, 406 (D.C. Cir. 1981) (citing numerous cases).

3U.S. Const. art. II, S 3.

There are many definitions of earmarks. For example, our Glossary of Terms
Used in the Federal Budget Process defines earmarking as either of the
following:

           1. Dedicating collections by law for a specific purpose or
           program. Earmarked collections include trust fund receipts,
           special fund receipt accounts, intragovernmental receipts, and
           offsetting collections credited to appropriation accounts. These
           collections may be classified as budget receipts, proprietary
           receipts, or reimbursements to appropriations.
           2. Designating any portion of a lump-sum amount for particular
           purposes by means of legislative language. Sometimes "earmarking"
           is colloquially used to characterize directions included in
           congressional committee reports but not in the legislation
           itself.5

The Congressional Research Service (CRS) dictionary of legislative terms
includes a similar definition of earmarks as "to set aside funds for a
specific purpose, use, or recipient." More specifically, CRS notes the
following:

"There is not a single definition of the term earmark accepted by all
practitioners and observers of the appropriations process, nor is there a
standard earmark practice across all 13 appropriation bills. According to
Congressional Quarterly's American Congressional Dictionary, under the
broadest definition `virtually every appropriation is earmarked.' In
practice, however, earmarks are generally defined more narrowly, often
reflecting procedures established over time that may differ from one
appropriation bill to another. For one bill, an earmark may refer to a
certain level of specificity within an account. For other bills, an
earmark may refer to funds set aside within an account for individual
projects, locations, or institutions (emphasis added)."6

4See Bryan A. Garner, ed. Black's Law Dictionary, 8th ed. (St. Paul,
Minn.: Thomson West, 2004), quoting Frederick Pollock and Frederic W.
Maitland, History of English Law Before the Time of Edward I, 2nd ed.
(1899): "When now-a-days we say that `money has no earmark' we are
alluding to a practice which in all probability played a large part in
ancient law. Cattle were ear-marked or branded, and this enabled their
owner to swear that they were his in whosesoever hands he might find them.
The legal supposition is, not that one ox is indistinguishable from
another ox, but that all oxen, or all oxen of a certain large class, are
equivalent. The possibility of using them as money has rested on this
supposition."

5See GAO, A Glossary of Terms Used in the Federal Budget Process,
[29]GAO-05-734SP (Washington, D.C.: September 2005). GAO's glossary
fulfills part of GAO's responsibility under 31 U.S.C. S 1112 to publish
standard terms, definitions, and classifications for the government's
fiscal, budget, and program information. It was developed in cooperation
with the Secretary of the Treasury, the Office of Management and Budget,
and the Congressional Budget Office.

In recent years there has been a significant amount of public discussion
about the nature and number of earmarks, with exponential growth reported
in the number and amounts. For example, researchers at the Brookings
Institution, on the basis of data compiled by CRS, cited dramatic growth
in earmarks between 1994 and fiscal year 2006.7 In fact, CRS data show
increases in the number and amount for individual appropriation bills
during that period.

Any discussion of trends, however, is complicated by the fact that
different definitions of the term earmarks exist and that the amounts
reported vary depending on the definition used. Although CRS has totaled
the number and amount of earmarked spending for each of the regular annual
spending bills enacted since fiscal year 1994, CRS has cautioned that the
data presented for the 13 appropriations cannot be combined into a
governmentwide total because of the different definitions and
methodologies that were used for each bill. These differing definitions
would make any total invalid.

Lump Sum and Line Item

Any definition of the term earmark requires a reference to two other terms
in appropriations law--lump-sum appropriations and line-item
appropriations. A lump-sum appropriation is one that is made to cover a
number of programs, projects, or items. Our publication, Principles of
Federal Appropriations Law (also known as the Red Book), notes that GAO's
appropriations case law defines earmarks as "actions where Congress . . .
designates part of a more general lump-sum appropriation for a particular
object, as either a maximum, a minimum, or both."8

6CRS, Earmarks and Limitations in Appropriation Bills, Report 98-518 (Dec.
7, 2004).

7Sarah A. Binder, Thomas E. Mann, and Molly Reynolds, "Is the Broken
Branch on the Mend? An Early Report on the 110th Congress," Mending the
Broken Branch, no. 1. (Washington, D.C.: The Brookings Institution, 2007).

Today, Congress gives federal agencies flexibility and discretion to spend
among many different programs, projects, and activities financed by one
lump-sum appropriation. For example, in fiscal year 2007, Congress
appropriated a lump-sum appropriation of $22,397,581,000 for all Army
Operations and Maintenance expenses.9 Many smaller agencies receive only a
single appropriation, usually termed Salaries and Expenses or Operating
Expenses. All of the agency's operations must be funded from this single
appropriation.

A line-item appropriation is generally considered to be an appropriation
of a smaller scope, for specific programs, projects, and activities. In
this sense, the difference between a lump-sum appropriation and a
line-item appropriation is a relative concept hinging on the specificity
of the appropriation. Also, unlike an earmark, a line item is typically
separate from the larger appropriation. As noted above, in earlier times
when the federal government was much smaller and federal programs were (or
at least seemed) less complicated, line-item appropriations were more
common. For example, among the items for which Congress appropriated funds
for 1853 were separate appropriations to the Army, including: $203,180.83
for clothing, camp and garrison equipage, and horse equipment; $4,500 for
fuel and quarters for officers serving on the coast survey; and $400,000
for construction and repair.

Appropriations in the Beginning of the Republic

Congressional direction of funds has a well-established lineage that dates
back to the nation's earliest appropriations. The first general
appropriations act, passed by Congress on September 29, 1789, appropriated
a total of $639,000 and was a relatively uncomplicated appropriation. We
quote it in full:

"Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled, That there be appropriated for
the service of the present year, to be paid out of the monies which arise,
either from the requisitions heretofore made upon the several states, or
from the duties on impost and tonnage, the following sums, viz. A sum not
exceeding two hundred and sixteen thousand dollars for defraying the
expenses of the civil list, under the late and present government; a sum
not exceeding one hundred and thirty-seven thousand dollars for defraying
the expenses of the department of war; a sum not exceeding one hundred and
ninety thousand dollars for discharging the warrants issued by the late
board of treasury, and remaining unsatisfied; and a sum not exceeding
ninety-six thousand dollars for paying the pensions to invalids."10

8See GAO, Principles of Federal Appropriations Law, vol. II, 3rd ed.,
[30]GAO-06-382SP (Washington, D.C.: February 2006).

9Pub. L. No. 109-289, 120 Stat. 1257, 1260 (Sept. 29, 2006).

From today's perspective, some might say that this first appropriation
contains several lump-sum appropriations. Others might say that these are
line-item appropriations for (1) civil servants, (2) department of war,
(3) treasury, and (4) pension payments. In any event, these are
congressional directives instructing the executive branch on how funds are
to be spent. As discussed earlier, this illustrates the definitional
difficulties in this area.

The second appropriation made by the First Congress for 1791 contained a
congressional directive to spend "a sum not exceeding fifty thousand seven
hundred and fifty-six dollars and fifty-three cents," for several specific
objects requested by Secretary of the Treasury Alexander Hamilton in his
budget estimates, such as converting the Beacon of Georgia into a
lighthouse and for the purchase of hydrometers.11

By the Second Congress, more and more explicit congressional directives
began to appear. For example, the appropriation for the year 1792 contains
an appropriation of $197,119.49, directed by law for 12 purposes,
including specific payments for individuals such as the following:

"For payment of the principal and interest on a liquidated claim of Oliver
Pollock, late commercial agent of the United States, at New Orleans, for
supplies of clothing, arms, and military stores during the late war, one
hundred and eight thousand, six hundred and five dollars, and two cents:
Provided, `That the said monies be not paid to the said Oliver Pollock,12
without the consent of the agents of the court of Spain."'13

10Ch. XXIII, 1 Stat. 95 (Sept. 29, 1789).

11Ch. VI, 1 Stat. 190 (Feb. 11, 1791). Estimate of the Expenditures of the
Civil List of the United States, on the present Establishment, for the
year 1791.

Congressional Directives and Restrictions in Legislative History

Today, congressional committees sometimes insert spending directives and
restrictions on the use of appropriated funds in what is known as the
legislative history of an act--that is, House, Senate, and conference
reports accompanying a piece of legislation. As a matter of law,
instructions in committee reports and other legislative history as to how
funds should or are expected to be spent do not impose any legal
requirements on federal agencies.14 Only directions that are specified in
the law itself are legally binding.15

This does not mean agencies are free to ignore clearly expressed
legislative history applicable to the use of appropriated funds. In a 1975
decision, we pointed out that agencies ignore such expressions of intent
at the peril of strained relations with committees and that agencies have
a practical obligation to abide by such expressions.16 This obligation,
however, must be understood to fall short of a legal requirement giving
rise to a legal infraction where there is a failure to carry out that
obligation. In that decision, we pointed out that Congress has recognized
that it is desirable to maintain executive flexibility to shift funds
within a particular lump-sum appropriation account so that agencies can
make necessary adjustments for unforeseen developments, changing
requirements, and legislation enacted subsequent to appropriations. This
is not to say that Congress does not expect that funds will be spent in
accordance with budget estimates or in accordance with restrictions or
directions detailed in committee reports. However, in order to preserve
spending flexibility, it may choose not to impose these particular
restrictions as a matter of law, but rather to leave it to the agencies to
"keep faith" with Congress.

12Oliver Pollock was an Irish American merchant. After moving to New
Orleans, Pollock speculated advantageously in land and in the slave trade
and gained the confidence of the Spanish government. He contributed
generously to the cause of the colonies in the American Revolution,
obtained supplies from the Spanish, and helped finance George Rogers
Clark's conquest of the Northwest. After the war the American government
met its debts to him, but repayment was tardy and incomplete. Columbia
Electronic Encyclopedia, 6th ed. (New York: Columbia Univ. Press, 2003).

13Ch. III, 1 Stat. 226 (Dec. 23, 1791).

14 55 Comp. Gen. 307 (1975).

15This is an application of the fundamental principle of statutory
construction that legislative history is not law and carries no legal
significance unless "anchored in the text of the statute." Shannon v.
United States, 512 U.S. 573, 583 (1994).

16 55 Comp. Gen. at 318.

The Supreme Court recently summarized congressional authority to direct
lump-sum appropriations as follows:

"Congress may always circumscribe agency discretion to allocate resources
by putting restrictions in the operative statutes (though not . . . just
in the legislative history). And of course, we hardly need to note that an
agency's decision to ignore congressional expectations may expose it to
grave political consequences."17

Recent Guidance to Agencies on Collecting Data on Earmarks

There have been numerous calls in and out of Congress for earmark reform.
Both Houses of Congress have taken steps to increase disclosure
requirements. In January 2007, the President proposed "earmark reforms" in
his State of the Union address. These included cutting the number and
amount of earmarks by at least half. According to the Office of Management
and Budget (OMB), in fiscal year 2005, there were 13,492 earmarks totaling
$18,938,657,000 for appropriations accounts.

In response to the President's proposal, OMB directed the heads of
departments and agencies to collect data on earmarks and submit the
information to OMB. As explained in OMB's guidance, the purpose of the
data collection is "to provide a transparent baseline from which the
cut-in-half goal will be measured." For the purposes of this data
collection effort, OMB directed agencies to use the following definition
of earmarks:

"Earmarks are funds provided by the Congress for projects or programs
where the congressional direction (in bill or report language) circumvents
the merit-based or competitive allocation process, or specifies the
location or recipient, or otherwise curtails the ability of the
Administration to control critical aspects of the funds allocation
process."

OMB asked agencies to provide earmark information encompassed in all
enacted appropriations bills in fiscal year 2005 and in any congressional
reports. The guidance to agencies also directed prioritization of data
collection to focus first on appropriations bills, since legislative
action on those bills typically begins in the spring. In addition, OMB
directed agencies to plan on providing information on earmarks in
authorizing and other bills that are identified based on consultation with
OMB. OMB's guidance to agencies excludes from its definition of earmarks
funds requested in the President's Budget.

17Lincoln v. Vigil, 508 U.S. 182, at 192-193 (1993).

OMB posted these data on its Web site and also asked agencies to identify
earmarks in fiscal year 2008 appropriations bills as they moved through
the legislative process.18 This request for data asked the heads of
departments and agencies to report to OMB the number and dollar value of
earmarks in each account within 7 days after an appropriations bill is
reported by the House or Senate Appropriations Committee or passes on the
House or Senate floor.

18See OMB's Web site at [31]http://earmarks.omb.gov .

Sectio Section 2: Department of Defense

The Department of Defense (DOD) is responsible for the military forces
needed to deter war and protect the security of the United States. The
major elements of these forces are the Army, Navy, Air Force, and Marine
Corps. DOD includes the Office of the Secretary of Defense (OSD), the
Chairman of the Joint Chiefs of Staff, three military departments, nine
unified combatant commands, the DOD Inspector General, 15 defense
agencies, and 7 DOD field activities.

We focused on OSD's Comptroller; the military services (Army,1 Navy,
Marine Corps, and Air Force); two defense agencies, the Defense
Information Systems Agency (DISA) and the Defense Threat Reduction Agency
(DTRA); and one combatant command, the U.S. Special Operations Command
(SOCOM).

Definition DOD Used for Identifying and Tracking Congressional Directives

DOD has had a procedure in place for many years that identifies and
categorizes all congressional directives--which it calls add-ons or items
of congressional interest--for programs and projects contained in the bill
language included in the appropriations conference report. DOD does not
include items in defense authorization bills in its list of add-ons.
According to DOD officials, DOD defines an add-on as an increase in
funding levels in the bill language included in the appropriations
conference report that was not originally requested in the President's
Budget submission.

According to DOD officials, in order to receive an accurate reporting of
earmarks the definition had to be refined with OMB because many add-ons go
through the merit-based or competitive allocation process. To develop the
list of DOD's fiscal year 2005 earmarks for OMB, DOD officials worked with
OMB staff and representatives from the military components2 to come up
with agreed-on criteria. DOD officials said that they began with the DOD
list of add-ons and agreed on types of add-ons to exclude from the list to
be submitted to OMB. DOD officials told us that OMB and DOD agreed that
seven types of add-ons would generally be excluded from the list of
earmarks submitted to OMB. DOD does not include items in the defense
authorization bill as add-ons because authorization bills do not
appropriate funds for execution of program directives. DOD follows defense
appropriation bills to determine how to execute program directives. Six
additional types of add-ons to be excluded were

1The U.S. Army Corps of Engineers is part of the Army that has military
and civilian responsibilities. In this report, the military programs are
covered in our discussion on DOD, and the Civil Works programs are
discussed separately.

2Military components include the military departments: Army, Air Force,
Navy, Marine Corps; defense agencies; and the combatant commands.

           o funding for the Global War on Terror,
           o funding for the National Guard and Reserve Equipment (97-0350)
           appropriations account for procuring equipment,
           o funding for military personnel,
           o funding for peer-reviewed Defense health programs,3 
           o policy decisions for which DOD submitted its budget request with
           the best estimate available at the time but for which Congress
           subsequently adjusted the budget request due to refined estimates
           provided to it, and
           o items that are being transferred to other accounts that result
           in a net zero change to DOD's overall budget.

           DOD officials provided their rationale for excluding these types
           of add-ons for fiscal year 2005. According to DOD officials, the
           funding for the Global War on Terror is specific to providing
           support to the troops for ongoing combat operations and related
           activities. In fiscal year 2005, the Global War on Terror was
           funded primarily through supplemental appropriations rather than
           through the DOD base budget request. DOD officials stated that the
           National Guard and Reserve appropriations account to procure
           equipment (i.e., account 97-0350) was not an earmark because,
           although its funding was not requested in the President's Budget,
           the funding was routinely provided directly by Congress to
           maximize readiness of the National Guard and Reserve.
           Congressional add-ons for military personnel appropriated for
           basic pay and benefits were excluded because these were routine,
           merit-based administrative costs. Peer-reviewed Defense health
           programs were not considered earmarks because they were funded
           based on merit that was determined by a panel of physicians.
           Policy decisions for which DOD submitted a budget but did not
           fully fund procurement of an item were excluded because they were
           based on a preliminary estimate that required additional funding
           and were not new items. DOD excluded funds that were transferred
           to other accounts because the funds needed to be aligned with the
           correct place in the budget before they could be obligated or
           expended.

3Defense health programs that are peer reviewed are programs funded for
research and development directly related to military health.

           DOD officials stated that the list of exclusions is guidance for
           the components to use as they review the congressional add-ons to
           determine which funds should not be considered earmarks.
           Components prepared justifications for each add-on they believed
           should be excluded based on the exclusion criteria. In addition,
           officials stated that the criteria are evolving and that they are
           continuing to work with OMB to refine them.
			  
			  DOD's Process for Identifying and Categorizing Congressional
			  Directives

           Before OMB's 2007 guidance, DOD had an established process that it
           continues to use for identifying congressional directives
           contained in the bill language of the appropriations conference
           report. In addition, each component routinely monitors the
           congressional budget cycle and has its own staff (i.e.,
           legislative liaisons and financial management staff) who work with
           congressional staff to determine, if necessary, the purposes and
           objectives of congressional directives. In addition, legislative
           liaisons are responsible for updating their leadership on the
           status of congressional directives during House and Senate
           Appropriations Committee markups, floor debates, and the final
           conference report.

           Under the procedure DOD has had in place for years, the OSD
           Comptroller identifies all congressional directives contained in
           the bill language from the appropriations conference report, which
           are categorized by budget accounts and components, and provides
           the relevant list to the appropriate component.

           In response to OMB's 2007 guidance, DOD officials described an
           additional three-step process they used for identifying and
           categorizing fiscal year 2005 earmarks:

                        1. Components reviewed the list of congressional
                        directives identified by the OSD Comptroller and
                        applied the agreed-on exclusion criteria, then
                        developed justifications for any congressional
                        directives they identified as earmarks that met the
                        criteria to be excluded, and then provided the
                        revised list of directives and justifications back to
                        the OSD Comptroller.
                        2. The OSD Comptroller and OMB jointly determined if
                        any further adjustments needed to be made to the list
                        based on their review of the justification provided
                        by the components.
                        3. After the list was agreed on, an OSD official
                        created the list that was uploaded to an OMB earmarks
                        site for review. OMB approved the list for release to
                        the public site.

           Figure 1 describes DOD's process for identifying and categorizing
           fiscal year 2005 congressional directives in response to OMB's
           2007 data collection effort.

Figure 1: DOD's Process for Identifying and Categorizing Congressional
Directives

Note: According to DOD, congressional directives are all additional
funding in the bill language included from the appropriations conference
report that was not originally requested in the President's Budget
submission.

DOD officials said that in response to OMB's request for information on
fiscal year 2008 earmarks, an OSD Comptroller official will be required to
update the OMB database with the fiscal year 2008 earmarks at each stage
in the budget deliberation process (House and Senate Appropriations
Committee markups, floor debates, and the conference report) within 7
days. In addition, the DOD components will have access to the OMB database
and will be required to enter the details about the earmarks, including
recipient, location, and amount, as well as data on the execution status
of their respective earmarks. OSD Comptroller officials said that they
will be responsible for providing oversight of this process and will
monitor the Web site to ensure that the components populate the database
within the required time frames.

DOD's Process for Tracking, Implementing, and Reporting on Congressional
Directives

DOD does not have a centralized tracking and reporting mechanism that
shows to what extent funding has been obligated and expended in accordance
with congressional directives. DOD component headquarters staff track the
amount of funding provided to them for individual congressional
directives. Program offices track the execution of funds for the specific
programs covered by the directives but are not required to report the
status to the components or to the OSD Comptroller's office.

The OSD Comptroller makes an allotment of funding for the congressional
directives to the components, and this funding is tracked by the various
components' financial management systems rather than within a centralized
system maintained by OSD. We identified the financial management systems
for five of the six components that we interviewed. The sixth, SOCOM, at
this time uses the department's Programming, Budgeting, and Accounting
System to facilitate the tracking of congressional directives. The systems
described by the five components track all budget allotments and include
unique codes or other features that identify funds designated for
congressional directives for tracking purposes.

The financial management systems used by the five components are as
follows:

           o The Army uses the Funds Control System to track funds allotted
           for various directives. The system issues a funding authorization
           document to the Army operating agencies responsible for
           implementing the directives. Army officials identified two steps
           within the process that allow operating agencies to track
           congressional directives. The remarks section of the funding
           authorization document includes a statement that identifies the
           item as a congressional directive, and resource managers give each
           item an execution code that further facilitates tracking of such
           directives.
           o The Air Force Automated Funds Management System tracks all
           funding provided to the Air Force and specifically tags and
           footnotes congressional directives in the system. This process
           allows the system to produce reports on such directives for review
           by program managers, as needed.
           o The Navy's financial management system is the Program Budget
           Information System that tracks congressional directives. These
           directives are tagged and then monitored during execution.
           o The Washington Allotment Accounting System is the financial
           accounting system used by DISA that provides information on the
           funding execution of congressional directives. Funding is
           monitored at the program level by DISA's Home Team.4 According to
           DISA officials, congressional directives are assigned a project
           code that is linked to the funding documents, such as contracting
           vehicles, and that code allows DISA to determine that funding for
           a directive has been spent.
           o DTRA's financial accounting system is the Centralized Accounts
           and Financial Resources Management System. According to DTRA
           officials, congressional directives are given a work unit code in
           the accounting system that provides the status of funds for these
           directives through execution.

           Furthermore, Navy and Air Force officials provided examples of
           initiatives intended to streamline the process for tracking the
           status of congressional directives.

           o According to a Navy official, the Navy's Enterprise Resource
           Planning System is part of its ongoing business transformation
           effort, which, among other improvements, is intended to enhance
           its capability to track congressional directives. Through this
           integrated system, the Navy plans to include a code that
           identifies congressional directives through its accounting system.
           o The Air Force Research Lab has developed a process for tracking
           congressional directives. The lab set up separate account codes,
           called Emergency and Special Program Codes, to identify the
           funding that has been allocated for each directive. According to
           Air Force officials, they are considering a similar tracking model
           for Air Force-wide implementation.

           According to the components we reviewed, there is no requirement
           to report back the information from their financial management
           systems to the OSD Comptroller that would pull together a
           consolidated picture of the funding status for the list of
           congressional directives. Officials we interviewed from the six
           components said that once funding has been distributed to the
           program offices, they do not follow up to determine whether the
           directives are implemented.
			  
4DISA's Home Team was established about 4 years ago to augment and support
the Chief Financial Executive/Comptroller Directorate. It consists of
subject matter experts in budget, accounting, and information technology.

           OMB's Web site for fiscal year 2005 earmarks did not provide a
           means to include the implementation status of individual earmarks.
           According to DOD officials, DOD has asked OMB to include another
           field that would show the implementation or completion status of
           congressional earmarks in OMB's database to facilitate tracking in
           the future. This field will require DOD components to update
           information on the Web site beyond the OSD Comptroller's initial
           posting of data.

           DOD does not have a routine procedure for reporting to Congress on
           the progress being made on individual directives. According to DOD
           officials, components respond to individual congressional
           inquiries regarding the status of individual directives. In
           addition, the legislative liaison coordinates and oversees DOD
           responses to congressional inquiries on congressional directives
           as they are received.
			  
			  DOD Officials' Views on Trends and Impact of Congressional Directives

           We interviewed DOD officials who had responsibility for budgeting,
           financial management, and legislative issues related to
           congressional directives from six components. Some of the
           officials stated that they had only been in their positions for a
           short time and therefore could not comment on the trends and
           impact of directives on their budget and programs. However, others
           provided views on how congressional directives affect budget and
           program execution. Anecdotally, they offered the following views:

           o According to OSD officials, they have not maintained data on
           whether the number of congressional directives has increased or
           decreased over time. However, two military service officials
           commented that in their view there has been an increase in the
           number of such directives.
           o DOD officials from the six components we interviewed provided a
           range of views on how congressional directives affect budget and
           program execution. These views do not necessarily represent an
           official agency position on congressional directives. Among the
           views we heard were the following:

                        o Congressional directives are viewed as tasks to be
                        implemented and are opportunities to enhance their
                        mission requirements through additional funding in
                        areas that would not have been priority areas because
                        of budget constraints.
                        o Congressional directives can sometimes place
                        restrictions on the ability to retire some programs
                        and to invest in others. Restrictions have an effect
                        on the budget because they require the components to
                        support an activity that was not in the budget.
                        o There has always been a feeling that the billions
                        of dollars of congressional directives must come from
                        somewhere, but it is not possible to determine
                        whether any specific directive resulted in reducing
                        funding for another program.
                        o Congressional directives could tend to displace
                        "core" programs, which according to a DOD official,
                        are programs for which DOD has requested funding in
                        its budget submission.
                        o Additional time and effort are required to manage
                        the increasing number of congressional directives.
                        o Program execution of congressional directives is
                        delayed in some cases as efforts are made to identify
                        congressional intent.
                        o The process for identifying the purposes and
                        objectives of a congressional directive was
                        significantly streamlined in the fiscal year 2008
                        defense appropriations bill, and it is now easier to
                        determine the source of a directive.
								
			  Section 3: Department of Energy
			  					
           The Department of Energy's (DOE) mission is to promote energy
           security and scientific and technological innovation, maintain and
           secure the nation's nuclear weapons capability, and ensure the
           cleanup of the nuclear and hazardous waste from more than 60 years
           of weapons production. DOE's nine program offices focus on
           accomplishing various aspects of this mission.1 We reviewed
           documentation and interviewed officials in the Office of Budget,
           which is within the Office of the Chief Financial Officer, and
           four DOE program offices: the National Nuclear Security
           Administration (NNSA),2 Office of Science, Office of Energy
           Efficiency and Renewable Energy (EERE), and Office of Electricity
           Delivery and Energy Reliability.
			  
			  Definition DOE Used for Identifying and Tracking Congressional
			  Directives

           Since 2005 DOE has generally defined congressional directives,
           which it refers to as earmarks, as funding designated for projects
           in an appropriations act or accompanying conference or committee
           reports that are not requested in the President's Budget.3 These
           congressional directives specify the recipient, the recipient's
           location, and the dollar amount of the award and are awarded
           without competition. DOE officials said that this definition does
           not include money appropriated over and above the department's
           budget request (also known as "plus ups") or program direction
           contained in the act or report language because the department can
           still develop projects and compete them in following this
           direction. However, before fiscal year 2005 some DOE program
           offices considered program direction in committee reports, such as
           language requesting more research in a certain area, to be
           earmarks.
			  
1DOE generally relies on contractors to carry out its diverse missions,
with DOE site offices overseeing contractor activities. In addition, these
site offices provide contract management and other support services,
including administering congressional directives.

2NNSA is a semiautonomous agency within DOE responsible for overseeing the
security and ensuring the performance of the nation's nuclear stockpile
and for reducing international nuclear proliferation. For our purposes, we
have counted it as one of the nine program offices.

3DOE officials also monitor relevant authorization acts, which can
sometimes contain congressional directives.

           DOE's Process for Identifying and Categorizing Congressional Directives

           Officials from DOE's Office of Budget and program offices
           separately review the appropriations act and accompanying
           conference and committee reports to identify and categorize
           congressional directives by program office. These processes are
           not recorded in written policy but have generally been in place
           since fiscal year 2005, according to DOE officials. Once the staff
           of the Office of Budget and each program office develop their
           lists, they work together to reconcile any differing
           interpretations of the act and report language to produce a single
           list. Program office staff make the final determination on whether
           a particular provision should be considered a congressional
           directive. During the course of the fiscal year, this list may
           change as the Office of Budget or a program office learns more
           about the intent of the appropriations committee responsible for
           the direction.

           The process for identifying and categorizing congressional
           directives has changed somewhat since OMB issued instructions on
           earmarks in 2007. According to DOE Office of Budget officials,
           OMB's January 2007 definition of earmarks differed from DOE's
           definition, and applying OMB's definition somewhat increased the
           number of earmarks the department reported to OMB for fiscal year
           2005. For example, DOE budget officials said that OMB's definition
           of earmarks includes money specified for a particular DOE
           laboratory, while DOE's definition does not because DOE maintains
           some level of control over project objectives and outcomes at
           these laboratories. These budget officials also said that DOE is
           planning to adopt OMB's definition beginning in fiscal year 2008
           to identify earmarks to make this process of developing a list of
           earmarks more uniform.
			  
			  DOE's Process for Tracking, Implementing, and Reporting on
			  Congressional Directives

           DOE program offices generally rely on their contract management
           staff to implement and track congressional directives using the
           same procedures and requirements used for processing competitive
           awards. These procedures, which are governed by DOE's Financial
           Assistance Rules, typically require the recipient of the
           congressional directive to submit an application that includes a
           statement of work, project objectives, and a budget.4 In addition,
           each program's contract management staff determine whether the
           awardee is subject to cost-sharing requirements for applied
           research or demonstration projects under the Energy Policy Act of
           2005.5 They also prepare a Determination for Non-Competitive
           Financial Assistance to explain why the award will not be
           competed--a document that requires approval by the relevant
           program Assistant Secretary. Once these paperwork requirements
           have been met and a financial assistance agreement (grant or
           cooperative agreement) is awarded, the recipient can begin
           withdrawing funds from an account set up for the project or submit
           requests for reimbursements. During the course of the project, the
           recipient must submit progress reports and a final report to
           program officials.
			  
4DOE's Financial Assistance Rules are contained in 10 C.F.R. 600. DOE's
Office of Procurement and Assistance Policy also issues a Guide to
Financial Assistance for the department, which provides information to
help DOE staff in obligating money.

           Contract management staff in each of the four program offices use
           administrative databases to track each of their projects,
           including congressional directives. They use these databases to
           help manage workload for project officers and to keep track of
           documentation sent to and received from recipients. Specifically,
           EERE tracks each of its congressional directives through an
           Internet-based database. The other three DOE program offices
           maintain separate, less formal spreadsheets on the congressional
           directives for their specific programs. These spreadsheets contain
           background information, such as the project's purpose, dollar
           amount, and recipient. These spreadsheets are not part of a larger
           DOE tracking system. In addition, the program offices do not
           prepare regular reports on congressional directives and generally
           only follow up on the status of a particular congressional
           directive if they receive an inquiry from the appropriations
           committee. DOE Budget Office officials told us that the
           departmentwide accounting system, the Standard Accounting and
           Reporting System, cannot generate reports specifically on
           congressional directives for the department. This is because DOE's
           program offices differ in the way they assign accounting codes to
           congressional directives. For example, while EERE assigns an
           individual accounting code to each directive, NNSA generally does
           not.

           To comply with the Revised Continuing Appropriations Resolution
           for Fiscal Year 2007, DOE significantly modified its process for
           administering congressional directives in fiscal year 2007.
           Specifically, DOE required any recipient of congressional
           directives in prior years that sought continued funding in fiscal
           year 2007 to submit an application for a formal merit review by
           the department because (1) the resolution directed all federal
           departments (including DOE) to disregard fiscal year 2006
           congressional directives, cutting off funding for any multiyear
           directives from previous years, and (2) no committee reports,
           which are the primary source of the department's congressional
           directives, accompanied the continuing resolution. As a result of
           this policy, program officials from the Office of Science told us
           that they received few applications for continued funding in
           fiscal year 2007. The department funded substantially fewer
           congressional directives compared to previous years.
			  
5Under section 988 of the Energy Policy Act of 2005, the cost share is to
be not less than 20 percent for research and development projects and not
less than 50 percent for demonstration projects and commercial
applications. However, research of a "basic or fundamental nature" is not
subject to cost-sharing requirements. In addition, DOE may reduce or waive
cost-sharing requirements if it believes the reduction is "necessary and
appropriate."

           DOE Officials' Views on Trends and Impact of Congressional Directives

           DOE officials stated that through fiscal year 2006 the number of
           congressional directives had increased, and that this growth
           limited the ability of certain program offices to develop and
           implement their strategic goals. DOE officials said that the
           number of congressional directives began a steady rise in the late
           1990s that continued through fiscal year 2006. As noted earlier,
           they said that because of the continuing resolution there were far
           fewer projects in fiscal year 2007 that were associated with
           congressional directives. In terms of the types of congressional
           directives awarded since the late 1990s, DOE officials from two
           program offices said that there were "hot topics" that garnered
           attention at certain times. For example, an official from
           EERE--which had the highest dollar value of congressional
           directives among DOE program offices--told us that there were
           directives in recent years to fund fuel cell research at specific
           facilities.

           DOE program officials reported that implementing congressional
           directives imposed a high administrative burden. For example, many
           officials reported that it takes longer to process and award
           congressional directives because DOE personnel need to educate
           some recipients on DOE's processes, such as how to submit an
           application and comply with DOE's reporting requirements and the
           applicability of cost-sharing requirements. To help address this
           issue, EERE invites all recipients of congressional directives to
           a presentation at DOE headquarters for an overview of the process.

           DOE officials varied in their views of the impact of congressional
           directives on program execution. For example, Office of Science
           officials reported that they received additional appropriations
           for their congressional directives, which made it hard to
           determine what the program impact has been. On the other hand,
           program officials from EERE and the Office of Electricity Delivery
           and Energy Reliability said that they were not appropriated
           additional dollars to fund congressional directives. These program
           officials told us that their ability to accomplish their strategic
           goals has been limited because congressional directives make up a
           large percentage of their budget and it is often difficult to
           align the outcomes of congressional directives with these goals.
			  
			  Section 4: Department of Transportation: Highways and Transit

           The Department of Transportation (DOT) implements and administers
           most federal transportation policies through its 10 operating
           administrations.1 These operating administrations are generally
           organized by mode and include highways and transit. The operating
           administrations are responsible for independently managing their
           programs and budgets to carry out their goals as well as those of
           the department. As such, DOT has delegated the responsibility for
           identifying, categorizing, tracking, and reporting on
           congressional directives to its operating administrations.

           The Federal Highway Administration (FHWA) is responsible for the
           highway program, and the Federal Transit Administration (FTA) is
           responsible for the transit program. While FHWA and FTA carry out
           some activities directly, they, like many other DOT operating
           administrations, do not have direct control over the vast majority
           of the activities they fund through grants, such as constructing
           transportation projects. The recipients of transportation funds,
           such as state departments of transportation, are responsible for
           implementing most transportation programs and congressional
           directives. The federal highway and transit programs are typically
           funded through multiyear authorization acts, such as the Safe,
           Accountable, Flexible, Efficient Transportation Equity Act: A
           Legacy for Users (SAFETEA-LU) and its predecessor, the
           Transportation Equity Act for the 21st Century (TEA-21).2 These
           authorization acts, which are subject to the annual appropriations
           process, set the upper funding limit for the federal highway and
           transit programs. Both the authorization and appropriations acts
           contain congressional directives for the federal highway and
           transit programs. See figure 2 for additional information on the
           mission and organizational structure of FHWA and FTA.
			  
1The operating administrations are the Federal Aviation Administration,
Federal Highway Administration, Federal Motor Carrier Safety
Administration, Federal Railroad Administration, Federal Transit
Administration, Maritime Administration, National Highway Traffic Safety
Administration, Pipeline and Hazardous Materials Safety Administration,
Research and Innovative Technology Administration, and Saint Lawrence
Seaway Development Corporation. In addition, the Surface Transportation
Board, which has jurisdiction over such areas as railroad rate and service
issues and rail restructuring transactions, is an economic regulatory
agency that is decisionally independent but administratively affiliated
with DOT.

2Pub. L. No. 109-59 and Pub. L. No. 105-178, as amended.			  

           Figure 2: Mission and Structure of FHWA and FTA
			  
FHWA                                                                       
                                                                              
FHWA provides financial and technical support to states and localities for 
constructing, improving, and preserving the national highway system        
through its headquarters office and 52 federal-aid division offices        
(division offices). Division offices are located in every state, as well   
as the District of Columbia and Puerto Rico, and provide front-line        
delivery assistance in the areas of highway transportation and safety      
services.                                                                  
                                                                              
FTA                                                                        
                                                                              
FTA supports locally planned and operated mass transit systems throughout  
the United States through its headquarters office and 10 regional offices. 
The regional offices work with local transit officials in developing and   
processing grant allocations, providing technical assistance, and          
monitoring projects.                                                       

           Source: DOT.
			  
			  Definitions FHWA and FTA Used for Identifying and Tracking
			  Congressional Directives

           DOT's definition of congressional directives, which it refers to
           as earmarks, has remained generally consistent over a number of
           years and mirrors OMB's definition. Although DOT has not issued
           guidance on the definition of earmarks to its operating
           administrations, DOT officials said that they expect the operating
           administrations to follow OMB's definition. Although FHWA's and
           FTA's definitions are generally consistent with OMB's definition,
           there are a few differences, specifically:

           o FHWA defines earmarks as designations that specify a recipient,
           purpose, and total funding amount. FHWA officials told us that
           they consider their definition narrower in scope than OMB's
           definition because OMB does not require an earmark to contain all
           three elements (i.e., recipient, purpose, and total funding
           amount). FHWA distinguishes between statutory designations that
           are binding on the agency and nonstatutory designations identified
           in congressional reports that are not binding on the agency. FHWA
           officials did not change their definition of earmarks after the
           release of OMB's guidance in 2007. FHWA officials told us that
           they honored fiscal year 2007 statutory designations and handled
           nonstatutory designations in accordance with the OMB guidance.
           o FTA defines earmarks as any project given specific designation
           in law or conference reports, with the understanding that FTA is
           not legally bound to honor projects designated in conference
           reports only. FTA officials told us that they consider their
           definition broader in scope than OMB's definition because FTA
           tracks all congressionally designated projects, including projects
           requested in the President's Budget. For example, FTA's definition
           would capture New Starts projects,3 which are typically designated
           in both the President's Budget and legislation. OMB's definition
           would not capture the New Starts projects, if the projects and
           funding levels designated by Congress match the projects and
           funding levels designated in the President's Budget.4 FTA
           officials did not change their definition of earmarks after the
           release of OMB's guidance in 2007.
			  
			  FHWA and FTA Processes for Identifying and Categorizing Congressional
			  Directives

           DOT has delegated the responsibility for identifying and
           categorizing congressional directives to its operating
           administrations. FHWA has further delegated the responsibility for
           identifying and categorizing congressional directives to its
           program offices.5 For example, the Office of Infrastructure is
           responsible for identifying congressional directives in the High
           Priority Projects program6--which falls under this office's
           purview. When identifying congressional directives, FHWA
           categorizes them as statutory, nonstatutory, or hybrids.7

           Unlike FHWA, the responsibility for identifying and categorizing
           congressional directives for all FTA programs is centralized
           within FTA's Office of Program Management.8 When identifying
           congressional directives, FTA's Office of Program Management
           categorizes them as statutory or nonstatutory. This office also
           compiles and publishes the list of congressional directives in the
           annual Federal Register notice on apportionments and allocations.9
           Both FHWA and FTA officials told us that they comply with
           nonstatutory congressional directives that meet eligibility
           requirements to the extent possible--although they are not
           required to do so.
			  
3The New Starts program is the federal government's primary financial
resource for supporting locally planned, implemented, and operated transit
guideway capital investments, including heavy, light, and commuter rail;
ferry; and certain bus projects.

4FTA reported New Starts projects for which Congress allotted more money
than requested in the President's Budget as earmarks to OMB.

5FHWA has 13 program offices within headquarters that deal with specific
issue areas. Examples of program offices include the Office of
Infrastructure, Office of Safety, and Office of Federal Lands Highway.

6The High Priority Projects program administered by FHWA provides
designated funding for congressionally directed projects.

7A statutory earmark is in legislation passed by both Houses of Congress
and signed by the President. A nonstatutory earmark is in a report, such
as a committee or conference report, that accompanies the legislation but
was not enacted into law itself. A hybrid earmark is contained in both
statutory and nonstatutory sources--for example, a directive in
legislation that refers to a project identified in a nonstatutory source.

8FTA's Office of Chief Counsel and Office of Budget and Policy also
provide assistance as needed.

           FHWA and FTA Processes for Tracking, Implementing, and Reporting
			  on Congressional Directives

           FHWA uses an electronic system to track congressional directives.
           FHWA's Office of the Chief Financial Officer and program offices
           collaborate to track most congressional directives.10 Staff in
           FHWA's Office of the Chief Financial Officer enter projects into
           the tracking system after receiving requests from program offices
           for project identification numbers. Once congressional directives
           are entered into the system, they are not tracked separately from
           other projects, such as those funded by formula.11 The program
           offices then send memorandums to FHWA division offices to notify
           them of the total amount of funds available for each project.
           Officials from FHWA division offices and state departments of
           transportation with whom we spoke have access to FHWA's system and
           may also track congressional directives using their own systems.
           Officials in these offices said that they also maintain their own
           tracking systems to improve their staff's and the public's access
           to data and to corroborate data in the federal tracking system.

           FTA also uses an electronic system to track congressional
           directives. Officials in FTA's Office of Program Management enter
           congressional directives into their electronic tracking system
           after the list is published in the annual Federal Register notice
           on FTA's apportionment and allocations. FTA's electronic system
           allows users to search by fields such as recipient, amount, year,
           and name of the project and track the status of a particular
           project through its implementation. FTA officials noted that
           although the electronic system was implemented in 2001 to manage
           all of FTA's grant programs, the module for tracking congressional
           directives was added to the system in 2006, in part, to track what
           they described as the growing number of congressional
           directives.12

9Federal Transit Administration Fiscal Year 2007 Apportionments and
Allocations and Program Information, Federal Register, vol. 72, no. 56,
March 23, 2007.

10Officials from FHWA's Research and Technology Division track the
congressional directives for their program on a separate spreadsheet.

11Because FHWA assigns a project identification number to each
congressional directive, it has the ability to track them either
individually or as a group.

12FTA regional offices also have access to the electronic system.

           FHWA and FTA do not typically implement congressionally directed
           projects. Rather, they provide funds through grants, and state and
           local agencies generally implement the highway and transit
           congressional directives in carrying out their programs.13
           Specifically, FHWA division offices and FTA regional offices
           administer and obligate funds for projects, including
           congressionally directed projects, to grant recipients and respond
           to questions from recipients on issues related to eligibility and
           transferability, among other things. In turn, the grant recipients
           implement congressional directives. Figure 3 illustrates the
           processes used by FHWA and FTA to identify, track, and implement
           congressional directives.
			  
13An exception to state and local implementation of congressionally
directed projects is FHWA's and FTA's research programs. Both agencies
directly implement these programs and, as such, are responsible for
carrying out the congressional directives associated with these programs.

Figure 3: FHWA and FTA Processes for Administering Congressional
Directives

Note: FHWA and FTA do not typically implement congressionally directed
projects. Rather, they provide funds through grants, and state and local
agencies generally implement the highway and transit congressional
directives by carrying out their programs. However, congressional
directives in the FTA and FHWA research programs are tracked and
administered at headquarters.

aFHWA's 13 program offices provide policy and program implementation in
each of the administration's issue areas, such as Safety, Federal Lands
Highway, or Infrastructure.

bFTA's Office of Program Management administers a national program of
capital and operating assistance and provides procedures and program
guidance to assist field staff with grant program administration.

Neither DOT nor FHWA and FTA report to Congress on the implementation of
congressional directives on a regular basis. According to DOT officials,
the department does not have the resources to regularly report on
congressional directives, noting that the number of directives would
require significant staff time and resources to monitor for reporting
purposes. Rather, DOT, FHWA, and FTA officials told us that they respond
to congressional inquiries on directives when requested. Officials from
FHWA and FTA cited several examples of communication with legislators,
including responses to questions about project eligibility or status and
requests for technical assistance. DOT also responds to what it refers to
as "clarification letters" that are periodically sent to DOT from
congressional committees. These letters are jointly signed by the House
and Senate appropriations subcommittees and provide clarification on how
Congress would like to see directed funds used. DOT provides the
responsible operating administrations, such as FHWA or FTA, with these
letters and coordinates responses on whether the operating administration
can comply with the request. In addition to responding to specific
requests from congressional committees, DOT also communicates some general
funding information on congressional directives to Congress. For example,
as required by law, DOT notifies the relevant House and Senate Committees
prior to announcing a discretionary grant, letter of intent, or full
funding grant agreement totaling $1 million or more. In addition, FTA
reports to Congress at the end of each fiscal year on all projects with
unobligated funds that have reached the end of their availability
period.14

FHWA and FTA Officials' Views on Trends and Impact of Congressional Directives

FHWA officials, as well as officials from the state departments of
transportation with whom we spoke, stated that the number and value of
directives, notably high-priority projects, increased substantially from
TEA-21 (1998 to 2003)15 to SAFETEA-LU (2005 to 2009). FHWA officials
provided documentation that showed that the number of High Priority
Projects listed in SAFETEA-LU was almost triple that of the number of
projects listed in TEA-21. FTA officials also stated that the number and
value of authorization and appropriations directives in transit programs
increased between TEA-21 and SAFETEA-LU.

FHWA, FTA, and state department of transportation officials with whom we
spoke expressed a variety of views about the impact of the growing number
of congressional directives on budget and program execution, including the
following:

           o FHWA and FTA officials said that congressional directives do not
           always support their program goals, particularly with respect to
           research. For example, FHWA officials told us that they had no
           flexibility in carrying out their research priorities because all
           funding for the surface transportation, research, development, and
           deployment programs was designated under SAFETEA-LU.16 FHWA
           officials further noted that congressional directives can be
           inconsistent with states' transportation priorities, particularly
           if the congressional directives are for projects outside of their
           statewide transportation programs.17 Officials from one state
           department of transportation noted that although many
           congressional directives in SAFETEA-LU were requested by the
           state, about one-third of the congressional directives did not
           have statewide benefits or serve an eligible highway purpose.
           o A senior FTA official also noted that congressional directives
           may result in the displacement of projects that FTA views as being
           a higher priority and ready for implementation with projects that
           are a lower priority for FTA. For example, some New Starts
           congressional directives provide funding for projects that are not
           yet ready for implementation, delaying the implementation of FTA's
           higher-priority projects that are scheduled to receive federal
           appropriations.
           o FTA officials said that roughly 85 to 90 percent of the
           congressional directives received in the New Starts program are
           for projects that FTA has recommended for funding in its budget.
           One FTA official also acknowledged that some congressional
           directives provide funding for projects that FTA has identified as
           priorities in its research program and were included in the
           President's Budget, although the majority of directives were not
           requested and displaced research activities FTA identified as
           being of higher priority.
           o Officials from FHWA and FTA stated that congressional directives
           sometimes displace their priority transportation projects by
           providing funds for projects that would not have been chosen in a
           competitive selection process. For example, FHWA officials stated
           that some congressional directives listed in the Projects of
           Regional and National Significance18 program in SAFETEA-LU would
           not have qualified for funding in a merit-based selection
           process.19 FTA officials also told us that congressional
           directives sometimes provide funding for projects that would
           otherwise be considered ineligible, such as directives to
           construct parking garages with transit funding.
           o Officials from FHWA division offices and FTA noted that in some
           cases, the language of congressional directives makes it difficult
           to implement projects. For example, an official from one FHWA
           division office noted that some congressional directives for the
           state contained language that was either too specific and was
           therefore inconsistent with the purposes and objectives of the
           local sponsor or contained language that made the project
           ineligible because it did not meet certain federal regulations.
           According to agency officials, in these cases, a technical
           corrections bill must be passed before the projects can be
           implemented, delaying implementation of the projects.
           o Officials we spoke with from three state departments of
           transportation also noted that inflexibilities in the use of
           congressionally directed funds limit the states' ability to
           implement projects and efficiently use transportation funds by,
           for example, providing funding for projects that are not yet ready
           for implementation or providing insufficient funds to complete
           particular projects.
           o An official from one state department of transportation noted
           that although congressional directives can create administrative
           challenges, they often represent funding that the state may not
           have otherwise received.
           o FHWA and FTA officials noted that the growth in the number of
           congressional directives has increased the time and staff
           resources needed to identify and track projects. For example, FHWA
           officials noted that relative to their proportion of the budget,
           they devote a higher percentage of time to administering
           congressional directives than other projects. Similarly, officials
           from FHWA division offices stated that they spend a substantial
           amount of time working with the state to determine whether
           projects meet federal eligibility requirements, respond to
           questions of transferability, and provide assistance to the state
           for projects that were not included in their state transportation
           plan. FTA officials noted that some recipients of a congressional
           directive are unaware of the directive and may decide to use the
           grant for another purpose, making it difficult to obligate funds
           within the 3-year availability period.

14Earmarked funds have a 3-year availability to the grantee.

15The period of authorization for TEA-21 was extended numerous times after
its expiration until the passage of SAFETEA-LU in 2005.

16In its review of earmarks within DOT programs, DOT's Inspector General
also found that funding levels in excess of authorized amounts in some of
FHWA's research programs disrupted FHWA's ability to fund these programs
as designated, DOT's Inspector General, Review of Congressional Earmarks
Within Department of Transportation Programs (Washington, D.C.: 2007).

17States must amend their Statewide Transportation Improvement Programs
and obtain approval from FHWA and FTA in order to implement congressional
directives that were not included in the programs.

18The Projects of National and Regional Significance program provides
funding for high-cost projects of national or regional importance such as
projects that improve economic productivity, facilitate international
trade, relieve congestion, and improve safety.

19In September 2007, DOT's Inspector General also reported that a few of
the fiscal year 2006 earmarks in this program did not meet statutory
program criteria but were permitted because of a provision in SAFETEA-LU
that directed that funds be allocated to these projects notwithstanding
the program criteria set forth elsewhere in the statute for the program.

           Section 5: U.S. Army Corps of Engineers' Civil Works Programs

           Through its Civil Works programs, the U.S. Army Corps of Engineers
           (Corps) investigates, develops, and maintains water and related
           environmental resources throughout the country to meet the
           agency's navigation, flood control, and ecosystem restoration
           missions. Headquartered in Washington, D.C., the Corps has eight
           regional divisions and 38 districts that carry out its domestic
           civil works responsibilities.1 Figure 4 shows the Corps' divisions
           and districts.
			  
1The Corps is also charged with a military mission that includes, among
other things, managing and executing engineering, construction, and real
estate programs for DOD components and other government entities.

Figure 4: U.S. Army Corps of Engineers' Civil Works Divisions and
Districts

Unlike many other federal agencies that have budgets established for broad
program activities, both the President's Proposed Budget and congressional
authorizations and appropriations designate most Corps' Civil Works funds
to be used for specific projects. Specific projects fall mainly into three
categories--investigations,2 construction, and operations and maintenance.
Generally, nonfederal sponsors share the costs of planning and
constructing projects with the Corps.3 Through the conference report that
accompanies an appropriations act, Congress provides the Corps with its
priorities for accomplishing its water resources projects.

Definition Corps Civil Works Used for Identifying and Tracking Congressional
Directives

The Corps has identified congressional directives for many years for
project implementation purposes. The Corps has used the term adds to
identify some congressionally directed projects. According to Corps budget
officials, congressional directives are defined by the agency as any of
the following changes to requests made in the President's Budget:

           o an increase or decrease in funding levels for a budgeted
           project,
           o the funding of a project that was not included in the
           President's Budget, and
           o any project that has language in a committee or conference
           report or in statute that restricts or directs the Corps on how to
           spend funds.

           Corps officials told us that this definition is consistent with
           the definition of earmarks in OMB's 2007 guidance, except that an
           earmark is a restriction or specification on the use of funds,
           while a congressional directive can be simply an increase or
           decrease in funding for a budgeted project. For project
           implementation purposes, the Corps has continued to identify
           congressional directives in the same manner as it did before OMB
           issued its guidance.

           To respond to the OMB request for information on fiscal year 2005
           earmarks, the Corps assigned a program manager to conduct a
           separate exercise to identify earmarks as defined by OMB. Corps
           officials told us that a separate effort was needed because (1)
           OMB required information that was not available from the Corps'
           normal process for identifying congressional directives and (2)
           the Corps had only a short time to respond to the request. The
           program manager responsible for responding to OMB identified the
           fiscal year 2005 earmarks using appropriations bills and
           conference reports. To complete the OMB request, the program
           manager supplemented this information with some project-level
           details, such as the name of the nonfederal sponsor, which the
           manager obtained from the relevant districts, according to Corps
           officials. These officials also said that the results of the
           program manager's work were reviewed by Corps managers before the
           information was submitted to OMB.
			  
2Investigations are studies to determine the need for and the engineering,
feasibility, economic justification, and environmental and social
suitability of a project. Investigations include activities related to
preconstruction, engineering, design work, data collection, and
interagency coordination and research.

3Nonfederal sponsors generally assume responsibility for operating and
maintaining most projects.

           Corps Civil Works' Process for Identifying and Categorizing
			  Congressional Directives

           The Corps identifies all congressional directives included in
           appropriations statutes, bills, and related conference reports
           each year and routinely makes this information available to its
           headquarters and division and district staff, according to Corps
           officials. With the assistance of the district offices, officials
           in each of the Corps' divisions develop spreadsheets identifying
           the congressional directives in their region by examining the
           language in appropriations committee reports, the conference
           report, and the appropriations statute and comparing this language
           to the President's Budget. According to Corps budget officials,
           most congressional directives receive no special attention because
           they are generally categorized as being in compliance with the
           Administration's budget policy and the Corps' policy (i.e.,
           increased funding provided to projects included in the President's
           Budget).

           However, Corps officials said that about 10 to 20 percent of the
           total number of directives identified in any given year need
           further discussion on how they should be implemented. According to
           Corps officials, these directives generally involve projects for
           which (1) the directive or an aspect of the directive may not be
           consistent with the Administration's budget policy or (2) the
           Corps does not have enough information to make this determination.
           For example, in one instance, language in an appropriations
           statute directed the Corps to construct a dike on a river as a
           flood control project, even though the project's benefits might
           not exceed its costs. Further, the statute directed the Corps to
           give the nonfederal sponsor credit for the amount already paid
           into the project. The Corps considered this directive to be
           contrary to its policies that call for the Corps to

           o support projects where the benefits exceed the costs or
           o not provide the nonfederal sponsor with credit for work
           completed before the nonfederal sponsor enters into an agreement
           with the Corps.

           For the congressional directives that require additional
           discussion on how the Corps will implement the projects, the
           divisions prepare fact sheets.4 Table 1 shows the various types of
           information provided with each fact sheet.

           Table 1: Data Fields and Summaries of the Information Provided on
           the Corps' Fact Sheet
			  
Data fields                Summary of information provided                 
Project name and state     Provides the project's name and geographic      
                              location                                        
Congressional direction    Indicates the page number of the language       
source                     providing congressional direction in committee  
                              reports, conference report, or statute          
Description of directed    Provides the amount of funds and, if            
work                       applicable, any direction/restriction placed on 
                              that directed amount                            
Authorization              Identifies the section of the public law where  
                              the project was initially authorized and        
                              subsequently amended                            
Decision document          Describes Corps analysis supporting certain     
                              activities or work for an authorized project    
Relationship to executive  Classifies a congressional directive as either  
branch policy              being consistent, questionable, or inconsistent 
                              and provides reasons for this classification    
Congressional interest     Identifies members' names and their districts   
Summarized financial data  Includes such data as estimated total project   
                              cost, allocations through the previous fiscal   
                              year, budget request and conference amount for  
                              the current fiscal year, and amount needed to   
                              complete the project after the current fiscal   
                              year                                            
Recommended implementation Describes how the directed (or redirected)      
plan for directed work     funds will be used                              

           Source: GAO analysis of Corps data.

           According to Corps officials, the fact sheets contain recommended
           implementation plans that detail how the agency will spend the
           appropriated funds for a specific congressional directive. Each
           division submits all prepared fact sheets with the recommended
           implementation plans to Corps headquarters and the Office of the
           Assistant Secretary of the Army for Civil Works for their review.
           Each division then has a teleconference with these headquarters
           officials to discuss and approve the plans. Most implementation
           plans are completed at this stage.
			  
4In a few instances, Corps headquarters or the Office of the Assistant
Secretary of the Army for Civil Works may request that a division prepare
a fact sheet if either one determines that a congressional directive
deserves further discussion.

           For the fact sheets with unresolved issues, each division holds a
           videoconference with officials from headquarters and the Assistant
           Secretary's office. Attendees for each videoconference include
           senior executives from the Corps and the Office of the Deputy
           Assistant Secretary of the Army for Management and Budget. After
           this videoconference, each division incorporates changes to its
           implementation plan and resubmits it for final approval by
           headquarters and the Assistant Secretary.

           Corps headquarters releases the associated funding for all
           projects to the districts immediately after the agency receives
           its appropriation. Corps officials said that while the
           implementation plans are being discussed for projects with
           unresolved issues, the districts may obligate funds for certain
           activities that do not conflict with Administration budget policy
           or Corps policy. Once the implementation plans are completed, the
           districts will continue to execute remaining aspects of the plans.

           However, according to a Corps official, there are a few instances
           in which the Corps does not execute the project. These instances
           may occur, for example, when (1) funds are appropriated for the
           project, although funds had not previously been authorized; (2)
           the project was authorized, but the authorized spending limit had
           already been reached; or (3) the Corps was directed to continue a
           feasibility study, but the agency found that the least costly
           alternative was to relocate the affected facilities and the local
           sponsor was not interested in continuing the study. In such
           situations, the districts are generally responsible for informing
           individual Members of Congress about the decisions affecting their
           respective jurisdictions, and Corps headquarters notifies the
           relevant congressional committees.
			  
			  Corps Civil Works' Process for Tracking, Implementing, and Reporting
    		  on Congressional Directives

           According to Corps officials, the Corps does not have a separate
           approach for tracking, implementing, and reporting on projects
           generated from congressional directives. Instead, all projects are
           managed in the same manner for tracking, implementation, and
           reporting purposes. The procedures are detailed in a manual that
           establishes the Corps' project management practices.5 For example,
           all Corps projects require a written project management plan that
           details how the project will be accomplished. A Corps official
           stated that the process does not include a distinct method for
           reporting on the status of directives to Congress or any of its
           committees or members.
			  
			  Corps Civil Works Officials' Views on Trends and Impact of Congressional
			  Directives

           The Corps does not analyze trends in congressional directives, and
           there was no consensus among the officials we spoke with on trends
           in the number of these directives. While some Corps officials told
           us that they believe the overall number of congressional
           directives has remained at about the same level for the last
           decade, another Corps official told us that he believes the number
           of congressional directives has increased throughout the decade.
           This official stated that in recent years Congress has added a
           number of projects that the Corps labels as "environmental
           infrastructure projects" that are outside the scope of the Corps'
           historic missions. Those projects included building sewage
           treatment plants and water supply facilities, revitalizing local
           waterfronts, and maintaining waterways primarily for local
           recreation. The Chief of the Programs Integration Division, who is
           responsible for the Civil Works budget, estimated that these types
           of congressional directives are a small portion of the Corps'
           Civil Works program budget.

           Corps officials we interviewed also did not have a consistent view
           about the impact of congressional directives on the Corps' budget
           and program execution.6 Some Corps officials said they believe
           that congressional directives have not had a serious impact on the
           Corps, except to increase its budget and resulting activities.
           However, other officials described the following impacts of
           congressional directives on the Corps' ability to execute its
           mission:

           o If the Corps categorizes a congressional directive as being
           inconsistent with the Administration or Corps policy, the Corps
           will not budget for the project in subsequent fiscal years.
           Officials said that they believe this could potentially increase
           the Corps' backlog of incomplete projects.
           o Congressional directives are more difficult to plan and schedule
           for execution in advance compared with projects included in the
           President's Budget. Officials said that this is because it is more
           difficult to develop an accurate project timeline because of the
           greater uncertainty about future funding levels for these
           projects.
           o Congressional directives may make it more difficult for the
           Corps to predict and manage full-time equivalent (FTE) levels and
           allocations from year to year.7 Even though congressional
           directives increase the Corps' budget authority, the Corps
           generally establishes FTE levels using the President's Budget much
           earlier in the year. Because the number and regional focus of
           congressional directives can change from year to year, the Corps
           faces some uncertainty about whether it will have adequate staff
           in the right locations to manage the project workload of each
           district in response to the changing nature of the congressional
           directives.
			  
5The Project Management Business Process identifies the scope, schedule,
and resources needed to accomplish project execution.

6While we talked with officials at various levels who are knowledgeable
about the budgetary process and the Corps' use of appropriations, these
officials' views were not necessarily representative of the views of all
Corps officials.

7An FTE generally consists of one or more employed individuals who
collectively complete 2,080 work hours in a given year. Therefore, either
one full-time employee or two half-time employees equal one FTE.

           Appendix I: Objectives, Scope, and Methodology

           Our objectives were to identify for selected agencies (1) the
           process for identifying and categorizing congressional directives;
           (2) the process for tracking, implementing, and reporting on
           congressional directives; and (3) agency officials' views on the
           trends and impact of congressional directives. The selected
           agencies were the Department of Defense (DOD), the Department of
           Energy (DOE), the Department of Transportation (DOT), and the U.S.
           Army Corps of Engineers' Civil Works programs (Corps).1 These
           agencies cover a range of characteristics concerning congressional
           directives, including the number of congressional directives.

           DOD received the largest number of reported congressional
           directives and made up 55 percent of discretionary appropriations
           for fiscal year 2006. We focused our review on the relationship
           between the Office of the Secretary of Defense's Comptroller and
           the components (i.e., military services, defense agencies, and
           combatant commands) and how the components internally process and
           account for congressional directives.2 Specifically, we focused on
           the Army, Navy, Marine Corps, and Air Force; the Defense
           Information Systems Agency and the Defense Threat Reduction
           Agency; and the U.S. Special Operations Command.

           DOE generally receives congressional directives in reports that
           accompany annual appropriations acts. Congressional directives are
           spread across DOE's programs, with some programs reporting that
           congressional directives make up a large portion of their budgets.
           We focused our review on the following program offices that
           oversee the majority of DOE's congressional directives: the
           National Nuclear Security Administration (NNSA), the Office of
           Energy Efficiency and Renewable Energy (EERE), the Office of
           Electricity Delivery and Energy Reliability, and the Office of
           Science.

           DOT receives congressional directives contained in multiyear
           transportation authorization acts. We focused our review on the
           surface transportation programs administered by the Federal
           Highway Administration (FHWA) and Federal Transit Administration
           (FTA) because of the level of funding authorized in the current
           surface transportation authorizing legislation, the Safe,
           Accountable, Flexible, Efficient Transportation Equity Act: A
           Legacy for Users (SAFETEA-LU), and the number of congressional
           directives contained in this legislation for these programs.
			  
1The Corps is part of the Army that has military and civilian
responsibilities. The military programs provide engineering, construction,
and environmental management services for DOD agencies. In this report,
the military programs are covered in our discussion on DOD, and the Civil
Works programs are discussed separately.

2Organizationally, each component has its own internal legislative support
to assist the component in determining, if necessary, congressional
directives.			  

           The Corps' Civil Works programs maintain a wide range of water
           resources projects, including flood protection, navigation, or
           other water-related infrastructure. Under some definitions of
           directives, the Corps' appropriations could be characterized as
           consisting largely of directives.

           We assessed the reliability of the agencies' data on congressional
           directives tracking by speaking with knowledgeable officials using
           a common set of questions about their past and current definitions
           of congressional directives for purposes of identifying and
           tracking such directives. We learned that the definitions--both
           across and, sometimes, within agencies--were not consistent.
           Therefore the data cannot be used for making comparisons across
           agencies or showing trends over time, nor can the data from
           different agencies be aggregated.

           This review provides information on the processes described to us
           by officials at the selected agencies. The information provided is
           not generalizable beyond the four agencies. In addition, we did
           not evaluate the agencies' processes for compliance with the
           Office of Management and Budget's (OMB) guidance on earmarks,
           memorandum M-07-09.3

           To identify the selected agencies' processes for identifying and
           categorizing congressional directives, we first had to determine
           how they identified directives (i.e., how they defined them) as
           well as whether the definition changed after the January 25, 2007,
           issuance of the OMB guidance.

           We determined the extent to which the agencies had established
           processes for identifying and categorizing congressional
           directives (e.g., by organization, program, location, statute or
           report, type of directive, or type of impact). To do so, we
           reviewed the selected agencies' policies and guidance for
           identifying and categorizing congressional directives, including
           the source of these directives before fiscal year 2007 (e.g.,
           statute or conference report). We also interviewed knowledgeable
           agency officials in budget, program, and congressional affairs
           offices.
			  
3In its guidance, OMB directs federal agencies to submit data for fiscal
year 2005 in appropriations bills and certain authorization bills,
including report language, to provide a transparent baseline. This
baseline is to provide a way to measure the President's January 2007
direction to Congress for reducing the number and cost of earmarks by at
least half.

           At DOD, we interviewed officials from the Office of the Secretary
           of Defense Comptroller's office and budget officials from
           components to obtain information on how congressional directives
           are implemented as well as to obtain their views on the impact of
           congressional directives on their budget and program execution. We
           also interviewed officials responsible for legislative affairs who
           support budget officials in determining congressional intent of
           congressional directives.

           At DOE, we spoke with officials from NNSA, the Office of Science,
           EERE, the Office of Electricity Delivery and Energy Reliability,
           and the Office of Budget in the Office of the Chief Financial
           Officer. We also spoke with officials from some of the site
           offices that help the program offices implement and track
           congressional directives.

           At DOT, we spoke with officials from the Office of the Secretary,
           FHWA, and FTA. Because implementation is handled at the division
           and state levels, we also interviewed officials from FHWA division
           offices and state departments of transportation in Alaska,
           Florida, and Maine. We selected the division offices and states to
           interview based on the number of congressional directives in
           SAFETEA-LU as well as the level of oversight and involvement of
           those division offices and states in the administration of
           congressional directives.

           At the Corps, we spoke with the Chief of the Programs Integration
           Division, who is responsible for the Civil Works budget, and other
           officials responsible for identifying earmarks for OMB and
           congressional directives for the Corps' routine management
           process.

           To identify the selected agencies' processes for tracking,
           implementing, and reporting on congressional directives, we
           reviewed agency documents related to available data or databases
           used for tracking and reporting on congressional directives. We
           also reviewed agency guidance or written protocols to demonstrate
           actions taken to implement congressional directives. In addition,
           we also interviewed the relevant agency officials from the units
           of the selected agencies we previously discussed.

           To obtain their views on the trends and impact of congressional
           directives on agency programs, we spoke with knowledgeable agency
           officials from the selected agencies using similar questions.
           Because we assessed agencies' data on congressional directives to
           be insufficiently reliable for the purposes of comparing across
           agencies and showing trends over time, we could not analyze trend
           data.
			  
			  Appendix II: GAO Contacts

           Susan J. Irving, Director for Federal Budget Analysis Strategic
           Issues (202) 512-9142 [32][email protected]

           Carlos Diz, Assistant General Counsel (202) 512-8256
           [33][email protected]
			  
			  Agency-Specific Contacts

Department of Defense: 
Sharon L. Pickup, Director: 
Defense Capabilities and Management: 
(202) 512-9619: 
[email protected]: 

Department of Energy: 
Mark E. Gaffigan, Acting Director: 
Natural Resources and Environment: 
(202) 512-3841: 
[email protected]: 

Department of Transportation: 
Susan A. Fleming, Director Physical Infrastructure: 
(202) 512-4431: 
[email protected]: 

U.S. Army Corps of Engineers: 
Anu Mittal, Director Natural Resources and Environment: 
(202) 512-3841: 
[email protected]: 

           GAO's Mission

           The Government Accountability Office, the audit, evaluation, and
           investigative arm of Congress, exists to support Congress in
           meeting its constitutional responsibilities and to help improve
           the performance and accountability of the federal government for
           the American people. GAO examines the use of public funds;
           evaluates federal programs and policies; and provides analyses,
           recommendations, and other assistance to help Congress make
           informed oversight, policy, and funding decisions. GAO's
           commitment to good government is reflected in its core values of
           accountability, integrity, and reliability.
			  			  
			  Obtaining Copies of GAO Reports and Testimony

           The fastest and easiest way to obtain copies of GAO documents at
           no cost is through GAO's Web site ( [38]www.gao.gov ). Each
           weekday, GAO posts newly released reports, testimony, and
           correspondence on its Web site. To have GAO e-mail you a list of
           newly posted products every afternoon, go to [39]www.gao.gov and
           select "E-mail Updates."
			  
			  Order by Mail or Phone

           The first copy of each printed report is free. Additional copies
           are $2 each. A check or money order should be made out to the
           Superintendent of Documents. GAO also accepts VISA and Mastercard.
           Orders for 100 or more copies mailed to a single address are
           discounted 25 percent. Orders should be sent to:

           U.S. Government Accountability Office 441 G Street NW, Room LM
           Washington, DC 20548

           To order by Phone:
			  Voice: (202) 512-6000
			  TDD: (202) 512-2537
			  Fax: (202) 512-6061
			  
			  To Report Fraud, Waste, and Abuse in Federal Programs

           Contact:

           Web site: [40]www.gao.gov/fraudnet/fraudnet.htm
			  E-mail: [41][email protected]
			  Automated answering system: (800) 424-5454 or (202) 512-7470
			  
			  Congressional Relations

           Gloria Jarmon, Managing Director, [42][email protected] , (202)
           512-4400 U.S. Government Accountability Office, 441 G Street NW,
           Room 7125 Washington, DC 20548
			  
			  Public Affairs

           Chuck Young, Managing Director, [43][email protected] , (202)
           512-4800 U.S. Government Accountability Office, 441 G Street NW,
           Room 7149 Washington, DC 20548

(450599)

To view the full product, including the scope
and methodology, click on [44]GAO-08-209 .

For more information, contact Susan J. Irving at (202) 512-9142 or
[email protected].

Highlights of [45]GAO-08-209 , a report to congressional addressees

January 2008

CONGRESSIONAL DIRECTIVES

Selected Agencies' Processes for Responding to Funding Instructions

In recent years, congressional concern and public debate have increased
about the nature and growing number of earmarks. This report seeks to
provide Congress and the public with an understanding of how agencies
respond to congressional funding directions by examining how selected
executive branch agencies translate these directions from Congress into
governmental activities.

There have been numerous calls in and out of Congress for earmark reform
in response to concerns about the nature and number of earmarks. Both
Houses of Congress have taken steps to increase disclosure requirements.
The President has also called for earmark reform. In January 2007, the
Office of Management and Budget (OMB) directed agencies to collect and
submit data to it on fiscal year 2005 earmarks in appropriations bills and
certain authorization bills.

GAO collected and analyzed information on four agencies' processes (i.e.,
the Department of Defense, Department of Energy, Department of
Transportation, and U.S. Army Corps of Engineers' Civil Works programs).
Our objectives were to identify, for these agencies, (1) their processes
for identifying and categorizing congressional directives; (2) their
processes for tracking, implementing, and reporting on congressional
directives; and (3) agency officials' views on the trends and impact of
congressional directives.

Congress or its committees may use formal vehicles to provide written
funding instructions for agencies or to express preferences to agencies on
the use of funding. These formal vehicles include statutes (i.e.,
authorization or appropriations acts) or House, Senate, and conference
reports comprising significant parts of the legislative history for a
given statute. Often referred to as "earmarks," these written instructions
range from broad directions on policy priorities to specific instructions.

The U.S. Constitution gives Congress the power to levy taxes, to finance
government operations through appropriations, and to prescribe the
conditions governing the use of those appropriations. This power is
referred to generally as the congressional "power of the purse" and
derives from various provisions of the Constitution. Government agencies
may not draw money out of the Treasury to fund operations unless Congress
has appropriated the money. At its most basic level, this means that it is
up to Congress to decide whether to provide funds for a particular program
or activity and to fix the level of that funding. It is also well
established that Congress can, within constitutional limits, determine the
terms and conditions under which an appropriation may be used. In this
manner, Congress may use its appropriation power to accomplish policy
objectives and to establish priorities among federal programs.

Our review of four federal agencies' processes for responding to written
directives from Congress regarding the use of funds found that each of the
selected agencies responds to congressional directives in a manner
consistent with the nature of its programs and operations and in response
to the desires of its own authorizing and appropriations committees in
Congress. Agencies differ in terms of the specific processes followed to
respond to congressional directives, and they have also adopted their own
approaches for responding to the 2007 request for data on earmarks from
OMB. OMB's guidance to agencies excludes from its definition of earmarks
funds requested in the President's Budget.

With a few exceptions, officials representing the selected agencies
generally expressed the view that the number of congressional directives
had increased over time. Agency officials provided a range of views on the
impact of congressional directives on budget and program execution. Some
agency officials said that congressional directives had a limited impact
on their mission requirements or ability to accomplish their goals. Other
agency officials reported that implementation of these directives can
displace agencies' program priorities as the agencies redirect resources
to comply with these directives. Some told us that congressional
directives provided money for projects they wanted but had been unable to
get funded through budget requests. Agency officials also reported that
directives can add uncertainty as agencies respond to congressional
priorities identified months later than their planning for items in the
President's Budget.

References

Visible links
  29. http://www.gao.gov/cgi-bin/getrpt?GAO-05-734SP
  30. http://www.gao.gov/cgi-bin/getrpt?GAO-06-382SP
  31. http://earmarks.omb.gov/
  32. mailto:[email protected]
  33. mailto:[email protected]
  34. mailto:[email protected]
  35. mailto:[email protected]
  36. mailto:[email protected]
  37. mailto:[email protected]
  38. http://www.gao.gov/
  39. http://www.gao.gov/
  40. http://www.gao.gov/fraudnet/fraudnet.htm
  41. mailto:[email protected]
  42. mailto:[email protected]
  43. mailto:[email protected]
  44. http://www.gao.gov/cgi-bin/getrpt?GAO-08-209
  45. http://www.gao.gov/cgi-bin/getrpt?GAO-08-209
*** End of document. ***