2010 Resubmission of the U.S.-Russia Nuclear Cooperation Agreement
Further Actions Needed by State and Other Agencies to Improve the Review of the Classified Nuclear Proliferation Assessment Gao ID: GAO-10-1039R September 21, 2010On May 10, 2010, the President resubmitted 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 nuclear cooperation agreement or the agreement) in accordance with the review requirements established under section 123 of the Atomic Energy Act of 1954 (AEA), as amended. 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. The United States has 25 agreements in force for peaceful nuclear cooperation with foreign countries, the European Atomic Energy Community (EURATOM), the International Atomic Energy Agency (IAEA), and Taiwan. 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. On May 13, 2008, President Bush originally submitted the agreement to Congress with the statutorily required presidential determination that this agreement would promote, and would not constitute an unreasonable risk to, the common defense and security. President Bush determined on September 8, 2008 that his May 13, 2008 determination was no longer effective--essentially ending further congressional consideration of the agreement at that time--in response to Russian military actions against Georgia. In 2010, President Obama concluded that the situation in Georgia no longer prevented proceeding with the agreement and that the level and scope of U.S.-Russia cooperation on Iran justified resubmitting the agreement. Section 123 of the AEA identifies the key U.S. government agencies and procedures involved in negotiating, proposing, and entering into nuclear cooperation agreements. The Department of State (State) is responsible for negotiating any proposed agreement, with the technical assistance and concurrence of DOE. State must consult with the Nuclear Regulatory Commission (NRC). It is State's consistent practice to send the proposed agreement and accompanying documents to the Department of Defense (DOD) for review. This report responds to congressional request that we assess the review process for the 2010 submission of the U.S.-Russia nuclear cooperation agreement. Our objectives were to assess the extent to which (1) agencies reported having adequate time to review the Nuclear Proliferation Assessment Statement (NPAS) and classified annexes, (2) State implemented our recommendations to develop written procedures and clarify agency roles for the 2010 review process, and (3) additional actions may be required to strengthen the review process for future nuclear cooperation agreements.
Officials from DOE, NRC, and Office of the Director of National Intelligence (ODNI) reported that State provided adequate time to review the unclassified NPAS and its classified annexes accompanying the U.S.-Russia nuclear cooperation agreement resubmitted to Congress in 2010. However, DOD officials told us that the time provided was inadequate to allow all stakeholders within the department an opportunity to review the documents. State initially allotted DOD 12 days to conduct its review, but shortened the time to 8 days once the review process started. According to DOD officials, the U.S. European Command, a stakeholder that DOD considered important to its review, could not provide comments by the deadline State established. In addition, DOD officials told us they felt pressured by the National Security Council to complete the review as quickly as possible to meet the Administration's time frames for submitting the proposed U.S-Russia nuclear cooperation agreement and accompanying documents to the President and Congress. DOD officials said that the department's review was incomplete, although the department ultimately concurred with the NPAS and its classified annexes. State did not establish procedures or clarify how interagency participants would implement their roles, as we previously recommended. The absence of procedures contributed to problems with the 2010 U.S.-Russia review process. For example, State provided DOD with a series of incomplete documents for review. Specifically, the draft NPAS and classified annexes State provided to DOD for review contained multiple instances of blank spaces, placeholder text, and highlighted text with noexplanation for the highlights, according to DOD officials. In addition, these officials told us that State provided neither any explanation about why the documents contained the incomplete information nor details on how the incomplete information would be finalized before the President submitted the agreement to Congress. However, according to State officials, State provided an explanation for the highlighted text contained in the top-secret/sensitive compartmented information (TS/SCI) level annex, which indicated the differences between the 2008 and 2010 versions of the document. In addition, the intelligence community's review of one of the classified NPAS annexes was incomplete because DOE's Office of Intelligence and Counterintelligence thought that such a review was not its responsibility. We recommend that the Secretary of State, working with the Secretary of Energy, the Secretary of Defense, the Chairman of the Nuclear Regulatory Commission, and the Director of National Intelligence, ensure adequate time for consultation (to be determined by State and its partner agencies) with all parties that participate in the review of a nuclear cooperation agreement prior to its submission to the President and Congress. We further recommend that the Secretary of State, in collaboration with the Secretary of Energy, the Secretary of Defense, the Chairman of the Nuclear Regulatory Commission, and the Director of National Intelligence, take steps to strengthen the written procedures governing nuclear cooperation agreements. Specifically, these procedures should contain provisions that (2) ensure appropriate consideration of any conflicting views from interagency partners about the proposed agreement and its accompanying documents prior to the submission to the President and (2) clarify the role and responsibilities of ODNI and the intelligence agencies involved in reviewing every future NPAS and its classified annex(es) and provide that the relevant members of the intelligence community review the final NPAS and its classified annex(es) prior to any agreement's submission to the President and Congress, unless the members of the intelligence community determine that such a review is not needed.
RecommendationsOur recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
Director: Eugene E. Aloise Team: Government Accountability Office: Natural Resources and Environment Phone: (202) 512-6870GAO-10-1039R, 2010 Resubmission of the U.S.-Russia Nuclear Cooperation Agreement: Further Actions Needed by State and Other Agencies to Improve the Review of the Classified Nuclear Proliferation Assessment
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GAO-10-1039R:
United States Government Accountability Office:
Washington, DC 20548:
September 21, 2010:
The Honorable Ileana Ros-Lehtinen:
Ranking Member:
Committee on Foreign Affairs:
House of Representatives:
The Honorable Edward J. Markey:
Chairman:
Subcommittee on Energy and Environment:
Committee on Energy and Commerce:
House of Representatives:
Subject: 2010 Resubmission of the U.S.-Russia Nuclear Cooperation
Agreement: Further Actions Needed by State and Other Agencies to
Improve the Review of the Classified Nuclear Proliferation Assessment:
On May 10, 2010, the President resubmitted 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 nuclear cooperation agreement or the agreement) in accordance
with the review requirements established under section 123 of the
Atomic Energy Act of 1954 (AEA), as amended.[Footnote 1] 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. The United States has 25
agreements in force for peaceful nuclear cooperation with foreign
countries, the European Atomic Energy Community (EURATOM), the
International Atomic Energy Agency (IAEA), and Taiwan.[Footnote 2]
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.
On May 13, 2008, President Bush originally submitted the agreement to
Congress with the statutorily required presidential determination that
this agreement would promote, and would not constitute an unreasonable
risk to, the common defense and security. President Bush determined on
September 8, 2008 that his May 13, 2008 determination was no longer
effective--essentially ending further congressional consideration of
the agreement at that time--in response to Russian military actions
against Georgia. In 2010, President Obama concluded that the situation
in Georgia no longer prevented proceeding with the agreement and that
the level and scope of U.S.-Russia cooperation on Iran justified
resubmitting the agreement.
Section 123 of the AEA identifies the key U.S. government agencies and
procedures involved in negotiating, proposing, and entering into
nuclear cooperation agreements. The Department of State (State) is
responsible for negotiating any proposed agreement, with the technical
assistance and concurrence of DOE. State must consult with the Nuclear
Regulatory Commission (NRC). It is State's consistent practice to send
the proposed agreement and accompanying documents to the Department of
Defense (DOD) for review.[Footnote 3]
Section 123 also requires 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 4] The NPAS
explains how the agreement meets the AEA nonproliferation requirements
and usually includes an overview of the other party's nuclear energy
program and related infrastructure, nonproliferation policies, and
relations with countries of concern in the nuclear arena. For the 2010
U.S.-Russia nuclear cooperation agreement process, State prepared an
unclassified NPAS and two classified annexes. State classified one
annex as top-secret/sensitive compartmented information (TS/SCI) and
one as secret.[Footnote 5] In 2008, State prepared an unclassified
NPAS and a TS/SCI annex.
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 to the President
accompanied by the views of the Secretaries of State and Energy and
NRC. NRC's views on the agreement are generally provided to the
President in a separate letter. The President must generally submit
the proposed agreement, along with the unclassified NPAS, to the
relevant congressional committees for their review. The President must
also approve the agreement, authorize its execution (signature), and
determine in writing that the proposed agreement will promote, and not
constitute an unreasonable risk to, the common defense and security.
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 6]
In June 2009, we reported on the interagency process used to develop
and review the classified NPAS that accompanied the U.S.-Russia
nuclear cooperation agreement in 2008.[Footnote 7] We identified
weaknesses in the process that State used to ensure interagency
consultation during the development of the classified NPAS annex.
First, there were no formal guidelines or procedures governing the
interagency consultation and review process. Second, in part because
of 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. Third,
officials from the Office of the Director of National Intelligence
(ODNI) 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. We recommended that the Secretary of State, working with
the appropriate interagency partner(s), take the following three
actions: (1) clarify how agencies will implement their statutorily
assigned roles and responsibilities in the review process, (2)
establish written procedures to manage the review process, and (3)
ensure that the NRC is given adequate time and final versions of all
necessary documents prior to any vote on approval for a nuclear
cooperation agreement. State agreed with these recommendations.
This report responds to your request that we assess the review process
for the 2010 submission of the U.S.-Russia nuclear cooperation
agreement. Our objectives were to assess the extent to which (1)
agencies reported having adequate time to review the NPAS and
classified annexes, (2) State implemented our recommendations to
develop written procedures and clarify agency roles for the 2010
review process, and (3) additional actions may be required to
strengthen the review process for future nuclear cooperation
agreements.
To conduct our assessment, we reviewed each agency's statutory
responsibilities as defined by the AEA. We analyzed and compared the
unclassified NPAS and classified annexes that accompanied the U.S.-
Russia nuclear cooperation agreement in 2008 and 2010. We reviewed
documents created by State and its interagency partners to manage the
2010 U.S.-Russia agreement review process as well as communications
between the agencies to determine the extent to which our prior
recommendations were implemented. We also reviewed procedures
developed by State in August 2010, with input from interagency
partners, to determine whether additional actions may be required to
strengthen the review process for future nuclear cooperation
agreements. We also reviewed agency documents that analyzed the
agreement submitted in 2010 and its accompanying documentation. We
interviewed agency officials from State, DOE, NRC, ODNI, and DOD
regarding the extent to which they felt they had adequate time to
review the NPAS and its classified annexes.[Footnote 8] In addition,
we discussed with these officials the work activities that State,
their own agency, and the rest of the interagency partners followed to
develop, review, and transmit the agreement and accompanying documents
in 2010. We conducted this performance audit from June 2010 to
September 2010 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:
Officials from DOE, NRC, and ODNI reported that State provided
adequate time to review the unclassified NPAS and its classified
annexes accompanying the U.S.-Russia nuclear cooperation agreement
resubmitted to Congress in 2010. However, DOD officials told us that
the time provided was inadequate to allow all stakeholders within the
department an opportunity to review the documents. State initially
allotted DOD 12 days to conduct its review, but shortened the time to
8 days once the review process started. According to DOD officials,
the U.S. European Command, a stakeholder that DOD considered important
to its review, could not provide comments by the deadline State
established. In addition, DOD officials told us they felt pressured by
the National Security Council to complete the review as quickly as
possible to meet the Administration's time frames for submitting the
proposed U.S-Russia nuclear cooperation agreement and accompanying
documents to the President and Congress. DOD officials said that the
department's review was incomplete, although the department ultimately
concurred with the NPAS and its classified annexes.
State did not establish procedures or clarify how interagency
participants would implement their roles, as we previously
recommended. The absence of procedures contributed to problems with
the 2010 U.S.-Russia review process. For example, State provided DOD
with a series of incomplete documents for review. Specifically, the
draft NPAS and classified annexes State provided to DOD for review
contained multiple instances of blank spaces, placeholder text, and
highlighted text with no explanation for the highlights, according to
DOD officials. In addition, these officials told us that State
provided neither any explanation about why the documents contained the
incomplete information nor details on how the incomplete information
would be finalized before the President submitted the agreement to
Congress. However, according to State officials, State provided an
explanation for the highlighted text contained in the TS/SCI level
annex, which indicated the differences between the 2008 and 2010
versions of the document. In addition, the intelligence community's
review of one of the classified NPAS annexes was incomplete because
DOE's Office of Intelligence and Counterintelligence thought that such
a review was not its responsibility.
In August 2010, State developed written procedures to manage the
interagency review process for future nuclear cooperation agreements,
but additional actions may be required to strengthen the procedures.
Specifically, these procedures lack a formal mechanism, requested by
DOD, for addressing conflicts between agency partners that may arise
during the review of the agreement and accompanying documentation. DOD
officials told us that a mechanism to address conflicts would
strengthen the review process. In addition, the procedures do not
clarify the role of the intelligence community. For example, the
procedures do not contain a provision allowing relevant members of the
intelligence community an opportunity to review the final classified
NPAS annex(es) prior to any agreement's submission to Congress, as we
had recommended in June 2009. As a result, we are making new
recommendations, such as ensuring an appropriate consideration of any
conflicting views from interagency partners about the proposed
agreement and its accompanying documents prior to the submission to
the President, as well as calling on State to fully implement our
prior recommendations to improve the interagency review process.
We requested comments on a draft of this report from State, DOE, NRC,
ODNI and DOD. We received oral comments from DOE's National Nuclear
Security Administration (NNSA), NRC, State, and ODNI. DOD did not
comment on our draft report. DOE/NNSA officials and NRC officials
agreed with the facts, findings, and recommendations contained in the
draft report. In its oral comments, State officials generally agreed
with the facts presented and neither agreed nor disagreed with our
recommendations. State officials noted, however, that no causal effect
exists between the problems we found with the 2010 interagency review
process and the absence of written procedures. In our view, had State
implemented our recommendation to establish written procedures prior
to the 2010 review process some of the problems we found could have
been avoided, and the review process would have been conducted with
greater uniformity and consistency. In its oral comments, ODNI
officials disagreed with our recommendation that roles and
responsibilities of ODNI and the intelligence agencies should be
clarified for the review of future NPASs and their classified
annex(es). ODNI commented that our recommendation indicated that State
should take the lead in clarifying these roles and responsibilities.
ODNI interpreted our recommendation in a way other than intended. We
recommended that the Secretary of State, working in collaboration with
the other interagency partners, including the Director of National
Intelligence, take steps to clarify roles and responsibilities. It was
not our intention to imply that this recommendation be implemented
without the full consultation of ODNI and other relevant members of
the intelligence community.
DOE, NRC, and ODNI Reported Having Adequate Time to Review the NPAS
and Classified Annexes, but DOD's Review Was Incomplete Because of
Time Constraints:
State leads the interagency NPAS review process, circulates draft
copies of the NPAS and classified annex(es) to participating agencies,
obtains concurrence from DOE, and consults with NRC and ODNI before
submitting the NPAS and classified annex(es) to the President. For the
2010 review process, DOE, NRC, and ODNI officials reported having
adequate time to review the NPAS and its classified annexes. DOD
officials, however, said that the department had limited time to
conduct its review and was unable to include all relevant
stakeholders' views because State shortened the time allotted after
the review process had already started and because the National
Security Council exerted pressure on DOD to complete its review as
soon as possible. As a result, DOD officials said that their review
was incomplete.[Footnote 9]
State provided the agreement and the NPAS and classified annexes to
its interagency partners--DOE, NRC, ODNI, and DOD--for review and
comment in early April 2010. State requested that each agency provide
comments by a given date, which varied by agency. Specifically,
* DOE officials told us that they started working with State to ensure
that the NPAS accurately reflected DOE's position and views
approximately 3 weeks before State formally requested the Secretary of
Energy's concurrence with the U.S.-Russia nuclear cooperation
agreement. DOE officials said that this early collaboration allowed
DOE to obtain the Secretary's concurrence by April 23, 2010, the date
requested by State.
* NRC officials told us that State provided adequate time to review
the NPAS and its classified annexes. NRC officials said that on the
basis of their experience with the 2008 review process, they had asked
State for at least 2 weeks to review all proposed nuclear cooperation
agreements. According to NRC officials, State provided NRC with the 2
weeks they had requested to review the documents before the NRC
Commissioners voted to approve the agreement on April 22, 2010.
* ODNI officials told us that State gave the intelligence community 1
week to review the draft NPAS and its classified annexes. ODNI
coordinates and manages the intelligence community's review of the
NPAS and classified annex(es) by circulating the documents to multiple
intelligence organizations and consolidating their comments into a
single response to State. According to ODNI officials, the amount of
time was reasonable. This is in contrast to the findings of our 2009
report, in which we stated that ODNI officials had raised concerns
that the limited comment period did not allow for a substantive
analysis of the classified annex.[Footnote 10] ODNI officials cited
two reasons that the time State provided in 2010 to complete the
analysis was adequate: (1) the intelligence community conducted the
bulk of its analysis when intelligence agencies previously reviewed
the NPAS and its classified annex in 2008, and (2) there were few
substantive differences between the 2008 and 2010 TS/SCI NPAS annexes.
[Footnote 11] ODNI officials characterized the intelligence
community's comments on the 2010 NPAS and its classified annexes as
focused on ensuring the accuracy of the new information.
* DOD officials told us that State did not provide adequate time for a
comprehensive review of the agreement submitted in 2010 and its
accompanying documentation. According to DOD officials, State
transmitted these documents for review on April 9, 2010. State
officials initially requested that DOD provide comments by April 20,
2010. However, State officials sent DOD officials an e-mail message on
the morning of April 16, 2010, directing DOD to provide its comments
by 2 p.m. that same day. State also said that approval of the NPAS and
classified annexes would be assumed if comments were not received
within 24 hours. As such, State shortened the amount of time DOD had
to conduct its review from 12 days to 8 days once the review process
started. DOD typically sends proposed nuclear cooperation agreements
and any accompanying documentation to various stakeholders within DOD
for review. For this agreement, these stakeholders include the U.S.
European Command (EUCOM)--the pertinent combatant command--whose area
of responsibility covers Russia.[Footnote 12] EUCOM could not provide
comments by the deadline established by State. As a result, DOD's
review was incomplete, according to DOD officials, even though DOD
concurred with the findings presented in the NPAS and its classified
annexes and cleared the documents accompanying the agreement before
its submission to the President and Congress. In addition, DOD
officials told us that they felt pressure to quickly review the
agreement and its accompanying documentation after receiving telephone
calls from officials of the National Security Council urging them to
finish their review as quickly as possible. In the DOD officials'
view, the outcome of the review process was predetermined--the
Administration had already decided that the agreement would go forward
and be submitted to Congress.
State Had Not Implemented Our Recommendations to Develop Written
Procedures and Clarify Agency Roles Prior to the 2010 Review Process:
State did not implement our recommendations to establish written
procedures and clarify agency roles to manage the interagency review
process despite having 10 months from the issuance of our report to
the start of the interagency review in April 2010.[Footnote 13] In the
absence of written procedures, we found continuing problems with
State's management of the interagency review process. For example,
* State provided incomplete documents for DOD's review. Specifically,
the draft NPAS and classified annexes State provided to DOD contained
multiple instances of blank spaces, placeholder text, and highlighted
text with no explanation for the highlights, according to DOD
officials. In addition, these officials told us that State provided
neither any explanation of why the documents contained the incomplete
information nor details on how the incomplete information would be
finalized before the President submitted the agreement to Congress.
DOD officials said that it was difficult to be put in a position to
review the agreement and its accompanying documents based on
incomplete information, and without the benefit of formal procedures.
However, according to State officials, State provided an explanation
for the highlighted text contained in the TS/SCI level NPAS annex,
which indicated the differences between the 2008 and 2010 version of
the document. DOD officials told us that the review process, managed
by State, was too lax and should have been more rigorous--commensurate
with the importance of the U.S.-Russia agreement. DOD officials told
us that a more formal process, including written procedures, would
help them manage the department's review process.
* ODNI officials told us that the intelligence community was not
provided the opportunity to review the final version of the 2010 NPAS
and its classified annexes prior to their submission to Congress. As a
result, it is unclear to us whether the final 2010 NPAS and its
classified annexes adequately incorporated the intelligence
community's views. In our 2009 report, we recommended that State
provide relevant members of the intelligence community an opportunity
to review these documents prior to any agreement's submission to
Congress.[Footnote 14]
* The intelligence community did not conduct a comprehensive review of
the 2010 secret NPAS annex. According to ODNI officials, ODNI
distributed the NPAS and its classified annexes to the Central
Intelligence Agency, Defense Intelligence Agency, State's Bureau of
Intelligence and Research, National Geospatial-Intelligence Agency,
National Security Agency, and DOE's Office of Intelligence and
Counterintelligence (DOE-IN) for review and comment. ODNI officials
told us that they instructed the intelligence agencies to review and
provide comments on all three documents: the unclassified NPAS, the
secret annex, and the TS/SCI annex. DOE-IN officials confirmed ODNI's
instructions. However, DOE-IN officials told us that they did not
review the secret NPAS annex because their organization typically only
reviews TS/SCI documents and that the TS/SCI and secret NPAS annexes
contained similar information. However, according to State officials,
and as confirmed by our own analysis, the TS/SCI and secret NPAS
annexes address distinct topics. Because DOE-IN neglected to review
the secret NPAS annex, the intelligence community's review of the
agreement's accompanying documentation was incomplete.
NRC developed procedures to manage its review of nuclear cooperation
agreements in the absence of State's action to develop written
procedures for the interagency review process. These procedures
address roles, responsibilities, and actions that need to be completed
at each milestone in the review process. For example, the procedures
state that before the Commissioners vote to approve a nuclear
cooperation agreement, (1) NRC's Office of International Programs,
with assistance from five other NRC offices, prepares an analysis of
the proposed agreement and its accompanying documentation, and (2) the
Office of International Programs consults with State to ensure that
State has provided NRC with versions of all required documents that
are identical to those that will be provided to the President. NRC
used these procedures, developed in consultation with State, to guide
its review of the U.S.-Russia nuclear cooperation agreement
resubmitted in 2010. Both NRC and State officials attributed the
increased collaboration between the two agencies during the 2010
review process, in part, to these procedures. One particular problem
that was resolved was the poor marking of documents provided by State
to NRC during the prior U.S.-Russia review process.[Footnote 15] In
2010, State clearly marked draft documents as such and provided NRC
with the final versions of the documents to ensure the Commissioners
based their vote on the same documents that State provided to the
President.
State Recently Developed Procedures to Guide Future Interagency
Reviews, but They Lack a Mechanism to Consider Conflicting Views and
Do Not Clarify ODNI's Role:
When we met with State officials on June 24, 2010 to begin our review,
they told us that they had not developed procedures to manage the
interagency process by which nuclear cooperation agreements and
accompanying documentation are developed, reviewed, and transmitted.
State officials said, however, that written procedures, accepted by
all interagency stakeholders, would be beneficial to the review
process. They also told us that developing such procedures was not a
priority because there were more pressing issues to address. At a
subsequent meeting on July 26, 2010, State officials told us that they
had drafted a set of procedures to guide the interagency review
process. State provided these procedures to DOE, DOD, and NRC
officials for their comment and approval, and officials at all three
agencies approved them. However, we found, based on our review of
documentation provided by State, that ODNI officials were not provided
an opportunity to review or approve the procedures. On August 18,
2010, more than 3 months after submitting the U.S.-Russia nuclear
cooperation agreement to Congress, State provided us with a copy of
the finalized procedures.
State's procedures identify a step-by-step process by which nuclear
cooperation agreements and accompanying documentation are to be
developed, reviewed, and transmitted. For example, the procedures
identify the documents that State will provide to specific offices
within each agency for its review. State's procedures inform
interagency partners that they can expect 3 to 4 weeks to review the
documents (absent a specific deadline from the National Security
Council) and indicate that State will transmit the documents to the
Secretary of Energy for formal concurrence after all comments are
received. The specific agencies and offices identified by State as
part of the interagency clearance process are as follows:
* DOE/NNSA's Office of Defense Nuclear Nonproliferation and Office of
Nonproliferation and International Security;
* DOE's Offices of Nuclear Energy, General Counsel, and Intelligence;
* NRC's Office of International Programs;
* DOD's Office of the Secretary of Defense/Division of Combating
Weapons of Mass Destruction;
* DOD's Office of the Joint Chiefs of Staff/J-5 Division (Strategic
Plans and Policy); and:
* National Security Council.
These procedures, however, do not fully address all concerns raised by
interagency partners during their review of the draft procedures. DOD
officials told us that the draft procedures assume that all
interagency partners will agree with the findings and analysis
contained in the NPAS and its classified annex(es). DOD officials
requested that State consider revising the procedures to include a
mechanism for resolving differences among interagency partners should
they arise. However, State's final procedures do not contain the
dispute resolution mechanism requested by DOD, which may hinder
interagency collaboration and limit the robustness of the analysis
contained in the NPAS and its classified annex(es) for future nuclear
cooperation agreements.
In addition, the procedures do not clarify the role of ODNI. Even
though the procedures contain a provision that State will consult with
ODNI to ensure the accuracy and completeness of the NPAS and its
classified annex, the procedures do not provide specific information
on the processes involved in or frequency of the consultation. For
example, the procedures do not include a provision that allows the
relevant members of the intelligence community an opportunity to
review the final classified NPAS annex prior to any agreement's
submission to Congress, although we had recommended such a provision
in June 2009. Furthermore, we reported in October 2005 that to enhance
collaboration, agencies should work together to define and agree on
their respective roles and responsibilities, including specifying who
will do what tasks and how the agencies will organize their individual
and joint efforts.[Footnote 16] State's recently developed procedures
may not include a necessary level of specificity to ensure full
collaboration with the intelligence community. For example, the
procedures list DOE-IN as being involved in the review process, but
they do not specify what tasks DOE-IN needs to complete to satisfy its
responsibility as a key reviewer within the intelligence community's
overall assessment of the NPAS and classified annexes. Given DOE-IN's
uncertainty about its role in reviewing the 2010 secret NPAS annex,
the existing procedures do not help clarify its role in reviewing
future documents accompanying proposed nuclear cooperation agreements.
Conclusions:
The proposed U.S.-Russia nuclear cooperation agreement represents a
formal strengthening of ties between the civilian nuclear sectors of
the United States and Russia, and the proposed agreement carries
potentially significant security and nuclear proliferation
implications. As such, it is critical that the process employed to
review all key supporting documents accompanying the proposed
agreement allow interagency partners adequate time, be managed in
accordance with established procedures, and clarify the roles and
responsibilities of all agencies involved. While State generally
provided its interagency partners with more time to review the
agreement and its accompanying documentation in 2010 than in 2008, DOD
officials said that State did not provide them with adequate time to
conduct a comprehensive review. Specifically, DOD officials said that
they wanted to send the agreement and its accompanying documentation
to EUCOM for its review, but this was not possible given the review
time allotted by State. State did not develop procedures to manage the
2010 review process as we recommended in our 2009 report. As a result,
we found continuing problems with the review process, such as an
incomplete review of the secret NPAS annex by the intelligence
community, that could have been avoided. While it is important to note
that State recently established procedures to manage future nuclear
cooperation agreement reviews, they were not available to guide the
2010 interagency review of the U.S.-Russia agreement and do not
clarify the role and responsibilities of the intelligence community,
specifically ODNI and DOE-IN. Furthermore, the procedures do not
contain a mechanism to ensure consideration of any conflicting views
from interagency partners should they arise. Without such a mechanism,
the procedures may not be as strong as they could be to better ensure
interagency collaboration and a robust, transparent review process.
Recommendations for Executive Action:
We are making three recommendations, as follows:
We recommend that the Secretary of State, working with the Secretary
of Energy, the Secretary of Defense, the Chairman of the Nuclear
Regulatory Commission, and the Director of National Intelligence,
ensure adequate time for consultation (to be determined by State and
its partner agencies) with all parties that participate in the review
of a nuclear cooperation agreement prior to its submission to the
President and Congress.
We further recommend that the Secretary of State, in collaboration
with the Secretary of Energy, the Secretary of Defense, the Chairman
of the Nuclear Regulatory Commission, and the Director of National
Intelligence, take steps to strengthen the written procedures
governing nuclear cooperation agreements. Specifically, these
procedures should contain provisions that:
* ensure appropriate consideration of any conflicting views from
interagency partners about the proposed agreement and its accompanying
documents prior to the submission to the President and:
* clarify the role and responsibilities of ODNI and the intelligence
agencies involved in reviewing every future NPAS and its classified
annex(es) and provide that the relevant members of the intelligence
community review the final NPAS and its classified annex(es) prior to
any agreement's submission to the President and Congress, unless the
members of the intelligence community determine that such a review is
not needed.
Agency Comments and Our Evaluation:
We requested comments on a draft of this report from DOE, NRC, State,
ODNI and DOD. We received oral comments from DOE's National Nuclear
Security Administration (NNSA), NRC, State, and ODNI. DOD did not
comment on our draft report.
On September 14, 2010, we met with officials from DOE/NNSA's Office of
International Regimes and Agreements, including a Senior Policy and
Regulatory Advisor and a Foreign Affairs Specialist. These officials
agreed with the facts, findings, and recommendations contained in our
draft report. On September 15, 2010, we received oral comments from
NRC's Executive Director for Operations. He said that the Commission
agreed with our recommendations.
On September 13, 2010 we met with Foreign Affairs Officers from
State's Bureau of International Security and Nonproliferation, an
Attorney in State's Office of Legal Advisor, and a Legislative
Management Officer from State's Bureau of Legislative Affairs, who
provided oral comments. State officials generally agreed with the
facts presented in this report, and neither agreed nor disagreed with
the report's recommendations. In addition, State officials provided
technical comments, which we incorporated as appropriate.
State officials also clarified several points we made in the report.
First, State officials said that although DOD told us that the
department's review of the NPAS and classified annex was incomplete,
DOD did in fact concur with the findings presented in the NPAS and its
classified annexes and cleared on the documents that were submitted to
the President and Congress. We have added information to the report to
reflect State's comment. Second, State officials told us they were not
made aware of DOD's concerns about the lack of a mechanism to consider
conflicting views in State's recently established procedures. The
information we reported regarding DOD's concerns were provided to us
directly by DOD officials during an interview on August 11, 2010.
Third, State officials told us that they did provide DOD officials
with guidance--contained in the e-mail message transmitting the NPAS
and its classified annexes for interagency review--about the content
of the documents they were asked to review. Specifically, State
officials told us that they highlighted text in the 2010 TS/SCI level
NPAS annex to indicate text that differed from the 2008 TS/SCI level
annex. We are including information in the report that reflects
State's comments on this matter. Fourth, State officials commented
that the department does not have the ability or authority to
prescribe how communications within other agencies regarding the
review of nuclear cooperation agreements and accompanying
documentation should take place. Regarding this point, in our view,
the purpose of establishing written procedures is to develop a common
framework by which all responsible agencies can coordinate their
efforts to review the NPAS and its classified annexes. While we
recognize that State does not have authority to prescribe exactly how
each agency should conduct its own internal review, an established set
of written procedures, agreed to by all interagency partners, can help
facilitate and coordinate a more effective and efficient process.
Finally, State officials commented that no causal effect exists
between the problems we found with the 2010 interagency review process
and the absence of written procedures. We disagree with State's
comment. In our view, had State implemented our recommendation to
establish written procedures prior to the 2010 review process some of
these problems could have been avoided. For example, instructions in
an e-mail to another agency are not a substitute for instituting
procedures to ensure greater uniformity, rigor and consistency in the
nuclear cooperation agreement review process that includes input from
multiple agencies within tight timeframes.
On September 14, 2010 we received oral comments from ODNI's Office of
Legislative Affairs. ODNI officials disagreed with our recommendation
that roles and responsibilities of ODNI and the intelligence agencies
should be clarified for the review of future NPASs and their
classified annex(es). ODNI officials commented that our recommendation
stated that the Department of State should take the lead in clarifying
the roles and responsibilities of the intelligence community. In
ODNI's view, it should be responsible for defining and specifying
coordination without any new procedures governing the review process.
In addition, ODNI officials stated that they do not believe that ODNI
and the relevant members of the intelligence community need to review
the final NPAS and its classified annex(es) prior to any agreement's
submission to the President and Congress.
ODNI has interpreted our recommendation in a way other than intended.
We recommended that the Secretary of State, working in collaboration
with the other interagency partners, including the Director of
National Intelligence, take steps to clarify roles and
responsibilities in reviewing future NPAS and classified annex(es). It
was not our intention to imply that our recommendation to clarify
roles and responsibilities be implemented without the full
consultation of ODNI and other relevant members of the intelligence
community. In addition, we believe that allowing ODNI to review the
final version of the NPAS and classified annex(es) before they are
submitted to the President and Congress would help ensure that these
documents included all relevant intelligence information. In our view,
this is a matter of good government, and a practice that would not be
onerous for the intelligence community to undertake given the national
security and nuclear proliferation concerns associated with many of
these agreements.
ODNI also commented that according to statements DOE-IN provided to
ODNI, DOE intelligence analysts focused on the TS/SCI level NPAS annex
but also reviewed the unclassified NPAS and the secret level annex for
accuracy and completeness. This differs from the information DOE-IN
officials provided to us at our July 26, 2010 meeting. Specifically,
DOE-IN officials stated on multiple occasions during that meeting that
their responsibility was to review only the TS/SCI level annex, and in
reviewing a draft of our report, DOE/NNSA officials said they agreed
with the facts presented. ODNI also provided technical comments, which
we incorporated as appropriate.
We are sending copies of this report to the appropriate congressional
committees; Secretaries of Energy, Defense, and State; Chairman of
NRC; Director of National Intelligence; 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 staff 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),
Joshua Akery, Patrick Bernard, and Alisa Beyninson made key
contributions to this report. Additional assistance was provided by
Jonathan Kucskar and Ben Shouse.
Signed by:
Gene Aloise:
Director, Natural Resources and Environment:
[End of section]
Footnotes:
[1] Atomic Energy Act of 1954, § 123, 68 Stat. 919, 940 as amended
(codified at 42 U.S.C. § 2153).
[2] EURATOM is composed of the 27 countries of the European Union.
IAEA, an independent international organization based in Vienna,
Austria, is affiliated with the United Nations and has the dual
mission of promoting the peaceful uses of nuclear energy and verifying
that nuclear technologies and materials intended for peaceful purposes
are not diverted to weapons development efforts. IAEA had 151 member
states as of July 2010. Pursuant to the Taiwan Relations Act, 22
U.S.C. § 3301 et seq., and Executive Order 12143, 44 Fed.Reg. 37191
(June 22, 1979), all agreements concluded with the Taiwan authorities
prior to January 1, 1979 are administered on a non-governmental basis
by the American Institute in Taiwan, a nonprofit District of Columbia
corporation.
[3] Under section 123, State is generally not required to solicit
DOD's participation in the review of these documents. However, State
officials told us that they involve DOD because it is a part of the
foreign policy and national security communities and because DOD may
have equities in any given nuclear cooperation agreement. DOD is
required under section 123(d) to provide its views on a proposed
agreement to specified congressional committees upon their request.
[4] 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 is now executed by the Director of National Intelligence.
[5] Information classified at the TS/SCI level generally relates to
sources, methods, or activities of the intelligence community. The
Director of the Central Intelligence Agency establishes standards for
classifying sensitive compartmented information.
[6] 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 broken only 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.
[7] GAO, U.S.-Russia Nuclear Agreement: Interagency Process Used to
Develop the Classified Nuclear Proliferation Assessment Needs to Be
Strengthened, [hyperlink, http://www.gao.gov/products/GAO-09-743R]
(Washington, D.C.: June 30, 2009).
[8] We asked agency officials whether they had adequate time to
conduct their review. In general, agency officials reported that
adequate review time depends, among other things, on the number of
entities with which they coordinate their review, the amount of time
needed to obtain the views of those entities, and the agency's
familiarity with the content of the supporting documents.
[9] We did not assess DOD's role in reviewing the NPAS and its
classified annex in our June 2009 report because we were not made
aware of DOD's role in that process at that time.
[10] [hyperlink, http://www.gao.gov/products/GAO-09-743R].
[11] We reviewed both the 2008 and 2010 versions of the TS/SCI annex
and found few substantive changes between the two versions.
[12] DOD operates geographic combatant commands that conduct missions
and activities within assigned areas of responsibility. Combatant
commands are responsible for a variety of functions, from the
deployment of forces for a range of missions from humanitarian
assistance to combat operations, to providing administration and
support, including control of resources and equipment and training.
[13] [hyperlink, http://www.gao.gov/products/GAO-09-743R].
[14] [hyperlink, http://www.gao.gov/products/GAO-09-743R].
[15] See GAO, Managing Sensitive Information: Actions Needed to
Prevent Unintended Public Disclosures of U.S. Nuclear Sites and
Activities, [hyperlink, http://www.gao.gov/products/GAO-10-251]
(Washington, D.C.: Dec. 15, 2009).
[16] See GAO, Results-Oriented Government: Practices That Can Help
Enhance and Sustain Collaboration among Federal Agencies, [hyperlink,
http://www.gao.gov/products/GAO-06-15] (Washington D.C.: Oct. 21,
2005).
[End of section]
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