[Congressional Record Volume 141, Number 63 (Wednesday, April 5, 1995)]
[Senate]
[Pages S5193-S5207]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
AMERICA'S SENSITIVE NUCLEAR TECHNOLOGY
Mr. GLENN. Madam President and colleagues, I rise to speak briefly
today about a rather curious development in the history of U.S. efforts
to halt the global spread of nuclear weapons.
The hallmark of a good law is its ability to balance elements of
permanence and change. A good law offers both fixed compass points and
sufficient latitude for tactical navigation.
Our nonproliferation legislation offers no exception to this rule.
When our laws and policies apply too much sail or too much anchor, the
consequences can be devastating for vital national security interests
of the United States.
For example, the notion of timely warning--that is, a legal
precondition for certain forms of nuclear cooperation that was placed
into the Atomic Energy Act to ensure stringent controls over exported
U.S. nuclear materials and technology--has been rendered virtually
meaningless by the way various administrations have used this term over
the last decade to expedite commercial uses of U.S.-controlled
plutonium in other countries.
United States nuclear cooperation with Japan and with members of
EURATOM, the European Atomic Energy Community, a region plagued by
daily headlines of new black market nuclear deals, are two specific
cases where large-scale nuclear cooperation is proceeding without
timely warning having been satisfied within the original meaning of the
term.
Madam President, I ask unanimous consent to have printed at the end
of my remarks an authoritative interpretation of this concept by Dr.
Leonard Weiss, who is now the minority staff director of the
Governmental Affairs Committee
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. GLENN. Another example, Madam President, in 1985, following
repeated and flagrant violations of its peaceful nuclear assurances to
the United States, Pakistan was required by the Pressler amendment to
satisfy a certification requirement before receiving new aid.
Specifically, the President had to certify that Pakistan did not
possess a nuclear explosive device and that new aid would, as numerous
officials from the Reagan administration had asserted, reduce
significantly the risk that Pakistan would acquire such a device.
America funneled hundreds of millions of United States taxpayer
dollars into Pakistan after 1985, until President Bush finally stopped
making the required certifications in 1990.
Throughout that period, both Presidents Reagan and Bush solemnly
certified--using an interpretation of the word ``possess'' that would
make even the most cynical of our Government's legal advisors blush--
that Pakistan did not possess the bomb.
The interpretations of the words ``reduce'' and ``significantly''
were similarly handled, as though they had been inscribed on something
like silly putty. They did not mean anything.
Since the aid cutoff in 1990, by the way, we have finally started to
see the first signs of some potential nuclear restraint in Pakistan in
the form of a freeze on the production of highly enriched uranium.
Oh yes, I almost forgot to mention the $1 billion or so in taxpayer
dollars not doled out to Pakistan since 1990 in the name of restraining
Pakistan's bomb program. Those funds remain here at home, thanks to the
Pressler amendment.
As a footnote to the sad saga of Washington's failure to implement
the Pressler sanctions until 1990, however, our Government has since
interpreted the ban on assistance as not covering commercial sales of
military equipment, including spare parts for Pakistan's nuclear weapon
delivery vehicle, the F-16. Even joint military exercises are not
regarded as assistance. Once again, a key nonproliferation term has
been molded and distorted beyond recognition.
Yet, my remarks today will focus on another term that has found its
way into the ``Twilight Zone'' of nonproliferation. I am referring to
the term ``sensitive nuclear technology,'' SNT, as it is known, which
the Nuclear Non-Proliferation Act very clearly defines as any
information, other than restricted data, ``* * * which is not available
to the public and which is important to the design, construction,
fabrication, operation or maintenance of a uranium enrichment or
nuclear fuel reprocessing facility or a facility for the production of
heavy water * * *''.
If we look carefully into the United States-Japan agreement for
nuclear cooperation, signed in 1987, we will find a clause in there
that says the following: ``* * * sensitive nuclear technology shall not
be transferred under this Agreement.'' That is article 2-1-b.
Underscoring this provision, the principal negotiator of this
agreement, Ambassador Richard Kennedy, testified on December 16, 1987,
before the House Foreign Affairs Committee: ``The transfer of
restricted data and sensitive nuclear technology under the agreement is
specifically excluded.''
Last September, the international environmental group, Greenpeace,
prepared a lengthy analysis of the transfers of United States nuclear
reprocessing technology to Japan. This study, titled ``The Unlawful
Plutonium Alliance: Japan's Supergrade Plutonium and the Role of the
United States,'' makes for interesting reading. It presents
considerable evidence of United States cooperation with Japan in the
areas of plutonium breeder reactors and nuclear fuel reprocessing.
On September 8, 1994, the United States Department of Energy promised
a comprehensive review of the report and further stated that it was
``phasing out collaborative research efforts with Japan on plutonium
reprocessing and development of breeder reactor technology.''
The same day, the New York Times quoted a Department of Energy
spokesman as saying that this cooperation was ``* * * a remnant of the
last administration.''
Later, on September 23, Greenpeace was joined by the Natural
Resources Defense Council and the Nuclear Control Institute in
demanding several steps to restore United States-Japan nuclear
cooperation to the constraints of United States law.
Madam President, I ask unanimous consent to have printed in the
Record a letter by these organizations to Energy Secretary Hazel
O'Leary.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Greenpeace International; Nuclear Control Institute;
Natural Resources Defense Council,
[[Page S5194]] September 23, 1994.
Hon. Hazel O'Leary,
Secretary of Energy, U.S. Department of Energy, Washington,
DC.
Dear Secretary O'Leary: We are writing to you concerning
the Department of Energy's current review of its policies and
practices with respect to the export of ``sensitive nuclear
technology.''
We urge that the Department immediately suspend its July
1986 guidelines for determining whether technology proposed
to be transferred to other countries constitutes SNT within
the meaning of the Nuclear Non-Proliferation Act. We further
request suspension of all cooperation in reprocessing,
uranium enrichment, and heavy water technology pursuant to
the guidelines, pending the outcome of the SNT review.
On September 8, 1994, in response to a report issued by
Greenpeace, ``The Unlawful Plutonium Alliance'', outlining
the history of recent transfers of reprocessing technology to
Japan, the Department announced that it was undertaking a
``comprehensive review'' of its SNT guidelines. It promised
to publish the results of this review within 60 days, or by
November 7, 1994. It further stated that it was ``phasing out
collaborative research efforts with Japan on plutonium
reprocessing and development of breeder reactor technology.''
As outlined in the Greenpeace report, there is no question
that any SNT transfers to Japan are unlawful. Indeed, the
1988 agreement for nuclear cooperation between Japan and the
United States flatly prohibits such transfers. While the
Department, in reliance on its internal guidelines, has
sought to justify the transfer of reprocessing technology to
Japan on the grounds that it is not SNT, the justification
cannot withstand scrutiny. In fact, the Department's July
1986 guidelines--which permit reprocessing technology to be
treated as something other than SNT when supplied to a
recipient country with a sophisticated nuclear program or
where it would duplicate an existing capability (the
rationale invoked in the case of Japan)--cannot be squared
with the language and intent of the NNPA.
Indeed, taken to its logical extreme, the Department's
interpretation would allow reprocessing technology transfers
to countries with questionable proliferation credentials.
However, contrary to the Department's guidelines, the NNPA
mandates strict, statutory controls over this highly
sensitive technology wherever it is to be transferred and
without regard to the relative nuclear sophistication of the
recipient.
Our conclusion mirrors that of the General Accounting
Office, which stated in a 1987 report that the Department's
interpretation was ``not fully consistent with the intent of
the NNPA.'' (GAO, ``Department of Energy Needs Tighter
Controls Over Reprocessing Information'', 41 GAO/RCED-87-150,
August 1987.)
Likewise, in House hearings held more than eight years ago,
Senator Glenn, a principal co-author of the NNPA,
characterized the Department's approach to SNT determinations
as reflecting a ``willful determination over a period of
years to ignore the intent of Congress.'' (Hearing on Nuclear
Exports before the Subcommittee on Energy Conservation and
Power of the House Committee on Energy and Commerce, 99th
Cong., 2d Sess. 4-5, May 15, 1986.) At the same hearing,
Congressman Markey called the Department's views ``bizarre''
and underscored. ``In the NNPA, Congress took the view that
enrichment, reprocessing and heavy water manufacture are
inherently sensitive activities wherever they are located. No
latitude is specified in the act because none was intended.''
Id. at 3.
We think the legal positions asserted in the Greenpeace
report, echoing those of GAO and key members of Congress, are
unassailable. We think far too much time has passed during
which the Department has ignored the requirements of law and
cavalierly condoned unauthorized SNT transfers. While we
applaud the Department for undertaking its review, we do not
believe that business as usual is appropriate while the
review is underway. Indeed, ``business as usual'', when it
involves continued violation of the law, is scarcely
something that can or should be tolerated by the Department.
We therefore believe it is incumbent upon the Department to
take three firm steps during the period of the review. First,
it must immediately suspend the 1986 guidelines. Second,
independent of the general phase-out of collaborative
reprocessing efforts with Japan, it must perforce suspend
approvals of any further technology transfers which might
involve SNT to any country. Third, Japan and other countries
with whom SNT is shared must immediately be advised of the
suspension of the 1986 guidelines and cooperation involving
SNT. Only by taking these steps can both the NNPA and the
review process be the 1986 guidelines and cooperation
involving SNT. Only by taking these steps can both the NNPA
and the review process be preserved and can the public have
adequate assurance that fundamental U.S. non-proliferation
law will not continue to be undermined.
Thank you for your consideration of our views. We would
appreciate it if you would promptly advise us of how you
intend to proceed concerning our request.
Sincerely,
Tom Clements,
Greenpeace International.
Paul Leventhal,
Nuclear Control Institute.
Christopher Paine,
Natural Resources Defense Council.
Mr. GLENN. Months later, on December 28, 1994, these groups received
a brief reply from the Department of Energy simply asserting that the
transfers to Japan were ``permissible exercises of its statutory
authorities.''
Madam President, I further ask to have printed in the Record a letter
from the Director of the Department of Energy's Office of Nuclear
Energy communicating DOD's view that it is permissible for the
Department ``to consider the quality of technology already indigenous
to the country that would receive the export in making the
determination that sensitive nuclear technology was in fact proposed to
be exported in a given transaction.''
There being no objection, the material was ordered to be printed in
the Record, as follows:
Department of Energy,
Washington, DC, December 28, 1994.
Mr. Tom Clements,
Greenpeace, Inc., Washington, DC.
Dear Mr. Clements: As you will recall, after receiving
Greenpeace's report. ``The Unlawful Plutonium Alliance,'' the
Department agreed to review the guidelines it has used since
1986 in determining whether particular proposed exports
involve ``sensitive nuclear technology,'' as that term is
used in the Nuclear Non-Proliferation Act. In particular, the
Department directed its critical scrutiny to the question
whether it is legally permissible for the Department to
consider the quality of technology already indigenous to the
country that would receive the export in making the
determination that sensitive nuclear technology was in fact
proposed to be exported in a given transaction.
The Department's Office of General Counsel has concluded
that consideration of the quality of indigenous technology is
permissible in identifying whether sensitive nuclear
technology is proposed to be exported in a particular
transaction. As a result, the Department has concluded that
its determinations with respect to technology exports to
Japan were permissible exercises of its statutory
authorities.
The Department will codify the overall guidelines it uses
to determine which exports should be considered sensitive
nuclear technology by December 1995. This decision is
consistent with our current practice of codifying statements
of general applicability and future effect that implement,
interpret, or prescribe law or policy. To begin this process
the Department will publish an Advanced Notice of Proposed
Rulemaking in the Federal Register by February 1995. The
Department will actively seek the public's views about
sensitive nuclear technology during the rulemaking process.
We encourage your participation.
Sincerely,
Terry R. Lash,
Director, Office of Nuclear Energy.
Mr. GLENN. In short, because Japan already had demonstrated a
capability to separate plutonium, DOE is arguing that our reprocessing
technology did not qualify as SNT--even though the technology was not
in the public domain, even though the technology was important to a
Japanese facility engaged in reprocessing activities, and even though
the technology was not classified Restricted Data. In short, the
Department is asserting that even though the technology satisfied each
and every one of the requisite components of the definition of SNT, the
technology transferred to Japan was not SNT.
The Department did, however, indicate that it will soon invite the
public's views on this interpretation in a rule making process. By all
indications, that should be a lively process indeed.
Madam President, I ask unanimous consent to insert into the Record:
First, three articles from the trade newsletter, Nuclear Fuel: ``Four-
Month Look at SNT Guidelines Yields Three-Paragraph Response,'' January
2, 1995; ``DOE Pressured to Explain Position on Secret SNT Export
Guidelines'', October 24, 1994; and ``PNC Argues Against Public Release
of RETF-Related Design Information'', October 24, 1994; and second, a
January 6, 1995, letter from the three environmental organizations--
Greenpeace, NRDC, and NCI--to the Secretaries of Energy and State
urging the exclusion of reprocessing technology transfers from any new
agreement for cooperation with the European Atomic Community.
There being no objection, the material was ordered to be printed in
the Record as follows:
[[Page S5195]] Four-Month Look at SNT Guidelines Yields Three-
Paragraph Response
In a pithy three-paragraph letter, a senior DOE official
said December 28 that the department is within its legal
authority to transfer so-called sensitive nuclear technology
(SNT) to other countries if those countries have advanced
nuclear programs.
Questions about DOE's export of SNT arose in September when
Greenpeace International released a report charging that DOE
has for years illegally provided Japan's Power Reactor & Fuel
Development Corp. (PNC) with SNT, which PNC has used to
research and develop a
planned breeder reactor spent fuel reprocessing plant.
Greenpeace said such exports violate the Nuclear
Nonproliferation Act, which limits such transfers, and the
1987 U.S.-Japan Peaceful Nuclear Cooperation Agreement,
which specifically bars them (NF, 12 Sept '94, 12).
DOE promised to review the Greenpeace report, ``prepare a
comprehensive response'' and ``analyze the guidelines used in
determining whether nuclear technology transferred to other
countries is (SNT) which would be subject to export controls
under the Nuclear Nonproliferation Act.''
DOE said it would ``make public the results of the
comprehensive review within 60 days'' (by November 7), but a
lengthy legal analysis added 51 days to the review,
culminating in the one-page, three paragraph response faxed
to Tom Clements, U.S. coordinator of Greenpeace's plutonium
campaign, at 5:30 p.m., December 28.
The letter from Terry Lash, director of DOE's Office of
Nuclear Energy, provides no details on how DOE concluded that
the exports to Japan are permissible, but rather merely
restates DOE's position that SNT export guidelines, prepared
by DOE in 1986, permit such exports if a country has an
advanced nuclear capability.
Greenpeace and other environmental groups have argued that
the guidelines themselves are unlawful because SNT is SNT,
regardless of the capabilities of the country that receives
it.
In September, a Greenpeace-sponsored legal analysis of the
guidelines concluded that DOE ``is not free to designate the
same technology as SNT for some recipients and not for
others.''
DOE clearly disagrees with that analysis, but has provided
nothing to back up its rationale and apparently doesn't
intend to. Asked specifically if DOE plans to provide
additional information on how it concluded that it had not
violated the NNPA or the U.S.-Japan agreement. DOE's Ray
Hunter said: ``There is nothing more intended to come out.''
The ``comprehensive review'' DOE promised in early September
``is reflected in that letter'' to Clements, he said.
Clements told NuclearFuel December 29 that DOE claims to
have no written record of its legal analysis, even though
Lash noted in his letter that the department ``directed its
critical scrutiny'' to the question of whether ``it is
legally permissible'' to consider a recipient country's level
of nuclear expertise when determining whether SNT is involved
in a proposed transaction.
Having concluded--without further explanation--that the SNT
guidelines are legal. DOE has further concluded that ``its
determinations with respect to technology exports to Japan
were permissible exercises of its statutory authorities.''
The letter offers no insight as to which ``statutory
authorities'' the department's lawyers considered in their
lengthy deliberations over the SNT designation issue.
Lash said the department will codify the overall guidelines
it uses to determine which exports should be considered SNT
by December 1995. He invited Clements
to participate in the rulemaking process, which will begin
in February when DOE publishes an advanced notice of
proposed rulemaking.
totally inadequate
``We obviously view this as totally inadequate,'' Clements
told NuclearFuel, ``and we will continue to legally challenge
DOE on this.''
In a press release, Clements said DOE ``has failed in the
extreme to conduct the thorough review promised of its
`sensitive nuclear technology' export policy. The DOE
determination to leave its SNT export policy in place has no
basis in law and stands in contradiction to stated U.S.
policies aimed at halting the proliferation of plutonium.''
Greenpeace and the Nuclear Control Institute (NCI), which
have long fought breeder reactor technologies and the
separation and use of plutonium, also maintained that DOE's
response was contrary to opinions by the U.S. General
Accounting Office, Sen. John Glenn (D-Ohio) and Rep. Edward
Markey (D-Mass.).
``DOE's conclusion creates a massive loophole in the U.S.
nuclear nonproliferation regime, which is particularly
disturbing in light of the current renegotiation of the U.S.
nuclear agreement with the European Atomic Energy Community
(Euratom),'' added NCI Deputy Director Daniel Horner.
NCI and Greenpeace are concerned that DOE may be laying the
foundation for a new deal with Euratom which would allow
virtually unfettered cooperation in plutonium reprocessing
technology.
Clements was also disturbed by the way DOE released the
letter to him. According to Clements, DOE provided PNC and at
least one nuclear industry official with a copy of the
December 28 letter before sending it to him.
``The timing of the release of the letter was contrary to
openness policies of DOE and we are perturbed that DOE
continues to conduct the public's business in this slipshod
way,'' he said.
____
DOE Pressured to Explain Position on Secret SNT Export Guidelines
DOE critics are pressing the department to explain how and
why it adopted export guidelines that allowed the transfer of
nuclear technology that would otherwise be barred under U.S.
law.
The export guidelines adopted by DOE in July 1986 without
any public notice, allow the transfer of so-called Sensitive
Nuclear Technology (SNT) if a recipient country has an
advanced nuclear program.
The guidelines became an issue last month after Greenpeace
International released a report charging that DOE--relying on
the guidelines--has for years provided Japan with SNT, in
violation of the 1978 Nuclear Nonproliferation Act and the
1987 U.S.-Japan Peaceful Nuclear Cooperation Agreement (NF,
12 Sept., 12).
Critics charge that the guidelines, and the exports made
under them, violate the nonproliferation law and the U.S.-
Japan agreement because the law and the pact define SNT
strictly by the information and technology involved, making
no distinction on the recipient.
The day Greenpeace issued its report, DOE conceded that
information and technology provided to Japan under a 1987
collaborative arrangement with Japan's Power Reactor & Fuel
Development Corp. (PNC) ``may be considered'' SNT if provided
to a country with a less-developed nuclear program than
Japan's.
The department is analyzing the 1986 guidelines and is
supposed to make public the results of its review around
November 8. However, sources say that date may slip because
the DOE review is disorganized and might be folded in broader
review of how the department handles surplus material.
Late last month, Greenpeace, the Nuclear Control Institute
and the Natural Resources Defense Council jointly urged
suspension of the 1986 guidelines and of ``all cooperation in
reprocessing, uranium enrichment, and heavy water technology
pursuant to the guidelines,'' pending the outcome of the
review.
In a separate six-page letter, dated October 11, Rep.
Edward Markey (D-Mass.) urged a similar suspension of the
guidelines and ongoing cooperative agreements. He also asked
detailed questions about who devised the 1986 guidelines and
whether agencies other than DOE signed off on them.
Markey wants to know who were the principal authors of the
SNT guidelines and why they were not promulgated in a formal,
open process as agency rulemaking. He also wants to know who
was the highest ranking DOE official to approve the
guidelines and whether DOE did a legal analysis to determine
whether the guidelines were consistent with the Nuclear
Nonproliferation Act and other applicable law. As of October
20, DOE had not responded to the queries and had not
suspended the guidelines.
____
PNC Argues Against Public Release of RETF-Related Design Information
DOE's use of controversial, secret guidelines to sanction
export to Japan of information and hardware that would
otherwise be considered sensitive nuclear technology (SNT)
has put the department in a bind over how to respond to a
year-old Freedom of Information Act (FOIA) request.
The FOIA, filed in October 1993 by Greenpeace's Tom
Clements, requests information concerning technology and
information transferred to the Japanese Power Reactor &
Nuclear Fuel Development Corp. (PNC) from DOE's Oak Ridge
National Laboratory under contract with PNC.
Specifically, Clements has asked for copies of the design
of a fuel disassembly system which Oak Ridge delivered to PNC
for use at its Recycle Equipment Test Facility Fuel (RETF), a
breeder reactor spent fuel reprocessing plant.
For more than a year, DOE has balked at releasing the
design information and, for at least six months, the
department has been consulting with PNC on the issue.
Clements has argued that if the information provided to PNC
was not SNT--and DOE insists it wasn't--then it should be
publicly available.
The 1987 U.S.-Japan Nuclear Cooperation Agreement, which
bars the transfer of SNT, defines SNT as ``data which are not
available to the public and which are important to the
design, construction, fabrication, operation or maintenance
of enrichment, reprocessing or heavy water facilities. . .
.''
DOE determined that this and other information and
equipment transferred to PNC for use in its breeder reactor
program is not SNT because export guidelines, adopted by the
department in July 1986 without any public exposure, allow
the transfer of what would otherwise be deemed SNT if a
recipient country has an advanced nuclear program.
The guidelines became an issue last month after Greenpeace
International released a report charging that DOE has for
years provided Japan with SNT, in violation of the 1978
Nuclear Nonproliferation Act and the 1987 U.S.-Japan
agreement (NF, 12 Sept., 12).
In April and again July, DOE told Clements that the
department had asked the Japanese for comments on the FOIA
request.
[[Page S5196]] A July 25 letter from Terry Lash, director of
DOE's Office of Nuclear Energy, informed Clements that PNC
had ``recently'' assured DOE that the Japanese company's
comments would be sent ``in the near future.''
On September 20, following another Clements' inquiry on the
status of his FOIA request, Lash advised that the Washington,
D.C. law firm of Lepon, McCarthy, White & Holzworth, ``acting
for PNC, has provided DOE with a lengthy, detailed legal
argument opposing the release of this information to
Greenpeace.''
DOE's Office of General Counsel is reviewing the letter,
Lash said. Contacted by NuclearFuel, neither the law firm nor
PNC would provide a copy of the legal argument or discuss the
arguments made.
Clements has argued that, while he is interested in
whatever the Japanese might have to say about his request
``their opinion should be of no concern regarding the release
of the information to me.'' DOE has taken the position that
no SNT was transferred, Clements has noted. Any other
information transferred ``should be publicly available.''
____
Nuclear Control Institute; Greenpeace International;
Natural Resources Defense Council,
January 6, 1995.
Hon. Hazel R. O'Leary,
Secretary of Energy, U.S. Department of Energy, Washington,
DC.
Hon. Warren Christopher,
Secretary of State, U.S. Department of State, Washington, DC.
Dear Secretaries O'Leary and Christopher: In view of
certain recent determinations by the Department of Energy
with respect to the identification of ``sensitive nuclear
technology'' (``SNT'') in export transactions, we are writing
to urge that it be made crystal clear in any new agreement
for cooperation with the European Atomic Energy Community
(``EURATOM'') that transactions involving reprocessing
technology are prohibited. As explained below, failure
plainly to bar such transactions would run directly counter
to the Administration's expressed non-proliferation policy.
As you know, Section 123a.(9) of the Atomic Energy Act, 42
U.S.C. Sec. 2153(a)(9) (the ``Act''), requires that, as a
precondition to SNT transfers, agreements for cooperation
contain ``a guaranty by the cooperating party that any
special nuclear material, production facility, or utilization
facility produced or constructed under the jurisdiction of
the cooperating party by or through the use of any sensitive
nuclear technology transferred pursuant to such agreement for
cooperation will be subject to all the requirements specified
in this subsection. . .'' including, among other things,
full-scope safeguards, adequate physical security and U.S.
approval of retransfers. Absent such a guaranty, under the
terms of Sections 127 and 128 of the Act, 42 U.S.C.
Sec. 2156, 2157, no SNT may be exported from the United
States to the nation or group of nations in question.
Further, under the Department of Energy's regulations, 10 CFR
Part 810, technology transfers involving SNT are prohibited
unless the Section 127 and 128 requirements are met.
In 1987, the United States determined that no SNT transfers
would be permitted under the U.S.-Japan agreement for nuclear
cooperation. The U.S.-Japan agreement therefore does not
contain the provision required by Section 123a.(9) of the
Act. Instead,
Article 2(1)(b) provides, ``[S]ensitive nuclear technology
shall not be transferred under this Agreement.'' Because
SNT is defined in Section 4(a)(6) of the Nuclear Non-
Proliferation Act of 1978 (Pub. L. No. 95-242) generally
to cover non-public information ``important to the design,
construction, fabrication, operation or maintenance of a
uranium enrichment or nuclear fuel reprocessing facility
or a facility for the production of heavy water,'' it was
understood at the time by observers outside the Executive
Branch, including ourselves and, to our knowledge, the
responsible Congressional oversight committees, that
reprocessing technology transfers to Japan would be
prohibited.
As it has turned out, this understanding was not shared by
the Executive Branch. Under an internal Department of Energy
guideline, adopted in 1986, the Department permitted itself
to determine whether certain information constituted SNT in
part based upon the ``level of expertise of the information
recipient.'' In fact, at the time the U.S.-Japan agreement
was under consideration in Congress, Oak Ridge National
Laboratory (``ORNL'') was transferring reprocessing
technology to Japan, based upon a determination that it was
not ``SNT' when delivered to a such a sophisticated nuclear
nation.
In our view, the Executive Branch misled Congress in 1987
and 1988 into believing that reprocessing transfers were not
possible under the ``no-SNT'' provision of the U.S.-Japan
agreement at the very time such transfers were already
underway. We have since established by means of a Freedom of
Information Act request that the Department of State has been
briefed by the Department of Energy on the ORNL transaction
well in advance of the State Department's testimony in
Congressional hearings that no SNT could be transferred to
Japan under the terms of the new agreement.
Given the high level of expertise in Japan with respect to
reprocessing technology, the Department has proceeded over
the past half-dozen years to authorize numerous transfers of
such technology to Japan. These transfers have been carried
out pursuant to a Department of energy guideline which was,
in our view, improperly adopted in secret in the first
instance, without public notice or opportunity for comment.
The SNT prohibition in the U.S.-Japan agreement has thus
effectively been rendered a nullity.
The DOE guideline clearly violated the expressed language
of the statute and led to absurd results. Moreover, DOE's
interpretation has been rejected as having no basis in law by
the chairmen of two Congressional oversight committees with
jurisdiction over nuclear exports and by the General
Accounting Office, which reviewed DOE's nuclear-export
performance and concluded that ``DOE made [SNT]
determinations . . . on the basis of factors that are not
included in the 1978 act,'' and that ``DOE needs standards
for identifying sensitive nuclear technology that are
consistent with the 1978 act.''
This fall we raised what we believe are serious concerns
about the legality of the Department of Energy's
interpretation. In response, the Department promised a
``comprehensive review'' of the entire issue of the
lawfulness of its guidelines. However, in a three
paragraph letter dated December 28, 1994, not supported by
any public, background analysis, the Department rejected
our contentions. Instead, it concluded that
``consideration of indigenous technology is permissible in
identifying whether sensitive nuclear technology is
proposed to be exported in a particular transaction.'' On
that basis, the Department then further concluded that its
``determinations with respect to technology exports to
Japan were permissible exercises of its statutory
authorities.''
We continue to believe that the Department of Energy's
conduct was wrong as a matter of law. However, without
awaiting resolution of the legal issue, we believe that the
policy issues presented by the Department of Energy's
conclusions need to be addressed immediately and
unequivocally in the context of the U.S.-EURATOM
negotiations. Indeed, it is essential that the
misapprehensions which attended the U.S.-Japan agreement be
avoided in the case of EURATOM.
In his September 27, 1993 Policy Statement on
Nonproliferation and Export Control Policy, President Clinton
categorically states that the United States ``does not
encourage the civil use of plutonium. * * *'' While he also
referred to his decision to ``maintain its existing
commitments regarding the use of plutonium in civil nuclear
programs in Western Europe * * *,'' whatever those
commitments are they cannot survive the term of our existing
agreement with EURATOM, which expires at the end of December,
1995.
In our judgment, any transfer of reprocessing technology,
whether determined to be SNT or not, would involve the
encouragement of civil use of plutonium, contrary to the
Administration's policy. It is in fact presumably for such
reasons that the Department of Energy stated in September,
1994, that it was ``phasing out collaborative research
efforts with Japan on plutonium reprocessing. * * *''
The need to curtail any future reprocessing transfers to
EURATOM is of particular importance. EURATOM is a
conglomerate consisting of numerous countries which have
quite different degrees of nuclear sophistication. Twenty
years hence it could be even more variegated, perhaps
stretching from the Atlantic to the Urals, presenting
proliferation and terrorism risks that may vary dramatically
from member state to member state. Yet, because the United
States treats EURATOM as a single entity under the Act, U.S.
nuclear materials, technology and facilities will be able to
move freely from state to state within the Community. We
think it critical in such circumstances that any
new nuclear cooperation agreement with EURATOM
leave no doubt that cooperation on the civil use of plutonium
will not be permitted.
The United States must act consistently with the
President's non-proliferation policy in the context of any
new EURATOM agreement. This consistency of action means that
whatever approach the Department of Energy may ultimately
take in its promised
rulemaking on SNT transfers, there should be an explicit
prohibition on the transfer of any non-public and/or
proprietary technology, whether or not designated as SNT,
relating in any way to reprocessing. In this way, the type
of controversy which has attached to reprocessing
technology transfers to Japan would not arise,
administrative interpretation would not be allowed to
undercut non-proliferation law and policy, and the
Congress and the public would have full and complete
assurance that the policy of not encouraging plutonium use
would be implemented in a consistent and comprehensive
manner.
Thank you for your consideration of our views.
Sincerely,
Paul Leventhal,
Nuclear Control Institute.
Tom Clements,
Greenpeace International.
Christopher Paine
Natural Resources Defense Council.
Mr. GLENN. Madam President, my own views on this whole issue are well
known. On May 15, 1986, Congressman
[[Page S5197]] Markey chaired a hearing of the House Subcommittee on
Energy Conservation and Power to assess the effectiveness of DOE
controls over nuclear technology exports. The hearing focused in
particular on findings of a report by the General Accounting Office
documenting several problems in DOE's controls. I testified that
``GAO's documentation of examples where obvious exports of sensitive
nuclear technology were covered up by DOE through twisted reasoning
allowing determinations that no sensitive nuclear technology was
involved, suggests a dangerous attitude of contempt for law on the part
of some DOE officials.'' That was clear back in 1986.
The GAO report that was the focus of that hearing was entitled, ``DOE
Has Insufficient Control over Nuclear Technology Exports'' (RCED-86-
144) and was dated May 1, 1986--about 9 years ago. That same report
reached the following specific conclusions--
DoE has not established objective standards for
specifically authorizing exports [of nuclear technology]
(page 2).
The 1978 act [the Nuclear Nonproliferation Act (NNPA)] . .
. limits the determination of sensitive nuclear technology to
its importance to sensitive facilities, not to recipient
countries. (page 4)
In defining SNT, neither the act nor its legislative
history distinguished among countries, their nuclear weapons
capabilities, or their nonproliferation credentials. The act
requires DoE to determine if information to be provided to a
foreign country is important to the design, construction,
fabrication, operation, or maintenance of an enrichment,
reprocessing, or heavy water production facility. (page 57)
In our opinion, therefore, the better view is that the NNPA
requires DoE to make SNT determinations strictly on the basis
of the technical importance of proposed assistance to
sensitive nuclear facilities. (page 58)
On August 17, 1987, GAO issued another report, entitled, ``Department
of Energy Needs Tighter Controls Over Reprocessing Information' (RCED-
87-150). This report found that ``DOE has little control over the
dissemination of information related to the design, operation, and
maintenance of commercial or defense reprocessing technology that it
produces * * * [adding that] most of DOE's reprocessing-related
information is readily available to anyone who wants it.'' That was on
page 17. Here are some additional findings from that report--
DoE has not enforced the SNT export conditions on
activities in conducts with foreign countries under technical
exchange agreements. (page 33)
DoE's interpretation [of SNT] * * * does not appear
consistent with the NNPA definition of SNT. (page 33)
DoE has not fully met NNPA conditions for transferring SNT
on any of the cooperative reprocessing activities with other
countries. (page 39)
* * * prior approval rights required by the act were not
obtained on any of the cooperative reprocessing activities
[specifically the UK and Japan].'' (page 39)
[DoE officials] believe that although the information
[transferred to the UK and Japan] is `valuable,' it is not
`important' in the sense intended by the NNPA and is,
therefore, not SNT. (page 40)
Neither the definition [of SNT in the NNPA] nor the export
requirements [under existing regulations] indicate that SNT
decisions were to be based on the nuclear proficiency of the
recipient country. (page 41)
Neither the act [NNPA] nor its legislative history
distinguishes among countries, their nuclear capabilities, or
their nonproliferation status to determine what information
constitutes SNT * * * this definition should be consistently
applied to all countries on the basis of objective criteria.
(page 42)
The assistance DoE provides directly to the reprocessing
programs of other countries * * * qualifies in our opinion as
SNT as defined in the NNPA. (page 43)
In March 1988, DOE's own Office of International Security Affairs
issued a lengthy report on Technology Security (DOE/DP-8008612) which
found that ``Success in acquiring unclassified sensitive technology, as
identified in the Militarily Critical Technologies List, has enabled
potential proliferant countries to construct, outside of the
international safeguards regime, sensitive fuel cycle facilities at
lower costs and in shorter period of time'' (page 9-2).
Then on September 19, 1989, the GAO issued another report entitled
``Better Controls Needed Over Weapons-Related Information and
Technology'' (RCED-89-116), which found that ``DOE makes readily
available a great deal of unclassified information and computer codes
that could assist sensitive countries in developing or advancing their
nuclear weapons programs'' (page 16). GAO also found that ``In addition
to obtaining DOE information, sensitive countries routinely obtain
hardware
from the United States that has both nuclear weapons and commercial
applications * * * about 290 of the approved requests [for export
licenses in 1987] were destined for facilities suspected of conducting
nuclear weapons development activities'' (page 5).
With respect to exports of these so-called dual-use goods, GAO's 1987
data amount to peanuts compared with what GAO found in 1994. In a
report bearing a now-familiar title, ``Export Licensing Procedures for
Dual-Use Items Need to be Strengthened,'' (NSIAD-94-119), GAO found
that the United States approved over 330,000 licenses for exports of
nuclear dual-use goods worldwide between fiscal years 1985 and 1992.
Even more alarming, some $350 million of such goods went specifically
to facilities believed to be involved in nuclear weapons-related
activities in eight controlled countries. For further discussion of
this GAO report, readers should consult my floor statement on January
4, 1995, where I inserted into the Record detailed summaries of this
report and another report prepared by four inspectors general
describing serious problems in the implementation of U.S. export
controls relating both to munitions and to goods relating to weapons of
mass destruction.
Fortunatly, DOE is now under new leadership and appears to be trying
to grapple with bringing DOE practices back into line with the spirit
and letter of our fundamental nonproliferation legislation.
I compliment Hazel O'Leary for the job she is doing there as the
Secretary of Energy.
In light of President Clinton's September 27, 1993, policy statement
that the United States ``does not encourage the civil use of
plutonium,'' I hope that the Department's three-paragraph letter does
not represent the administration's final position on this matter. I
would urge DOE in the strongest of terms to undertake a truly
comprehensive reexamination of its policies and practices for handling
such data and to bring these policies and practices back into line with
U.S. law.
The United States is not in the business of promoting commercial uses
of plutonium or highly enriched uranium around the world, either as a
matter of policy or of law. The bizarre notion that just because a
country has demonstrated a national capability to separate plutonium or
perform some other sensitive nuclear activity does not, should not, and
must not exempt it from provisions of our law addressing sensitive
nuclear technology. Indeed, if this notion continues to poison our
nonproliferation laws, what would keep our weapons labs or their
subcontractors from transferring SNT to virtually any proliferant
nation, given the capabilities that many of them have already
demonstrated in the fields of reprocessing, enrichment, and heavy water
production? If today such technology can go to Japan in direct
violation of a bilateral agreement, where will such technology go
tomorrow?
I will closely monitor developments in this area in the months ahead
and am optimistic that the Department will eventually bring its
practices into line with statutory controls over SNT. This will be a
splendid opportunity for the Department to distance itself from the
time-dishonored practice of previous administrations of redefining key
nonproliferation terms to pursue short-term political or diplomatic
goals.
I will close this statement by attaching a chronology of some
relevant documents pertaining to this whole SNT controversy,
and I ask unanimous consent that it be printed in the Record, and I
urge all my colleagues to look into this matter and to support
retaining some consistency, predictability, and clarity in the
implementation of one of our most important nonproliferation controls.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Chronology of Relevant Documents
1/6/95: Letter from Greenpeace/National Resource Defense
Council/Nuclear Control Institute to the secretaries of
Energy and State.
12/28/94: Letter from Terry Lash (DoE/Nuclear Energy) to
Greenpeace.
11/9/94: Letter from Sec. Hazel O'Leary to Sen. John Glenn
re DoE handling of reprocessing technology.
[[Page S5198]] 11/3/94: Letter from Greenpeace/Nuclear
Control Institute to Sec. O'Leary.
10/11/94: Letter from Cong. Edward Markey to Secretary
O'Leary.
9/23/94: Letter from Greenpeace/National Resource Defense
Council/Nuclear Control Institute to Sec. O'Leary.
9/9/94: NY Times quotes DoE spokesman Michael Gauldin on
past US plutonium reprocessing cooperation with Japan:
Gauldin terms such cooperation ``* * * a remnant of the last
Administration.''
9/8/94: DoE Press Release on recent Greenpeace study states
that ``The Department of Energy takes Greenpeace's concerns
seriously,'' that DoE ``is phasing out collaborative research
efforts with Japan on plutonium reprocessing and development
of breeder reactor technology,'' and that DoE will
``thoroughly review the Greenpeace study and prepare a
comprehensive response.''
9/8/94: Greenpeace releases ``The Unlawful Plutonium
Alliance.''
9/29/94: Legal memorandum to Greenpeace by Eldon Greenberg.
8/3/94: O'Leary memorandum to DoE field offices states that
``the President's nonproliferation policy of September 1993,
which discourages civil reprocessing, must be integrated into
Department of Energy property control and management
practices.''
7/25/94: Letter from Terry Lash to Greenpeace.
6/19/89: GAO issues report, ``Better Control Needed over
Weapons-Related Information and Technology.''
3/88: DoE/OISA issues study on technology security which
finds that existing regulations ``do not adequately protect
unclassified sensitive technology from disclosure and foreign
access.''
8/17/87: GAO issues report, ``DoE Needs Tighter Controls
over Reprocessing Information.''
1/12/87: DoE concludes agreement with Japanese PNC
enterprise regarding breeder reprocessing cooperation.
7/86: DoE issues internal document on guidelines for
implementing SNT controls.
5/15/86: Cong. Ed Markey chairs hearing on ``Nuclear
Exports: The Effectiveness of Department of Energy Controls
Over the Export of Nuclear-Related Technology, Information,
and Services.''
5/1/86: GAO issues report, ``DoE Has Insufficient Control
over Nuclear Technology Exports.''
Exhibit 1
The Concept of ``Timely Warning'' in the Nuclear Nonproliferation Act
of 1978
Introduction
In 1984, the first major shipment was made of plutonium
separated from U.S.-origin spent fuel to a non-weapon state
(Japan) since passage of the Nuclear Nonproliferation Act of
1978 (NNPA) (1). Approval of the shipment had been given by
the Secretary of Energy, with the concurrence of the
Secretary of State, who was required by the NNPA to determine
whether the retransfer of this plutonium from France (where
the reprocessing of spent fuel took place) to Japan would
result in a ``significant increase of the risk of
proliferation . . .'' in which the ``foremost'' factor was
whether the United States would receive ``timely warning'' of
a diversion of the material.
Footnotes at end.
In accordance with procedures adopted pursuant to the NNPA,
the interagency discussions of the Japanese request for
approval of the shipment involved the Nuclear Regulatory
Commission (NRC). Although the NRC concurred with the finding
that the shipment would not result in a ``significant
increase of the risk of proliferation,'' the Commission
questioned whether the Departments of Energy (DOE) and State
had followed Congressional intent in arriving at their
conclusion that the ``timely warning'' test had been met. The
NRC's position was summarized by NRC Chairman Nunzio J.
Palladino as follows: (2)
``(T)he Commission's disagreement with DOE's position is
focused on whether or not non-technical factors are permitted
to be considered in connection with reaching any conclusions
on the existence of timely warning. In the Commission's view,
the legislative history of the Nuclear Non-proliferation Act
of 1978 (NNPA) indicates that Congress intended timely
warning to be essentially a technical matter involving such
factors as safeguards measures applied to the material and
the technical ease of incorporating the material into a
nuclear explosive device. Other, non-technical factors were
to be considered relevant only in connection with making the
overall statutory finding of no significant increase in the
risk of proliferation. A close reading of the statutory
language in Section 131 b. of the Atomic Energy Act would
seem to support the Commission's interpretation regarding
timely warning, particularly since otherwise it would be
necessary to consider the same non-technical factors both in
connection with the timely warning analysis and in connection
with the overall ``increase in the risk of proliferation''
finding. The attachment to this letter lists the more
significant technical factors that the Commission believes
affect timely warning, and that should be addressed in a
classified supplement to future DOE analyses of subsequent
arrangements.''
The resolution of this issue will set a precedent with
possibly profound future implications for U.S. national
security and foreign relations.
The DOE/State conclusion on ``timely warning'' was not
accompanied by a detailed supporting analysis. Rather, as
indicated in the NRC letter, the conclusion was claimed to
result from the presence of certain favorable political
factors surrounding the U.S./Japan relationship. Subsequent
inquiry (3) has revealed that DOE and State interpret the
NNPA as saying that political factors, such as the nature and
condition of the governmental system and nonproliferation
policies in a recipient country, independently of the
technical capabilities of that country, could be determining
factors in judging whether the U.S. would receive ``timely
warning'' of a diversion. Therefore, according to this view,
some political factors, which determine the ``inherent risk
of proliferation'' (4) in a country, could determine that
``timely warning'' was available, and these and other
political factors could be used to determine that there was
``no significant increase in the risk of proliferation''
stemming from a proposed retransfer for reprocessing or
return of plutonium. Further, it is claimed that there was no
stated or implied legislative requirement for a supporting
analysis of the DOE/State ``timely warning'' conclusion or
the weight given to the latter in relation to other factors
in determining proliferation risk.
It is the purpose of this paper to show that the DOE/State
position is not in keeping with the legislative history of
the NNPA or any other indication of Congressional intent.
Rather, we shall show that; (a) the Congressional intent was
to separate and independently weigh the ``timely warning''
test from the set of possibly counterbalancing political
factors listed in the NNPA as being pertinent to an overall
judgment as to whether a proposed retransfer would result in
a significant increase of the risk of proliferation; and, (b)
that Congress meant the ``timely warning'' test to compare
the time needed by the U.S. to effectively react to a
diversion of nuclear material to the time needed by the
diverting country to produce an explosive device, the latter
time being estimated by technical assessments only. By this
view, a political assessment based on specific political
factors could result in approval of a retransfer request even
if the ``timely warning'' test fails, but then the burden is
on the political assessment to show that such political
factors override ``foremost'' consideration of the technical
capabilities of the recipient country to make a nuclear
explosive device quickly from diverted materials.
I. The Language of the Act
The key paragraph, Section 131b (2) of the Atomic Energy
Act of 1954 (Section 303a of the NNPA of 1978) states that,
``. . . the Secretary of Energy may not enter into any
subsequent arrangement for the reprocessing of any such
material in a facility which has not processed power reactor
fuel assemblies or been the subject of a subsequent
arrangement therefor prior to the date of enactment of the
Nuclear Non-Proliferation Act of 1978 or for subsequent
retransfer to a non-nuclear-weapon state of any plutonium in
quantities greater than 500 grams resulting from such
reprocessing, unless in his judgment, and that of the
Secretary of State, such reprocessing or retransfer will not
result in a significant increase of the risk of proliferation
beyond that which exists at the time that approval is
requested. Among all the factors in making this judgment,
foremost consideration will be given to whether or not the
reprocessing or retransfer will take place under conditions
that will ensure retransfer will take place under conditions
that will ensure timely warning to the United States of any
diversion well in advance of the time at which the non-
nuclear-weapon state could transform the diverted material
into a nuclear explosive device. . . .''
This language was originally offered by Senator Glenn to
the Administration during negotiations prior to the beginning
of markup of the NNPA by the Subcommittee on Arms Control,
Oceans, and International Environment of the Senate Foreign
Relations Committee on September 14, 1977. It was a
substitute for proposed language by the Administration that
would have replaced the ``timely warning'' criterion with
consideration of ``the probability of timely warning'' as one
(not ``foremost'') factor among many in determining whether
to approve a retransfer request. We shall examine this markup
in more detail later on. For now it suffices to note that the
Subcommittee approved the Glenn language and ignored the
Administration's proposal.
Following the markup by the full Committee (there were two
earlier markups by the Committees on Governmental Affairs and
Energy and Natural Resources), the legislation was reported
out and a report filed which contained the following
statement on the meaning of ``timely warning'' (5):
``* * * the standard of `timely warning' * * * is strictly
a measure of whether warning of a diversion (emphasis added)
will be received far enough in advance of the time when the
recipient could transform the diverted material into an
explosive device to permit an adequate diplomatic response.''
The Senate bill language was accepted by the House on the
grounds that there were no substantive differences between
the Senate bill and one passed by the House some months
earlier. Representative Zablocki (D-Wisconsin), the floor
manager for the House bill, while offering a resolution on
February 23, 1978, directing the Clerk of the House to make
certain technical corrections in the NNPA, made the following
observation about
[[Page S5199]] the Senate amendments (6): ``The House
reviewed these and found the amended Senate version to be, in
all essential respects, consistent with (the House Bill).
Upon reaching this judgment, the House, by unanimous consent
then moved to recede and accept (the House Bill) as
amended.'' Indeed, on February 9, 1978, when Representative
Zablocki received unanimous consent to bring up the Senate
bill and successfully proposed its passage by voice vote, he
stated (7):
``All of the central elements of the House bill--including
the important ``timely warning'' criterion--were faithfully
preserved. * * * On the critical issue of timely warning, I
am pleased to say that the Senate's legislative history was
indeed consistent with our own.''
The concept of ``timely warning'' was explained in the
House report as follows (8):
```Timely warning' has to do with that interval of time
that exists between the detection of a diversion and the
subsequent transformation of diverted material into an
explosive device.''
Despite Representative Zablocki's clear statement, the
Senate Report's phrase ``warning of a diversion'' as opposed
to the House Report's ``detection of a diversion'', along
with some additional Senate report language has been used by
some in State/DOE to bolster a claim that the intent of the
Senate on the meaning of ``timely warning'' was substantially
different from that of the House.
We shall show that such a claim is logically unsupportable.
II. A Precise Reformulation of the Timely Warning Issue
Thee are four time intervals associated with the notion of
``timely warning'' to the U.S. of a diversion by country
``X''. For purposes of explanation, we define them as
follows.
Reaction Time: The amount of time needed to fashion an
appropriate and effective diplomatic response to prevent
diverted material from being converted by country ``X'' into
an explosive device. Reaction time is a function of bilateral
and multilateral relationships and, therefore, involves a
political assessment.
Conversion Time: The time needed by country ``X'' to
convert diverted material into an explosive device. (Note:
Conversion time is a function of the industrial and bomb-
making infrastructure in country ``X'', the nature of the
diverted material, and the availability of any technology
needed to process the diverted material into weapons-usable
form. A technical assessment of country ``X'''s capabilities
would yield an estimate of conversion time, and no political
factors are involved.)
Detection Time: The time between diversion of material and
either the last detection of the diversion by the safeguards
system or the earlier prediction of diversion through
intelligence information. (In the latter case, detection time
is a negative quantity, and may depend upon observations of
political changes in country ``X''. Note that if we tacitly
assume that the safeguards system works as designed, no
political factors enter into an estimate of positive
detection time. Quality of safeguards is then measured by the
value of positive detection time, with smaller values
indicating better safeguards.)
Warning Time: The interval between the time when the U.S.
learns a diversion has occurred or may occur and the time at
which country ``X'' is capable of producing a nuclear
explosive device following the aforementioned diversion of
material. (Thus, warning time = conversion time - detection
time. It is important to note that warning time involves
political as opposed to technical assessments only when
detection time is negative.)
In terms of the above definitions, the concept of ``timely
warning'' in the NNPA becomes as follows:
Definition: The U.S. has received ``timely warning'' of a
diversion by country ``X'' when warning time is greater than
reaction time.
The only thing remaining in order to show equivalence with
the statutory concept is to make the connection between some
auxiliary concepts in the Senate report with the terminology
in this paper.
The phrase ``warning time required'' in the Senate report
as in, ``The amount of warning time required will vary (and
cannot be defined in terms of a certain number of weeks or
months) . . .'', (9) refers to what is here called ``reaction
time''. Thus, if a multinational response is needed for
effective diplomacy, a quicker reaction time can be expected
in the event that the diverted material was multinationally
owned or came from a multinational plant, since all the
parties in that venture would have reason to feel aggrieved
by the diversion.
The phrase ``time . . . available'' as in ``. . . it will
be necessary to determine how much time be actually (sic)
available under any specific circumstances,'' (10) refers to
what we are calling here ``warning time''.
The State/DOE position boils down to the claim that
Congress did not intend the ``timely warning'' criterion to
involve, on either side of the inequality in the above
definition, a quantity estimated only on the basis of a
technical assessment.
Since ``reaction time'' clearly involves political factors,
and ``warning time'' can involve political factors, there
appears, superficially at least, to be some merit to the
State/DOE argument. On closer examination, however, the
apparent merit vanishes.
We reiterate that ``warning time'' may involve political
factors only when ``detection time'' is negative. The key
observation to make is to note that detection time can be
negative only in two situations: 1) Either the U.S. has
learned of plans for (or suspects) diversion at a time prior
to the time of actual retransfer (in which case the approval
of retransfer is denied or revoked and there is no problem),
or 2) There is a significant interval of time after the
retransfer occurs before a diversion is achieved. In this
case it can be argued that the clock marking off warning time
could be triggered by observed changes in the political
character of the government of country ``X''. But there is
nothing in the Senate or House floor debate or report
language or in the statute language that suggests making
an assumption of existence of a significant time interval
between retransfer and diversion, or equivalently, to
assume that a significant change had occurred on the
meaning of timely warning by the time the final version of
the NNPA was passed by the Senate on February 7, 1978, and
by the House two days later without further amendment.
To show this, we provide a detailed history of the
Congress' consideration of the timely warning issue during
its deliberations on the NNPA.
III. The Senate Legislative Markup Record on Timely Warning
Committee markup records, which are uncorrected and not
publicly filed, and therefore not readily available to the
rest of the Congress, are usually given little or no weight
in legal determinations of congressional intent on
legislation. Nonetheless, they may, in conjunction with the
committee report on the legislation and the floor debate,
give some clue as to the meaning of certain legislative
provisions when such meaning is otherwise obscure.
The DOE/State defense of its position on ``timely warning''
in the NNPA apparently includes a claim that the
Congressional interpretation of the statutory language at the
time of passage reflected the Carter Administration's view as
expressed in a formal communication from the State Department
to the Senate Foreign Relations Committee (see (4)). Since
the only place in the legislative history of the NNPA where
the Administration's position on ``timely warning'' is
substantively discussed by Senators occurs in the Senate
Foreign Relations Committee markups (11), (12), (13) of the
legislation, we consider these (uncorrected) markup records
in examining the DOE/State claim.
On September 14, 1977, at the Foreign Relations
Subcommittee markup (see (11)) Senator Glenn introduced the
language on approvals of retransfers for reprocessing or
return of plutonium, including the ``timely warning'' test,
that subsequently was adopted as the statute language. This
language was a substitute for a previous formulation
identical to that contained in the House bill, H.R. 8638,
which passed with a dissenting vote on September 28, 1977,
the same day the Senate Foreign Relations Committee reported
out the NNPA. As indicated earlier, Senator Glenn offered
this new language following discussions with and in
response to objections by the Executive Branch that the
previous formulation on approvals of retransfers was too
``restrictive in scope'' (14).
It is important to note the motivation as well as substance
of the Administration's position at this point. The
Administration was facing a serious problem in that the House
and Senate bills had virtually identical provisions that
subjected decisions on retransfers for reprocessing or return
of plutonium to consideration of a single factor, the timely
warning criterion. The Administration was concerned that this
single test could be used to block U.S. approvals of any such
retransfers and disrupt trade relations with our allies.
Accordingly, the Administration had to either try to get the
Congress to alter the definition of ``timely warning'' or
broaden the test for approvals of retransfers to include
other factors besides timely warning. Thus, in its comments
on the marked up version of the NNPA reported by the
Government Affairs Committee, the Administration said this
about the proposed test for retransfer (15):
``First, it would jeopardize negotiation of new, strict
nuclear cooperation agreements since an overly strict
interpretation of the ``timely warning'' standard could rule
out all forms of fuel processing necessary for future fuel
cycle activities. Second, timely warning should not be the
sole basis for making determinations concerning the
acceptability of subsequent arrangements, taking into account
the existence of other factors which must be evaluated.
Additional factors of importance include the nonproliferation
policies of the countries concerned, and the size and scope
of the activities involved.''
Now, it is interesting that the language actually proposed
by the Administration by way of compromise, language that was
arrived at following negotiations with Senator Glenn, clearly
takes the path of broadening the test for approvals for
retransfers, and does not change the definition of ``timely
warning'' but merely attempts to make the determination fuzzy
by referring only to the probability of timely warning being
available. The proposed language was as follows (16).
``The Administrator may not enter into any subsequent
arrangement for the reprocessing of any such material in a
facility
[[Page S5200]] which has not processed power fuel assemblies
or been the subject of a subsequent arrangement therefore
prior to the date of enactment of the Act or for subsequent
retransfer to a non-nuclear-weapon state of any plutonium in
quantities greater than 500 grams resulting from such
reprocessing unless in his view such reprocessing to
retransfer shall take place under conditions that will safely
secure the materials and that are designed to ensure reliable
and timely detection of diversion. In making his judgment,
the Administrator will take into account such factors as the
size and scope of the activities involved, the non-
proliferation policies of the countries concerned and the
probabilities that the arrangements will provide timely
warning to the United States of diversions well in advance of
the time at which the non-nuclear-weapon state could
transform the diverted material into a nuclear explosive
device; and''.
Senator Glenn's explanation of the amendment he offered at
the Foreign Relations Subcommittee markup left no doubt that
it was not his intention to change the meaning of timely
warning, but rather to broaden the test for approvals of
certain retransfers. To see this, we note that in his
statement, Senator Glenn referred approvingly to recent
congressional testimony by then NRC Commissioner, Victor
Gilinsky, defending the timely warning standard against
Administration criticism that it was ``unnecessary,
unworkable, rigid, and unrealistic'' (17). Senator Glenn went
on to say, (18).
``The idea of timely warning is the explicitly stated
objective of the so-called blue book safeguards of the IAEA,
which polices the Non-Proliferation Treaty. Under this
system, as under the U.S. bilateral safeguards which preceded
it, records are kept of all nuclear material going into and
coming out of civilian power reactors throughout most of the
world, and verified by an international inspectorate. The
idea is simply that the disappearance of any of this material
will be reported to the international community in plenty of
time to allow for appropriate counteraction. Thus timely
warning is essential to effective safeguards.''
Senator Glenn's references to safeguards and timely warning
strongly imply that the timely warning criterion in his
amendment could be met only if the reaction time afforded by
the safeguards system's detection of a diversion was
sufficient ``to allow for appropriate counter action'' (19).
This thought was echoed in substance by Representative
Bingham (D-NY) in introducing this language on the House
floor 14 days later. He said (20):
``(W)e consider (timely warning) to be an essential to the
safeguarding of nuclear facilities. If there is no timely
warning, there are no effective safeguards.''
At this point in the Senate markup and without challenging
Glenn's view, the Chief Administrative spokesman, Ambassador
Gerard C. Smith, expressed two Administration concerns
explicitly. First, he said (21):
``May I observe on that Gilinsky quotation that we don't
disagree with the concept of timely warning. It is a very
appropriate consideration here but we feel it will lead to
distortions if it is made the exclusive (emphasis added)
consideration.''
This statement shows that the Administration understood
that ``timely warning'' was a concept that could stand
separately and apart from other considerations in determining
how to exercise U.S. consent rights for certain retransfers.
Indeed, prior to Senator Glenn's statement, Senator Pell had
stated that (22):
``The Executive Branch believes that the timely warning
standard should not be the sole basis (emphasis added) for
measuring an arrangement's acceptability. . . .''
There is no hint in this markup record that the Committee
viewed the position of the Administration as seeking to alter
the meaning of ``timely warning'' or how to determine it. On
the contrary, the position statement by Senator Pell
indicates that the Committee saw the Administration's goal as
replacing the timely warning test with a broader one in which
the test of ``timely warning'' was an important factor.
The second concern expressed by the Administration at the
markup stemmed from its own confusion between ``timely
warning'' and ``reaction time''. The House report had stated
in essence that the amount of reaction time needed to
effectively counter a diversion from a reprocessing plant
based on the Purex process was unlikely to be larger than the
conversion time to make the bomb (23). The drafters of that
report also tried to provide some guidance for a minimum
acceptable amount of reaction time, corresponding to a
situation where the diverting country only possessed stored
spent fuel and had no reprocessing facility. The effect of
this would have been to force the denial of nearly all
reprocessing requests since ``reaction time'' would have been
mandated to a level greater than ``conversion time'' in
almost all cases, thereby leading to a failure of the
``timely warning'' test.
In sum, the administration's second complaint was directed
to the fixing a priori of a high ``reaction time'' guideline
that effectively did not allow approval of any reprocessing
requests. This lack of flexibility in judging reprocessing
requests was viewed by Senator Glenn as having been taken
care of in his amendment, which did not mandate a ``reaction
time'' beyond that needed for ``effective safeguards'', and
which allowed other factors (besides ``timely warning'') to
be taken into account in judging whether to approve a
request. Indeed, although Ambassador Smith's initial reaction
to the Glenn language was that ``. . . it doesn't move enough
in the direction of flexibility that I think is necessary . .
.'' (24), the Administration's own proposed language at that
point, as we have already seen, gave no hint of altering the
meaning of ``timely warning'' or the factors that would have
involved its determination. Therefore, when the subcommittee
adopted Glenn's language, it had no alternative meaning of
``timely warning'' before it.
This conclusion was reinforced at the opening of the
discussion of the Glenn amendment during the full Committee
markup on September 20, 1977. In response to the Chairman's
(Senator Frank Church, (D-Idaho)) request for an explanation
of the amendment, Senator Glenn replied (25):
``The main issue on the timely warning amendment is this.
Timely warning really means technical safeguards and making a
judgment as to whether approving reprocessing for some
country will result in a significant elevation of risk. The
question arises as the weight that should be given to
technical safeguards as opposed to, say, political or foreign
policy considerations.
My position, as relected in the language adopted by the
subcommittee was that technical safeguards, that is, timely
warning, should be given primary consideration in these
cases. We should not be able to override that because it
seems to me that the technical methods of giving timely
warning are so critical to the system of safeguards and
protections that we have in this area that they should not be
ignored.''
Now this quote is from an uncorrected record. In the first
paragraph, when Glenn says, ```Timely warning' really means
technical safeguards'', it should be understood (indeed,
cannot be understood any other way) from the context of all
that has gone before, that the statement implies ```timely
warning' really means effective technical safeguards,''
where, in the Subcommittee markup, Glenn made it clear that
effective technical safeguards meant detection of a diversion
by technical means ``in time for use to do something about
it'' (26).
The second paragraph, in the absence of further
elucidation, could have been interpreted as meaning that the
absence of ``timely warning'' can never be overridden by
political or foreign policy considerations. A later statement
by Glenn (27) indicates that he meant for ``timely warning''
to be the largest single factor (``it would be given the bulk
of the consideration'') in judging whether a retransfer would
result in a significant increase in the risk of
proliferation. This view was not challenged by the Committee
during its discussion of ``timely warning''. Rather, the
committee concentrated on those other factors which, in
strong combination, could produce a decision in favor of a
retransfer even if ``timely warning'' is not clearly
determinable. Senator Glenn turned the general discussion to
specifics by suggesting that (28):
``. . . in the report language we put in that there are
situations in which other factors, besides timely warning,
may induce the Secretary of State to give his approval. I
will give a few examples.''
Senator Glenn then listed the factors that ended up being
mentioned in the Senate report and in his floor statement
during debate on the bill. Senator Church summarized the
discussion by saying (29).
``Clearly what is sought is to give timely warning a very
high priority; but at the same time to recognize that there
may be circumstances . . . that will suffice and lead us to
grant such a request even though timely warning is not
present.''
Note that there is no suggestion of any change in the
definition or interpretation of timely warning as given
earlier by Senator Glenn.
Moreover, Senator Glenn indicated that discussions had been
held on his proposed language with members of the House
Committee on International Relations (indeed, there was much
staff contact on this issue at the time) and that ``they are
in agreement with this language (30).'' What is implied here
is that the House members agreed not only with Glenn's
language, but also with his interpretation of that language.
At this point, Senator Richard Stone (D-Florida) asked for
the Administration's views on this matter. Mr. Philip Farley,
the chief Administration spokesman at the full Committee
Markup, stated that the Administration's position was set
forth in letters to the Senate Foreign Relations Committee
dated September 12 and September 19, 1977, and asked that
these letters be placed in the record (31). The letter of
September 19th, from Assistant Secretary of State Douglas
Bennett to Senator John Sparkman (D-Alabama), contained the
substantive details of the Administration's position. The
most important paragraph is reproduced below (32):
``Agreement has been reached on suitable language relating
to the timely warning standard to govern U.S. approval of
reprocessing with the leadership of the House Committee on
International Relations. This language is acceptable to the
Administration. While setting forth strict standards, it
recognizes that other foreign policy and non-proliferation
factors must be considered. It should also be recognized that
warning time associated with alternative reprocessing
technology is difficult to quantify but does represent a
continuum, progressing from a minimum time associated with
processes
[[Page S5201]] that involve separated plutonium to longer
times for processes that involve uranium and most of the
fission products present in irradiated spent fuel. Timely
warning is a function of a number of factors, including the
inherent risk of proliferation in the country concerned, the
amount of warning time provided, and the degree of
improvement in warning time that alternative reprocessing
technology provides relative to other technologies.''
We note that the phrase ``inherent risk of proliferation'',
which appears almost gratuitously and with no explanation of
its meaning, was never used in any previous Executive Branch
communication to the Congress on ``timely warning''. We also
reiterate our comment in note (4) that this phrase or concept
was given no substantive acknowledgment in the legislative
history of the NNPA beyond its appearance in the September
19th letter.
In discussing the content of this letter, Mr. Farley went
into a long and cogent explanation concerning the amount of
warning time available to the U.S. under various
circumstances involving the retransfer of nuclear materials.
But his explanation does not reflect, in words or
implication, any notion that timely warning is a function of
``the inherent risk of proliferation'' in a country, whatever
the meaning of that phrase. Indeed, Mr. Farley's explanation
of warning time conforms with the notion that one must
consider the worse case possibility of a completely
unexpected diversion in determining whether one's warning
time is ``timely'' or not. He said (33):
``For many States, clearly achieving the capability to
proceed fairly quickly to a nuclear explosives capability is
increasingly going to be something which they have. In that
case, there will be very strict limits on the amount of
warning we can expect'' (emphasis added).
Mr. Farley did not say that the ``strict limits'' he
referred to depended on a fuzzy concept like the ``inherent
risk of proliferation'' in a country. He tied those limits
only to technological capability. There was no further
substantive discussion on this point in the markup because
the Executive Branch's explanation of the timely warning
language was not viewed as differing from the explanation
offered earlier by Senator Glenn.
Thus, the State Department letter of September 19th played
no role in changing the congressional view of ``timely
warning'' that had existed from the beginning. The Glenn
compromise allowed for ``timely warning'' not to be the
controlling factor in every circumstance where one had to
judge whether a given subsequent arrangement would result in
a significant increase of risk of proliferation, but the
meaning of ``timely warning'' was unaffected.
The above claim is nailed down for good by considering the
House floor statements on timely warning, following the
Senate markup.
IV. The House Discussion of the New Language on Timely Warning
The House floor debates clearly show that House members
viewed the new language as not altering the relationship of
timely warning to effective safeguards, i.e., that timely
warning was still to be viewed as having to do with ``that
interval of time that exists between the detection of a
diversion and the subsequent transformation into an explosive
device'' (see (8)).
In support of this proposition we have already offered a
statement by Representative Bingham in introducing the Glenn
language on September 28, 1977. Statements by other key
participants also are supportive of our claim. For example,
Representative Paul Findley (R-Ohio), Ranking Member of the
House Committee on International Relations, in two speeches
given before and after the final markup of the NNPA in the
Senate, showed that his view of the meaning of ``timely
warning'' was unaffected by the Senate action. He stated
(34):
``Moreover, the definition of an effective safeguard
standard--timely warning--will insure that recipient nations
cannot manufacture, undetected and overnight, bombs from
materials we provide for peaceful purposes.''
Representative Findley solidified his view of timely
warning in the floor debate on September 28, 1977, with the
following discussion of the related concept of ``warning
time'' (35) (recall that timely warning is present when
warning time exceeds reaction time):
``One needs to have warning times that are ample enough to
give supplier states or the international community an
opportunity to orchestrate an effective response to an act of
diversion and to be able to do this, moreover, before the
violator is able to transform his stolen material into
bombs.'' (Emphasis added.)
Representative Lagomarsino (R-California) in support of the
compromise amendment described it as follows (36):
``Specifically, it requires that the reprocessing of U.S.-
supplied fuel must occur under conditions that provide timely
warning of illicit diversion of bomb-usable material. Without
such timely warning, the nuclear safeguards system becomes
meaningless. We would discover that the plutonium has been
diverted after the bombs have been built. Delayed warning or
no warning at all would render deterrence impossible.''
Representative Lagomarsino went on to paraphrase the
amendment, and describe it further. He said (37):
``. . . the timely warning amendment . . . will further
require the Administrator to give foremost consideration to
the question of whether the reprocessing facility and the
reprocessed product can be safeguarded so as to provide
timely warning (emphasis added) to the United States of any
diversion well before the time at which a violating (emphasis
added) country could transform weapons-useable material into
a nuclear explosive device. Such warning time is essential if
the international community or the community of supplier
states is to have the opportunity for action. And it is only
when such an opportunity for action exists, that safeguards
can reliably be considered to deter''.
Finally, Representative Legget (D-California), while
expressing general support for the House bill on the day it
passed (September 28, 1977), expressed a number of
reservations about the changes in the measure, including
``timely warning'' (38). His complaints, however, do not
address any perceived change in definition, but address the
fact that certain facilities were exempted from immediate
application of the timely warning standard. The tenor of his
remarks suggest that if he had perceived a change in the
definition of timely warning to make it ``more flexible'', he
would have cited this as a problem.
The congressional statements discussed above make clear
that the change in wording of the amendment did not alter the
intent of Congress to view ``timely warning'' as a measure of
whether effective action was possible after discovery of a
diversion (i.e., the worst-case scenario) to deter or prevent
the diverting country from fashioning a nuclear explosive
device. There is no reference in the House debate to any
concept such as the ``inherent risk of proliferation'' as
being part of the ``timely warning'' test. Indeed, there is
no indication that any member of the House saw a copy of the
Bennett-to-Sparkman letter that contained this phrase, let
alone paid any attention to it. The only Administration
communications that appear in the record of the House debate
are identical letters (39) dated September 17, 1977 from
Secretary of State Cyrus Vance to Representatives Zablocki
and Findley approving proposed amendments to be offered by
Congressman Bingham and expressing support for the amended
bill. There is not only no reference to ``inherent risk of
proliferation'' as an ingredient of ``timely warning'' in
these letters, but one of the letter's recipients,
Congressman Findley, in the statement that preceded his
placement of the letter in the Congressional Record
reiterated his view that ``timely warning'' was connected to
the notion of effective international safeguards. In his
words (40):
``Moreover, the definition of an effective safeguard
standard--timely warning--will insure that recipient nations
cannot manufacture, undetected and overnight, bombs from
materials we provide for peaceful purposes.
``By requiring safeguards to provide reliable, timely
warning of diversion we are not committing to a new standard
but are returning to an old truth.''
Later, in the same statement, Representative Findly said:
``Existing safeguards when applied to reactors do provide
reliable, timely warning'', but that ``present safeguards,
when applied to reprocessing, do not . . . permit timely
warning.''
He went on to say that:
``[W]e must devise safeguards that, when applied to
reprocessing, will provide reliable, timely warning.
Promising technologies exist which, if pursued, may satisfy
this standard. This bill, by defining the standard that
safeguards must meet intends to stimulate these new
technologies.''
Congressman Findley then referred to collaboration between
the Committee and the Administration ``to fashion this
safeguard standard'', and remarked that ``. . . the president
and Secretary of State have urged that this legislation pass
Congress during this session--in its present form--without
amendment'' (41).
Obviously, it was not Congressman Findley's understanding
that the Administration was proposing any substantial
alteration of interpretation of ``timely warning'' from the
one he had just laid down.
The conclusion is therefore inescapable that the House did
not see the Senate action as changing the meaning of timely
warning, but only as broadening the test for determining
whether a subsequent arrangement for reprocessing or return
of plutonium would result in a significant increase of the
risk of proliferation.
V. Conclusion on the Meaning of Timely Warning
There is no logical alternative to the conclusion that the
Congress meant for the ``timely warning'' criterion to apply
to the most difficult or ``worst-case'' situation, where the
U.S. would not suspect in advance that a diversion might
occur, but would learn about it after the fact, when the
safeguards system had detected it. That is, when detection
time is a positive quantity. In this case it follows from the
definition that ``timely warning'' is met only when reaction
time is less than conversion time (which depends only on a
technical and not a political assessment). This explains why
the legislative history of the NNPA is replete with
references to ``timely warning'' as being associated with
what we are here calling ``conversion time'', and squares the
statutory (Senate) language on ``timely warning'' with the
discussion of the concept in the House report.
[[Page S5202]] VI. The Relationship of Timely Warning to Other Factors
in Determining Proliferation Risk
The Senate report, after a discussion of factors that are
involved in judging whether ``timely warning'' would be
present (i.e., factors entering into an assessment of
``conversion time'' and ``detection time''), launches into a
listing of ``other factors which may be taken into account in
determining whether there will be a significant increase in
the risk of proliferation.'' These are (42):
(1) ``whether the nation is firmly committed to effective
non-proliferation policies and is genuinely willing to accept
conditions which would minimize the risk of proliferation'';
(2) ``whether the nation has a security agreement or other
important foreign policy relationship with the U.S.'';
(3) ``the nature and stability of the recipient's
government, its military, and security position''; and,
(4) ``the energy resources available to that nation''.
There would have been no reason for the Senate to label
these as ``other factors'' if they already were included in
judging whether the ``timely warning'' test was met. To do
otherwise would have meant that the Senate was counting such
factors twice in giving guidance to DOE on retransfer
requests, in which case these component factors would become
the ``foremost'' factors in practice, a result not in keeping
with the clear congressional intent to identify ``timely
warning'' as a separate, ``foremost'' factor.
We have thus established through examination of the NNPA,
the Senate and House Reports on the legislation, the Senate
Markups, and the floor debate, that Congress intended
``timely warning to be an important factor (the ``foremost''
one), separable and apart from specific political
considerations in determining whether a proposed subsequent
arrangement for reprocessing or retransfer of plutonium will
result in a ``significant increase of the risk of
proliferation.''
VII. The Need for Adequate Analysis of the Timely Warning Criterion by
the Executive Branch
The chief sponsor and Senate floor management of the bill,
Senator John Glenn, stated during the floor debate on
February 7, 1978, that (42):
``It is important to note, however, that the bill requires
that foremost consideration be given to the question of
timely warning. This implies that the latter will receive the
greatest weight among all factors. Although this does not
require denial of a request when timely warning is not
clearly determinable, the language suggests that in the
absence of a clear determination that timely warning will
indeed be provided, a strong combination of other factors
would be necessary to compensate for this weakness in
safeguards.''
This statement emphasizes the importance of clearly
determining that the ``timely warning'' test has been met.
Since Executive Branch decisions on retransfers were made
optionally reviewable by the Congress under the NNPA, it
would have made no sense for the Congress, which went through
tortuous hours of debate and negotiation with the Executive
Branch on this issue, to intend the Executive Branch to make
an important, possibly critical, determination on ``timely
warning'' without adequate supporting analysis showing that
the test, as laid out by the Congress, had been met.
Therefore, an Executive Branch determination, such as in the
Japanese plutonium case, in which there is inadequate
analysis revealing how the presence of ``timely warning'' was
arrived at, which does not show how ``foremost
consideration'' was given to it, and which suggests that
extraneous political factors were the main component in the
determination, is directly counter to Congressional intent.
Footnotes
(1) P.L. 95-242, enacted on March 10, 1978.
(2) Letter from NRC Chairman Nunzio J. Palladino to DOE
Secretary Donald P. Hodel, September 13, 1984.
(3) Private communication.
(4) A phrase used without definition or explanation by the
Administration in discussing its own position on ``timely
warning'' in a letter dated September 19, 1977, from then
Assistant Secretary of State Douglas Bennett to the Chairman
of the Senate Foreign Relations Committee, Senator John
Sparkman (D-Alabama). It should be noted that this phrase was
never mentioned or acknowledged in any way in the extensive
House and Senate debates on the floor, during markups, or in
hearings.
(5) Senate Report 95-467, October 3, 1977.
(6) Congressional Record--House, February 23, 1978, p.
1456.
(7) Congressional Record--House, February 9, 1978, p. H918.
(8) House Report 95-587, August 5, 1977, p. 18.
(9) See (5), p. 11.
(10) Ibid.
(11) Stenographic Record of Markup--S. 897, U.S. Senate
Subcommittee on Arms Control, Oceans, and International
Environment, Committee on Foreign Relations; Alderson
Reporting Company, September 14, 1977.
(12) Stenographic Record, Committee Business, U.S. Senate
Committee on Foreign Relations; Alderson Reporting Company,
September 20, 1977.
(13) Stenographic Record, Committee Business, U.S. Senate
Committee on Foreign Relations; Alderson Reporting Company,
September 28, 1977.
(14) See (5), Section on Executive Branch Comments on S.
897 (As reported by Senate Committee on Governmental
Affairs), September 12, 1977, with cover letter from
Secretary of State Cyrus Vance, p. 42.
(15) See (14), p. 47.
(16) Ibid.
(17) See (11), p. 14.
(18) Ibid.
(19) Ibid.
(20) Congressional Record--House, September 28, 1977, p.
H10280.
(21) See (11), p. 15.
(22) Ibid., p. 11.
(23) See (8), p. 20.
(24) See (11), p. 15.
(25) See (12), p. 45.
(26) See (11), p. 14.
(27) See (12), p. 61.
(28) Ibid., p. 60.
(29) Ibid., p. 61.
(30) Ibid., p. 57.
(31) Ibid., p. 62, The letter of September 12th from
Secretary Vance to Senator John Sparkman, Chairman of the
Senate Foreign Relations Committee, is identical to the cover
letter referred to in (14).
(32) See (5), p. 59.
(33) Ibid., p. 65.
(34) Congressional Record--House, September 22, 1977, p.
H9833.
(35) See (20), p. H10282.
(36) Congressional Record--House, September 28, 1977, p.
H9835. Although this statement was made on September 22, it
was made in reference to the new language on ``timely
warning'' that was formally considered by the House on
September 28, 1977. (See colloquy between Representatives
Lagomarsino and Bingham in Congressional Record--House,
September 28, 1977, p. H10280).
(37) Ibid.
(38) See (20), p. H10282.
(39) See (35), pp. H9832 and H9834.
(40) See (35), p. H9833.
(41) See (35), p. H9834.
(42) See (5), p. 12.
(43) Congressional Record--Senate, February 7, 1978, p.
S1310.
(44) Section 131a (1) of the Atomic Energy Act as amended
provides for a 15 day period of notice before a proposed
subsequent arrangement goes into effect.
Mr. GLENN. Madam President, we started working on this effort of
nonproliferation back many years ago in my very early days in the
Senate. We have been on it ever since. Sometimes you feel like the
little story of the Dutch Boy with his finger in the dike. You feel
like you are not getting very far, and then you find some nations which
are willing to sign up under the Nuclear Nonproliferation Treaty [NPT]
and place their confidence in some of the restrictions we have had
going on around the world. They express admiration that we and Russia
finally are at long last getting our nuclear stockpiles downhill
somewhat. So maybe over the long term we are making considerable
progress in that area.
irs compliance initiative
Mr. GLENN. Madam President, I rise today to take issue with my
distinguished colleague, the majority leader, whose amendment would
severely impact the wide variety of Federal programs on which all
Americans rely.
The amendment being offered by the majority leader seeks a recession
in the funding of the Internal Revenue Service of $100 million. The
funding in question is part of the IRS' new compliance initiative, a
broad-based effort to collect all the outstanding tax revenue
rightfully due the Federal Government. This excellent program, which
was passed with bipartisan support by the Congress last year, will
bring in more than $9.2 billion in additional revenue over the next 5
years at a cost of just $2.2 billion during the same period. This is a
great deal by anybody's calculations.
In fact, as we stand here and debate, this initiative is already
working. For the first quarter of 1995, the IRS has generated an
additional $101 million of enforcement revenue, 31 percent of the
fiscal year 1995 commitment. These are outstanding results for which we
should commend the IRS, given that the program has only just begun and
that some lag is always necessary to hire new compliance staff. Do we
really want to stop a program that brings in revenue to the Government?
Madam President, I am as aware as any of my colleagues of the need to
save scarce tax dollars and effectively spend resources provided by the
public. I have long believed that there is a lot of fat, fraud, waste
and abuse in Government programs. It has been the focus of our activity
on the Governmental Affairs Committee for the last several years.
[[Page S5203]] But I must respectfully take issue with cuts that
would come in a program expected to bring in $9.2 billion. If the
Senate approved this amendment to the recession bill, then the IRS
would be seriously affected by the resulting funding cut. IRS estimates
that at this point in the fiscal year, the agency would have to
furlough all 70,000 compliance personnel for up to 10 days. At the
same time, a cut of this magnitude would cost the Government
approximately $500 million in lost collections in addition to the loss
of revenue from this initiative.
I am aware that some of my colleagues think that because this
appropriation last year was made outside of the domestic discretionary
caps, that it undermines our budget strictures and unfairly provides
one agency with additional resources. While I sympathize with this
reasoning in general--and would not be eager to make exceptions for
other agencies--I think that in the case of the IRS, the only
responsible choice is to make an exception. To cut compliance funds
from the IRS, when each new revenue officer brings in five times their
keep, is truly penny wise and pound stupid.
Cutting compliance funds for the IRS is not good logic and it is not
good business.
I cannot support this amendment that the majority leader has offered.
I hope it goes down to defeat.
Madam President, the IRS has had problems. We followed those problems
through a number of GAO reports. They have had some financial
management problems. After we passed the CFO Act, the IRS management
was one of the areas that was targeted to have a first look made of it
under the CFO Act to see how they are doing. They are making a number
of improvements now as a result of those studies.
Another area that I have followed for several years in which we are
beginning, I think, to maybe get our hands on is in the area of IRS
receivables. I do not think most Members of this body, or most
Americans, people out across America, realize the IRS has owed to it
somewhere around $156 billion. Why do we not go out and collect that?
Part of that is not collectible in that it is debt that is not validly
collectible; where people have gone into bankruptcy, either
individually or as corporations. So a big chunk of it fits in that
category.
How much can we go out and collect? Peeling that $156 billion down,
they have active accounts, they estimate, of $79.5 billion. But they
expect, when they look into those, that some are going to be abated or
suspended because it will cost more to get them than the money they
would get back anyway. But when you come down to the hard core figures
that we were given just day before yesterday in a hearing by the
Commissioner of the IRS, Margaret Richardson, they feel over there
right now that actually collectible money, if we had the people to go
out and collect it, is $27.5 billion out there. That is collectible
money on IRS accounts if we had the people to go out and get it.
We provided them with additional people last year. We have several
thousand people, 4,000 I believe it was, a little over 4,000, that we
got as new, full-time employees to go out and collect those accounts
because each employee actually brings back in about five times his or
her keep as an agent in the IRS.
Now, I think that is a good investment. I think when we talk about
cutting back in some of these areas and cutting back on their
enforcement money, I cannot understand that, when they bring back far
more than what it costs us for those particular people.
The impact of the $100 million rescission would have some far-
reaching effects also. We had a hearing just this morning on earned
income tax credit. Now, that is a program that has had a lot of fraud
and problems because people file either some false income data or they
file the wrong number of dependents or whatever and a fairly high
percentage of those returns are fraudulent returns.
Now, what do we do? Just as the IRS at the beginning of this year
said they were going to do, hold up and look at those returns before
they automatically send the money out. They are doing that right now.
And we are about to cut the people who do that. We are going to lose
far more than the $100 million rescission that has been proposed.
What the amendment would do, it would actually cut the IRS tax law
enforcement appropriation by $100 million, 25 percent of the amounts
approved in fiscal 1995 for a compliance initiative which is intended
to collect an additional $9.2 billion over the fiscal 1995 to fiscal
1999 time period.
The amendment would further require that any revenue officers hired
since the beginning of fiscal 1995, which are those addressing the
accounts I just mentioned, would have to be redeployed as collection
call site assisters.
And third, the amendment would limit the cuts that could be made to
the examination and inspection activities of IRS to accommodate the
rescission. Reductions cannot take these activities below fiscal 1994
approved levels.
The IRS compliance initiative is designed--and is carrying on right
now--to try to already reduce the deficit. Last year, Congress approved
a $405 million annual investment to collect an additional $9.2 billion
to reduce the deficit over a 5-year period. And the initiative is
working. That is the good news. Early results show that IRS will meet
or exceed the goal of generating the additional $9.2 billion. In fact,
through the first quarter alone, the initiative has generated an
additional $101 million of enforcement revenue--in the first quarter of
this year. That is 31 percent of the fiscal 1995 commitment. It is
ahead of schedule. In other words, they have collected more this year
already than it would cost to keep the program in place.
These initiative results are being tracked. They have a new system
for tracking enforcement initiatives, and revenue has been developed
and approved by GAO. The first-quarter report was delivered to Congress
on schedule on March 31.
Further, cutting the initiative increases the deficit. For every
appropriated dollar saved, tax revenues are reduced by nearly $5. The
cost of this cut in lost revenue is $500 million, if it is limited just
to 1 year--a 5 to 1 ratio. If the cut is permanent, the revenue loss is
in the range of $2.5 billion. The rescission will negatively impact
examination coverage, collection of delinquent accounts, information
returns matching, and efforts to curb fraud and abuse with refundable
credits.
Just think of that. If we make this cut of $100 million, we are going
to reduce impact; we are going to reduce examination coverage; we are
going to reduce collection of delinquent accounts, and we are going to
not reduce one of the big problems, matching information returns in
order to curb fraud and abuse on those refundable credits that we send
out.
These are only direct revenues. The Service's enforcement activities
also encourage voluntary compliance. When other people see what is
going on and they are not able to get away with fraud and abuse, they
think twice before they do it and they check that return an extra time
before they send it in to make sure there are not mistakes in that
account. An estimate has been made of this. Every 1-percent increase in
voluntary compliance increases tax revenues by about $10 billion
annually. I think that is a very, very impressive figure.
There are some other aspects of what this $100 million rescission cut
would do to IRS. Stop-and-go financing disrupts IRS operations. IRS put
in place a long-range hiring and training plan. They did it with our
support, with our encouragement. Over 4,000 people have been hired or
redeployed to compliance jobs so far as part of this initiative. It is
a good initiative. In balanced tax administration, ACS addresses
predominantly the high volume of low- to middle-dollar cases while
revenue officers address the more complex higher dollar individual and
business cases. Uneven enforcement could lead to a perception of unfair
tax administration. So we want a balanced tax administration.
There are limits to telephone intervention. Certain issues, such as
trust fund recovery penalty, cannot be resolved with the telephone.
Additionally, certain enforcement tools require face-to-face contact,
including seizure and sale, lien priority investigations, and offers in
compromise.
The IRS fiscal 1995 savings options are few. With only 6 months
remaining in the fiscal year, IRS would need to
[[Page S5204]] make reductions through a combination of an across-the-
board hiring freeze in the tax law enforcement appropriation and the
staff furloughed.
Now, the worst case I mentioned a moment ago is a furlough of all
70,000 tax law-enforcement appropriation personnel for a 10-day period.
A 10-day furlough could result in $500 million in lost revenue
collections. So that sounds like a poor bargain to have to do that.
Another factor, too, is using revenue officers as call-site assisters
is not practical. In allocating resources for the fiscal 1995
initiative, IRS listened to GAO and congressional concerns regarding
staffing for automated collection call sites. The fiscal 1995
initiative contained 2,200, FTE's, full-time employees, for collection;
1,450 of these FTE's were allocated to positions other than revenue
officers such as ACS, service center examiners, bankruptcy, account
notice work in toll-free operations, and early intervention. Counting
the early intervention initiative, 900 additional full-time employees
were allocated to ACS.
I wish to also mention the capacity issues. IRS has 3,276 full-time
employees assigned to ACS. There are space, equipment, and system
limitations that would need to be addressed to accommodate the
redeployed revenue officers if this legislation went through. The usual
procurement cycle for space and equipment is 18 months.
Since the start of fiscal 1995, only 216 revenue officers have been
hired, 89 from outside the IRS and another 127 from other occupations
within the IRS.
And redeployment is costly. Even if there were available ACS
positions to be filled, redeploying recently hired revenue officers
would be costly and it would be inefficient. Revenue officers were not
hired in the same location as ACS sites. Revenue officers from around
the country would have to either travel to distant cities, incurring
travel and hotel costs, or be permanently moved. It has its own costs
associated with it. This would mean as much as $7 million in
unnecessary travel costs. Further, IRS would be using higher skilled
revenue officers to do call-site work that could be done at lower
salary costs.
Madam President, this is simply not good business,
to cut $800 million out in the interest of balancing the budget,
much as we may want to do that, and at the same time cut back on the
modernization systems that the IRS has undertaken.
These are good programs that they have and cutting $100 million from
law enforcement is exactly the wrong way to move.
I will quote from another document that came to my attention in the
office. The headline is:
Cutting $100 Million From Law Enforcement Bad Move,
Richardson Says.
Congress should reconsider before it rescinds $100 million
of a $405 million compliance initiative enacted last year,
IRS Commissioner Margaret Richardson testified April 3.
Richardson told the Senate Appropriations Subcommittee on
Treasury, Postal Service and General Government that the
rescission proposal ``is simply not good business.''
The proposal is part of S. 617, which would cancel $13
billion in fiscal 1995 spending. It was offered as an
amendment by Sens. Robert Dole, R-Kan., and Thomas A.
Daschle, D-S.D.
Richardson, defending the agency's $8.2 billion request for
fiscal 1996, said any reduction in law enforcement funds or
personnel could reduce revenue $2.5 billion. ``Unlike many
agencies, the IRS is not a program agency. Over 70 percent of
the IRS's budget is personnel cost,'' she said.
And she went on to detail some more of this.
I ask unanimous consent that that article, and another article out of
the Washington Times, be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From Highlights & Documents]
Cutting $100 Million From Law Enforcement Bad Move, Richardson Says
(By Ryan J. Donmoyer)
Congress should reconsider before it rescinds $100 million
of a $405 million compliance initiative enacted last year,
IRS Commissioner Margaret Richardson testified April 3.
Richardson told the Senate Appropriations Subcommittee on
Treasury, Postal Service and General Government that the
rescission proposal ``is simply not good business.''
The proposal is part of S. 617, which would cancel $13
billion in fiscal 1995 spending. It was offered as an
amendment by Sens. Robert Dole, R-Kan., and Thomas A.
Daschle, D-S.D.
Richardson, defending the agency's $8.2 billion request for
fiscal 1996, said any reduction in law enforcement funds or
personnel could reduce revenue $2.5 billion. ``Unlike many
agencies, the IRS is not a program agency. Over 70 percent of
the IRS's budget is personnel cost,'' she said.
Except for her comments on the rescission proposal,
Richardson's testimony was basically the same she has given
to several congressional panels since the Clinton's budget
was released in February.
Yet even as Richardson tried to justify a $739 million
budget increase for fiscal 1996, she found herself talking an
awful lot about this filing season.
Sen. J. Robert Kerrey, D-Neb., criticized Richardson and
her entourage of deputy commissioners for delays this year in
the issuance of the earned income credit. Accusing the IRS of
harassing ``hard-working Americans,'' Kerrey said measures
such as getting a notary and a clergy member to attest to a
child for suspect returns amounted to abuse of taxpayers.
Richardson, taken aback by Kerrey's criticism, said the
Service had uncovered several schemes, many involving
multiple returns. Fraudulent EITC refunds cost Treasury $1
billion to $5 billion last year, according to official
estimates.
Kerrey criticized Richardson for characterizing ``some'' of
those caught as ``common street criminals'' and wondered
aloud how much of the fraud is committed by organized efforts
and how much by individuals trying to snag an extra hundred
dollars. Richardson could not say.
``There are bigger fish in the ocean,'' said Kerrey, who
suggested the IRS should pay more attention to corporate
fraud and individuals who try to avoid all tax.
Richardson tried to escape the examination by saying she
would testify on the EITC before the Senate Governmental
Affairs Committee the next day.
Subcommittee Chairman Richard C. Shelby, R-Ala., quizzed
her about problems with electronic filing and whether the
Service could cut its staff positions by 30,000 in seven
years if it got all of its budget request.
Shelby also asked Richardson about a March 29 Tax Analysts
article that said IRS computers were responsible for some of
the millions of returns rejected this year. Richardson said
the IRS has found that all of the rejects were caused by
taxpayer errors.
____
[From the Washington Times, Apr. 4, 1995]
IRS Fights Recision, Tells Hill Panel It Would Boost Deficit
(By Ruth Larson)
A Senate proposal to trim the current budget of the
Internal Revenue Service ultimately will increase, not
decrease, the federal deficit, IRS Commissioner Margaret
Milner Richardson told a Senate panel yesterday.
The cuts are part of a $1.2 billion recision package now
being considered on the Senate floor. Senate Republicans want
to pay for federal disaster relief by trimming funds already
appropriated for federal agencies like the IRS.
IRS' share of the cuts--$100 million--would come from the
$405 million appropriated by Congress last year to help the
agency increase tax compliance by hiring 4,000 more agents.
The plan was touted as a relatively painless way to raise
$9.2 billion in revenues in the next five years, to be
earmarked for deficit reduction.
That compliance initiative may be jeopardized just as it
gets under way if some Senate Republicans have their way. An
amendment expected to be introduced today by Senate Majority
Leader Bob Dole of Kansas and Sen. John Ashcroft of Missouri
would rescind a quarter of the IRS compliance funding.
Mrs. Richardson said that while she understands Congress is
being forced to make difficult funding choices, ``some cuts
that might appear to produce a short-term benefit may not
actually do so. The recision proposal is simply not good
business.''
The IRS estimates that for each dollar spent on compliance,
such as hiring more enforcement officials, it receives $5 in
extra tax revenues. Thus, cutting $100 million could
translate to a $500 million loss in revenues next year, and a
five-year loss of $2.5 billion, Mrs. Richardson said.
Budget cuts could force the IRS to furlough all 70,000 of
its compliance agents for up to 10 days, or even lay off the
4,000 newly hired agents, Mrs. Richardson told the Senate
Appropriations subcommittee on the Treasury.
Sen. Richard C. Shelby, Alabama Republican and subcommittee
chairman, has been skeptical of the IRS initiatives. Last
year he supported an amendment, eventually rejected, that
would have eliminated funding for the additional enforcement
agents.
For its fiscal 1996 budget, the IRS has requested $8.2
billion--an increase of $700 million over this year's budget.
``Many of us are asking, What are we getting for this large
expenditure?'' Mr. Shelby said.
More than half the increase is tied to the agency's on-
going tax systems modernization.
Next year the IRS plans to upgrade its computer scanning
equipment so it can enter all tax forms and supporting
documents into its database. Basic tax data is now entered
[[Page S5205]] manually, a time-consuming task prone to
error; many supporting records are not even entered in the
system.
The General Accounting Office has long criticized the IRS
modernization efforts, saying it doubted the project would
result in more revenue, even if it were completed. The GAO
also has questioned the need for hiring more compliance
staff. It found that the IRS has used the extra compliance
funds to pay for budget shortfalls, such as locality pay.
Mrs. Richardson said, ``While the IRS agrees with many of
the issues raised by GAO, we believe a number of their
criticisms are not valid.'' An independent evaluation team
from GAO has been looking at the program and is expected to
report its findings to Congress next month.
Mr. GLENN. Madam President, when introducing this legislation,
Senator Dole, when he was listing the cuts, said ``IRS, 100 million--
that ought to be a favorite of everybody.''
Well, I disagree with that. I disagree that cutting the IRS is going
to prove to be popular with very many people.
On the following page of the Congressional Record, Senator Kyl is
quoted as saying, ``For example, as the majority leader says, it cuts
$100 million from the IRS bureaucracy, and makes other changes,'' as
though there was a bureaucracy over there that is not working properly
to get in the amount of revenue that is owed to the Government.
Let me tell you why I think Senator Dole is wrong in that regard.
When I go back home, what makes people more unhappy than anything
else--while they are unhappy at paying taxes, of course; no one likes
to pay taxes--but what really burns people up is to feel that they are
paying their taxes, they fill out that form, they are honest about
everything they do, they do the most honest job they can in submitting
their data in for the IRS to consider, but then, when they hear about
other people getting away with falsifying accounts and with not
submitting all the data and with getting away with something and not
paying their fair share, that is what really concerns people very much.
It makes them very, very angry. And it makes me angry, too, and, I am
sure, every Member of this body.
Yet when we know there are compliance difficulties like this, and we
know the earned income tax credit has some difficulties, and where we
have programs that are set up now to address those difficulties and get
every person to pay their fair share, and now we are saying that
instead of expanding that program and making sure that that program is
big enough to really make sure everybody does pay their fair share, we
are going to cut it.
We are going to cut those funds by one-quarter? That just does not
make any sense at all, just from a plain business, flat business
standpoint, when we know that each IRS agent gets approximately five
times his or her keep in return of revenues that they have found that
should have been submitted or should have been paid for and was not.
Now that just does not make any sense.
I appreciate the necessity to try to cut the budget here and so on,
but this is absolutely the wrong, wrong place to do it.
Madam President, I would like to go to a different subject for a
moment.
Another one of the cuts that has been proposed by the Republican
Conference this year, which I think is very shortsighted and I hope it
does not go through, is an attempt to cut the funding for the General
Accounting Office by one-fourth in this 1 year.
Let me give just a little bit of background. We, in the Governmental
Affairs Committee, have been the committee of jurisdiction and of
supervision over the General Accounting Office ever since I have been
on that committee and long before that. We work very closely with them.
They started over 2 years ago, before the last election, to downsize.
They wanted to be more efficient. They started their own program of
modernization and downsizing at GAO and it has been on schedule. What
has happened? They are already down some 12 or 13 percent now and they
plan by the end of 1997 to be down one-fourth smaller than they were
when they started this program. They are doing that at their own
initiative.
Now what happened? The Republican Conference came out with a policy
that they want to see GAO cut one-fourth this year, an additional one-
fourth of what the GAO is already doing, an additional one-fourth cut
in this year alone. This would decimate the GAO.
We depend on the GAO as our investigative arm of Congress.
When they were before us a short time ago over in committee, I could
detail just what my own personal efforts where, as committee chairman
on the Governmental Affairs Committee, I had asked them to do certain
reports. They would come back and then, as a result of that, with
action here on the floor or working with other committees, we would
point to several billion dollars just that I had saved, just with my
own initiative working with GAO.
They have pointed out all sorts of problems. And yet we are trying to
cut them back.
Where did this start? Where did people get down on the GAO to the
point where they are proposing to be cut back by one-fourth when they
do good work and where they their own downsizing already going. And, as
Comptroller General Bowsher has said, if you just let them alone and
let them proceed until the end of 1997, they will have reduced by one-
fourth over that period of time and accomplished on their own an
orderly reduction that still enables them to do their job without
getting slashed as the proposal would do out of the Republican
Conference this year.
There is an editorial in the Hill newspaper, Wednesday, April 5,
today. That editorial is entitled ``Don't gut the GAO.'' By and large
they state the situation pretty well, I think. I just read this a few
moments ago, before I came on the floor. I quote from this editorial:
Ever since the General Accounting Office uncovered the
House bank scandal, which cost many lawmakers their jobs and
sent some to jail, Congress has been gunning for the watch-
dog agency. Republicans were particularly incensed by GAO
reports critical of President Bush's tax policies.
It now appears that the GAO, the research arm of Congress,
may have to pay a heavy price for its independence. Senate
Republicans want to slash the agency's budget by 25 percent.
The ostensible reason for this cut is a deeply flawed
report by a panel of the prestigious National Academy of
Public Administration, which concluded that the GAO had
strayed from its role as a numbers cruncher and wandered into
the more esoteric realm of evaluating government programs and
policies. But how does an agency evaluate whether taxpayer
funds are being well spent except by evaluating the programs
and policies for which they are used?
Since its inception in 1921, the agency has saved taxpayers
billions of dollars--more than $200 billion by some accounts.
In fact, I correct the editorial here. The $200 billion I think was
since 1985, not going clear back to 1921.
I continue with the editorial:
It was the GAO that found the money trail in the Iran-
Contra scandal. After uncovering the HUD scandal, the agency
went to work on the Department of Defense, and found $36
billion in supplies not needed to satisfy current operations
of war reserves. GAO also turned the spotlight on wasteful
Medicare reimbursement practices, including hospitals whose
physical therapists billed as much as $600 an hour even
though their salaries were as low as $20 an hour.
Last year, the agency examined the Department of Energy's
Rock Flats plant in Colorado, and found numerous safety
problems, including ``plutonium liquids leaking from pipes
and tanks, fire hazards and risks of exposing workers to
plutonium.''
The GAO is currently studying Supplemental Security Income,
which now costs $60 billion a year, a 140-percent increase
in the last 10 years. The agency is seeking ways to bring
the mushrooming costs under control.
Scotty Campbell, former head of the Office of Personnel
Management who directed the critical study, nevertheless
warns that a 25-percent budget cut ``could do serious damage
to that organization in terms of getting on with its work and
readjusting its mission.''
The agency, whose $443 million budget is the largest of any
legislative branch agency, has already cut its staff from
5,325 to 4,700 since 1992, and is prepared to reduce it to
3,975 during the next two years. They would have to dismiss
1,600 employees in the next nine months to comply with a 25-
percent cut in one year.
The GAO does have its internal problems. The agency is
stymied by an antiquated management system that never ceases
reviewing its work. It seems constitutionally incapable of
producing reports to Congress on time--only 21 percent met
GAO's own deadline.
Paradoxically, although Congress wants to slash the
agency's budget, it bears most responsibility for GAO's
workload. About 77 percent of the agency's work was at the
request of Congress. Only last week, the Senate approved
giving GAO responsibility for
[[Page S5206]] reviewing every significant regulation
promulgated by a Federal agency, a task currently performed
by the Office of Management and Budget.
Clearly, the agency that uncovered the House bank scandal
doesn't always give Congress what it wants. That makes the
GAO all the more needed, especially when budget cutters are
honing their axes.
This is definitely not the time to shackle Congress' most
effective fiscal watchdog.
I ask unanimous consent that the editorial be printed in the Record.
There being no objection, the editorial was ordered to be printed in
the Record, as follows:
[From the Hill, April 5, 1995]
Don't Gut The GAO
Ever since the General Accounting Office uncovered the
House bank scandal, which cost many lawmakers their jobs and
sent some to jail, Congress has been gunning for the watchdog
agency. Republicans were particularly incensed by GAO reports
critical of President Bush's tax policies.
It now appears that the GAO, the research arm of Congress,
may have to pay a heavy price for its independence. Senate
Republicans want to slash the agency's budget by 25 percent.
The ostensible reason for this cut is a deeply flawed
report by a panel of the prestigious National Academy of
Public Administration, which concluded that the GAO had
strayed from its role as a numbers cruncher and wandered into
the more esoteric realm of evaluating government programs and
policies. But how does an agency evaluate whether taxpayer
funds are being well spent except by evaluating the programs
and policies for which they are used?
Since its inception in 1921, the agency has saved taxpayers
billions of dollars--more than $200 billion by some accounts.
It was the GAO that found the money trail in the Iran-Contra
scandal. After uncovering the HUD scandal, the agency went to
work on the Department of Defense, and found $36 billion in
supplies not needed to satisfy current operations of war
reserves. GAO also turned the spotlight on wasteful Medicare
reimbursement practices, including hospitals whose physical
therapists billed as much as $600 an hour even though their
salaries were as low as $20 an hour.
Last year, the agency examined the Department of Energy's
Rocky Flats plant in Colorado, and found numerous safety
problems, including ``plutonium liquids leaking from pipes
and tanks, fire hazards and risks of exposing workers to
plutonium.'' The GAO is currently studying Supplemental
Security Income, which now costs $60 billion a year, a 140
percent increase in the last 10 years. The agency is seeking
ways to bring the mushrooming costs under control.
Scotty Campbell, former head of the Office of Personnel
Management who directed the critical study, nevertheless
warns that a 25 percent budget cut ``could do serious damage
to that organization in terms of getting on with its work and
readjusting its mission.''
The agency, whose $443 million budget is the largest of any
legislative branch agency, has already cut its staff from
5,325 to 4,700 since 1992, and is prepared to reduce it to
3,975 during the next two years. They would have to dismiss
1,600 employees in the next nine months to comply with a 25
percent cut in one year.
The GAO does have its internal problems. The agency is
stymied by an antiquated management system that never ceases
reviewing its work. It seems constitutionally incapable of
producing reports to Congress on time--only 21 percent met
GAO's own deadline.
Paradoxically, although Congress wants to slash the
agency's budget, it bears most responsibility for GAO's
workload. About 77 percent of the agency's work was at the
request of Congress. Only last week, the Senate approved
giving GAO responsibility for reviewing every significant
regulation promulgated by a federal agency, a task currently
performed by the Office of Management and Budget.
Clearly, the agency that uncovered the House bank scandal
doesn't always give Congress what it wants. That makes the
GAO all the more needed, especially when budget cutters are
honing their axes.
This is definitely not the time to shackle Congress' most
effective fiscal watchdog.
Mr. GLENN. Madam President, it just does not make any sense that we
are going to cut GAO at a time when we need their investigations more
than ever.
It came as a big surprise to me back several years ago, as chairman
of the Governmental Affairs Committee, to learn that the departments
and agencies of Government are not required to do a bottom-line audit
every year, as any business would have to do. The biggest spending
organization in the world, the U.S. Government, and we are not required
to do any audits at the end of the year.
We worked over several years putting together legislation. It was put
together with the assistance of Dick Darman in the White House, during
the years when he was head of OMB, and with Charles Bowsher, who is the
Comptroller General, and we put together what we called the Chief
Financial Officer Act, which has been in effect since 1990.
What does that do? It requires a bottom-line audit every year of
every Department, every agency. We started GAO out auditing just three
pilot projects trying to see whether we could get audits or not and
what kind of shape they would be in. Nobody is passing, at this point,
what in business would be called a certified audit. It will be a number
of years before we get to that point. But who is required to analyze
those new activities that we have put on every Department, every agency
of Government to make sure that they are truly doing an audit--in other
words, checking the audits, making sure the bottom-line audit is valid?
The GAO, the General Accounting Office. That is one of their assigned
jobs.
We are assigning them new roles all the time, and yet, at the same
time, we are saying in addition to what they are already cutting down,
12 to 15 percent, we whack them out one-fourth this year when we need
more accounting capability, not less.
I wish we could go not just to three agencies of the Government or
Departments of Government and say, ``Yes, the GAO is coming over to
audit you and you better get your books in order.'' I wish we could go
the whole length and breadth of Government. We are going to do that
next year, and they are phasing it in slowly and doing a good job of
phasing it in slowly, because they do not have the resources to go
further into this and do it more rapidly.
It is unbelievable some of the things we found in our hearings going
on over at the Pentagon, as far as accounting. GAO found across the
whole length and breadth we have 200 different accounting systems, most
of which cannot talk to each other on computers. The Pentagon alone has
160 different accounting systems; the Army has 43 different accounting
systems. GAO is working closely with the Pentagon, with John Hamre, the
comptroller over there, trying to make some sense out of this and
trying to get reports and combine some of these systems so that we can
know what happens to the money that we appropriate for the Pentagon. I
use that as just one example.
I think it was $32 billion in unmatched disbursements, for instance,
where they are just sort of written off. We hope they were all valid
payments, but we could not really document what those payments were,
whether they were as valid as they should be or not.
We did not have the paperwork trail there to do it. They are helping
the Pentagon upgrade their system so we can get that kind of an audit
trail every single year, not just once in a great while. Yet, at the
same time, we are talking about cutting their funding back by a fourth
when they are on the downswing now.
It was rare we used to hear any comment about problems with the GAO,
and I know, as chairman of the Governmental Affairs Committee, where I
heard the first major complaints. I think maybe this is where some of
the problems started with the reputation of GAO in the Senate at least.
I know that the editorial I read a moment ago puts some of the
problem over in the House on what they did in uncovering the House bank
scandal. But in the Senate, everybody went along thinking GAO was doing
a good job, which they were, up until President Bush was elected. And
during that transition period is when the GAO took it upon themselves
to issue the transition reports, giving advice, which was not solicited
by the new administration at that time.
These were transition reports that called on GAO's background and
their experience in these different areas as to where they saw some of
the major problems in Government. This was unsolicited by the new
administration. We had very few Senators here, but some--I still have
one of the letters in my file that was just caustically critical of the
General Accounting Office for going outside what this particular
Senator saw as their proper role of doing only reports that we had
requested specifically from here, committee chairmen or individuals, of
course. But they voluntarily made these transition reports.
[[Page S5207]] If that affronted some people, I am sorry it did, but
it certainly did not affront me and it would not have affronted me had
it been a Democratic administration coming in.
I do not think there is any agency of Government--no one certainly at
the congressional level--to give us advice whose views go clear across
the length and breadth of Government, all the way across, and is more
qualified to give advice than the General Accounting Office.
I know if it had been a Democratic administration coming in, I would
have welcomed those transition reports to give a new administration
some guidance. Instead of that, their initiative, which they took on
their own, seemed to have affronted some people here. And we heard
continual criticism of the General Accounting Office ever since that
time. Even up to and including one of the reported suggestions after
the Republican conference made their suggestions on cutbacks at 25
percent, one of the Senators was quoted as saying he thought they
should be cut back 50 percent. That would virtually do away with the
fine job the General Accounting Office does for the Congress.
So I hope that we can think about this very carefully as to what we
are doing when we cut funds back for the General Accounting Office. I
hope they can be permitted not to take a one-quarter cut in this year,
all in this year. That would decimate them. It would interrupt all
their programs. They are on a reduction of about one-fourth of their
work force right now. It started back 2 years ago and will be completed
by the end of 1997. That is their target for this, and they are on
schedule for it right now.
They can go that kind of reduction in an orderly fashion and
accomplish the same thing if just given the time to do it.
I realize the efforts that we try to put forth around here to cut the
budget, but if we are cutting the budget with regard to the General
Accounting Office to that level, I think we are making a very, very,
major mistake and one that we will regret.
If we do not have them, who are we to use for investigations that
they have done in the past? I have used them. As chairman of the
Governmental Affairs Committee, I used them for quite a number of
different projects.
One I will mention. We are all concerned about the nuclear waste
across the country, nuclear waste out of the nuclear weapons production
program across the country that went for so many years without anybody
even looking at it.
Back in 1985, I was at Fernald in Ohio. People wanted me to come out
there, and it was one of the first steps in the nuclear weapons
process, a processing plant at Fernald, and they felt there were
problems there with waste.
I went out not knowing quite what I would find. The situation was
worse than I thought it was. I went to work on that.
Then we asked the General Accounting Office to do a study of the
site, which they did. I thought it could not possibly be this bad all
over the whole country at the 17 major sites in 11 different States
that were part of that nuclear weapons process. It turned out we asked
GAO to do studies in some of the other areas, which they did, and what
did they find? They found what I had run into at Fernald was only the
starting point. What was out there across the whole nuclear weapons
complex was a hideous ignoring of what had been going on all during the
cold war as we fought to get fissile material and nuclear weapons
produced as fast as we possibly could.
We had been just ignoring the waste. Everybody was so concerned,
including me, including Members of this body, including most Americans,
we were concerned, ``The Russians are coming, the Russians are
coming.'' We have to get those nuclear weapons out there fast.
What are we going to do with the waste? Put it out behind the plant
and we will deal with that later. That is what we did. This ``out
behind the plant and deal with it later'' was all the nuclear waste
that we are now going to have to spend hundreds of billions of dollars
to clean up.
The organization that has given the best definition of that whole
problem all across the country is the General Accounting Office. I add
this. Back then, when we first ran into this and had the first GAO
reports, we asked for estimates from the Department of Energy as to how
much they thought it was going to cost to clean up this whole thing out
across the country. This was in about early 1986. They estimated it was
going to cost $8 to $12 billion to clean these places up.
Better defining as GAO went through this showed in about 2 years it
would cost closer to $100 billion. That was our estimate for several
years. Then the cost went up, through better refining of the data, to
about $200 billion and 20 to 30 years to do the cleanup.
Now this past week the Department of Energy has finally estimated
that depending on how clean we want to make the sites, the cost will be
$200 to $375 billion. Some can be done in 20 to 30 years, and some of
it may take as long as 75 years as we try to learn how to do it.
GAO is the one who has defined most of this problem and pointed it
out. They deserve a lot of credit for having done that.
We could go on. I could talk all night here, all afternoon and all
evening about what has happened in GAO on the different projects and
what we have been able to save. They have gotten back so many times
their cost, the cost of having GAO so many times.
I indicated just my own personal case of requests for information
that has resulted in several billion being saved on different accounts
that we can document. This $200 billion I said they saved since about
1985, I believe it was, they can document. They have follow-up
activities that show. These are not some wild pie-in-the-sky estimates
to make them look good. They document this with follow-up review
procedures to see how much has actually been saved, and $200 billion
over the last 10 years is an enormous savings. Yet at the same time we
are talking about whacking them by one-quarter in addition to the
reduction they are already making. That would be the most false economy
I can think of if we went through with that.
Madam President, I have spoken longer than I usually speak on the
floor today, but I think these are very important matters. We talk
about pulling back money for the IRS at a time when they are getting
their TSM, their tax system modernization in place. That is a mistake.
They are getting back far more than what it costs.
If we cut them down on their compliance activities, their follow-up
on tax returns, their follow-up to make sure that everybody is paying
their fair share, their follow-up to make sure the IETC--the earned
income tax credit--is not given incorrectly to the wrong people, when
we start cutting back on activities like that, that is a mistake.
I personally would like to see funding increased for GAO and
increased for IRS because their track record is that they are getting
back more than those additional dollars would cost.
I hope we are not going to, in the interests of balancing the budget
here, make some false economies here that will cost more in the long
run than it would to fully fund these agencies as requested right now.
I appreciate the consideration of my colleagues. I yield the floor.
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