2010 Resubmission of the U.S.-Russia Nuclear Cooperation Agreement:

Further Actions Needed by State and Other Agencies to Improve the Review of the Classified Nuclear Proliferation Assessment

GAO-10-1039R: Published: Sep 21, 2010. Publicly Released: Sep 21, 2010.

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On May 10, 2010, the President resubmitted to Congress a proposed Agreement Between the Government of the United States of America and the Government of the Russian Federation for Cooperation in the Field of Peaceful Uses of Nuclear Energy (henceforth referred to as the U.S.-Russia nuclear cooperation agreement or the agreement) in accordance with the review requirements established under section 123 of the Atomic Energy Act of 1954 (AEA), as amended. The proposed agreement with Russia would, among other things, establish the legal basis for the Department of Energy (DOE) to work with Russia on large-scale development of nuclear energy. The United States has 25 agreements in force for peaceful nuclear cooperation with foreign countries, the European Atomic Energy Community (EURATOM), the International Atomic Energy Agency (IAEA), and Taiwan. Such agreements provide the framework and authorization for civilian nuclear cooperation but do not guarantee that cooperation will take place or that nuclear material or technology transfers will occur. On May 13, 2008, President Bush originally submitted the agreement to Congress with the statutorily required presidential determination that this agreement would promote, and would not constitute an unreasonable risk to, the common defense and security. President Bush determined on September 8, 2008 that his May 13, 2008 determination was no longer effective--essentially ending further congressional consideration of the agreement at that time--in response to Russian military actions against Georgia. In 2010, President Obama concluded that the situation in Georgia no longer prevented proceeding with the agreement and that the level and scope of U.S.-Russia cooperation on Iran justified resubmitting the agreement. Section 123 of the AEA identifies the key U.S. government agencies and procedures involved in negotiating, proposing, and entering into nuclear cooperation agreements. The Department of State (State) is responsible for negotiating any proposed agreement, with the technical assistance and concurrence of DOE. State must consult with the Nuclear Regulatory Commission (NRC). It is State's consistent practice to send the proposed agreement and accompanying documents to the Department of Defense (DOD) for review. This report responds to congressional request that we assess the review process for the 2010 submission of the U.S.-Russia nuclear cooperation agreement. Our objectives were to assess the extent to which (1) agencies reported having adequate time to review the Nuclear Proliferation Assessment Statement (NPAS) and classified annexes, (2) State implemented our recommendations to develop written procedures and clarify agency roles for the 2010 review process, and (3) additional actions may be required to strengthen the review process for future nuclear cooperation agreements.

Officials from DOE, NRC, and Office of the Director of National Intelligence (ODNI) reported that State provided adequate time to review the unclassified NPAS and its classified annexes accompanying the U.S.-Russia nuclear cooperation agreement resubmitted to Congress in 2010. However, DOD officials told us that the time provided was inadequate to allow all stakeholders within the department an opportunity to review the documents. State initially allotted DOD 12 days to conduct its review, but shortened the time to 8 days once the review process started. According to DOD officials, the U.S. European Command, a stakeholder that DOD considered important to its review, could not provide comments by the deadline State established. In addition, DOD officials told us they felt pressured by the National Security Council to complete the review as quickly as possible to meet the Administration's time frames for submitting the proposed U.S-Russia nuclear cooperation agreement and accompanying documents to the President and Congress. DOD officials said that the department's review was incomplete, although the department ultimately concurred with the NPAS and its classified annexes. State did not establish procedures or clarify how interagency participants would implement their roles, as we previously recommended. The absence of procedures contributed to problems with the 2010 U.S.-Russia review process. For example, State provided DOD with a series of incomplete documents for review. Specifically, the draft NPAS and classified annexes State provided to DOD for review contained multiple instances of blank spaces, placeholder text, and highlighted text with noexplanation for the highlights, according to DOD officials. In addition, these officials told us that State provided neither any explanation about why the documents contained the incomplete information nor details on how the incomplete information would be finalized before the President submitted the agreement to Congress. However, according to State officials, State provided an explanation for the highlighted text contained in the top-secret/sensitive compartmented information (TS/SCI) level annex, which indicated the differences between the 2008 and 2010 versions of the document. In addition, the intelligence community's review of one of the classified NPAS annexes was incomplete because DOE's Office of Intelligence and Counterintelligence thought that such a review was not its responsibility. We recommend that the Secretary of State, working with the Secretary of Energy, the Secretary of Defense, the Chairman of the Nuclear Regulatory Commission, and the Director of National Intelligence, ensure adequate time for consultation (to be determined by State and its partner agencies) with all parties that participate in the review of a nuclear cooperation agreement prior to its submission to the President and Congress. We further recommend that the Secretary of State, in collaboration with the Secretary of Energy, the Secretary of Defense, the Chairman of the Nuclear Regulatory Commission, and the Director of National Intelligence, take steps to strengthen the written procedures governing nuclear cooperation agreements. Specifically, these procedures should contain provisions that (2) ensure appropriate consideration of any conflicting views from interagency partners about the proposed agreement and its accompanying documents prior to the submission to the President and (2) clarify the role and responsibilities of ODNI and the intelligence agencies involved in reviewing every future NPAS and its classified annex(es) and provide that the relevant members of the intelligence community review the final NPAS and its classified annex(es) prior to any agreement's submission to the President and Congress, unless the members of the intelligence community determine that such a review is not needed.

Status Legend:

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  • Review Pending-GAO has not yet assessed implementation status.
  • Open-Actions to satisfy the intent of the recommendation have not been taken or are being planned, or actions that partially satisfy the intent of the recommendation have been taken.
  • Closed-implemented-Actions that satisfy the intent of the recommendation have been taken.
  • Closed-not implemented-While the intent of the recommendation has not been satisfied, time or circumstances have rendered the recommendation invalid.
    • Review Pending
    • Open
    • Closed - implemented
    • Closed - not implemented

    Recommendations for Executive Action

    Recommendation: The Secretary of State, working with the Secretary of Energy, the Secretary of Defense, the Chairman of the Nuclear Regulatory Commission, and the Director of National Intelligence should ensure adequate time for consultation (to be determined by State and its partner agencies) with all parties that participate in the review of a nuclear cooperation agreement prior to its submission to the President and Congress.

    Agency Affected: Office of the Director of National Intelligence

    Status:

    Comments: Please contact the Director listed above for details on this recommendation.

    Recommendation: The Secretary of State, working with the Secretary of Energy, the Secretary of Defense, the Chairman of the Nuclear Regulatory Commission, and the Director of National Intelligence should ensure adequate time for consultation (to be determined by State and its partner agencies) with all parties that participate in the review of a nuclear cooperation agreement prior to its submission to the President and Congress.

    Agency Affected: Department of Energy

    Status:

    Comments: Please contact the Director listed above for details on this recommendation.

    Recommendation: The Secretary of State, working with the Secretary of Energy, the Secretary of Defense, the Chairman of the Nuclear Regulatory Commission, and the Director of National Intelligence should ensure adequate time for consultation (to be determined by State and its partner agencies) with all parties that participate in the review of a nuclear cooperation agreement prior to its submission to the President and Congress.

    Agency Affected: Department of State

    Status: Open

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: The Secretary of State, working with the Secretary of Energy, the Secretary of Defense, the Chairman of the Nuclear Regulatory Commission, and the Director of National Intelligence should ensure adequate time for consultation (to be determined by State and its partner agencies) with all parties that participate in the review of a nuclear cooperation agreement prior to its submission to the President and Congress.

    Agency Affected: Nuclear Regulatory Commission

    Status:

    Comments: Please contact the Director listed above for details on this recommendation.

    Recommendation: The Secretary of State, in collaboration with the Secretary of Energy, the Secretary of Defense, the Chairman of the Nuclear Regulatory Commission, and the Director of National Intelligence, should take steps to strengthen the written procedures governing nuclear cooperation agreements. Specifically, these procedures should contain provisions that ensure appropriate consideration of any conflicting views from interagency partners about the proposed agreement and its accompanying documents prior to the submission to the President.

    Agency Affected: Department of State

    Status: Open

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: The the Secretary of State, in collaboration with the Secretary of Energy, the Secretary of Defense, the Chairman of the Nuclear Regulatory Commission, and the Director of National Intelligence, should take steps to strengthen the written procedures governing nuclear cooperation agreements. Specifically, these procedures should contain provisions that ensure appropriate consideration of any conflicting views from interagency partners about the proposed agreement and its accompanying documents prior to the submission to the President.

    Agency Affected: Department of Energy

    Status:

    Comments: Please contact the Director listed above for details on this recommendation.

    Recommendation: The the Secretary of State, in collaboration with the Secretary of Energy, the Secretary of Defense, the Chairman of the Nuclear Regulatory Commission, and the Director of National Intelligence, should take steps to strengthen the written procedures governing nuclear cooperation agreements. Specifically, these procedures should contain provisions that ensure appropriate consideration of any conflicting views from interagency partners about the proposed agreement and its accompanying documents prior to the submission to the President.

    Agency Affected: Office of the Director of National Intelligence

    Status:

    Comments: Please contact the Director listed above for details on this recommendation.

    Recommendation: The the Secretary of State, in collaboration with the Secretary of Energy, the Secretary of Defense, the Chairman of the Nuclear Regulatory Commission, and the Director of National Intelligence, should take steps to strengthen the written procedures governing nuclear cooperation agreements. Specifically, these procedures should contain provisions that ensure appropriate consideration of any conflicting views from interagency partners about the proposed agreement and its accompanying documents prior to the submission to the President.

    Agency Affected: Nuclear Regulatory Commission

    Status:

    Comments: Please contact the Director listed above for details on this recommendation.

    Recommendation: The the Secretary of State, in collaboration with the Secretary of Energy, the Secretary of Defense, the Chairman of the Nuclear Regulatory Commission, and the Director of National Intelligence, should take steps to strengthen the written procedures governing nuclear cooperation agreements. Specifically, these procedures should contain provisions that ensure appropriate consideration of any conflicting views from interagency partners about the proposed agreement and its accompanying documents prior to the submission to the President.

    Agency Affected: Department of Defense

    Status:

    Comments: Please contact the Director listed above for details on this recommendation.

    Recommendation: The Secretary of State, in collaboration with the Secretary of Energy, the Secretary of Defense, the Chairman of the Nuclear Regulatory Commission, and the Director of National Intelligence, should take steps to strengthen the written procedures governing nuclear cooperation agreements. Specifically, these procedures should contain provisions that clarify the role and responsibilities of ODNI and the intelligence agencies involved in reviewing every future NPAS and its classified annex(es) and provide that the relevant members of the intelligence community review the final NPAS and its classified annex(es) prior to any agreement's submission to the President and Congress, unless the members of the intelligence community determine that such a review is not needed.

    Agency Affected: Nuclear Regulatory Commission

    Status:

    Comments: Please contact the Director listed above for details on this recommendation.

    Recommendation: The Secretary of State, in collaboration with the Secretary of Energy, the Secretary of Defense, the Chairman of the Nuclear Regulatory Commission, and the Director of National Intelligence, should take steps to strengthen the written procedures governing nuclear cooperation agreements. Specifically, these procedures should contain provisions that clarify the role and responsibilities of ODNI and the intelligence agencies involved in reviewing every future NPAS and its classified annex(es) and provide that the relevant members of the intelligence community review the final NPAS and its classified annex(es) prior to any agreement's submission to the President and Congress, unless the members of the intelligence community determine that such a review is not needed.

    Agency Affected: Department of State

    Status: Open

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: The the Secretary of State, in collaboration with the Secretary of Energy, the Secretary of Defense, the Chairman of the Nuclear Regulatory Commission, and the Director of National Intelligence, should take steps to strengthen the written procedures governing nuclear cooperation agreements. Specifically, these procedures should contain provisions that clarify the role and responsibilities of ODNI and the intelligence agencies involved in reviewing every future NPAS and its classified annex(es) and provide that the relevant members of the intelligence community review the final NPAS and its classified annex(es) prior to any agreement's submission to the President and Congress, unless the members of the intelligence community determine that such a review is not needed.

    Agency Affected: Department of Defense

    Status:

    Comments: Please contact the Director listed above for details on this recommendation.

    Recommendation: The the Secretary of State, in collaboration with the Secretary of Energy, the Secretary of Defense, the Chairman of the Nuclear Regulatory Commission, and the Director of National Intelligence, should take steps to strengthen the written procedures governing nuclear cooperation agreements. Specifically, these procedures should contain provisions that clarify the role and responsibilities of ODNI and the intelligence agencies involved in reviewing every future NPAS and its classified annex(es) and provide that the relevant members of the intelligence community review the final NPAS and its classified annex(es) prior to any agreement's submission to the President and Congress, unless the members of the intelligence community determine that such a review is not needed.

    Agency Affected: Office of the Director of National Intelligence

    Status:

    Comments: Please contact the Director listed above for details on this recommendation.

    Recommendation: The Secretary of State, working with the Secretary of Energy, the Secretary of Defense, the Chairman of the Nuclear Regulatory Commission, and the Director of National Intelligence should ensure adequate time for consultation (to be determined by State and its partner agencies) with all parties that participate in the review of a nuclear cooperation agreement prior to its submission to the President and Congress.

    Agency Affected: Department of Defense

    Status:

    Comments: Please contact the Director listed above for details on this recommendation.

    Recommendation: The the Secretary of State, in collaboration with the Secretary of Energy, the Secretary of Defense, the Chairman of the Nuclear Regulatory Commission, and the Director of National Intelligence, should take steps to strengthen the written procedures governing nuclear cooperation agreements. Specifically, these procedures should contain provisions that clarify the role and responsibilities of ODNI and the intelligence agencies involved in reviewing every future NPAS and its classified annex(es) and provide that the relevant members of the intelligence community review the final NPAS and its classified annex(es) prior to any agreement's submission to the President and Congress, unless the members of the intelligence community determine that such a review is not needed.

    Agency Affected: Department of Energy

    Status:

    Comments: Please contact the Director listed above for details on this recommendation.

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