Native American Issues: Examples of Certain Federal Requirements That Apply to Cultural Resources and Factors That Impact Tribal Consultation

Federal agencies are required in certain circumstances to consult with tribes on infrastructure projects and other activities—such as permitting natural gas pipelines—that may affect tribal natural and cultural resources. According to the National Congress of American Indians, federal consultation with tribes can help to minimize potential negative impacts of federal activities on tribes' cultural resources.

The Secretary of Homeland Security has waived federal cultural resource laws that generally require federal agencies to consult with federally recognized tribes to ensure expeditious construction of barriers along the southern U.S. border.

This testimony discusses examples of (1) federal laws and regulations that apply to Native American cultural resources and (2) factors that impact the effectiveness of federal agencies' tribal consultation efforts. It is based on reports GAO issued from July 2018 through November 2019 related to federal laws that apply to Native American cultural resources, tribal consultation for infrastructure projects, and border security. It also includes additional information about the consultation requirements in these cultural resource laws and regulations.

Examples of federal laws and regulations that apply to Native American cultural resources include:

The Native American Graves Protection and Repatriation Act (NAGPRA). In August 2018, GAO reported that NAGPRA prohibits the intentional removal from, or excavation of, Native American cultural items from federal or tribal lands unless a permit has been issued and other requirements are met. NAGPRA and its implementing regulations contain provisions to address both the intentional excavation and removal of Native American cultural items as well as their inadvertent discovery on federal and tribal lands.

Section 106 of the National Historic Preservation Act (NHPA). In March 2019, GAO reported that section 106 of the NHPA and its implementing regulations require federal agencies to consult with Indian tribes when agency “undertakings” may affect historic properties—including those to which tribes attach religious or cultural significance—prior to the approval of the expenditure of federal funds or issuance of any licenses.

In March 2019, GAO reported that tribes and selected federal agencies identified a number of factors that impact the effectiveness of consultation on infrastructure projects, based on GAO's review of the comments on consultation submitted by 100 tribes to federal agencies in 2016 and GAO's interviews with officials from 57 tribes and 21 federal agencies. Examples of these factors include:

Agency consideration of tribal input . Sixty-two percent of the 100 tribes that provided comments to federal agencies in 2016 identified concerns that agencies often do not adequately consider the tribal input they collect during consultation when making decisions about proposed infrastructure projects.

Maintaining tribal contact information . Officials from 67 percent of the 21 federal agencies in GAO's review cited difficulties obtaining and maintaining accurate contact information for tribes, which is needed to notify tribes of consultation opportunities.

GAO also found that the 21 agencies in GAO's review had taken some steps to facilitate tribal consultation. For example:

Eighteen agencies had developed systems to help notify tribes of consultation opportunities, including contact information for tribal leaders or other tribal officials.

Five agencies' tribal consultation policies specify that agencies are to communicate with tribes on how tribal input was considered.

GAO recommended in March 2019 that 17 federal agencies take steps to improve their tribal consultation practices. The agencies generally agreed and one agency has implemented the recommendation.

Thank you for the opportunity to discuss examples from our prior work  regarding federal laws and regulations that apply to Native American  cultural resources and factors that impact the effectiveness of federal  agencies’ tribal consultation efforts for infrastructure projects. Federal  cultural resource laws include the Native American Graves Protection and  Repatriation Act (NAGPRA), the Archaeological Resources Protection Act  of 1979 (ARPA), and section 106 of the National Historic Preservation Act  (NHPA). These acts and their implementing regulations cover different  cultural resources, including Native American cultural resources, but all  require federal agencies to consult with federally recognized Indian tribes  in certain circumstances. According to the National Congress of American  Indians, federal consultation with tribes can help to minimize potential  negative impacts of federal infrastructure projects on tribes’ natural  resources and cultural resources, which may include cultural items  protected by NAGPRA and archaeological resources subject to ARPA.  Federal agencies are to consult with tribes on many infrastructure  projects and other federal activities. For example, infrastructure projects,  such as constructing pipelines, may involve various federal activities that  trigger statutory and regulatory tribal consultation requirements.

As Congress found in the Indian Trust Asset Reform Act, “through  treaties, statutes, and historical relations with Indian tribes, the United  States has undertaken a unique trust responsibility to protect and support  Indian tribes and Indians.” The act also notes that the historic federal- tribal relations and understandings have benefited the people of the  United States for centuries and established “enduring and enforceable  ederal obligations to which the national honor has been committed.”  We have previously reported that agencies can improve the efficiency of  federal programs that serve tribes and can take additional actions to  improve tribal consultation for infrastructure projects. Such  improvements would be consistent with the expressed view of Congress  in the act as to the federal government’s trust responsibilities and would  strengthen the performance and accountability of the federal government.

In January 2017, the President issued Executive Order 13767, which  directs the Secretary of Homeland Security to immediately plan, design,  and construct a wall or other physical barriers along the southwest  border. In response, U.S. Customs and Border Protection (CBP) initiated  the Border Wall System Program to plan and deploy new barriers and  other assets. Section 102 of the Illegal Immigration Reform and  Immigrant Responsibility Act of 1996, as amended, authorizes the  Secretary of Homeland Security to waive all legal requirements as  determined to be necessary, in the Secretary’s sole discretion, to ensure  expeditious construction of barriers and roads under section 102. The  Secretary of Homeland Security has used this statutory authority to waive  the three cultural resource laws identified above and their implementing  regulations as well as certain other legal requirements. We have  previously reported on the progress the Department of Homeland  Security has made and challenges it has faced implementing its border  security efforts.

My statement today will focus on examples of (1) federal laws and  regulations that apply to Native American cultural resources and (2)  factors that impact the effectiveness of federal agencies’ tribal  consultation efforts. My statement is based on work we issued from July  2018 through November 2019 related to federal laws that apply to Native  American cultural resources, tribal consultation for infrastructure projects,  and border security. It also includes additional information about the  consultation requirements in these laws and regulations. To conduct our  previously issued work, we reviewed relevant federal laws, regulations,  and policies; reviewed agency documentation; reviewed oral and written  comments submitted by tribes to several federal agencies; and  interviewed tribal, federal, and industry officials. To identify examples of  factors that impact the effectiveness of federal agencies’ consultation  efforts for this testimony, we considered those factors that more than 60  percent of 100 tribes identified as hindering effective tribal consultation for  tribes in our March 2019 report; we also considered those factors that  more than 60 percent of 21 federal agencies identified as concerns in our  March 2019 report. More detailed information on our objectives, scope,  and methodology for that work can be found in the corresponding issued  reports.

We conducted the work on which this statement is based in accordance  with generally accepted government auditing standards. Those standards  require that we plan and perform the audit to obtain sufficient, appropriate  evidence to provide a reasonable basis for our findings and conclusions  based on our audit objectives. We believe that the evidence obtained  provides a reasonable basis for our findings and conclusions based on  our audit objectives.

Federal agencies have varying roles in planning, approving, and  implementing infrastructure projects, depending on their missions and  authorities. Some federal agencies help fund or construct infrastructure  projects, and others grant permits or licenses for activities on private or  federal lands. Agencies that manage federal lands, such as the Bureau  of Land Management, may construct infrastructure on lands they manage  and must also approve projects on those lands.

The circumstances under which federal agencies may need to consult  with tribes will vary based on the agencies’ responsibilities for  infrastructure projects as well as an infrastructure project’s potential  effects on tribes’ land, treaty rights, or other resources or interests.

Federal agencies are generally responsible for identifying relevant tribes  that may be affected by proposed projects, notifying the tribes about the  opportunity to consult, and then initiating consultation, as needed. One or  more tribes located near or far from the proposed project site may have  treaty rights within lands ceded in treaties or interests in lands with  cultural or religious significance outside of lands ceded in treaties.

Additionally, the Federal Permitting Improvement Steering Council— which was created to make the process for federal approval for certain  (large) infrastructure projects more efficient—has issued two annual  reports that identified best practices for, among other things, consulting  with tribes. These best practices include: training staff on trust and  treaty rights; providing clear information on proposals in a consistent and  timely manner; holding consultations on lands convenient to tribes when  possible; compensating tribes for consultant-like advice; and working to  build strong, ongoing dialogue between tribal authorities and agency  decision makers, among others. In 2017, Executive Order 13807 directed  agencies to implement the techniques and strategies identified by the  steering council as best practices, as appropriate.

For purposes of this testimony, Native American cultural resources  means Native American cultural items as defined by NAGPRA,  archaeological resources that are remains of past activities by Native  Americans, and historic properties to which Indian tribes attach cultural  or religious significance.

Examples of Federal Laws and Regulations That Apply to Native American Cultural Resources

ARPA, NAGPRA, and section 106 of the NHPA are examples of federal  laws that apply to Native American cultural resources. These laws and  their implementing regulations contain many different provisions  applicable to Native American cultural resources, including requirements  for federal agencies to consult with Indian tribes in certain circumstances.

ARPA and NAGPRA, among other things, prohibit trafficking of certain  archaeological resources and Native American cultural items,  respectively. In August 2018, we reported on federal laws that address  the export, theft, and trafficking of Native American cultural items and any  challenges in proving violations of these laws. That report included a  discussion of ARPA and NAGPRA.

In addition, we reported in August 2018 that ARPA and NAGPRA contain  provisions prohibiting the removal of archaeological resources and Native  American cultural items from certain lands unless certain conditions are  met, including consultation with Indian tribes. Specifically, ARPA  prohibits, among other things, the excavation or removal of  archaeological resources from public or Indian lands without a permit  from the federal agency with management authority over the land. If the  federal agency determines that issuance of such a permit may result in  harm to, or destruction of, any religious or cultural site, the agency must  notify any Indian tribe which may consider the site as having religious or  cultural importance and meet, upon request, with tribal officials to discuss  their interests.

NAGPRA prohibits the intentional removal from, or excavation of, Native  American cultural items from federal or tribal lands unless an ARPA  permit has been issued and other requirements are met. Specifically,  regulations implementing NAGPRA require federal agency officials to  take reasonable steps to determine whether a planned activity on federal  lands may result in the excavation of human remains or other cultural  items. Officials are also required to consult with certain tribes, including  any tribe on whose aboriginal lands the planned activity will occur, about  the planned activity. After consultation, the federal agency official must  complete and follow a written plan of action that includes, among other  things, the planned treatment, care, and disposition of human remains  and other cultural items recovered.

NAGPRA and its implementing regulations also include provisions  regarding inadvertent discovery of Native American cultural items on  federal and tribal lands. Specifically, the person making the discovery  must notify the responsible federal agency or tribal official, stop any  activity occurring in the area of the discovery, and make a reasonable  effort to protect the human remains or other cultural item discovered. The  NAGPRA regulations specify procedures for the agency and tribal officials  to take after receiving a notification and when the activity that resulted in  the inadvertent discovery can resume.

In March 2019, we reported that under section 106 of the NHPA and its  implementing regulations, federal agencies are required to consult with  Indian tribes when agency “undertakings” may affect historic properties— including those to which tribes attach religious or cultural significance— prior to the approval of the expenditure of federal funds or issuance of  any licenses. The implementing regulations require agencies to consult  with Indian tribes for undertakings that occur on or affect historic  properties on tribal lands or may affect historic properties to which Indian  tribes attach religious or cultural significance, regardless of where the  historic properties are located. In addition, these regulations establish  the following four-step review process for federal agencies, with tribal  consultation required for each step: (1) initiating the section 106 process,  (2) identifying historic properties, (3) assessing adverse effects, and (4)  resolving adverse effects.

Examples of Factors Tribes and Selected Agencies Identified That Impact the Effectiveness of Federal Agencies’ Consultation Efforts

As we found in March 2019, tribes and selected federal agencies  identified a number of factors that hinder effective consultation on  infrastructure projects, based on our review of the comments submitted  by 100 tribes to federal agencies in 2016 on tribal consultation and our  interviews with officials from 57 tribes and 21 federal agencies.

Tribes identified a variety of factors that hinder effective consultation. For  the purposes of this testimony, we are highlighting those factors that more  than 60 percent of the 100 tribes identified as concerns. For example:

Agencies’ timing of consultation. Sixty-seven percent of tribes that  provided comments to federal agencies in 2016 identified concerns  with agencies initiating consultation late in project development  stages; according to one tribal official we interviewed, late initiation of  consultation limits opportunities for tribes to identify tribal resources  near proposed project sites and influence project design.

Agency consideration of tribal input. Agencies often do not  adequately consider the tribal input they collect during tribal  consultation when making decisions about proposed infrastructure  projects, according to 62 percent of tribes that provided comments to  federal agencies in 2016. Tribes’ comments included perceptions that  agencies consult to “check a box” for procedural requirements rather  than to inform agency decisions.

Agency respect for tribal sovereignty or the government-to- government relationship. Other concerns were related to agencies’  level of respect for (1) tribal sovereignty or (2) the government-to- government relationship between the United States and federally  recognized tribes, according to 73 percent of tribes that provided  comments to federal agencies in 2016. Comments included concerns  that some agency practices are inconsistent with this relationship. For  example, tribes cited agencies limiting consultation to tribal  participation in general public meetings and sending staff without  decision-making authority to represent the U.S. government in  consultation meetings.

Agency accountability. Sixty-one percent of tribes that provided  comments to federal agencies in 2016 raised concerns related to the  extent of agencies’ accountability for tribal consultation, stating that  some agencies or officials are not held accountable for consulting  ineffectively or for not consulting with relevant tribes. For example,  comments included concerns that tribes may not have appeal options  short of litigation when they believe that federal officials did not  adhere to consultation requirements.

In addition, officials from 21 federal agencies included in our March 2019  report identified factors that they had experienced that limit effective  consultation for infrastructure projects. For the purposes of this  testimony, we are highlighting those factors that more than 60 percent of  the 21 agencies identified as concerns. For example:

Maintaining tribal contact information. Officials from 14 of 21  agencies (67 percent) cited difficulties obtaining and maintaining  accurate contact information for tribes, which is needed to notify tribes  of consultation opportunities. For example, ongoing changes or  turnover in tribal leadership make it difficult to maintain updated tribal  information, according to some agency officials we interviewed.

Agency resources to support consultation. Officials from 13 of 21  agencies (62 percent) cited constraints on agency staff, financial  resources, or both to support consultation. Officials from these  agencies said that they have limited funding to support consultation  activities, such as funding for their staff to travel to in-person  consultation meetings for infrastructure projects.

Agency workload. Officials from 13 of 21 agencies (62 percent)  identified a demanding workload for consultation as a constraint,  because of large numbers of tribes involved in consultation for a  single project, high volumes of consultations, or lengthy consultations,  among other reasons. Officials from some of these agencies said that  it may be difficult to stay on project schedules when there are multiple  tribes to consult with or multiple agencies involved.

In March 2019, we also found that the 21 agencies in our review had  taken some steps to facilitate tribal consultation, but the extent to which  these steps had been taken varied by agency. For example:

Developing information systems to help contact affected tribes.

Eighteen agencies developed systems to help notify tribes of  consultation opportunities, which generally include contact information  for tribal leaders or other tribal officials. Three of these agencies also  included information on tribes’ geographic areas of interest. For  example, the Department of Housing and Urban Development  developed a system that aims to identify over 500 tribes’ geographic  areas of interest and includes their contact information. The Federal  Permitting Improvement Steering Council identified developing a  central federal database for tribal points of contact as a best  practice. We recommended that the council should develop a plan  to implement such a database and consider how it will involve tribes  to help maintain the information, among other actions.

Developing policies to communicate how they considered tribal  input. Five agencies’ tribal consultation policies specify that agencies  are to communicate with tribes on how tribal input was considered.  For example, the Environmental Protection Agency’s policy directs the  most senior agency official involved in a consultation to send a formal,  written communication to the tribe to explain how the agency  considered tribal input in its final decision. However, 16 agencies did  not call for such communications in their policies. We recommended  that these agencies update their tribal consultation policies to better  communicate how tribal input was considered in agency decision- making.

Addressing capacity gaps through training. Most of the 21  selected federal agencies have taken steps to facilitate tribal  consultation for infrastructure projects by providing a range of training  opportunities for staff involved in tribal consultation to help build  agency officials’ knowledge of tribal consultation topics. For example,  the U.S. Army Corps of Engineers coordinates an immersive, 4-day  training, hosted by a tribe on the tribe’s land or reservation for agency  staff and other participating agency officials, which focuses on cultural  competency important for tribal consultation.

Utilizing various approaches to address resource constraints.  Some of the selected federal agencies used various approaches to  help address resource constraints agencies and tribes may face when  consulting on infrastructure projects, according to agency officials. For  example, the Bureau of Land Management’s policies state that the  agency may use its appropriated funds and designated accounts to  reimburse tribal members’ travel expenses to attend meetings in  connection with some consultations. The Nuclear Regulatory  Commission collects fees from project applicants to cover agency  costs related to consultation.

In conclusion, effective consultation is a key tenet of the government-to- government relationship the United States has with Indian tribes, which is  based on tribal sovereignty. Failure to consult, or to consult effectively,  sows mistrust; risks exposing the United States to costly litigation; and  may result in irrevocable damage to Native American cultural resources.  In our March 2019 report, we made recommendations to 17 agencies to  take steps to improve their tribal consultation practices, which agencies  generally agreed with and in one case, have implemented. However,  sustained congressional attention to these issues and the relevant factors  impacting the effectiveness of agencies’ consultation efforts may help to  minimize the negative impacts on tribes’ cultural resources, when relevant  federal laws and regulations apply.

Chairman Gallego, Ranking Member Cook, and Members of the  Subcommittee, this completes my prepared statement. I would be  pleased to respond to any questions that you may have at this time.

For further information regarding this testimony, please contact Anna  Maria Ortiz at (202) 512-3841 or ortiza@gao.gov. Contact points for our  Offices of Congressional Relations and Public Affairs may be found on  the last page of this statement.

Key contributors to this statement include Lisa Van Arsdale (Assistant  Director), Brad Dobbins, Leslie Kaas Pollock, and Jeanette Soares.

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

Federal agencies are required, at times, to consult with tribes on infrastructure projects, like pipelines, that may harm tribes’ cultural resources.

We testified, based on reports we issued from 2018-2019, about laws and regulations that apply to cultural items and properties and about the consultation process. For example:

Some tribal representatives said agencies did not consider their input and that consultations started too late

Agencies reported difficulty obtaining appropriate contact information needed to start the consultation process

We’ve previously made 22 recommendations on how agencies can improve their tribal consultations.


Prepositioned Stocks: DOD Needs Joint Oversight of the Military Services' Programs

The military services preposition stocks worth billions of dollars at strategic locations around the world to provide U.S. forces with critical assets before supply chains have been established. In the 2018 National Defense Strategy, DOD emphasized that prepositioned stocks provide key logistical support for the department's missions. For many years, GAO has identified the potential for duplication among the military services' prepositioned stock programs due to a fragmented management approach and limited joint oversight within DOD.

In the NDAA for Fiscal Year 2014, Congress required DOD to develop an implementation plan to manage prepositioned stock programs. DOD finalized its plan in August 2017. The act included a provision for GAO to review the plan and report on related issues. GAO assessed the extent to which (1) DOD's implementation plan addresses mandated reporting elements and (2) DOD has made progress in implementing a joint oversight approach for managing the services' prepositioned stock programs.

GAO compared the implementation plan and DOD's joint oversight approach with congressional requirements and federal standards for internal control and interviewed DOD officials.

The Department of Defense's (DOD) implementation plan for managing the military services' prepositioned stock programs does not fully address four of the seven elements required by the National Defense Authorization Act (NDAA) for Fiscal Year 2014. For example, DOD's plan did not include all information required by the NDAA, such as a complete list of the services' programs, information on how DOD would pursue key initiatives, or the resources required to implement the plan. DOD officials told GAO that they developed a plan without detail to allow the services to determine for themselves how to implement their programs. However, absent an implementation plan that fully addresses NDAA requirements, DOD continues to provide incomplete information to Congress on the department's prepositioned stock programs.

Since 2011 when Congress required DOD to take action and since 2005 when GAO first reported on the issue, DOD has not fully implemented a joint oversight approach for managing prepositioned stock programs (see figure).

DOD's recent approach for implementing joint oversight has been to update guidance documents and develop other efforts, such as a working group, but the services continue to manage their programs with little joint oversight. Without taking steps to fully implement joint oversight, including providing detailed information on how to achieve this in guidance and reviewing other efforts, DOD's management will continue to be fragmented and it risks duplication and inefficiencies among the services' programs. Moreover, updating Congress on DOD's progress would help assure decision makers that DOD intends to follow their direction in establishing joint oversight of prepositioned stock programs.

GAO is making six recommendations, including that DOD provide information required by the NDAA, fully implement joint oversight of prepositioned stock programs, and update Congress on progress made. DOD concurred with all of the recommendations.

The Department of Defense (DOD) positions equipment and materiel  worth billions of dollars—including items such as combat vehicles,  rations, medical supplies, and repair parts—at strategic locations around  the world. By positioning stocks ashore and afloat before the initial  phases of an operation (i.e., by “prepositioning” them), DOD is able to  provide assets to U.S. forces during the initial phases of an operation until  follow-on capabilities are available and the supply chain has been  established. In the 2018 National Defense Strategy, DOD emphasized the  importance of maintaining a dynamic, flexible force for the department’s  new focus on long-term, interstate strategic competition. The strategy  describes a corresponding priority on the investment in prepositioned  stocks to provide key logistical support for the department’s missions.

In the National Defense Authorization Act (NDAA) for Fiscal Year 2014,  Congress required DOD to maintain a strategic policy regarding the  department’s programs for prepositioned stocks that takes into account  national security threats, strategic mobility, service requirements, and the  requirements of the combatant commands. In addition, the act required  DOD, not later than 120 days after the enactment of the law, to develop  an implementation plan on its prepositioned stock programs. The  implementation plan is to address required elements in the law, such as  how the department will achieve the vision for prepositioning programs  and the resources required. In March 2017, DOD issued a strategic policy  for the management of prepositioned stock programs, and in August 2017  the department finalized the implementation plan.

For many years, we have identified the potential for duplication in the  services’ respective prepositioning stock programs due to a fragmented  management approach within DOD, and we have made related  recommendations. For example, in May 2011, we recommended that  DOD develop a department-wide strategy and strengthen joint oversight  to integrate and synchronize at a DOD-wide level the services’  prepositioned stock programs, in order to maximize efficiency in  managing prepositioned stocks across the department and to reduce  potentially unnecessary duplication. In July 2017, we reported that the  strategic policy that DOD issued on March 7, 2017, for managing its  prepositioned stock programs did not address five of the six mandated  elements and that DOD had not yet completed the mandated  implementation plan. We recommended that DOD revise or include in  other department-wide guidance a description of the department’s vision  and desired end state for its prepositioned stock programs as well as  interim goals to achieve the vision and end state. DOD concurred with our  recommendations and stated that it would issue an implementation plan  that would include these elements.

Section 321 of the NDAA for Fiscal Year 2014 includes a provision for us  to review and report on DOD’s implementation plan for managing  prepositioned stock programs as well as provide additional information  relating to the plan as appropriate. This report assesses the extent to  which (1) DOD’s implementation plan addresses mandated reporting  elements and (2) DOD has made progress in implementing a joint  oversight approach for managing the services’ prepositioned stock  programs.

To address objective one, we compared the information in the  implementation plan with the seven required elements. One GAO analyst  coded the information and a different analyst checked the initial coding for  accuracy. The analysts discussed and reconciled any coding  disagreements and then tallied their responses. We assessed an element  as “addressed” if DOD’s implementation plan addressed all parts of the  element. We assessed an element as “partially addressed” if one or  more—but not all—parts of the required element were explicitly  addressed. We assessed an element as “not addressed” if the plan did  not explicitly address any part of the required element. In addition to  assessing how the implementation plan met the seven elements in  section 321, we assessed the plan using Standards for Internal Control in  the Federal Government, which call for, among other things, agencies to  establish objectives defined in specific and measureable terms that  clearly define what is to be achieved, who is to achieve it, how it will be  achieved, and the time frames for achievement. We also interviewed  officials from the Office of the Secretary of Defense and the Joint Staff  regarding the implementation plan and its development.

To address objective two, we reviewed key DOD documents related to  prepositioned stocks (i.e., DOD’s strategic policy, joint service  instructions, services’ policies for prepositioned stock programs), recent  DOD prepositioned stock annual reports to Congress, and other DOD  guidance documents. We assessed the joint oversight language found in  those documents against Standards for Internal Control in the Federal  Government, which state that objectives should be defined in specific and  measureable terms that clearly define what is to be achieved, who is to  achieve it, how it will be achieved, and the time frames for achievement  as well as that management should evaluate performance and hold  individuals accountable for their responsibilities. We also reviewed our  past work in the area of duplication, overlap, and fragmentation related to  the services’ respective prepositioning stock programs. “Fragmentation” refers to those circumstances in which more than one organization within  an agency is involved in the same broad area of national need and  opportunities exist to improve service delivery. We also reviewed  documentation and observed a meeting of DOD’s Global Prepositioned  Materiel Capabilities Working Group, which DOD identified as responsible  for addressing joint issues concerning war reserve materiel requirements  and positioning. In addition, we interviewed officials from the Office of the  Secretary of Defense, the Joint Staff, the four military services, and a  geographic combatant command to determine the extent to which DOD  was employing joint oversight through the working group and key  guidance documents. (See app. I for a complete list of offices we met with  during our review).

We conducted this performance audit from March 2018 to January 2019  in accordance with generally accepted government auditing standards.  Those standards require that we plan and perform the audit to obtain  sufficient, appropriate evidence to provide a reasonable basis for our  findings and conclusions based on our audit objectives. We believe that  the evidence obtained provides a reasonable basis for our findings and  conclusions based on our audit objectives.

The military services preposition stocks ashore and afloat so that DOD is  able to respond to multiple scenarios during the initial phases of an  operation until the supply chain has been established. The military  services maintain their own configurations and types of equipment and  stocks to support their respective prepositioned stock programs:

The Army stores sets of combat brigade equipment, supporting  supplies, and other stocks at land sites in several countries and  aboard ships.

The Marine Corps stores equipment and supplies for its forces aboard  ships stationed around the world and at land sites in Norway (see fig.  1).

The Navy’s prepositioned stock program provides construction  support, equipment for off-loading and transferring cargo from ships to  shore, and expeditionary medical facilities to support the Marine  Corps.

The Air Force’s prepositioned stock programs include assets such as  direct mission support equipment for fighter and strategic aircraft as  well as base operating support equipment to provide force,  infrastructure, and aircraft support during wartime and contingency  operations.

Prepositioned stocks are employed by the geographic combatant  commanders, who have the authority to, among other things, organize  and employ forces assigned to them as they deem necessary to  accomplish assigned missions. DOD apportions the services’  prepositioned stocks among the geographic combatant commands  according to joint guidance, and the afloat prepositioned stocks may be  apportioned to more than one geographic combatant command.  Requirements for prepositioned stocks are developed based on an  approved operation plan. The services determine how best to meet the  needs of the geographic combatant commanders, which may include the  use of prepositioned stocks. Geographic combatant commanders  periodically review their plans, assess the risk to those plans, and report  the results to the Chairman of the Joint Chiefs of Staff. The approval of  the Secretary of Defense is generally required to use the prepositioned  stocks.

DOD’s Prepositioned Stock Implementation Plan Does Not Fully Address Four of the Seven Required Elements

DOD’s implementation plan for managing prepositioned stocks includes  information that addresses three of the seven required elements  enumerated in section 321 of the NDAA for Fiscal Year 2014. However,  the plan, which is 5 pages in length, lacks the detail needed to fully  address the remaining four required elements (see table 1).

The Assistant Secretary of Defense for Logistics and Materiel Readiness  approved the implementation plan on August 29, 2017, but an official  from the Office of the Secretary of Defense told us that DOD did not  formally issue the plan. As such, it does not bear a DOD seal, signature,  or issuance number and most prepositioning service officials we spoke  with were not aware of the plan’s existence.

As shown in the table, DOD fully addressed three elements in section 321  of the NDAA for Fiscal Year 2014 by describing how the department will  achieve its vision, desired end state, and goals, assigning roles and  responsibilities, and including a schedule for the implementation of the  plan. However, we assessed the remaining elements as partially  addressed or not addressed because DOD did not provide the required  information in its implementation plan. Specifically:

Element two (comprehensive list of DOD’s prepositioned  materiel and equipment programs, partially addressed). DOD’s  implementation plan contains a list of the department’s prepositioned  stock programs but that list omits one Army and eight Air Force  prepositioned stock programs. In table 2, we compare the list of  prepositioned stock programs that service officials provided to us with  the list in DOD’s implementation plan.

An official from the Office of the Secretary of Defense told us in April 2017  as part of a previous review that the department would not address this  required element in the implementation plan because the department lists  its prepositioned stock programs in its annual report to Congress. The  implementation plan notes that DOD submits a comprehensive list of  materiel to Congress each year per 10 U.S.C. §2229a. However, the  annual report to Congress does not include a comprehensive list of the  department’s prepositioned materiel and equipment programs. Rather,  the annual report describes most of the department’s prepositioning  programs but it omits one Army and six Air Force programs not listed in  the implementation plan. Apart from the statutory requirement, Standards  for Internal Control in the Federal Government state that management  should communicate quality information externally so that external parties  can help the entity achieve its goals and address risks. Without a  comprehensive list of prepositioned materiel and equipment programs,  DOD decision makers do not have all of the information they need to  conduct effective oversight to assist the department in achieving its vision  and goals.

Element three (detailed description of how the plan will be  implemented, partially addressed). The plan identifies policy,  governance, and assessment initiatives through which the department  aims to achieve its goals. However, the plan does not provide a  detailed description of how the department will implement these three  initiatives.

Specifically, the plan states that DOD will identify policy gaps and  revise or develop policy at all levels to better oversee prepositioned  stocks; assigns the Under Secretary of Defense for Acquisition,  Technology, and Logistics, the Chairman of the Joint Chiefs of Staff,  and the services to review and revise the current prepositioning  policies as appropriate; and tasks the geographic combatant  commanders to ensure that theater campaign plans provide clear  guidance for service prepositioned stock planning. However, the plan  does not provide details on when geographic combatant commanders  should finalize clear guidance for service prepositioned stock planning  or describe what the guidance should include. The plan also states  that DOD will use a governance body composed of the Under  Secretary of Defense for Acquisition, Technology, and Logistics; the  Chairman of the Joint Chiefs of Staff; the geographic combatant  commanders; and the services to provide joint oversight of the  prepositioned stock programs. However, the plan is unclear as to  whether the Global Prepositioned Materiel Capabilities Working Group  is the governance body. For example, the plan states that DOD’s joint  oversight framework will include the Global Prepositioned Materiel  Capabilities Working Group but also assigns the group to present  capability shortfalls and gaps to a governance body and implement  governance body decisions. Further, the plan states that DOD will use  current systems of record and established metrics to evaluate  performance and measure prepositioned stock status and capability.  However, these are existing mechanisms to monitor the services’  programs and do not provide details on how the department will  assess implementation of the plan itself.

In 2017, a Joint Staff official told us that the implementation plan  would be broad and high-level but would be more detailed than the  DOD’s strategic policy. However, the plan’s descriptions of the  implementation initiatives lack sufficient detail on what the department  will do to implement the plan. Apart from the statutory requirement,  Standards for Internal Control in the Federal Government establish  that objectives should be defined in specific and measureable terms  that clearly define what is to be achieved. Without sufficient detail,  DOD risks being unable to fully support the emphasis and high priority  that the 2018 National Defense Strategy gives to prepositioned  stocks.

Element six (description of the resources required to implement  the plan, not addressed). DOD’s implementation plan does not  describe the resources required to implement the plan. Rather, the  plan states that prepositioning programs are resourced and managed  by the services in support of combatant command operational and  training requirements. In describing the joint oversight framework, the  plan states that DOD will leverage the processes that already exist to  resource prepositioning stock requirements including a focused effort  on prepositioning as part of the annual planning, programming,  budget and execution process, and the Joint Capabilities Integration  Development System. Officials from the Office of the Under  Secretary of Defense for Policy told us when they were developing the  implementation plan that they understood this element as requiring  information about the resources such as funding, personnel, and  technology that would be needed to implement the plan. However, the  plan does not include a description of the funding, personnel, or  technology resources required to implement the plan. DOD officials  reported that the services received $1.2 billion for prepositioned  stocks in fiscal year 2018 and that the annual report to Congress also  contains further information on the funding. However, this information  does not describe the resources needed to implement DOD’s plan for  prepositioned stocks as required by the NDAA for Fiscal Year 2014.  Apart from the statutory requirement, Standards for Internal Control in  the Federal Government establish that organizations should gather  relevant operational and financial information for effective monitoring.  Without a description of the resources required for implementation,  decision makers do not have enough information to understand  whether the department has sufficient resources to implement the  plan.

Element seven (description of how the plan will be reviewed and  assessed to monitor progress, partially addressed). DOD’s  implementation plan describes how the department will monitor the  services’ prepositioned stock capabilities and readiness but does not  describe how the department will review and assess the plan itself.  The plan states that the department will use standard metrics  contained in the readiness reporting systems of record to monitor  prepositioning capability and readiness of the services’ programs. The  plan assigns the services and combatant commands to assess  prepositioned stock programs and posture annually and notes that all  of the services are to begin reporting through the Defense Readiness  Reporting System in the first quarter of fiscal year 2018. However,  similar to element three, the plan does not fully address the mandated  element in that it does not describe how the department will review or  assess the plan as a tool toward achieving the stated vision and  desired end state. The plan directs the Global Prepositioned Materiel  Capabilities Working Group—which is responsible for providing  oversight of prepositioned stock programs and resolving joint issues  concerning prepositioned stocks—to assess actions to ensure desired  results are achieved but does not describe how it is to do this. Apart  from the statutory requirement, Standards for Internal Control in the  Federal Government state that management should monitor its  internal controls to determine their effectiveness and make  modifications as necessary. Without reviewing and assessing the  implementation plan, DOD will be unable to determine whether the  current plan is helping the department progress toward its identified  vision and desired end state for its prepositioned stock programs.

DOD did not fully address the required elements in the  implementation plan because, according to officials from the Office of  the Secretary of Defense for Policy and the Joint Staff,  implementation of the plan for managing prepositioned stock  programs is the role of the services. According to these officials, DOD  developed the implementation plan without details to allow the  services to determine how to implement their respective  prepositioning stock programs. Further, an official from the Under  Secretary of Defense for Policy noted that DOD’s annual report to  Congress on prepositioned stock programs contains some of the  required information. However, as discussed earlier, we found that the  annual report to Congress does not include all of the information to  satisfy the required elements, such as a comprehensive list of the  department’s prepositioned stock programs; and most service officials  we spoke with were unaware of the plan. Moreover, section 321 of the  NDAA for Fiscal Year 2014 required DOD to develop an  implementation plan that contained all seven elements.

Absent an implementation plan that fully addresses all of the elements  required in the NDAA for Fiscal Year 2014 and aligns with internal  control standards, DOD continues to provide incomplete information  to Congress and stakeholders within the department on its  prepositioned stock programs.

DOD Has Made Little Progress in Implementing a Joint Oversight Approach for Managing the Military Services’ Prepositioned Stock Programs

DOD’s Progress in Establishing a Joint Oversight Approach Has Been Slow

In 2011, Congress began mandating DOD take steps to develop a joint  strategy. Beginning in 2005 and subsequently in 2011, we reported that  DOD lacked a joint oversight framework of the services’ programs.  However, as shown in figure 2, DOD has made limited progress in  addressing congressional requirements and our reporting  recommendations related to joint oversight of prepositioned stock  programs.

DOD’s Guidance on Joint Oversight Lacks Detail and Other Related Efforts Have Limitations

DOD’s recent approach to joint oversight has been to update guidance  and implement other related efforts. For example, over the past 2 years,  the Office of the Secretary of Defense and the Joint Staff have updated  existing documents and issued new policy documents, which each  contain broad statements about the need for joint oversight of the  services’ prepositioned stock programs:  In December 2016, the Chairman of the Joint Chiefs of Staff updated  its Logistics Planning Guidance for Prepositioned War Reserve  Materiel. The document states that all service prepositioned stock  programs require joint alignment with national priorities and global  combatant command requirements across the full range of military  operations. The instruction specifically directs the Joint Staff to  develop a framework for joint oversight processes for synchronizing  the services’ prepositioning strategies to minimize duplicative efforts  and to maximize efficiencies and return on investment for  prepositioned stocks. However, this document does not detail how the  Joint Staff is to develop this framework and does not describe the  elements that are to be included as a part of an effective approach for  joint oversight.

In March 2017, the Office of the Under Secretary of Defense for  Acquisition, Technology, and Logistics issued its Pre-Positioned War  Reserve Materiel Strategic Policy. One of the purposes of the  document is to establish joint oversight of the military services’ pre- positioning efforts to maximize efficiencies across DOD. The directive  assigns the Chairman of the Joint Chiefs of Staff with the  responsibility to develop a framework for synchronizing the services’  prepositioning strategies to minimize duplicative efforts and to  maximize efficiency and return on investment across DOD. However,  similar to the instruction above, this document does not detail how the  Joint Staff is to develop this framework or describe the elements that  are to be included as a part of an effective approach for joint  oversight.

In August 2017, the Assistant Secretary of Defense for Logistics and  Materiel Readiness finalized DOD’s implementation plan for managing  prepositioned stock programs, which we discuss earlier in this  report. The plan calls for improved DOD guidance that builds a  framework and establishes joint oversight to synchronize service  prepositioned stock programs with DOD’s strategic guidance and  priorities. The plan also calls for balancing service prepositioned stock  programs to maximize effectiveness and efficiency while minimizing  potential duplication across the department. However, in addition to  the shortcomings of the plan that we discuss earlier in this report, the  plan also does not provide a detailed discussion of what is needed to  implement a department-wide framework for joint oversight. Further,  although the plan states that clear policy is the foundation for joint  oversight, the plan itself was not issued as formal guidance, and, as  noted earlier, most prepositioning service officials we spoke with were  not aware of the plan’s existence. DOD officials stated that they are  continuing to update existing guidance as needed and that the  services are responsible for implementing and managing their own  prepositioned stock programs.

DOD also provides Congress annual reports on the status of the services’  prepositioned stock programs. However, in June 2015, we reported that  the annual report provided inconsistent information among the services’  programs using a nonstandardized definition of “prepositioned stocks”  and that the annual report is not an effective tool for joint oversight. We  recommended that DOD develop a standardized definition of  “prepositioning” for its annual report that is consistent with the definition  used in the department’s joint service guidance and apply this definition  consistently to identify prepositioning materiel and equipment across  DOD. DOD concurred with our recommendations. However, as of  October 2018, DOD continued to use varying definitions of prepositioned  stocks. A broad definition exists at the strategic level, but service-level  definitions vary depending on what each service’s prepositioned stock  needs are. For example, the Army’s definition of prepositioned stocks is  based on the equipment and stocks required to meet the unique mission  requirements of brigade combat team configurations. Within this  definition, the Army includes equipment sets used for training units, but  the other services do not. DOD officials stated that although there is a  broad definition of prepositioned stocks, the services are responsible for  managing their individual programs to include what equipment and stocks  are a part of their respective programs based on their mission and needs.

Further, in 2008, DOD directed the establishment of the Global  Prepositioned Materiel Capabilities Working Group and assigned it  responsibility for addressing joint issues concerning war reserve materiel  requirements and positioning. According to DOD’s prepositioned stock  implementation plan, the working group is DOD’s focused joint oversight  framework effort to execute the following for prepositioned stock  programs: analyze service and combatant commander input in the annual report  identify potential opportunities to enhance efficiency and reduce  operational risk, present capability shortfalls/gaps to a governance body for  implement governance body decisions in coordination with the  services and combatant commands, and assess actions to ensure desired results are achieved.

According to DOD guidance, the Assistant Secretary of Defense for  Sustainment and the Chairman of the Joint Chiefs of Staff appoint co- chairs for the working group, which will include members from the military  services, the Defense Logistics Agency and the combatant commands    and meet annually or more often, as needed. However, since 2011, our  work has shown that DOD has been unable to ensure that the working  group’s activities include the full range of the tasks the group was  established to perform because the working group lacks clear oversight  and reporting relationships to authoritative bodies within DOD. We  recommended that DOD assess the continued relevance of the Global  Prepositioned Materiel Capabilities Working Group’s assigned tasks, and  DOD concurred. In September 2012, we reported that, according to DOD  officials, the main responsibility of the working group had been to  consolidate the services’ individual submissions on their prepositioned  stock programs into DOD’s annual report for Congress, and that the  working group had met only sporadically and had not yet addressed many  of the duties specified in its charter. This continues to be the case. We  found that, according to DOD officials, quarterly working group meetings  were frequently postponed, attendance was not fully representative of all  stakeholders, and the discussions during a September 2018 meeting we  observed were primarily focused on gathering information from the  services for preparations for the upcoming annual report to Congress and  receiving service updates on the current status of their respective  prepositioned stock programs.

DOD has not fully implemented joint oversight of the services’  prepositioned stock programs because the department’s guidance lacks  detail and the department has not fully implemented requirements within  other intended joint oversight efforts, such as the working group. Instead,  DOD’s approach has been for the services to manage their own  respective programs with limited oversight at the department level.  Standards for Internal Control in the Federal Government state that  objectives should be defined in specific and measureable terms that  clearly define what is to be achieved, who is to achieve it, how it will be  achieved, and the time frames for achievement. These standards also  state that management should evaluate performance and hold individuals  accountable for their internal control responsibilities. In addition, the  NDAA for Fiscal Year 2014 mandates a framework for joint departmental  oversight that reviews and synchronizes the military services’  prepositioned stock strategies to minimize potentially duplicative efforts  and maximize efficiencies in prepositioned stocks across the DOD.  Further, our prior work in the area of fragmentation, overlap, and  duplication in the federal government has found that Congress and  executive branch agencies have opportunities to contribute toward fiscal  sustainability and act as stewards of federal resources. These include  taking actions to reduce, eliminate, or better manage duplication, overlap,  or fragmentation among federal agencies and programs; achieve cost  savings; or enhance revenues. “Fragmentation” refers to those  circumstances in which more than one organization within an agency is  involved in the same broad area of national need and opportunities exist  to improve service delivery.

Without strengthening joint oversight across the department, DOD  continues to have a fragmented approach to its management of  prepositioning programs, which has led to inefficiencies. For example,  according to Joint Staff officials, there is no uniform process by which the  services are reporting the readiness of prepositioned stock assets. Joint  Staff officials also said that having a joint oversight approach would help  them have a more complete picture on the readiness of prepositioned  stocks across the services and help the services in developing more  consistent reporting methods. Service officials we interviewed have also  noted that there may be duplication among DOD’s prepositioned stock  programs resulting from limited joint oversight. For example, Navy  officials stated that because each service utilizes medical assets as a part  of its prepositioned stock programs, there is potential duplicative medical  equipment across the services, which may result in inefficiencies. Finally,  our ongoing classified work is finding a lack of joint oversight related to  DOD’s management of prepositioned stocks in Europe.

Although DOD’s current approach relies on the services managing their  own prepositioned stock programs and Title 10 requires the services to  train, man, and equip their forces, without fully implementing joint  oversight—including providing more detailed information on how to  implement such an approach in its guidance and reviewing its other  efforts, such as the working group—DOD will continue to experience  fragmented management of its prepositioned stock programs. Further,  given the lack of progress DOD has made in the past several years,  providing information to Congress on its efforts in this area could help  hold the department to greater accountability.

Prepositioned stocks play a pivotal role during the initial phases of an  operation. We have reported for over a decade on the importance of DOD  having a department-wide strategic policy and joint oversight of the  services’ prepositioned stock programs, and Congress has required that  DOD take action in this area. DOD issued guidance to include an  implementation plan for managing prepositioned stock programs.  However, the plan does not address all of the required elements  enumerated in section 321 of the National Defense Authorization Act for  Fiscal Year 2014, and DOD’s various guidance documents include broad  direction for joint oversight. Without revising the implementation plan to  have more complete information—including a full list of programs, a  detailed description of how DOD will implement key initiatives, a  description of the resources required, and an approach for monitoring and  assessing the plan itself—the services will continue to operate their  prepositioned stock programs with limited direction from DOD. Further,  without fully implementing joint oversight, including providing more details  in guidance and reviewing related efforts, and providing accountability to  Congress on how the department will implement such oversight, DOD’s  current fragmented management approach will continue to exist, which  creates the potential for duplication and inefficiencies among the services’  prepositioned stock programs.

We are making the following six recommendations to DOD:  The Secretary of Defense should ensure that the Assistant Secretary of  Defense for Sustainment, in coordination with the Chairman of the Joint  Chiefs of Staff, issue a more detailed implementation plan or include  implementation plan details in identified formal department-wide guidance  to include an updated list to provide quality information, including all of  DOD’s prepositioned materiel and equipment programs.  (Recommendation 1)

The Secretary of Defense should ensure that the Assistant Secretary of  Defense for Sustainment, in coordination with the Chairman of the Joint  Chiefs of Staff, issue a more detailed implementation plan or include  implementation plan details in identified formal department-wide guidance  to include a detailed description of how DOD will implement the three key  initiatives in the plan—policy, governance, and assessment—including  clearly identifying what is to be achieved in these areas.  (Recommendation 2)

The Secretary of Defense should ensure that the Assistant Secretary of  Defense for Sustainment, in coordination with the Chairman of the Joint  Chiefs of Staff, issue a more detailed implementation plan or include  implementation plan details in identified formal department-wide guidance  to include a description of the resources (i.e., relevant operational and  financial information) required to implement the plan including dollar and  personnel amounts. (Recommendation 3)

The Secretary of Defense should ensure that the Assistant Secretary of  Defense for Sustainment, in coordination with the Chairman of the Joint  Chiefs of Staff, issue a more detailed implementation plan or include  implementation plan details in identified formal department-wide guidance  to include a description of how the department will review and assess the  implementation plan for effectiveness. (Recommendation 4)

The Secretary of Defense should ensure that the Assistant Secretary of  Defense for Sustainment, in coordination with the Chairman of the Joint  Chiefs of Staff, take steps to fully implement joint oversight of DOD’s  prepositioned stock programs, including providing detailed information on  how to implement such an oversight approach in department guidance  and reviewing other joint oversight efforts, in order to synchronize the  military services’ preposition stock strategies to avoid fragmentation.  (Recommendation 5)

The Secretary of Defense should ensure that the Assistant Secretary of  Defense for Sustainment, in coordination with the Chairman of the Joint  Chiefs of Staff, update Congress on the department’s progress in joint  oversight management in the prepositioned stock annual report or in a  separate report. (Recommendation 6)

We provided a draft of this report to DOD for review and comment. In its  comments, reproduced in appendix II, DOD concurred with each of the  six recommendations and described planned actions it will take to  implement them.

We are providing copies of this report to the appropriate congressional  committees; the Secretary of Defense; the Assistant Secretary of Defense  for Sustainment; and the Chairman of the Joint Chiefs of Staff. In addition,  this report is available at no charge on the GAO website at  http://www.gao.gov.

If you or your staff have any questions about this report, please contact  me at (202) 512-5431 or russellc@gao.gov. Contact points for our Offices  of Congressional Relations and Public Affairs may be found on the last  page of this report. GAO staff who made key contributions to this report  are listed in appendix III.

Appendix II: Comments from the Department of Defense

Appendix III: GAO Contact and Staff Acknowledgments

In addition to the contact named above, individuals who made key  contributions to this report include Alissa H. Czyz, Assistant Director;  Vincent M. Buquicchio; Pamela Davidson; Mae Jones; Cody Knudsen;  and Yong Song.

The military services keep everything from rations to tanks at strategic locations around the world. Positioning supplies in advance can allow action without waiting for cargo to arrive.

Since 2005, we have found potential problems in the prepositioned stocks programs, which each service manages separately. DOD has fallen short of requirements to synchronize program management, and risks duplication of effort and inefficiency.

We found the services continue to manage the programs with little joint oversight.

We made 6 recommendations, including that DOD fully implement joint oversight of the programs and update Congress on its progress.