This is the accessible text file for GAO report number GAO-08-209 
entitled 'Congressional Directives: Selected Agencies’ Processes for 
Responding to Funding Instructions' which was released on January 31, 
2008. 

This text file was formatted by the U.S. Government Accountability 
Office (GAO) to be accessible to users with visual impairments, as part 
of a longer term project to improve GAO products' accessibility. Every 
attempt has been made to maintain the structural and data integrity of 
the original printed product. Accessibility features, such as text 
descriptions of tables, consecutively numbered footnotes placed at the 
end of the file, and the text of agency comment letters, are provided 
but may not exactly duplicate the presentation or format of the printed 
version. The portable document format (PDF) file is an exact electronic 
replica of the printed version. We welcome your feedback. Please E-mail 
your comments regarding the contents or accessibility features of this 
document to Webmaster@gao.gov. 

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. 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: 
GAO: 

Report to Congressional Addressees: 

January 2008: 

Congressional Directives: 

Selected Agencies’ Processes for Responding to Funding Instructions: 

GAO-08-209: 

GAO Highlights: 

Highlights of GAO-08-209, a report to congressional addressees. 

Why GAO Did This Study: 

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. 

What GAO Found: 

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. 

To view the full product, including the scope and methodology, click on 
[hyperlink, http://www.GAO-08-209]. For more information, contact Susan 
J. Irving at (202) 512-9142 or irvings@gao.gov. 

[End of section] 

Contents: 

Letter: 

Section 1: 

Background: 

Definitions: 

Recent Guidance to Agencies on Collecting Data on Earmarks: 

Section 2: 

Department of Defense: 

Definition DOD Used for Identifying and Tracking Congressional 
Directives: 

DOD’s Process for Identifying and Categorizing Congressional 
Directives: 
	
DOD's Process for Tracking, Implementing, and Reporting on 
Congressional Directives: 

DOD Officials’ Views on Trends and Impact of Congressional Directives: 

Section 3: 

Department of Energy: 

Definition DOE Used for Identifying and Tracking Congressional 
Directives: 

DOE’s Process for Identifying and Categorizing Congressional 
Directives: 

DOE’s Process for Tracking, Implementing, and Reporting on 
Congressional Directives: 

DOE Officials’ Views on Trends and Impact of Congressional Directives: 

Section 4: Department of Transportation: Highways and Transit: 

Definitions FHWA and FTA Used for Identifying and Tracking 
Congressional Directives: 

FHWA and FTA Processes for Identifying and Categorizing Congressional 
Directives: 

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

FHWA and FTA Officials’ Views on Trends and Impact of Congressional 
Directives: 

Section 5: 

U.S. Army Corps of Engineers’ Civil Works Programs: 

Definition Corps Civil Works Used for Identifying and Tracking 
Congressional Directives: 

Corps Civil Works’ Process for Identifying and Categorizing 
Congressional Directives: 

Corps Civil Works’ Process for Tracking, Implementing, and Reporting on 
Congressional Directives: 

Corps Civil Works Officials’ Views on Trends and Impact of 
Congressional Directives: 

Appendix I: Objectives, Scope, and Methodology: 

Appendix II: GAO Contacts: 

Table: 

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

Figures: 

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

Figure 2: Mission and Structure of FHWA and FTA: 

Figure 3: FHWA and FTA Processes for Administering Congressional 
Directives: 

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

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: 

[End of section] 

Comptroller General of the United States: 
United States Government Accountability Office: 
Washington, DC 20548: 

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. 

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, 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. [Footnote 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 [hyperlink, 
http://www.gao.gov]. 

Signed by: 

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: 

[End of section] 

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. [Footnote 2] 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. [Footnote 3] 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. [Footnote 4] 

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. [Footnote 5] In common usage, however, the term 
earmark soon developed a broader meaning. 

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. [Footnote 6] 

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).” [Footnote 7] 

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. 
[Footnote 8] 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.” 
[Footnote 9 ] 

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. [Footnote 10] 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.” [Footnote 11] 

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. 
[Footnote 12] 

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, [Footnote 13] without the consent of the agents of the 
court of Spain.”’ [Footnote 14] 

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. [Footnote 15] Only directions that 
are specified in the law itself are legally binding. [Footnote 16] 

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. 
[Footnote 17] 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. 

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.” [Footnote 18] 

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. 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. 

[End of section] 

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, [Footnote 
20] 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 
components [Footnote 21] 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: 

* funding for the Global War on Terror; 

* funding for the National Guard and Reserve Equipment (97-0350) 
appropriations account for procuring equipment; 

* funding for military personnel; 

* funding for peer-reviewed Defense health programs, [Footnote 22] 

* 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; 

* 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. 

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: 

[See PDF for image] 

This figure is a chart illustrating DOD’s process for identifying and 
categorizing Congressional Directives. The following data is depicted: 

Funds are allocated to DOD by account code; 
OSD Comptroller identifies all congressional directives included in the 
bill language from the appropriations conference report; 
OSD Comptroller provides each component a list of its congressional 
directives from the conference report; 
All DOD components apply the criteria, develop justifications, and 
provide the revised list back to the OSD Comptroller; 
- Army; 
- Air Force; 
- Navy; 
- Marines; 
- Defense agencies; 
- Combatant commands; 
The OSD Comptroller and OMB jointly determine if any further 
adjustments need to be made based on their review of the justifications 
provided by the components; 
After a list is agreed on,an OSD Comptroller official sends the list to 
OMB; 
OMB posts the list to the “OMB Earmarks” Web page on its Web site. 

Source: GAO analysis of DOD information. 

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. 

[End of figure] 

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: 

* 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. 

* 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. 

* 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. 

* 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. 

* 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. 

* 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. 

* 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. 

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: 

* 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. 

* 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: 
- 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. 
- 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. 
- 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. 
- 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. 
- Additional time and effort are required to manage the increasing 
number of congressional directives. 
- Program execution of congressional directives is delayed in some 
cases as efforts are made to identify congressional intent. 
- 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. 

[End of section] 

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. [Footnote 24] 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), [Footnote 25] 
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. [Footnote 26] 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. 

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. [Footnote 27] 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. [Footnote 28] 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. 

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. 

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. 

[End of section] 

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. [Footnote 29] 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). [Footnote 30] 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. 

Figure 2: Mission and Structure of FHWA and FTA: 

[See PDF for image] 

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. 

[End of figure] 

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: 

* 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. 

* 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, [Footnote 
31] 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. [Footnote 32] 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. [Footnote 33] For 
example, the Office of Infrastructure is responsible for identifying 
congressional directives in the High Priority Projects program 
[Footnote 34]—which falls under this office’s purview. When identifying 
congressional directives, FHWA categorizes them as statutory, 
nonstatutory, or hybrids. [Footnote 35] 

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. [Footnote 37] 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. 

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. [Footnote 38] 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. [Footnote 39] 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. [Footnote 40] 

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. [Footnote 41] 
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. 

Figure 3: FHWA and FTA Processes for Administering Congressional 
Directives: 

[See PDF for image] 

This figure is a chart illustrating the FHWA and FTA processes for 
administering Congressional Directives. The following data is depicted: 

Processes: 
Categorize and identify: Compile list of directives; 
Track: Enter each project into electronic tracking system, and notify 
division and regional offices of funding availability; 
Implement: Assist project recipients in obtaining funding, obligate 
funds, and conduct necessary project oversight; 
Receive funds to implement and administer construction process. 

FHWA: 
Laws, conference reports, and committee reports; 
Individual program offices[A]: Manage directives within their program; 
FHWA division offices; 
State departments of transportation: Identify and select projects for 
funding; 
Recipients. 

FTA: 
Laws, conference reports, and committee reports; 
Office of Program Management[B]: Manage all directives; 
FTA regional offices; 
Recipients. 

Source: GAO analysis. 

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. 

[A] FHWA’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. 

[B] FTA’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. 

[End of figure] 

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. [Footnote 42] 

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) [Footnote 43] 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: 

* 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. [Footnote 44] 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. [Footnote 45] 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. 

* 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. 

* 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. 

* 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 Significance [Footnote 46] program in SAFETEA-LU would not 
have qualified for funding in a merit-based selection process. 
[Footnote 47] 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. 

* 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. 

* 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. 

* 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. 

* 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. 

[End of section] 

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. [Footnote 48] Figure 4 shows the Corps’ divisions and 
districts. 

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

[See PDF for image] 

This figure is a map of the United States illustrating the U.S. Army 
Corps of Engineers’ Civil Works Divisions and Districts. Indicated on 
the map are state boundaries, District boundaries, Division boundaries, 
District headquarters location, and Division headquarters location. The 
following locations are specifically designated: 

Division: North Atlantic; 
Division headquarters: New York; 
District headquarters: New England; Philadelphia, Pa., Baltimore, Md.; 
Norfolk, Virginia. 

Division: Great Lakes and Ohio River; 
Division headquarters: Cincinnati, Ohio; 
District headquarters: Buffalo, New York; Detroit, Michigan; 
Pittsburgh, Pa.; Huntington, West Virginia; Nashville, Tennessee; 
Louisville, Kentucky; Chicago, Illinois. 

Division: South Atlantic; 
Division headquarters: Atlanta, Georgia; 
District headquarters: Wilmington, North Carolina; Charleston, South 
Carolina; Savannah, Georgia; Jacksonville, Florida; Mobile, Alabama. 
 
Division: Mississippi Valley; 
Division headquarters: Vicksburg, Mississippi; 
District headquarters: Memphis, Tennessee; St. Louis, Missouri; Rock 
Island, Illinois; St. Paul, Minnesota. 

Division: Southwestern; 
Division headquarters: Dallas, Texas; 
District headquarters: Galveston, Texas; Fort Worth, Texas; Tulsa, 
Oklahoma; Little Rock, Arkansas. 

Division: South Pacific; 
Division headquarters: San Francisco, California; 
District headquarters: Los Angeles, California; Albuquerque, New 
Mexico; Sacramento, California. 

Division: Northwestern; 
Division headquarters: Portland, Oregon; 
District headquarters: Seattle, Washington; Walla Walla, Washington; 
Omaha, Nebraska; Kansas City, Missouri. 

Division: Pacific Ocean; 
Division headquarters: Honolulu, Hawaii; 
District headquarters: Alaska. 

Source: GAO representation of U.S. Army Corps of Engineers data. 

[End of figure] 

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, [Footnote 49] 
construction, and operations and maintenance. Generally, nonfederal 
sponsors share the costs of planning and constructing projects with the 
Corps. [Footnote 50] 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: 

* an increase or decrease in funding levels for a budgeted project; 

* the funding of a project that was not included in the President’s 
Budget, and; 

* 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. 

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). 

Corps Civil Works’ Process for Identifying and Categorizing 
Congressional Directives: 

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: 

* support projects where the benefits exceed the costs or; 

* 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. [Footnote 51] 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: Project name and state; 
Summary of information provided: Provides the project’s name and 
geographic location. 

Data fields: Congressional direction source; 
Summary of information provided: Indicates the page number of the 
language providing congressional direction in committee reports, 
conference report, or statute. 

Data fields: Description of directed work; 
Summary of information provided: Provides the amount of funds and, if 
applicable, any direction/restriction placed on that directed amount. 

Data fields: Authorization; 
Summary of information provided: Identifies the section of the public 
law where the project was initially authorized and subsequently 
amended. 

Data fields: Decision document; 
Summary of information provided: Describes Corps analysis supporting 
certain activities or work for an authorized project. 

Data fields: Relationship to executive branch policy; 
Summary of information provided: Classifies a congressional directive 
as either being consistent, questionable, or inconsistent and provides 
reasons for this classification. 

Data fields: Congressional interest; 
Summary of information provided: Identifies members’ names and their 
districts. 

Data fields: Summarized financial data; 
Summary of information provided: 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. 

Data fields: Recommended implementation plan for directed work; 
Summary of information provided: Describes how the directed (or 
redirected) funds will be used. 

Source: GAO analysis of Corps data. 

[End of table] 

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. 

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. Footnote 52] 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. [Footnote 53] 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: 

* 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. 

* 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. 

* 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. [Footnote 54] 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. 

[End of section] 

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). [Footnote 55] 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. [Footnote 56] 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. 

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. 

[Footnote 57] 

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. 

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. 

[End of section] 

Appendix II: GAO Contacts: 

Susan J. Irving, Director for Federal Budget Analysis: 
Strategic Issues: 
(202) 512-9142: 
irvings@gao.gov: 

Carlos Diz, Assistant General Counsel: 
(202) 512-8256: 
dizc@gao.gov: 

Agency-Specific Contacts: 

Department of Defense: 
Sharon L. Pickup, Director: 
Defense Capabilities and Management: 
(202) 512-9619: 
pickups@gao.gov: 

Department of Energy: 
Mark E. Gaffigan, Acting Director: 
Natural Resources and Environment: 
(202) 512-3841: 
gaffiganm@gao.gov: 

Department of Transportation: 
Susan A. Fleming, Director Physical Infrastructure: 
(202) 512-4431: 
flemings@gao.gov: 

U.S. Army Corps of Engineers: 
Anu Mittal, Director Natural Resources and Environment: 
(202) 512-3841: 
mittala@gao.gov: 

[End of section] 

Footnotes: 

[1] Because 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. 

[2] U.S. Const. art. I, § 8, cl. 1; § 9, cl. 7. 

[3] See, 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). 

[4] U.S. Const. art. II, § 3. 

[5] See 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.” 

[6] See GAO, A Glossary of Terms Used in the Federal Budget Process, 
GAO-05-734SP (Washington, D.C.: September 2005). GAO’s glossary 
fulfills part of GAO’s responsibility under 31 U.S.C. § 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. 

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

[8] Sarah 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). 

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

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

[11] Ch. XXIII, 1 Stat. 95 (Sept. 29, 1789). 

[12] Ch. 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. 

[13] Oliver 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). 

[14] Ch. III, 1 Stat. 226 (Dec. 23, 1791). 

[15] 55 Comp. Gen. 307 (1975). 

[16] This 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). 

[17] 55 Comp. Gen. at 318. 

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

[19] See OMB’s Web site at [hyperlink, http://earmarks.omb.gov]. 

[20] The 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. 

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

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

[23] DISA’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. 

[24] DOE 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. 

[25] NNSA 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. 

[26] DOE officials also monitor relevant authorization acts, which can 
sometimes contain congressional directives. 

[27] DOE’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. 

[28] Under 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.” 

[29] The 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. 

[30] Pub. L. No. 109-59 and Pub. L. No. 105-178, as amended. 

[31] The 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. 

[32] FTA reported New Starts projects for which Congress allotted more 
money than requested in the President’s Budget as earmarks to OMB. 

[33] FHWA 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. 

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

[35] A 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. 

[36] FTA’s Office of Chief Counsel and Office of Budget and Policy also 
provide assistance as needed. 

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

[38] Officials from FHWA’s Research and Technology Division track the 
congressional directives for their program on a separate spreadsheet. 

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

[40] FTA regional offices also have access to the electronic system. 

[41] An 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. 

[42] Earmarked funds have a 3-year availability to the grantee. 

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

[44] In 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). 

[45] States 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. 

[46] The 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. 

[47] In 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. 

[48] The 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. 

[49] Investigations 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. 

[50] Nonfederal sponsors generally assume responsibility for operating 
and maintaining most projects. 

[51] In 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. 

[52] The Project Management Business Process identifies the scope, 
schedule, and resources needed to accomplish project execution. 

[53] While 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. 

[54] An 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. 

[55] The 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. 

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

[57] In 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. 

[End of section] 

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 [hyperlink, http://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 [hyperlink, http://www.gao.gov] 
and select "Subscribe to 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, D.C. 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: [hyperlink, http://www.gao.gov/fraudnet/fraudnet.htm]: 
E-mail: fraudnet@gao.gov: 
Automated answering system: (800) 424-5454 or (202) 512-7470: 

Congressional Relations: 

Gloria Jarmon, Managing Director, JarmonG@gao.gov: 
(202) 512-4400: 
U.S. Government Accountability Office: 
441 G Street NW, Room 7125: 
Washington, D.C. 20548: 

Public Affairs: 

Chuck Young, Managing Director, youngc1@gao.gov: 
(202) 512-4800: 
U.S. Government Accountability Office: 
441 G Street NW, Room 7149: 
Washington, D.C. 20548: