U.S.-Russia Nuclear Agreement
Interagency Process Used to Develop the Classified Nuclear Proliferation Assessment Needs to Be Strengthened Gao ID: GAO-09-743R June 30, 2009On May 13, 2008, the President submitted to Congress a proposed Agreement Between the Government of the United States of America and the Government of the Russian Federation for Cooperation in the Field of Peaceful Uses of Nuclear Energy (henceforth referred to as the U.S.-Russia 123 agreement) in accordance with the review requirements established under Section 123 of the Atomic Energy Act of 1954 (AEA), as amended. The United States has agreements for peaceful nuclear cooperation governing nuclear exports to nearly 50 countries, Taiwan, and the International Atomic Energy Agency (IAEA). Such agreements provide the framework and authorization for civilian nuclear cooperation, but do not guarantee that cooperation will take place or that nuclear material or technology transfers will occur. The proposed agreement with Russia would, among other things, establish the legal basis for the Department of Energy (DOE) to work with Russia on large-scale development of nuclear energy. However, owing to Russia's status as a nuclear weapons state, the size of its nuclear complex, and past proliferation concerns, including weaknesses in the Russian export control system, an agreement for peaceful nuclear cooperation between the United States and Russia raised a number of concerns among Members of Congress. Section 123 of the AEA (Section 123) identifies the key U.S. government agencies and sets forth the procedures for negotiating, proposing, and entering into peaceful nuclear cooperation agreements with foreign nations. Consistent with Section 123, the Department of State (State) is responsible for negotiating any proposed agreement, with the technical assistance and concurrence of DOE. After consultation with the Nuclear Regulatory Commission (NRC), State and DOE jointly submit the proposed agreement to the President, accompanied by the views and recommendations of State, DOE, and NRC. Section 123 also provides that State supply the President with an unclassified Nuclear Proliferation Assessment Statement (NPAS) for each proposed agreement, accompanied by a classified annex, prepared in consultation with the Director of National Intelligence that summarizes relevant classified information. The NPAS serves as an analysis of the proposed agreement to ensure compliance with provisions of the AEA as well as the adequacy of safeguards and other control mechanisms to ensure assistance furnished under the agreement is not used to further any military or nuclear explosive purpose.
We identified weaknesses in the process State used to ensure interagency consultation during the development of the classified NPAS annex that accompanied the U.S.-Russia 123 agreement. First, there are no formal guidelines or procedures governing the interagency consultation and review process used to develop 123 agreements and supporting documentation. Second, in part due to the lack of formal guidelines, the NRC Commissioners did not base their vote to approve the agreement on the final version of the classified NPAS annex, but instead relied on a draft version of the document. We found that the differences between the draft version NRC used to inform its vote and the final version of the classified NPAS annex were not merely editorial in nature. Third, ODNI officials told us the intelligence community's review of the classified NPAS annex would have benefited from additional time and that State did not provide the final version of this document to the intelligence community prior to the agreement's submission to the President to ensure that the intelligence community's views were adequately incorporated. In our view, these weaknesses need to be addressed to ensure adequate consultation of all key interagency parties. As a result, we are recommending improvements to the interagency review process, including establishing written guidance and ensuring adequate time for interagency consultations.
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Director: Team: Phone:GAO-09-743R, U.S.-Russia Nuclear Agreement: Interagency Process Used to Develop the Classified Nuclear Proliferation Assessment Needs to Be Strengthened
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GAO-09-743R:
United States Government Accountability Office:
Washington, DC 20548:
June 30, 2009:
Congressional Requesters:
Subject: U.S.-Russia Nuclear Agreement: Interagency Process Used to
Develop the Classified Nuclear Proliferation Assessment Needs to Be
Strengthened:
On May 13, 2008, the President submitted to Congress a proposed
Agreement Between the Government of the United States of America and
the Government of the Russian Federation for Cooperation in the Field
of Peaceful Uses of Nuclear Energy (henceforth referred to as the U.S.-
Russia 123 agreement) in accordance with the review requirements
established under Section 123 of the Atomic Energy Act of 1954 (AEA),
as amended.[Footnote 1] The United States has agreements for peaceful
nuclear cooperation governing nuclear exports to nearly 50 countries,
Taiwan, and the International Atomic Energy Agency (IAEA). Such
agreements provide the framework and authorization for civilian nuclear
cooperation, but do not guarantee that cooperation will take place or
that nuclear material or technology transfers will occur. The proposed
agreement with Russia would, among other things, establish the legal
basis for the Department of Energy (DOE) to work with Russia on large-
scale development of nuclear energy. However, owing to Russia's status
as a nuclear weapons state, the size of its nuclear complex, and past
proliferation concerns, including weaknesses in the Russian export
control system, an agreement for peaceful nuclear cooperation between
the United States and Russia raised a number of concerns among Members
of Congress.
Section 123 of the AEA (Section 123) identifies the key U.S. government
agencies and sets forth the procedures for negotiating, proposing, and
entering into peaceful nuclear cooperation agreements with foreign
nations. Consistent with Section 123, the Department of State (State)
is responsible for negotiating any proposed agreement, with the
technical assistance and concurrence of DOE. After consultation with
the Nuclear Regulatory Commission (NRC), State and DOE jointly submit
the proposed agreement to the President, accompanied by the views and
recommendations of State, DOE, and NRC. Section 123 also provides that
State supply the President with an unclassified Nuclear Proliferation
Assessment Statement (NPAS) for each proposed agreement, accompanied by
a classified annex, prepared in consultation with the Director of
National Intelligence that summarizes relevant classified information.
[Footnote 2] The NPAS serves as an analysis of the proposed agreement
to ensure compliance with provisions of the AEA as well as the adequacy
of safeguards and other control mechanisms to ensure assistance
furnished under the agreement is not used to further any military or
nuclear explosive purpose.
The NPAS further addresses whether the proposed agreement is consistent
with the nine criteria set forth in Section 123(a). These criteria
include guarantees that cooperating parties maintain the safeguards set
forth in the agreement with respect to nuclear materials and equipment
transferred under the agreement, and adequate physical security for all
such material and equipment, and a stipulation that the United States
has a right to require the return of any nuclear material and equipment
transferred under the terms of the agreement if the cooperating party
is a nonnuclear weapons state and either detonates a nuclear weapon or
abrogates an IAEA safeguards agreement.[Footnote 3] Although NRC's role
in the NPAS development process is primarily consultative, any actual
transfers of nuclear equipment, technology, or materials to a foreign
nation that are made subsequent to the negotiation and ratification of
the agreement are subject to licensing regulations, requiring that NRC
and, in certain cases, DOE, make independent determinations that such
exports would not be inimical to the national security interests of the
United States.[Footnote 4]
When the negotiations are completed on an agreement for peaceful
nuclear cooperation, the Secretaries of State and Energy are to jointly
submit the agreement and related documents, including the NPAS and
classified annex, to the President. NRC's views on the agreement are to
be provided to the President in a separate letter. The President
reviews the documents to determine if the proposed agreement will
promote, and not undermine, the common defense and security. If the
President approves the agreement, he will authorize the Secretary of
State to arrange for its execution (signature). The President then
transmits the proposed agreement, along with the NPAS and any
accompanying annexes, to Congress for:
its review. As a general matter, the agreement may be brought into
effect after 90 days of continuous session of Congress unless a joint
resolution of disapproval is enacted before the end of this period.
[Footnote 5]
On September 8, 2008, in a message to Congress, the President made a
determination that, in light of military actions taken by the Russian
Federation against Georgia, the statutorily required certification that
he had earlier made regarding the proposed U.S.-Russia 123 agreement
was no longer effective. As a result, the statutory prerequisite for
the agreement to become effective, as required by the AEA, was no
longer satisfied. The President's message stated that, if circumstances
should permit future consideration of this agreement, a new
determination would be made and the agreement would be resubmitted for
congressional review pursuant to the AEA. This action had the effect of
ending further congressional consideration of the agreement. If and
when the President resubmits the agreement to Congress for
consideration, the documents accompanying the agreement, such as the
NPAS and classified NPAS annex, would likely be updated.
As agreed with your offices, GAO assessed the process by which the NPAS
and classified annex that accompanied the U.S.-Russia 123 agreement
were researched, written, and approved through the interagency process,
prior to submission to Congress. To conduct our review, we met with
officials from State, DOE, NRC, and the Office of the Director of
National Intelligence (ODNI). We reviewed the unclassified NPAS and
classified annex that accompanied the U.S.-Russia 123 agreement and
discussed the documents' contents and process for development with
relevant agency officials. We conducted our review from June 2008 to
June 2009 in compliance 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.
Results in Brief:
We identified weaknesses in the process State used to ensure
interagency consultation during the development of the classified NPAS
annex that accompanied the U.S.-Russia 123 agreement. First, there are
no formal guidelines or procedures governing the interagency
consultation and review process used to develop 123 agreements and
supporting documentation. Second, in part due to the lack of formal
guidelines, the NRC Commissioners did not base their vote to approve
the agreement on the final version of the classified NPAS annex, but
instead relied on a draft version of the document. We found that the
differences between the draft version NRC used to inform its vote and
the final version of the classified NPAS annex were not merely
editorial in nature. Third, ODNI officials told us the intelligence
community's review of the classified NPAS annex would have benefited
from additional time and that State did not provide the final version
of this document to the intelligence community prior to the agreement's
submission to the President to ensure that the intelligence community's
views were adequately incorporated. In our view, these weaknesses need
to be addressed to ensure adequate consultation of all key interagency
parties. As a result, we are recommending improvements to the
interagency review process, including establishing written guidance and
ensuring adequate time for interagency consultations.
We provided a draft of this report to DOE, State, NRC, and ODNI. State
and ODNI provided written comments, which can be found in enclosures I
and II, respectively. State agreed with our recommendations and
believes that they can help to streamline the process of developing and
coordinating nuclear proliferation assessment statements and classified
annexes associated with 123 agreements in the future. ODNI neither
agreed nor disagreed with our recommendations, but did provide
technical comments, which we incorporated as appropriate. NRC also
provided technical comments, which we incorporated as appropriate. DOE
reviewed but provided no comments on our draft report.
Lack of Guidance and Time Constraints Hampered Interagency
Consultations on the Development and Review of the U.S.-Russia 123
Agreement's Classified NPAS Annex:
We identified weaknesses in the process State used to ensure
interagency consultation during the development of the classified NPAS
annex that accompanied the U.S.-Russia 123 agreement, including a lack
of formal guidelines, failure of NRC to analyze the final version of
the annex prior to the Commission's vote on the agreement, and concerns
with the consultative process involving the intelligence community.
State Has Not Developed Formal Guidelines to Clarify the Interagency
Development and Review Process for the NPAS and Classified Annex:
Section 123 provides that proposed agreements for peaceful nuclear
cooperation shall be submitted to the President jointly by the
Secretaries of State and Energy after consultation with NRC. NRC's
views and recommendations on whether the President should approve the
proposed agreement and authorize its execution, which, as a matter of
practice, take into account NRC's review of the NPAS and classified
annex, accompany the proposed agreement when the President submits it
to Congress. The integrity of this consultative process is dependent
upon NRC receiving the documents and information it needs in a timely
manner. Both State and NRC officials told us that there are no formal
guidelines or procedures to establish how and when such consultations
are to take place, in part because of the infrequency with which 123
agreements are negotiated and signed. State and NRC officials noted
that, until 2008, there had been few new 123 agreements in recent years
and that the majority of past 123 agreements had not been
controversial.
With regard to the specific process State employed to consult with NRC
for the proposed U.S.-Russia 123 agreement, NRC was part of the
interagency negotiating team that worked with State to prepare the
agreement for signature by the President. According to State officials,
NRC was first provided with a copy of the unclassified NPAS on January
16, 2008. During this time, State was working to draft the classified
NPAS annex. Due to issues associated with the classification level of
this document and sensitivity of information in it, State transmitted
it to different interagency parties at different times as security
clearances were being validated. According to State, NRC initially
received a draft of the classified NPAS annex on March 19, 2008, and
provided staff-level comments to State on March 21, 2008. State then
provided an updated copy of the classified annex to NRC (and other
interagency partners) on April 8, 2008, with a request for any
additional comments to be provided by April 17, 2008. After reviewing
these documents, the NRC Commissioners voted unanimously on April 29,
2008, to recommend that the President approve the proposed agreement
and authorize its execution. However, NRC officials told us that
subsequent to the Commission's vote, State notified NRC that the
version of the classified NPAS annex the Commission used to inform its
vote was not the final version of the document. NRC officials told us
that the version of the classified annex State provided to the
Commission on April 8, 2008, was not marked "draft" and that the
Commissioners and NRC staff believed that it was the final version. In
commenting on an early version of this report, State officials accepted
responsibility for not marking the version of the classified NPAS annex
provided to NRC as draft, but also noted that NRC should bear
responsibility for ensuring that they have the most up-to-date
information prior to conducting a vote on an agreement. According to
State, NRC did not request an updated version of the classified NPAS
annex until July 29, 2008. State provided NRC with a final version of
the document on July 31, 2008.
We reviewed both versions of the classified NPAS annex and found that
the differences between the two versions were not merely editorial in
nature. In some instances, the final version of the classified annex
updated certain points with new information, while in other sections
significant amounts of new text and further substantive information
were added and other information was deleted.
Despite the differences between the two versions of the classified NPAS
annex, the NRC Commissioners decided it was not necessary to conduct
another vote or to revise their previous unanimous vote to approve the
agreement. One NRC Commissioner told us that, although he would not
have changed his vote on the agreement based on the changes State made
to the classified NPAS annex, he was concerned about the integrity of
the process State employed to solicit the Commission's views. He said
that, in the interest of good governance, the Commission should base
its analysis and vote on the most complete and accurate information
possible.
State officials acknowledged that the NRC Commissioners did not cast
their votes based on the final version of the classified NPAS annex.
However, State officials asserted that there were no material
differences between the two versions that would have fundamentally
altered the outcome of NRC's vote. State officials explained to us that
in the interest of getting the U.S.-Russia 123 agreement to the
President (and subsequently to Congress) to ensure that the agreement
could take effect before the 110th Congress adjourned, consistent with
Section 123, the department provided a draft version of the classified
NPAS annex to NRC for its consideration and clearance. Further, State
officials told us the Administration wanted to submit the agreement and
supporting documents to Congress early enough in May 2008 to allow for
at least 90 days of continuous session to be left in the 110th Congress
before it adjourned sine die, which was expected to occur earlier than
usual due to the November 2008 elections.[Footnote 6]
In addition, NRC officials raised other concerns stemming from its
classified NPAS annex review that they believed could have implications
on NRC's future role in issuing licenses for nuclear exports that may
take place under the terms of the proposed agreement. NRC officials
told us that their review and approval of licenses for nuclear exports
to Russia would depend on their receipt of timely and accurate
information from the intelligence community. However, these officials
expressed concern about what they viewed as insufficient information
sharing with the intelligence community about specific issues of
proliferation concern that came to light during NRC's review of the
classified NPAS annex. Specifically, NRC officials told us that they
was not previously aware of certain sensitive issues raised in the
classified NPAS annex that they believed NRC should have been made
aware of earlier as a matter of basic information sharing between
government agencies involved in nuclear proliferation matters.
According to NRC officials, the lack of information sharing in this
instance raises questions about the timeliness and sufficiency of
information NRC would receive in the future from the intelligence
community that it would need to efficiently make determinations about
nuclear export licenses to Russia permitted under the proposed 123
agreement.
Concerns about the Consultative Role the Intelligence Community Plays
in Developing the Classified NPAS Annex:
The intelligence community plays an important, statutorily mandated
consultative role in the development of the classified NPAS annex.
However, while State officials told us they complied with the Section
123 requirement that the classified NPAS annex be prepared in
consultation with the intelligence community, ODNI officials told us
the intelligence community's review of the classified NPAS annex would
have benefited from additional time. Furthermore, they noted that State
did not provide the final version of this document to the intelligence
community prior to the agreement's submission to the President to
ensure that the intelligence community's views were adequately
incorporated.
Regarding the specific process State employed for this consultation,
State officials told us that the intelligence community reviewed and
commented on an initial draft of the classified NPAS annex, and also
reviewed a subsequent version to ensure proper dissemination of the
sensitive, classified information contained in the annex. State
officials told us that the initial draft of the classified NPAS annex
was released from the Bureau of International Security and
Nonproliferation (ISN) for intelligence community review on January 31,
2008. According to State, the document was sent to ODNI's Office of
Legislative Affairs from State's Bureau of Intelligence and Research
(INR) through the standard procedure that had been utilized for past
123 agreements. Officials from the National Intelligence Council within
ODNI told us they received a draft of the classified annex on February
5, 2008, with a request for comments back to State on February 15,
2008. They told us that the draft of the classified NPAS annex was
forwarded to five other agencies involved in nuclear intelligence
matters for their review and comments.
ODNI officials noted several ways in which the process of integrating
intelligence community input into the classified NPAS annex could be
improved. For example, ODNI officials noted that they were provided
only a short period of time--less than 10 working days--to review the
initial draft and obtain and consolidate comments from the five
relevant intelligence agencies. ODNI officials said the review was
further complicated because information in the draft was not well
sourced, meaning it took longer for the intelligence agencies to verify
certain points in the draft document. ODNI officials told us that the
comments they provided back to State were mostly technical in nature
and that the limited comment period did not allow the intelligence
agencies to conduct more substantive analysis of the information
presented in the classified annex to determine, for instance, if
additional issues should have been addressed.
On May 20, 2009, State officials commented on an early version of this
report and told us that while the requested period of time was
comparatively short, the intelligence community's comments were not
received by State until March 4, 2008. Further, State noted that it
received no request from the intelligence community for an extension to
the review period. Finally, State officials maintained that they were
not aware of the intelligence community's concerns regarding sourcing
of the classified NPAS annex until they came to light as a result of
our review. However, according to ODNI, State was informed of ODNI's
concerns with the document's sourcing when it provided the intelligence
community's comments on March 4, 2008.
In addition to the time limitation, ODNI officials told us that,
generally, the meaning and understanding of Section 123 as they relate
to State's consultation with the intelligence community in preparing
the classified NPAS annex are vague and not well defined. ODNI
officials said that specific guidelines, requirements, and procedures
have not been developed to establish the type or level of consultation
that is expected to take place between State and the intelligence
community during the development process for the classified NPAS annex.
For instance, ODNI officials said they had little knowledge of the
internal processes within the State INR or ISN bureaus for developing
the classified NPAS annex, including how the intelligence community's
comments were utilized or incorporated into subsequent versions of the
document. ODNI officials said that they only communicated with State
ISN through ODNI's Office of Legislative Affairs and did not work or
consult directly with State ISN officials to discuss intelligence or
other relevant matters related to the classified NPAS annex. Moreover,
ODNI officials said that the intelligence community did not receive the
final version of the classified annex until after it had been submitted
to Congress.
Conclusions:
In our view, State and other members of the interagency--such as DOE,
NRC, and the intelligence community--have an opportunity to improve the
consultation and review process for 123 agreements and accompanying
documents. It is clear there was a breakdown of communication between
State and NRC in the review process for the U.S.-Russia 123 agreement,
which led to NRC's Commissioners not basing their votes to approve the
agreement on the final version of the classified NPAS annex. We believe
that improving this process is important because the U.S.-Russia 123
agreement represents a formal strengthening of ties between the
civilian nuclear sectors of both countries, is an important political
symbol of bilateral relations, and could lead to trade involving
nuclear material, technology, and expertise with potential security and
proliferation implications.
For these reasons, it is imperative that the process used to ensure
adequate consultation of all interagency parties is clearly defined and
strictly adhered to. In part because no formal guidelines or procedures
are in place and the timing of submission of the agreement to Congress
for consideration was critical, NRC Commissioners did not base their
votes on the U.S.-Russia 123 agreement on an analysis of the final
version of the classified NPAS annex. The lack of clarity on the role
of the intelligence community and the amount of time those agencies are
afforded for review and consultation also raise concerns. For all
future 123 agreements, including the U.S.-Russia 123 agreement should
the President choose to resubmit it, formalizing requirements for the
review process could assist State and other agencies in carrying out
their statutorily mandated roles.
Recommendations for Executive Action:
We recommend that the Secretary of State, working with the Secretary of
Energy, Chairman of the Nuclear Regulatory Commission, and Director of
National Intelligence, as appropriate, take the following three
actions:
* Clarify how interagency participants will implement their statutorily
assigned roles and responsibilities in the review process for 123
agreements and associated documents, such as the NPAS and classified
annex that accompany 123 agreements.
* Establish written procedures to carry out the process used to
develop, review, and transmit 123 agreements and associated documents.
Such procedures should afford relevant members of the intelligence
community an opportunity to review the final classified NPAS annex
prior to any agreement's submission to Congress.
* Ensure adequate time for consultation with NRC and provide for the
commission to be given the final versions of all necessary documents
prior to any vote on approval for, and submission of its views and
recommendations on, a 123 agreement.
Agency Comments and Our Evaluation:
We provided a draft of this report to DOE, State, NRC, and ODNI. State
and ODNI provided written comments, which can be found in enclosures I
and II, respectively. State agreed with our recommendations and
believes they can help to streamline the process of developing and
coordinating nuclear proliferation assessment statements and classified
annexes associated with 123 agreements in the future. ODNI neither
agreed nor disagreed with our recommendations, but did provide
technical comments, which we incorporated as appropriate. NRC also
provided technical comments, which we incorporated as appropriate. DOE
reviewed but provided no comments on our draft report.
As agreed with your offices, unless you publicly announce its contents
earlier, we plan no further distribution of this report until 30 days
after the date of this report. At that time, we will then send copies
to interested congressional committees; the Secretaries of Energy and
State; the Chairman of NRC; the Director of National Intelligence; the
Director, Office of Management and Budget; and other interested
parties. In addition, this report will be available at no charge on the
GAO Web site at [hyperlink, http://www.gao.gov].
If you or your staffs have any questions about this report, please
contact me at (202) 512-3841 or aloisee@gao.gov. Contact points for our
Offices of Congressional Relations and Public Affairs may be found on
the last page of this report. Glen Levis (Assistant Director), Ryan T.
Coles (Assistant Director), R. Stockton Butler, and William Hoehn made
key contributions to this report. Additional assistance was provided by
Alison O'Neill and Thomas Lombardi.
Signed by:
Gene Aloise:
Director, Natural Resources and Environment:
Enclosures:
List of Congressional Requesters:
The Honorable Henry A. Waxman:
Chairman:
The Honorable John D. Dingell:
Chair Emeritus:
Committee on Energy and Commerce:
House of Representatives:
The Honorable Bart Stupak:
Chairman:
Subcommittee on Oversight and Investigations:
Committee on Energy and Commerce:
House of Representatives:
The Honorable Edward J. Markey:
Chairman:
Subcommittee on Energy and Environment:
Committee on Energy and Commerce:
House of Representatives:
[End of section]
Enclosure I: Comments from the Department of State:
United States Department of State:
Washington, DC 20520:
June 16, 2009:
Ms. Jacquelyn Williams-Bridgers:
Managing Director:
International Affairs and Trade:
Government Accountability Office:
441 G Street, N.W.
Washington, D.C. 20548-0001:
Dear Ms. Williams-Bridgers:
We appreciate the opportunity to review your draft report,
"U.S.-Russia Nuclear Agreement: Interagency Process Used to Develop the
Classified Nuclear Proliferation Assessment Needs to Be Strengthened,"
GAO Job Code 360979.
The enclosed Department of State comments are provided for
incorporation with this letter as an appendix to the final report.
If you have any questions concerning this response, please contact hard
Nephew, Foreign Affairs Officer, Bureau of International Security and
Nonproliferation at (202) 647-7680.
Sincerely,
Signed by:
James L. Millette:
cc:
GAO - Stockton Butler:
ISN - Eliot Kang (Acting):
State/OIG - Mark Duda:
[End of letter]
Department of State Comments on GAO Draft Report:
U.S.-Russia Nuclear Agreement: Interagency Process Used to Develop the
Classified Nuclear Proliferation Assessment Needs to Be Strengthened
(GAO-09-743C, GAO Code 360979):
The Department has reviewed GAO's draft report on the interagency
process associated with the development and coordination of the Nuclear
Proliferation Assessment Statement (NPAS) and the Classified Annex in
support of the U.S.Russia Agreement for Cooperation in the Peaceful
Uses of Nuclear Energy (also known as a 123 Agreement), and the
recommendations presented by the GAO in that report, and appreciates
the opportunity to respond. The Department has no objection to these
recommendations, which can help to streamline the process of developing
and coordinating nuclear proliferation assessment statements and
classified annexes associated with 123 Agreements in the future. The
Department does not, however, believe that the deficiencies identified
in the interagency consultative process prevented the State Department
from carrying out its responsibilities with regard to the NPAS and
classified annex for this agreement. Our specific comments on the three
recommendations are as follows:
Recommendation 1: Clarify the specific roles and responsibilities of
the interagency participants in the review process for 123 Agreements
and associated documents, such as the NPAS and classified annex that
accompany 123 Agreements.
State agrees that there would be value in discussion of the roles and
responsibilities of interagency participants in the 123 Agreement
review process. State will engage with the interagency to discuss the
review and coordination process to that end.
Recommendation 2: Establish written procedures to carry out the process
used to develop, review, and transmit 123 Agreements and associated
documents. Such procedures should afford relevant members of the
intelligence community an opportunity to review the final classified
NPAS annex prior to any agreement's submission to the Congress.
Although it is accurate that the Atomic Energy Act of 1954, as amended,
does not describe how "consultations" with the Nuclear Regulatory
Commission on a proposed 123 Agreement or with the Director of National
Intelligence on the classified annex to the NPAS should take place,
generally, such consultations have followed a fairly standard process
of review and coordination. The State Department believes that process
was followed in this case and was unaware of any concerns in this
regard on the part of the Nuclear Regulatory Commission or the
intelligence community while the review was ongoing. After engaging
with the interagency to discuss roles and responsibilities in this
process, State will consider working with the interagency to establish
more formal procedures for future agreements.
Recommendation 3: Ensure adequate time for consultation with the NRC
and provide for the Commission to be given the final versions of all
necessary documents prior to any vote on approval for, and submission
of its views and recommendations on, a 123 Agreement.
The Nuclear Regulatory Commission has an important consultative role in
the negotiation process of these agreements and, by longstanding
customary practice, in the development of the NPAS. The State
Department believes that role was fulfilled in this case and was
unaware of any concerns on the part of the Nuclear Regulatory
Commission while the review was ongoing. The timing of Presidential
submission of 123 Agreements to the Congress for review is an
Administration rather than a State Department decision, but, State
concurs that all agencies should be given as much time as possible,
with the time constraints established by the Administration, to review
associated materials. State intends to address the issue of timeliness
of review as part of its engagement with the interagency described
above.
[End of enclosure]
Enclosure II: Comments from the Office of the Director of National
Intelligence:
Unclassified:
Office Of The Director Of National Intelligence:
Washington, DC 20511:
June 15, 2009:
Mr. Gene Aloise:
Director, Natural Resources and Environment:
United States Government Accountability Office:
Washington, D.C. 20548:
Dear Mr. Aloise:
(U) This letter provides a response to your request for review of the
draft report entitled "U.S.-Russia Nuclear Agreement: Interagency
Process Used to Develop the Classified Nuclear Proliferation Assessment
Needs to Be Strengthened", GAO-09-743C.
(U) ODNI requests the following changes to the draft report:
1) Page 9, third paragraph - Change "March 11, 2008." to March 4,
2008." [See comment 1]
2) Page 9, third paragraph - Either remove the final sentence that
begins with "Finally, State maintained"..., or alternatively leave the
current final sentence and this as the new final sentence: "ODNI
informed State of the sourcing issue when the comments were sent on 4
March, 2008." Regardless of the option GAO selects in this instance,
the current final sentence beginning with "Finally, State maintains"...
is factually incorrect as it currently reads. [See comment 2]
3) Page 10, midway through the first partial paragraph,
Change this - ..."only communicated with State through the ODNI
Legislative Affairs, and did not work or consult directly with State
INR or ISN officials to discuss"...
To this- ..."only communicated with State ISN through the ODNI
Legislative Affairs, and
did not work or consult directly with State ISN officials to
discuss"... [See comment 3]
(U) Additionally, ODNI has no classification concerns over this
document.
(U) If you have any questions regarding this matter, please do not
hesitate to contact me at (703) 275-2473.
Sincerely,
Signed by:
Kathleen Turner:
Director of Legislative Affairs:
Unclassified:
GAO Comments:
The following are GAO's comments in response to the Office of the
Director of National Intelligence's letter dated June 15, 2009.
1. We have changed the date in question to March 4, 2008, per ODNI's
suggestion.
2. We have inserted the sentence: "However, according to ODNI, State
was informed of ODNI's concerns with the document's sourcing when it
provided the intelligence community's comments on March 4, 2008" in
response to ODNI's comment.
3. We have clarified our report to state: "ODNI officials said that
they only communicated with State ISN through ODNI's Office of
Legislative Affairs and did not work or consult directly with State ISN
officials to discuss intelligence or other relevant matters related to
the classified NPAS annex."
[End of section]
Footnotes:
[1] Atomic Energy Act of 1954, ch. 1073, § 123, 68 Stat. 919, 946, as
amended (codified at 42 U.S.C. § 2153). The Atomic Energy Act, as
amended, is codified at chapter 23 of title 42, U.S. Code.
[2] Title I of the Intelligence Reform and Terrorism Prevention Act of
2004 established the position of the Director of National Intelligence
as the head of the U.S. intelligence community. See Pub. L. No. 108-
458, § 1011, 118 Stat. 3638, 3643-62 (2004). Consistent with the
authority granted under this Act, responsibility for consulting with
the Secretary of State in preparation of the classified annex to the
NPAS transferred from the Director of Central Intelligence to the
Director of National Intelligence.
[3] See 42 U.S.C. § 2153(a).
[4] See, e.g., 42 U.S.C. § 2155.
[5] Pursuant to Section 123, the President submits the text of a
proposed agreement along with the accompanying unclassified NPAS to the
Committee on Foreign Relations of the Senate and the Committee on
Foreign Affairs of the House of Representatives for consultation for a
period of 30 days of continuous session. The proposed agreement, with
the NPAS and any annexes, is then submitted to Congress (and referred
to the above mentioned Committees) for a period of 60 days of
continuous session, during which the committees consider it and report
recommendations. Continuity is only broken by a sine die adjournment of
a Congress (the final adjournment of an annual or 2-year session of
Congress) though a recess by either House in excess of 3 days will not
count against the requisite time periods. Therefore, the timely
approval of a proposed agreement may be dependent upon the dates the
President makes the requisite submissions.
[6] According to the Congressional Research Service (CRS), Congress was
expected to adjourn on September 26, 2008. However, CRS believes that
this represented only the 77th day of "continuous session" for the
110th Congress. Only a later sine die adjournment, "lame duck" session,
recall by the President or congressional leadership, or the use of pro
forma sessions instead of recesses would have allowed the 90th day of
"continuous session," consistent with Section 123 to have been reached
within the 110th Congress. See CRS, Nuclear Cooperation Agreement with
Russia: Statutory Procedures for Congressional Consideration and Their
Implementation (Washington, D.C., Nov. 26, 2008). GAO has not evaluated
the accounting of days and has not independently determined whether the
May 13, 2008, submission by the President would have provided for the
requisite number of days of continuous session.
[End of section]
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