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[H.A.S.C. No. 106–48]









MARCH 2, 2000

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MAC THORNBERRY, Texas, Chairman
LINDSEY GRAHAM, South Carolina
JIM RYUN, Kansas
FLOYD D. SPENCE, South Carolina

JOHN M. SPRATT, Jr., South Carolina

Brian R. Green, Professional Staff
Peggy Cosseboom, Staff Assistant



    Thursday, March 2, 2000, Status of the National Nuclear Security Administration, Department of Energy
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    Thursday, March 2, 2000



    Tauscher, Hon. Ellen O., a Representative from California, Ranking Member, Special Oversight Panel on Department of Energy Reorganization

    Thornberry, Hon. Mac, a Representative from Texas, Chairman, Special Oversight Panel on Department of Energy Reorganization


    Ebel, Robert E., Director, Energy and National Security, Center for Strategic and International Studies

    Jones, Gary L., Associate Director, Energy, Resources and Science Issues, U.S. General Accounting Office

    Rosenberg, Morton, Specialist in American Public Law, Congressional Research Service
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[The Prepared Statements can be viewed in the hard copy.]
Drell, Sidney D.

Jones, Gary L.

Rosenberg, Morton

Tauscher, Hon. Ellen O.

Thornberry, Hon. Mac

[The Documents submitted can be viewed in the hard copy.]
Concerning Best Practices for DOE Operations

Memorandum on National Nuclear Security Administration

Title 32 Compliance Status

[There were no Questions and Answers for the Record.]

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House of Representatives,
Committee on Armed Services,
Special Oversight Panel on Department of Energy Reorganization,
Washington, DC, Thursday, March 2, 2000.

    The Panel met, pursuant to call, at 10:00 a.m. in room 2216, Rayburn House Office Building, Hon. Mac Thornberry (Chairman of the Panel) presiding.


    Mr. THORNBERRY. The meeting of the Panel will come to order. And let me welcome witnesses and our guests.

    This Panel was created last October by the Chairman of the Full Committee to oversee the implementation of the Department of Energy's Reorganization provisions active in law by the National Defense Authorization Act of fiscal year 2000.

    Since last fall, the Panel has visited all eight sites in the nuclear weapons complex, as well as had a number of conversations, communications with people inside and outside of government. Today we have a hearing to discuss the oversight of the implementation of the new law which took effect yesterday.
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    The history of this issue is something that I think is well known. We have a history of 20 years essentially of reports, commissions and studies which are critical of the organizational structure in the Department of Energy. As a matter of fact, the President's Foreign Intelligence Advisory Board concluded last year that DOE was a dysfunctional bureaucracy, incapable of reforming itself. In addition to that problem, we had a number of security concerns which were really highlighted last year complete with a lack of accountability, and as a result, Congress last year passed Title 32 creating the new semiautonomous National Nuclear Security Agency. Of course, the President signed that into law on October 5.

    The new law requires an implementation plan be submitted to Congress on the 1st of January. We received it shortly thereafter. And this Panel issued a report offering some suggestions and comments about that implementation plan. Of course, March 1 was the critical date when nearly all of the provisions of the new law, except for some budgetary matters, take effect. And so this is an opportune time to sit back and take an assessment of where we are.

    Before the Panel today, we have three witnesses who come at this from slightly different perspectives, but each of them offer some very valuable insight for the Panel as we try to do the job that the Chairman asked us to do.

    Before I turn to the witnesses, I would like to turn to the distinguished Ranking Member, Mrs. Tauscher, for any comments she would like to make.

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    Mrs. TAUSCHER. Thank you, Mr. Chairman. And let me thank you right now for your leadership on this Panel. It has been a pleasure to work with you and my other colleagues from around the country on what I perceive to be one of the most pressing security issues that we have in the United States.

    I also want to extend my welcome to our witnesses today, before this Panel hearing on Department of Energy Reorganization and I look forward to hearing a perspective on Title 32 of the Fiscal Year 2000 Defense Authorization bill and appreciate your insight.

    As you know, Mr. Chairman, the Department of Energy, as you said, has been entangled in a bureaucratic kudzu since its inception. This Committee has seen report after report detailing the confused lines of authority and lack of focus within the Department, particularly with regard to the national security activities of the Department.

    Title 32 of last year's defense authorization bill provides the framework for streamlining the Department by establishing the National Nuclear Security Agency (NNSA). By rolling off the national security responsibilities of the Department, clarifying the lines of authority and establishing an administrator to oversee the nuclear weapons operations, we have taken the first steps towards building an agency that runs efficiently and that effectively protects our Nation's nuclear secrets.

    I am pleased that despite some reservations about the legislation creating the NNSA that the Clinton Administration has taken important steps toward the implementation of Title 32. In December, Secretary Richardson had appointed a high-level advisory panel to identify candidates qualified to head the new administration.
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    It is my understanding that a nominee for this position will soon be announced. And I think it was leaked to the press today. I will hope the administrator will play an active role in shaping the new administration.

    I was also encouraged that Secretary Richardson submitted an NNSA implementation plan to Congress in early January as required by Title 32. While I did not agree with every aspect of the Secretary's plan, and I felt it was lacking in some areas, I believe that the NNSA implementation plan submitted by DOE made significant progress.

    One of the areas of concern I have with the implementation plan involves the numerous instances in which the Department intends to have employees serve in concurrent roles within DOE and NNSA. It is my view that dual-hatting only perpetuates the bureaucratic morass that Title 32 is intended to correct.

    Having said that, I understand that political realities may dictate that dual-hatting in certain circumstances is a short-term necessity. I have also been encouraged to learn in meetings with DOE officials that the Department does not necessarily view dual-hatting as a long-term solution.

    The creation of the National Nuclear Security Administration is a difficult, complicated, and serious project. Congress provided the framework for the NNSA in the defense authorization bill last year, but much work remains before the job is complete.

    I look forward to hearing the testimony of the witnesses. And I hope you will provide us with your thoughts on how we can further strengthen the NNSA.
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    Thank you, Mr. Chairman, for your time.

    [The prepared statement of Mrs. Tauscher can be found in the Appendix.]

    Mr. THORNBERRY. Thank you, Ms. Tauscher.

    May I note that we are glad to have the presence of the Ranking Member of the Procurement Subcommittee, Mr. Sisisky. The Procurement Subcommittee has jurisdiction over the Department of Energy, and Mr. Ryun as well.

    Without objection, I have a more formal statement that I would like to submit for the record.

    [The prepared statement of Mr. Thornberry can be found in the Appendix.]

    Mr. THORNBERRY. Without objection, the Panel has also received a written statement from Mr. Sydney Drell, which I would also like to put in the record on these matters.

    [The prepared statement of Mr. Drell can be found in the Appendix.]

    Mr. THORNBERRY. Let me now turn to our witnesses. First we have Mr. Robert E. Ebel, Director, Energy and National Security for the Center for Strategic and International Studies, for kind of an overall policy perspective. Next we will go to Morton Rosenberg, Specialist in American Public Law, Congressional Research Service for the legal analysis. And then we will have Ms. Gary L. Jones, Associate Director, Energy Resources and Science for the General Accounting Office to help with some of the management perspectives.
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    Mr. Ebel, if you would like to go ahead.


    Mr. EBEL. Thank you, Mr. Chairman. My name is Robert Ebel, and I direct the energy and national security program at the Center for Strategic and International Studies (CSIS), which is a not-for-profit policy, public policy research institution. And I welcome the opportunity this morning to offer my thoughts on the status of the National Nuclear Security Agency.

    I would also like to note and recognize Ms. Tauscher, Mr. Graham, and Mr. Spratt who at one time or another have served as congressional co-chairs of projects that I have undertaken at CSIS. And I want to thank them for their continued guidance and support. Thank you.

    Perhaps surprising to learn that we have had a long involvement in nuclear issues, dating back to 1978, when we released a report entitled, International Politics of Nuclear Energy, and our interests have been very broad ranging in recent years. In 1994, we completed a report on Chernobyl and its aftermath; and we followed that with a report in the nuclear energy safety challenges in the former Soviet Union; that was released in 1995, followed by a report on U.S./China commercial nuclear commerce in 1997, and a study which undertook to provide guidance on disposing of weapons-grade plutonium released in 1998.

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    Last year, we undertook a review of the Nuclear Regulatory Commission with the impetus growing out of the confluence of events confronting the industry and the strategic influence of energy issues on the Nation.

    We are all aware that achieving and maintaining an efficient and effective regulatory structure of the nuclear industries is important for three key reasons.

    First, some 20 percent of our electricity comes from nuclear reactors. Second, non-emitting nuclear power assumes greater importance as the world tries to respond to growing concerns over global warming. And, third, the ability of the United States to influence the control or proliferation of nuclear weapons derives from our ability to influence the policies and practices of other nations as they develop their own nuclear industry. But our ability to influence depends very much on the state of our own nuclear industry.

    We released our report in August 1999. At the same time we were bringing that review to a successful conclusion, we had a much broader nuclear project underway with the title Global Nuclear Materials Management, chaired by former Senator Sam Nunn, our report was rereleased in January of this year.

    And this morning with your permission, Mr. Chairman, I would like to share with you some of our findings and recommendations which I believe have relevance to the subject of this hearing. Let me begin by summing up our findings and recommendations.

    We found that the risk of increased proliferation of nuclear weapons and materials is one of the most important security threats facing the United States and the world. To ensure the safe, secure, and legitimate use of nuclear materials, the United States must work with other states and international organizations to create a new global approach to both the traditional threats of nuclear weapons and the challenges of the emerging new nuclear area.
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    We reviewed five key areas, funding nuclear security, some have called that checkbook diplomacy; creating an international spent fuel facility to aid the Russian nuclear complex; commercializing the excess defense infrastructure, putting unemployed nuclear scientists to work; using transparency to ensure the safe management of nuclear materials worldwide; and, finally, maintaining the U.S. leadership in nuclear matters.

    Our senior policy Panel made a number of policy recommendations. Let me list just a few of them for you. The United States, with an international consortium of nuclear countries, if possible, buy an additional 50 tons of Russian highly enriched uranium at a cost of $1 billion and make the existing U.S. Russian agreement a higher priority. We need to consolidate Russian nuclear materials in fewer sites to increase security and to lower costs.

    We need to develop an international management standard for nuclear materials transparency. Europe and Asia must increase their contributions to enhancing nuclear security. And we must increase funding for nuclear research and development and nuclear engineering education. We talked much about the brain drain in Russia. We have our own brain drain. And I will touch on that in more detail later.

    Mr. Chairman, the end of the Cold War and the dissolution of the Soviet Union brought many changes to the world, but none more important, and hopefully more lasting, than a reduction in the prospect of nuclear war between the two nuclear powers countries. Yet we have to recognize that the nuclear standoff that exited before the breakup has also provided a degree of stability, and that a confrontation that could lead to a nuclear clash between the United States and the Soviet Union presented risks clearly unacceptable to both.
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    Unfortunately, today much of that stability has disappeared. It has been replaced by new challenges of how to avoid the spread of nuclear weapons material and how to keep nuclear weapons out of the hands of terrorist groups and rogue nations. I understand, though, we are not supposed to use the term rogue nations anymore, perhaps sanctioned nation would be more palatable.

    Of the many approaches that we examined in our report, two stand out in terms of urgency. First, we need a new and comprehensive program embracing additional purchases of highly enriched uranium and plutonium for the purposes of converting these materials to nuclear fuel.

    Second, in terms of urgency, we must expand our cooperative efforts with Russia to consolidate nuclear materials at fewer locations. I would like to add a third perhaps of less urgency than the first two, but nonetheless important to the continuing leadership of the United States in terms of nuclear matters both civil and military.

    On all fronts, industry, government, and university, the technical strength of the United States in nuclear matters is continuing to weaken, making it more difficult to provide knowledgeable and credible leadership to support the global and largely bipartisan nuclear policies which the United States espouses.

    We have lost the lead in many areas of nuclear energy technology. The combined leadership of the U.S. government and industry has deteriorated, weakening the negotiating ability of the United States, which would allow us to build a fully effective international nuclear weapons controlled regime.
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    Mr. Chairman, I have described for you a world which simply cannot afford delay in addressing the urgent security hazards posed in large part by nuclear insecurity in the former Soviet Union. There are more than 1,000 tons of plutonium and uranium now scattered in 300 buildings and 50 sites across Russia. There is little remaining margin for continued decay of our infrastructure if we are to be credible in nonproliferation leadership in the 21st century.

    The fundamental requirement is leadership, and the time to act is now before a catastrophe occurs. We must respond now, not later, to those threats to our national security, which our report isolated. And we must begin by ensuring that our own house is in order. Is it? Are we properly organized to act, not only in our own national interests, but in the interests of the world as a whole?

    The NNSA holds a promise of giving us that leadership. Leadership which in the past has seemed somewhat confused as to priorities and how to respond. The Department of Energy must have in place clear lines of authority and accountability if those concerns which I have outlined for you and those recommendations which I listed for you earlier, if these are to be addressed in a timely fashion.

    Expert panels have concluded that these clear lines of authority and accountability have not been in place. Out of the efforts of many, including Members of the Panel, the NNSA was created. Unfortunately, a number of deficiencies have emerged regarding the implementation plan.

    NNSA must have in its portfolio responsibility for both dress and global nuclear materials. We all recognize that the issues at hand are so many in number, so diverse in content, that it has been quite difficult to grasp them as a whole, but we must try. And the NNSA is the organizational answer, but is it itself organized in a way to touch all of those issues which must be reflected in our national policies. In this regard, we must take care not to replace multiple stovepipes with one huge stovepipe.
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    Mr. Chairman, I urge you to work to remedy the observed shortcomings of NNSA. We have lost too much time already. The nuclear world is not prepared to wait for us. The vision of global nuclear materials management is of a world in which all nuclear materials are safe, secure, and accounted for from cradle to grave, with sufficient transparency to ensure the world that this is the case. This is the daunting goal, which must be approached step by step within a well-defined strategic framework.

    I applaud the Panel for the work that it has done to help secure this vision for us. Finally, Mr. Chairman, with your permission, I would like to submit for the record a copy of our report entitled Managing Global Nuclear Materials Threat and as well a 14-minute video which summarizes the conversation that we held at CSIS last summer where our findings and policy recommendations were presented to the general public.

    Thank you, Mr. Chairman.

    Mr. THORNBERRY. Thank you. Without objection, that will be part of the record.

    Mr. Rosenberg, your full statement will also be made a part of the record, without objection. You may proceed.


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    Mr. ROSENBERG. Thank you very much, Mr. Chairman.

    Mr. THORNBERRY. If you might rearrange the microphones so we can hear you. Thank you, sir.

    Mr. ROSENBERG. Thank you, Mr. Chairman. I thank you and the Panel for inviting me here and I will try to succinctly, which is a difficult thing for me to do, summarize the problem that Mr. Ebel pointed out, which is lines of authority, which is, you know, where I am coming from.

    Congress, as you are undoubtedly aware, has formidable powers over the establishment of structural arrangements of the administrative bureaucracy of the executive branch. That power, I believe, at the minimum encompasses the delineation of lines of authority between the heads of departments and agencies and their subordinate officials and employees.

    In objecting to the particular administrative arrangements between the newly-established NNSA within DOE and the Secretary of the Department of Energy, the President raises no claim of constitutional defects with respect to those arrangements, and none are apparent.

    However, to correct the perceived administrative deficiencies, the chief executive has indicated he may not forward a nomination for the head of NNSA to the Senate until Congress takes what he deems to be appropriate remedial action.

    And as of this date, none has been forthcoming although The Washington Post this morning revealed that Mr. Richardson is going to send a recommendation to the President for a nominee for Under Secretary administrator.
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    In the meantime, the President has directed that the Secretary assume the duties of the new office of Under Secretary for nuclear security, which also makes him the administrator of NNSA and, in particular, to guide and direct all the NNSA personnel and to assign any departmental officer or employee to a concurrent office within the NNSA, to the extent permitted by law.

    The Secretary's recently announced implementation plan carries out that Presidential directive to the fullest extent, filling NNSA positions with department office holder with equivalent duties and functions and continuing security and management reorganizations initiated prior to the restructuring enactment that were apparently rejected by that legislation and seemed to conflict with its terms and purposes.

    Yesterday, as you indicated, Mr. Chairman, the NNSA became an effective, established body. Two issues are raised at present; one, how long will the Secretary—may the Secretary lawfully continue to exercise the statutory duties, functions, and responsibilities of the office of Under Secretary. And second, is dual-office holding legally permissible under the terms and conditions of Title 32.

    I believe that a review in court confronting these questions is likely to consider certain constitutional principles, which I will mention, and conclude that there is a problem here. Important is the appointments clause of the Constitution, which directs the President to submit all nominations of officers of the United States for Senate approval, and has been held to preempt Presidential discretion with respect to the filling of vacant advice and consent positions, that is, while there appears to be no constitutional means to force a President to submit a nomination to the Senate for an advice and consent position, there is arguably applicable case law and statutory authority that limits the President's ability to indefinitely fill an office subject to Senate confirmation with a temporary assignee, thus the Supreme Court and the lower Federal courts have consistently ruled that the take care clause of the Constitution is not a source of inherent Presidential power, but rather is a direction to the chief executive to assure that the executive bureaucracy is fulfilling Congress' will.
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    The courts that have addressed the claim that the President has an inherent authority under that clause to indefinitely fill Senate confirmable positions have rejected it. Another legal authority that must be considered is the Federal Vacancies Reform Act of 1998 which is part of a comprehensive legislative scheme to ensure that the executive respects the Senate's confirmation prerogative.

    The language in legislative history of the 1998 act make it clear that it was meant to be the exclusive vehicle for temporarily filling advice and consent positions in all the departments and agencies of the executive branch; however, by its terms it does not apply to new covered positions that have never been filled before. As a consequence, unless there is some statutory authority granted by Congress to the President to temporarily fill this type of vacancy, such as was provided, actually provided in the 1978 legislation originally creating the Department of Energy, the chief executive appears to have no power to do it on his own, except for the possibility of what one court called a reasonable period, that is, in a case called Williams v. Phillips, the court, dealing with an acting position designated by the President, found that there was no authority for the President to fill that position at all.

    And since more than 30 days had passed, which was then the limitation period of the Vacancy's Act that was the reasonable period and the court enjoined that head of the agency, the Office of Economic Opportunity, for continuing in office.

    It should be noted, however, that if a formal nomination is submitted by the Senate for the Under Secretary position or any of the other two positions that are advice and consent positions that are currently open, that would moot any kind of legal challenge. But short of that, the problem remains.
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    With respect to the legal efficacy of the attempt by the secretary as the designee of the President, as the acting Under Secretary, to place current department officials who presently hold positions equivalent to those created by the new legislation, it would appear that there is a substantial argument to be made that the totality of the arrangements established by the implementation plan are contrary to the letter and intent of the law; that is, the restructuring act.

    The legislative history of Title 32, which I am sure you are all aware of, quite clearly indicates a congressional resolve to provide a significant degree of autonomy from direct secretarial control, although nothing approaching complete independence. In light of that history, several provisions of Title 32 may be viewed as particularly significant in assessing the Secretary's plan.

    Section 3212(d) vests the administrator with the authority to establish administrative specific policies unless expressly disapproved by the Secretary, that is an unusual provision, in other instances where there is authority in a subordinate to the head of an agency, allowed to establish policy, normally approval is necessary for it to be effective. So this changes normal practice.

    Section 3213(a) provides that all officers and employees of NNSA in carrying out the functions of the administration are responsible to and subject to the authority, discretion, direction and control of the Secretary acting through the administrator, but not responsible to or subject to the authority, direction or control of any other officer, employee or agent of DOE. Again, the acting through is an indication, a strong indication of the independence intended by the statute.
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    3213(b) provides that officers, employees of contractors at NNSA are not to be responsible to or subject to the authority, direction or control of any officer, employee or agent of DOE, except the Secretary acting consistent with section 3203(c)(3) of the act.

    Section 3214(c) requires all heads of the nuclear labs and production facilities to report to the deputy administrator for defense programs. No indication of any kind of intervening reporting.

    Sections 3212(b) and 3291 are also significant. 3212(b) assigned 17 substantive functions to the administrator, which were traditionally the authority of the Secretary.

    Section 3291 transfers all the national security functions and activities of the offices of Defense Programs, Nonproliferation and Security, Fissile Materials Disposition, and Naval Reactors, as well as the functions of all weapons production facilities and national security labs to the administrator. This is significant in that other kinds of legislation similar to this normally direct the head of the agency who has all of these authorities vested in him to delegate them to a subordinate official.

    The implication there of the normal kind of legislation is that it can be withdrawn by the head of the agency. In this respect, this legislation is unique in that it vests all of those authorities in the administrator.

    Reinforcing this theme of autonomy is the establishment of separate offices in NNSA in the areas of procurement, personnel, public affairs, legal affairs, security and counterintelligence; therefore, in each instance in which the implementation plan indicates that a Department officer or employee will concurrently occupy an office or a position established by Title 32 in NNSA for an indefinite period or that officers or employees will be compliant with established departmental policies without regard to administrative authorities in the area or that the secretarial restructuring initiatives of April and May 1999 are to take precedence over the applicable provisions of Title 32 raise serious questions as to the consistency of the plans, directions with Title 32.
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    The issue of dual-office holding raises questions of authority. And as a general matter, it would appear that dual-office holding would be prohibited if not—would be permitted if not prohibited or limited by law.

    With respect to officers requiring Senate confirmation, dual-office holding is permitted by the Vacancies Act, but please understand that the Vacancies Act limits the length of a designation of one of—of the designated office holder to a limited period, currently 210 days, and it also is only applicable, only applicable, to advice and consent positions.

    In sum, then, with respect to the instant situation, viewing the totality of the legislative history of Title 32 and the language and structure of those provisions, it is highly arguable that a reviewing court would hold that the apparent purpose and intent of the restructuring is to prohibit dual-office holding—the dual-office holding scheme established by the Secretary's implementation plan.

    It is also arguable that a court would be persuaded by analogous precedent to reject an argument that administrative necessity or emergency requires a departure from the prohibitory import of the statutory design. Thus the constitutional concerns that I raised in my memo of November 1, 1999, as the failure of the President to submit timely nominations for key advice and consent positions and allowing temporary designees to fill those positions indefinitely, as well as the lawfulness of the apparent direction to disregard statutory provisions delineating certain limitations on the Secretary's direct authority over NNSA officers and employees, has not been allayed. In fact, the breadth of many of the directions of the implementation plan that concededly are not in compliance with Title 32 may arguably be seen to create further issues. Although the matter is, of course, not free from doubt, it appears problematic whether a review in court would accept the totality of the deviations from the statutory requirements simply on the proffered ground of administrative necessity or convenience.
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    Thank you.

    Mr. THORNBERRY. Thank you, sir.

    [The prepared statement of Mr. Rosenberg can be found in the Appendix.]

    Mr. THORNBERRY. Ms. Jones, your full statement will also be made a part of the Record. You may proceed.


    Ms. JONES. Thank you, Mr. Chairman. We are pleased to be here to provide our observations on the implementation plan for the National Nuclear Security Administration (NNSA). The establishment of NNSA as a semiautonomous agency within DOE has created an opportunity to correct organizational alignment and management problems that have resulted in security lapses, poorly-managed projects, and address environmental problems. However, the implementation plan falls short of addressing these problems and actually may create new ones.

    Let me highlight four issues. The first issue is that NNSA's organizational structure does not establish clear lines of authority or streamline the field structure. One reason for the establishment of NNSA was to correct DOE's dysfunctional structure with unclear chains of command among headquarters, field offices, and contractors. Commenting on DOE's structure, one advisory group concluded that there was considerable confusion over relationships and roles, as well as a lack of clarity, inconsistency, and variability in the relationship between headquarters management and field organizations.
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    However, the implementation plan lays out an organizational structure and reporting authority that is virtually the same as it was before NNSA was established. For example, the new structure still puts the Albuquerque operations office in the chain of command between two labs and headquarters continuing to blur who is accountable.

    It is also not clear how a structure at Livermore, which will report through an operations office without at least two bosses, NNSA and the Office of Science, provides the mission focus and streamline structure that was envisioned with the establishment of NNSA.

    The second issue is that NNSA is adopting a business-as-usual approach in many areas. This approach does not address some long-standing management problems. For example, the plan adopts the existing planning programming and budgeting mechanisms of DOE, arguing that they are functioning well.

    However, recent DOE studies identify weaknesses in these areas. For example, one study noted that DOE's lack of a process for assessing what parts of the stockpile will be refurbished and at what costs, then developing implementation plans and setting priorities has caused significant stress on the stockpile stewardship program.

    NNSA also provided mechanisms to restructure and improve the technical competence of its staff by providing, among other things, 300 new positions for scientific, engineering, and technical positions. These positions could assist NNSA in addressing the lack of DOE personnel with technical skills, such as project and contract management, that have led to poorly-managed projects which are late and overbudget. However, the implementation plan offers no insight into how NNSA will use these positions.
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    The third issue is that, although NNSA was to be distinct from DOE, NNSA and DOE have duplicative and overlapping functions. The implementation plan fills numerous key positions within NNSA with DOE officials, thus these officials have DOE and NNSA responsibilities and have been dubbed dual-hatted.

    The implementation plan explains that the dual-hatted positions were established to ensure consistent policy implementation, to ensure seamless DOE and NNSA responses to emergencies, and in the case of field managers, to ensure that they had adequate authority to oversee and manage all activities at the facilities.

    However, in our view, this practice is inconsistent with the intent of the enacting legislation that NNSA be segregated from DOE.

    The fourth, and last issue, is the role of the existing DOE organizations that oversee environment safety, health, security, and safeguards. We believe that this is unclear. The plan states that these organizations will remain in DOE, continue to review all DOE and NNSA sites and activities, and report their findings and recommendations to the Secretary. However, how the recommendations are handled is not clear.

    For example, DOE safeguards and securities oversight organization has raised concerns that unless specifically directed by the Secretary, NNSA is not required to respond to their oversight findings and recommendations. However, requiring NNSA organizations to respond may also contradict the provisions in the law that prohibit NNSA personnel from being subject to the authority, direction and control of any DOE employee, other than the Secretary or the NNSA administrator.
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    From an overall standpoint, Mr. Chairman, the plan is not really a detailed roadmap for the implementation of the NNSA. While we recognize that this is just a first step in the evolving process, we believe the best time to address past problems is when the organizations and systems are being laid out for the first time, before inefficiencies become second nature, and commitments to old ways harden.

    While NNSA is a new organization within DOE, its employees will be DOE and contractor personnel that have worked in a culture that has led to the management problems the creation of NNSA was to address. For the new organization to be effective, it must break out of the culture and mindset that permeates DOE, otherwise problems inherent in DOE will continue in NNSA.

    Thank you, Mr. Chairman.

    Mr. THORNBERRY. Thank you. I appreciate your testimony.

    [The prepared statement of Ms. Jones can be found in the Appendix.]

    Mr. THORNBERRY. Mrs. Tauscher.

    Mrs. TAUSCHER. Thank you, Mr. Chairman. And I want to thank the Panel Members for a very comprehensive look at both the implementation plan and Title 32. I have a general question for all of you. The provisions as you see of Title 32 inhibit the Secretary's ability to be responsible for all of the activities of the Department including the NNSA.
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    Ms. JONES. I am going to have to ask you to restate that, Mrs. Tauscher.

    Mrs. TAUSCHER. Let me put it in broader terms. The concerns that we had heard from the very beginning after the bill was passed before we had even gone to conference was that the Secretary's concerns were that he no longer had responsibility for all the activities inside of DOE, and that his responsibilities regarding the nuclear complex had been removed because of Title 32, and that there was a murkiness involved in that. I didn't agree with that. I don't think many of the Members of the Panel agree with that. I would like to know what your opinion is of that.

    Mr. ROSENBERG. I think your initial instincts were quite correct. Look at the statute very carefully, he has the ultimate responsibility over policy. The Under Secretary acting as the administrator, ultimately is going to have to report to him. There are indications that they want the new administrator to be effective and to be given a good degree of freedom, but ultimately he is responsible to the Secretary. The statute is clear on that.

    Ms. JONES. I would agree with Mr. Rosenberg from our read of both the law and the implementation plan.

    Mrs. TAUSCHER. Mr. Rosenberg, is there any legal prohibition that would prevent the Secretary from having employees serve in dual capacities for the remainder of the current Administration? I think we are all aware that we are on a very short runway here until this Administration leaves office.
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    And I think—from my point of view, I would be amenable to discussing dual-hatting if it was a temporary scenario, understanding that we have a new administrator hopefully being appointed and confirmed, and that we would have a change of administrations next year and then obviously move on forward to some permanency. Is there anything that you can see that would permit this from being or prohibit this from being a temporary situation?

    Mr. ROSENBERG. In a legal sense?

    Mrs. TAUSCHER. In a legal sense.

    Mr. ROSENBERG. There is a problem here. With respect to the advice and consent positions, they are having designees while it doesn't—you know, for an indefinite period of time, while it doesn't violate the Vacancies Act because it doesn't apply, there is case law out there that prohibits the President from exercising authority, you know, to designate temporary assignees for an indefinite period.

    It is contrary, the courts have said, to the directions of the appointments clause, which mandate that the President send forth nominees. And then in the one major case Williams v. Phillips, a 1973 case, which involved a similar situation where the Vacancies Act at that time didn't apply to a vacancy in the Office of Economic Opportunity, and President Nixon appointed somebody as the acting and he continued to act for 3-1/2 to 4 months until a lawsuit brought by several Senators, a court enjoined him from continuing to act in the office. The President very quickly thereafter sent forth a nomination.

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    Now, the Vacancies Act doesn't apply to officers or employees. And while dual-office holding generally has been upheld, it has been upheld because in the case law that I have seen there is no prohibition. What we have in the structure and intent as I read the statute is at least an implicit prohibition against dual-office holding.

    Now, there are several courts where there has been an attempt to use a necessity argument, the courts have not been very sanquine to it and have said necessity in these kinds of administrative situations isn't enough to overcome the prohibition against dual-office holdings where it is there in the statute.

    Mrs. TAUSCHER. What if these dual-hattings employees were to serve in detail positions, not to extend beyond one year, and that was essentially the formulation that was presented?

    Mr. ROSENBERG. Are you saying that Congress will bless that?

    Mrs. TAUSCHER. No, I am not saying I would bless that. What if that was—.

    Mr. ROSENBERG. I mean, if that was a law, of course, you could do it. If they did that for a year, and nobody objected, there is really nothing we can do about it. However, if some of these people do something that injures, let us say, somebody in the public, a lawsuit could be brought by the injured person, and the fact of the legality of them holding office would be the principal issue and they could lose.

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    Mrs. TAUSCHER. Thank you. Mr. Chairman, I just have one more question for Ms. Jones.

    The implementation plan doesn't change the field office structure. I wish you would talk a little bit further about your views of the uselessness of the field office structure vis-a-vis the NNSA.

    Ms. JONES. You are correct that it does not change the field structure. For example, if you take Sandia, you still have the Kirkland area office. You still have Albuquerque between Sandia and headquarters. I think that the law talks about the contractors and their relationship with the Deputy Administrator for Defense Programs.

    I think that in looking at how to structure this, they need to take a step backwards and look at what makes sense to get the missions done, what organizational structure makes sense. I think we said over time that having all of those layers really defuses accountability, and if you are really trying to hold someone accountable for getting a mission done, for getting an outcome accomplished, having so many layers—and I can give you example after example after example in DOE where this has been a failure.

    So I would certainly want to take a look. And I know that the implementations plan says, well, we will leave that for the next administration, but this has been the answer year after year after year.

    Mrs. TAUSCHER. Thank you, Mr. Chairman.

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    Mr. THORNBERRY. Thank you.

    Mr. Sisisky.

    Mr. SISISKY. Thank you, Mr. Chairman, and thank you for all being here today.

    My first question, Mr. Chairman, is to you, and to the staff really, I look at this compliance page, three or four pages there. Yellow is incomplete compliance. Green is compliant. Red is not in compliance at all. I see one green item in there, which goes to my attention. My staff advised me that on the web page, the DOE web page that there is a lot more going on.

    What is the date of this compliance page? Does anybody know?

    [The information referred to can be found in the Appendix.]

    Mr. THORNBERRY. The staff informs me that it was completed yesterday—.

    Mr. SISISKY. I mean based on—.

    Mr. THORNBERRY. —which is March 1st.

    Mr. SISISKY. Based on what date? I was advised to be very eloquent with you. It was the first week in January.
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    Mr. GREEN. It was based on the implementation plan and further information. Staff developed it over the course of the next several months.

    Mr. SISISKY. Really just asking, is it up to date or is it behind, because we can—.

    Mr. THORNBERRY. Sure. And I think you raised a valid point. We are and the witnesses have to base our testimony primarily on the implementation plan that the Administration sent up and try to go from there. Of course, since everything just began yesterday officially, we will be watching to see whether they follow the implementation plan, whether they do other things.

    Mr. SISISKY. We might find out this afternoon.

    Mr. THORNBERRY. It is entirely possible, when the Secretary appears, we may have some additional information. And that is really the purpose of the Panel—to kind of monitor this thing as it goes along and hope to encourage the Department to follow the law.

    Mr. SISISKY. The reason I ask, these questions are easily asked to the Secretary this afternoon. I just want to be sure that we are not wrong.

    Ms. JONES. Mr. Sisisky, if I may, I pulled up what was on the web page as of last night, what DOE supposedly put on, because of the implementation of NNSA as of yesterday, and it was the same organizational chart that was in the implementation plan. There was a two-page memo from the Secretary to all employees announcing the new implementation.
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    And there were two mission statements. And while I read them very quickly, I personally did not see anything that was different from what I had already gleaned from the implementation plan.

    Mr. SISISKY. Nothing yellow would turn green, is that what you are saying?

    Ms. JONES. Not from my quick reading last night, Mr. Sisisky.

    Mr. SISISKY. Okay. And this is, basically, for the General Accounting Office (GAO) and the Congressional Research Service (CRS), I might add, you know, we went through this, and I had always said that the legislation we passed probably is not going to be perfect, and that we would find a way, somehow, to correct any bad parts of the legislation.

    Did either of you look at Title 32 and determine whether it could have been better in that form? Has anybody looked at that? Did you find provisions that are just unworkable?

    Ms. JONES. I think that in our discussions about Title 32, not necessarily the plan, but the law itself, again, I would say let us take a step backwards and look at what we are trying to accomplish. And I think one of the things that the legislation was trying to accomplish was to let us make security better. I think that there is still some confusion in terms of there have been counterintelligence offices set up in the new NNSA. There is still one in DOE.
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    I think in some of the CRS work that has been done, there is still some confusion about who sets policy. If NNSA was set up to try and handle security, make it better, what kind of signal does it give if the implementation plan says the policies really is being set by the DOE's czar, maybe that needs to reside in NNSA.

    There are a number of things that we can talk with the Panel and staff about in terms of some ideas that we have that you might look at. Another one is the field structure.

    Mr. SISISKY. If you can get those to be more efficient, that is all we are basically talking about. I don't know if you need to change the law to do that or just need a change of mindset, but one of them will be. Right now, Mr. Chairman, that is all I have.

    Mr. ROSENBERG. There is one confusion there that Gary has pointed out. The intelligence and counterintelligence are given policymaking, but the administrator is also given the authority to make policy for all the functions of NNSA. And the equivalent NNSA intelligence and security people are implementators. So there may be a confusion here.

    And if you want to give it to NNSA, give it to them, but having actually two different sources of policy and one source of implementation is a confusion.

    Mr. SISISKY. The administrator has direct control, am I correct in that, the Under Secretary?
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    Mr. ROSENBERG. Yes, but policy—.

    Mr. SISISKY. We have that in anything. The Secretary of Energy, basically, because he can remove the Under Secretary if he didn't like his policy, I guess. Actually, I think the law says the President, but it would—.

    Mr. ROSENBERG. The Secretary. Yeah, the President is going to have to be firing him.

    Mr. SISISKY. Okay. Thank you, Mr. Chairman.

    Mr. THORNBERRY. Thank you.

    Let me continue along that line for just a second. Because the written statement that I had put in the record by Dr. Drell addresses this point, and I want to ask you in following up a little bit. And I might note that he was a member of the President's Foreign Intelligence Advisory Board and has worked in and around the nuclear weapons complex for many years.

    One of his primary concerns is this dual-hatting of the security and counterintelligence folks. And he notes that the intention is really to have a securities and counterintelligence person to advise the Secretary on policy, and then you have a security and counterintelligence positions to implement that policy within the NNSA.

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    And his point is that if you have the same people doing both jobs, you really have a confused situation that, quote, ''may very well perpetuate the same bureaucratic confusion in the chain of command and lines of accountability that the Panel found to be distressingly prevalent for the past 20 years.''

    Mr. THORNBERRY. We should not let it affect the new management organization being proposed.

    Would either of you care to comment on that concern, setting aside the legality of dual-hatting? Does this really work at counter purposes for fixing the security problems that did so much to bring this all about?

    Ms. JONES. It seems to us, Mr. Thornberry, that having an organization for counterintelligence and security implementation in NNSA and having a similar one in the Department of Energy, it is unclear yet what the relationships are between those two organizations. Are they going to compliment one another, are they going to duplicate one another, are they going to overlap or support one another? I think that is one of the things that needs to be clarified as we move forward, particularly since security was the biggest push behind this legislation.

    Mr. THORNBERRY. Would you agree with Dr. Drell, however, that dual-hatting, the same person inside the NNSA and outside the NNSA, causes some real difficulties in sorting all of that out?

    Ms. JONES. I think at this point it still could cause some difficulties, yes, and I would also note that our testimony points out that the oversight organization, kind of the independent oversight organization over safeguards and securities, believes they have some problems too in terms of their ability to implement and have people pay attention to their recommendations.
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    Mr. THORNBERRY. I want to get to that in just a second. Let me ask about a second concern that Dr. Drell voiced about this dual-hatting of intelligence, of counterintelligence and security positions.

    His concern is that you have two goals. You have to do the work, the program work, as well as maintain security. You have to have some sort of balance and be aware of the trade-offs on both sides.

    His view is that these counterintelligence and security folks need to be equal partners, sitting across from the people who have program responsibility, so you can work through these programs and say how are we going to get this job done and how are we going to make sure that sensitive information stays inside the organization? If you have this dual-hatting of security and counterintelligence folks, you don't necessarily have equals sitting across the table, you have this hybrid situation over here. And so to really make sure that the excellence in these organizations is protected, as well as the security, it is kind of out of sync or something.

    What do you think about that concern?

    Ms. JONES. I think that certainly the dual-hatting could contribute to that, but I think that is one of the biggest cultural issues that the Department is going to have to face. I think that the Rudman Report pointed out basically what you have is a scientific community that wants to do their science and wants to do their research. At times it is very difficult for them to be concerned about security and you need to have that ingrained in their day-to-day activities.
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    So, I think the point he is trying to make is how can we make that happen. I think his concern is the dual-hatting may kind of get in the way of moving in that direction.

    Mr. THORNBERRY. Let me ask about another major concern Dr. Drell raises, and that is how you get this thing up and running, as Ms. Tauscher was talking about, with a limited time left in this Administration. His suggestion is there be a fixed term for the administrator, a period of X number of years so that you have some stability in that position.

    Mr. SISISKY. If the gentleman will yield, except for the founding, I think he makes an exception. I was just reading this.

    Mr. THORNBERRY. Well, let me ask, because there have been various approaches discussed. One is that only the initial administrator would have a term of fixed years to get the thing up and running. Another would be that it would be a fixed period, more like the Chairman of the Federal Reserve or other entities around the government.

    Ms. Jones, what do you think about that from a management standpoint?

    Ms. JONES. I think, Mr. Chairman, from a management standpoint, it would be extremely important to have term limits like that. Take as an example the Federal Aviation Administration. I believe that administrator now has a 5-year term. That is allowing her to be in that organization, deal with the management problems that they have over a long term to have some sort of continuity of programs so that change can be affected.
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    I think we are talking about a cultural change here, and I think most textbooks on cultural change are going to tell you three to five years minimum to really affect a cultural change in an organization. I think over the last 22 years, the Secretaries of Energy have changed on an average of 2-1/2 years. So basically the employees just sit around and wait until they get a new Secretary and they don't have to worry about a change, because any management change that had been implemented probably is going to be changed again. So I think that would take us a long way in having some stability for management change and would help with reform.

    Mr. THORNBERRY. Maybe you were referencing this, there have been some indications that there may be an attitude in the bureaucracy that we can wait them out essentially.

    Ms. JONES. Sure.

    Mr. THORNBERRY. And to overcome this cultural difficulty that you have mentioned several times, would it be of assistance to have that finite period that you know somebody is going to stay there, unless they are removed for cause?

    Ms. JONES. Yes, sir, I believe it would help.

    Mr. THORNBERRY. Mr. Rosenberg, would you like to comment on this? Are there any legal difficulties in setting a fixed term for somebody in this position?

    Mr. ROSENBERG. No constitutional or other legal problems whatsoever. I agree that the continuity that is provided in other independent agencies has been beneficial, particularly in multi-member agencies where there is both set terms and staggering of the terms, there is a continuity, and there is also a learning process that is passed on to others.
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    I would say that may be a significant flaw in creating a semi-autonomous agency as they have. It probably is an oversight that that is necessary.

    Now, to have only one 3-year term and then go back to non-tenured, I don't think that is a good idea in the sense of perhaps what could be done is a 2-year term, which will give a new administration an opportunity to assess the work of the person, and then have 3 or 4-year terms thereafter, as long as the agency exists. But the continuity hinge is important, and there are no legal problems of amending the statute now and giving a term.

    Of course, a term of years is not fixed in stone. All that does is create an outer limit as to how long the particular administrator stays. Without a for-cause removal provision, which I don't think is necessary here, I think that would be efficacious.

    Mr. THORNBERRY. I might just mention in drafting the legislation, it was certainly something that was under discussion, and it was one of the compromises in getting the final legislation done that it was not a fixed term for years. But I think it is something to look at.

    Mr. ROSENBERG. Also to get good people, you need a certain amount of security, I think. That also helps.

    Mr. THORNBERRY. That is a good point. Mr. Ebel, I would like for you to comment on this, but I would like to also broaden the question a little bit, because your testimony helps remind us that we are not just talking about the nuclear weapons complex in the United States. Also in the new entity is the nonproliferation efforts of the Department of Energy, which are very important.
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    I would like for you to make whatever comments you want on that subject, but also the importance of stability in an organization when dealing with the Russians or others in these nonproliferation efforts.

    Mr. EBEL. Okay. I come to the issues of what is legal, what isn't legal, double heading, lengths of appointment, from a slightly different point of view. These concerns are going to be debated. Debate takes time. Debate delays action.

    I am reminded of that famous Peter principle, delay is the deadliest form of denial. So we have to be careful here because the world is not going to wait for us while we get our act together to determine what is legal and what is not legal. There is so much going on within the former Soviet Union, if you follow these issues on a daily basis as I do. In fact, I am scheduled to travel to the country of Georgia on the 14th of this month for a quick two-day visit to see what is going on.

    I have tracked energy developments in the Soviet Union since 1956 when I first joined the CIA. I can assure you that if you want to worry about something tonight when you go to bed, you can certainly worry about the status of the nuclear industry in Russia. You can worry about scientists who have not received a salary for months and who might be attracted by a salary of $2,000 a month to go to Iran or Iraq or Libya. You can worry about soldiers in the field who have a new device in their custody who have not been paid for months who must go out and search for their own food and would be very amenable if someone came to them and said I want to give you $10,000 if you would disappear for several hours.

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    These are very real concerns today. Unfortunately, our government has a predilection of reacting, and not acting. We have been lucky so far. There have only been anecdotal stories with thefts of nuclear materials. We undertook a test case at the National Defense University several years ago in which two nuclear devices were stolen in Russia. One was exploded to let the world know that they were in the hands of a group of terrorists, and they said now, we are going to set off the next one in the United States if you don't do such-and-such.

    Our task was to find that nuclear device before it hit the shores of the United States. We could not. There was no way that you could do that.

    So, as I said, the situation in Russia today under Mr. Putin and his position on all of these issues is questionable. Once he gets elected President at the end of this month, and I am sure he will, then he becomes his own man and we will see what vision he has for Russia. But in the interim their economy continues to unravel, their nuclear material continues to go unsafeguarded.

    So we cannot afford to lose much more time. That is what I am concerned about. As I mentioned in my testimony to you, we have the NNSA in place, we have our nuclear labs. They need to be provided with the right direction. We must take care not to replace, as I mentioned, a number of small stovepipes with one large stovepipe. It is not going to resolve the question.

    So we need to get on with the issue. It probably will be debated for the remainder of this year, and that is unfortunate, because we cannot afford that loss of time.

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    Thank you.

    Mr. THORNBERRY. Ms. Jones, Mr. Ebel makes the point that the stuff we are dealing with is so important we cannot afford to fool around and wait for the next administration to pick up the ball and run with it. In a related point, you argue that it is also very important to get something right at the beginning because it is harder to change later once you get going down a track and it is easier to get it going down the right track at the beginning rather than correct it later.

    Is that kind of where you are coming from on getting this going the right way from the beginning?

    Ms. JONES. Yes, sir, I believe it is, and I guess that we felt that the implementation plan, recognizing the Administration and their implementation plan says we didn't have much time to put it together and there is not much time left in the Administration, but in a sense it wasn't even really a good faith effort in terms of how we are moving forward. It just seemed to be we are doing everything okay, we have already realigned, our processes are working okay, so let's just use those and move forward.

    So even if there had been what I would call a good faith effort to say we recognize we need to do this, this and this, and this is how we think we want to move forward, I would have felt a little bit more comfortable with the implementation plan.

    Mr. THORNBERRY. Thank you. We are pleased to be joined by the chairman of the Procurement Subcommittee, Mr. Hunter, and I will recognize him at this point.
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    Mr. HUNTER. Thank you very much, Mr. Chairman, and thank you for the great job you are doing, and Ms. Tauscher and my good friend Norm Sisisky and all the other Members of the Panel. If this DOE was rerestructured, was implemented as efficiently as you have implemented the Panel, I am sure we would not be here today.

    Let me just go to a few general questions that center around my experience with DOE and some of the problems that led to reorganization and just ask you to comment on those.

    When we examined the theft of secrets at Los Alamos, what was I think most striking was the reaction, the confusion, the ''who is on first'' situation that prevailed for the 14 months following the recognition that a person was probably stealing nuclear secrets, and that resulted in the suspect being allowed to stay at the nuclear weapons secrets vault for 14 months after the head of the FBI had met with the Acting Secretary, Under Secretary Moler, and told her, as he said and has been testified by witnesses essentially, get this guy out of there. He may steal more stuff.

    Fourteen months later, somebody turned around and said did anybody ever fire him or remove him from the nuclear secrets vault? Nobody had. I think that in the strongest way manifested the problem that we had. That was a situation in which there was confusion, a lack of accountability, and a lack of a chain of command. It is clear to us the essence, the cornerstone probably of oversight, whether it is within the Department or here on Capitol Hill, is accountability, the ability for a military officer to pull in his subordinate who commands the third brigade and say what is going on here, I am holding you responsible, what happened? And probably more important, the ability of the commanding officer of the third brigade to have the control, to be actually able to change and control things within his unit. That is something that we did not have in the Defense Department or the Department of Energy.
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    Now, what I am concerned about, and what I like most about the reorganization, was we established a chain of command. We had an administrator whom the Secretary could exercise his total control over, just as a division commander exercises control over his brigade commanders, and could effect any policy he wanted simply by bringing that individual in and giving him direction.

    I would like you to comment on this. It appears to me one of the big problems was that we had multiple miniature ad hoc change of command where staff people in the director's office would issue confusing, often contradictory directions to people in the field, at our weapons laboratories and other places, and those would often be contradictory to the directions that they were taking from their department leaders or the people who were ostensibly above them in the chain of command. We sought to eliminate that.

    Now, by the Secretary putting this dual hat on and saying I am also going to be the administrator, it appears to me that what we have done is we have migrated his staff to this role, to this second position, this second office, so that they are still in the position to micromanage and to filter the various political pressures and agendas of folks who are not in the chain of command and are not accountable down into the people that I would analogize to the lieutenants, captains and privates in our nuclear weapons laboratories.

    In other words, it appears that by dual-hatting and bringing his staff with him, the Secretary has maintained the confused lack of accountability that has led to this massive tragedy at Los Alamos.

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    Would you comment on that? Whoever feels like doing it.

    Ms. JONES. Yes. Well, I think it even goes beyond the comments that you are making, Mr. Hunter, in terms of there still is confused lines of authority, because while, for example, if you talk about Sandia, Sandia is still reporting through an area office and an operations office before it even gets to Headquarters. So if something goes wrong at Sandia, you are still going to have everybody going, well, it was their fault, which is what the discussion that you described earlier in terms of the espionage event was.

    I will give you another more recent example, and that is the National Ignition Facility at Livermore. The Secretary was out there last summer and announced this was the best managed project in the Department of Energy, we are on budget, on schedule, but the problem is that it wasn't. It is $350 million and I think 18 months to two years behind schedule.

    Mr. HUNTER. The heck with you. If you can't take a joke.

    Ms. JONES. The problem was that the Oakland operations office had no idea what was going on at Livermore. They were in the line of accountability and had no idea what was going on. So they could not tell Headquarters DOE what was happening. So the Secretary was going on his merry way thinking everything was fine. That really has not changed.

    The same thing when you look at the Albuquerque office. The definition of roles and responsibilities between the Operations Office and Headquarters, that was laid out in 1968. It has never been changed. So there is a lot of confusion in terms of sometimes Albuquerque sets policy, sometimes Headquarters sets policy. Sometimes Headquarters directs the contractor, sometimes Albuquerque directs the contractor. So even with the change in terms of lines of authority, there is still a lot of work to be done to make sure there is direct accountability.
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    Mr. HUNTER. Any other comments on that area?

    Mr. ROSENBERG. This is at the peripheries of my expertise, but my understanding and study of what has happened here is that because of the cultural history within the agency and what you have accurately described, Mr. Hunter, has affected the Secretary now being the administrator and perhaps will be for some time until a nomination is actually sent to the Senate and is confirmed. These problems in the statute with uncertain lines of authority in some respects are going to continue on. It will be solved somewhat by giving a tenure for the administrator, assuming he can be fairly quickly put on.

    But I was thinking that the Rudman Report actually made this semi-autonomous agency the second choice. The first choice was, of course, making it an independent agency, reporting directly to the President. If you want lines of authority with a commander at the top and without somebody standing at his side, but with the commander-in-chief at the top, that might be a consideration. It may be very difficult to do it. I don't know what the administrative problems would be of simply taking it out and having that single chain of command reaching directly to the President. But this might be a solution, but it is certainly underlying the problem.

    Mr. HUNTER. Just one last question here, Mr. Chairman, and thank you for everything you have done on this, because I think this Panel has done great work.

    Having looked at the state of affairs that exists today, is it your opinion, and I would like each person to comment on this, is it your opinion that the chain of command that we did establish, the structure we did establish, is essentially sound if implemented according to the intent that we manifested when we put this thing together, that is, to have an agency where you had a chain of command, where you had people who were assigned roles and responsibilities and who answered through the chain of command and not through informal lines of communications? Is this basically sound, what we did, and is the problem in the implementation or lack thereof that has taken place, and if you were going to assign a number, maybe between one and ten, ten being full implementation of the plan as Congress intended, where are we? Do you give it a one, a two, a none? Where are we now? So, is this thing sound?
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    Ms. JONES. I think that the legislation certainly was broad enough that clarifying the chains of command was something that could have been done under the legislation. I think that the chains of command that have been set up, as I said earlier, still may have too many pieces, and I think we need to take a step backward, look at the mission we want to accomplish, and make sure that the organizational structure is going to get us at that mission.

    I would take a look at the field structure, I would take a look at, for example, you have got Livermore, one of your defense labs, I know it has science missions too. Maybe you want to move that under NSA. That is just a thought. I don't know if I could rank it on a scale. I certainly would say that it is a start. I still think more needs to be done. I don't think I can give it a number.

    Mr. HUNTER. You think more should be done legislatively?

    Ms. JONES. I think it can be done legislatively, or it can be done within the Department. I think the Department has the wherewithal to take a step backwards and say do we need these field offices, what are their roles? Is that helping our line of accountability or hurting our line of accountability? And they have not chosen to do that.

    Mr. EBEL. Again, it is a start. Is it cast in stone at this stage; is it something you would want to go forward with, recognizing as we gain experience in the operation of the NSA, it would be subject to change?

    My continuing fear is that, as I mentioned in my remarks, delay is dangerous today. Delay is dangerous. Are you prepared to be reasonably satisfied with what you have, that you can go forward with it? If there are too many questions that arise, you have to take time and step back and say how can we fix it before we get it up and running.
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    Mr. HUNTER. I think we presume the Secretary would follow the spirit as well as the letter of the implementing legislation. There is a world of difference between having a member of the Administration who is in a key position in the executive branch either willingly implement the legislation in the spirit in which it is passed, or be forced to only accept those things mandated by law, and wherever there is some wiggle room, take an opposite position. We are going to talk to Secretary Bill Richardson later today. I have told Secretary Richardson a couple of times, I think in this resistance he is disserving himself. As a guy who has been in the military, I learned and I saw a lot of guys experiment with a lot of creative new military scientists trying to come up with alternatives to a rigorous, tough, accountable chain of command, where you had certain powers that were given to you and you answered for what you did, and you sat there in the chair by yourself and you were the guy in charge and nobody else was, and I found out there was no substitute for that. I don't think there has ever been a substitute for that in military operations.In this case, because of the nature of what we do in this Department, in this particular weapons area, we need to have total, one line accountability.

    I think by simply migrating staff power down to this second position, and thereby encouraging a myriad of contacts, communications, conflicting signals, I don't think the Secretary is advancing any good agenda. I think he is hurting himself. I think it would be better for him, and I watched him work on a lot of different areas here, he was on television last night about 10:30 talking about oil supplies and lots of other things, it doesn't serve him well to be in a position to have to micro-manage from his staff level the activities of this enormous operation. He may come to that conclusion at some point. It is a tragedy that we have to drag the Secretary kicking and screaming into this implementation.

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    Mr. EBEL. After this afternoon's testimony is completed, you might have a better feel about the correctness of your assumptions.

    Mr. HUNTER. Maybe he is coming on board strongly. Norman Sisisky may have talked him into it.

    Mr. THORNBERRY. Chairman Hunter, let me just add to that. In the PFIAB Report they said DOE can't be fixed with a single legislative act. Management must follow mandate.

    I think that is what you are saying. We cannot solve all the problems. We can't write a law that is specific to solve all their problems. They have to pick up the ball.

    Mr. SISISKY. Let me give you another problem. This is to Ms. Jones. We lifted this right out of your testimony. In your statement you say that the significant questions remain about the relationship between NNSA and DOE's organization that oversees NNSA and DOE's line management to ensure effective environmental safety and health programs.

    As we all know, these are the areas we cannot afford to go back on. But what are your recommendations for ensuring clarifications of these questions? I think that was one of the other Committee's problems with the legislation.

    Ms. JONES. Yes. I think the problem we are reporting out there, Mr. Sisisky, is these organizations still reside in DOE, which is actually fine. But when they are looking at the NNSA functions, it was unclear from the legislation whether NNSA really had to respond to their recommendations. Usually these organizations work on a day-to-day basis with the folks out at the labs or facilities, talking to them about their findings, like, you really need to fix this or focus on that. Can they still have that kind of relationship? Because there is some very direct language in the law about not being able to direct NNSA employees.
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    So if you have an oversight organization that is still considered a DOE organization, then maybe the law doesn't allow them to direct an NNSA organization, so, therefore, NNSA can just say we are not dealing with your recommendations. I think that is just a clarity issue in terms of the relationship between those two organizations.

    Mr. SISISKY. It could be a management decision, thou shall do this and that.

    Ms. JONES. It could be internal. I think our testimony says, for example, that the oversight group for safeguards and securities had told us they were concerned and were going to try to change the DOE order. That may fix it for them. It is not going to fix it for the Environmental, Safety, and Health (ES&H) organization. Then there is also the concern in the law about DOE employees not being able to direct NNSA. That may have to be tweaked somewhat.

    Mr. SISISKY. Thank you.

    Mr. THORNBERRY. Ms. Tauscher.

    Ms. TAUSCHER. Thank you, Mr. Chairman. Ms. Jones, as you know, I have got Livermore and Sandia in my district in California, and what I am concerned about in addition to the myriad of issues we have talked about for the last 90 minutes on the nuclear security side is both of my labs do not do what is called work for others, non-defense work. Is there any negative impact on the labs that you can see from the way the legislation is formulated, or is there a perception—I think part of the problem we are dealing with is a sense of perception out there, and that has created hesitancy and deniability of even having to move.
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    I want to talk about that vis-a-vis the opportunity to fix the field organization, because clearly the science side of the house that does work for others, and science, non-defense work, needs to have a chain of command coming back to headquarters that would include a field office. When you are at a blended place like Livermore, for example, you have got to be able to figure out how to get the folks in the door who do the other work.

    Is there anything that you can suggest or that you see that would be a hindrance or a problem for that, or do you—well just tell me what you are thinking about.

    Ms. JONES. I guess in terms of the first part of your question, it was really focusing on work for others, whether it be outside the Department of Energy or inside the Department of Energy, and to me it was the intent of the law and the implementation plan, it was very clear they wanted to continue that type of effort.

    What is a little unclear to us is that there didn't seem to be in the implementation plan a clear sense of how that was going to work. Was it going to work like the Office of Science would contract something or would it be a memorandum of understanding? So that could be clarified to make it very clear how that is going to work, so that every would one would be very comfortable. Fine, I see it, yes, we can do it, this is how it is going to work, so I am comfortable that is actually how it is going to happen.

    The question on the field offices is a little more complicated. I don't really have an answer for you. I think that is one of the reasons we said let's take a step backwards, understand the mission and what you need for the mission, and maybe for the science mission, as you said, you need that field office. Maybe for NNSA you don't. That is one thing DOE has not done and I think it needs to be done as part of how we move forward with this.
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    Ms. TAUSCHER. If we had a reorganization, say, of the field office structure and for argument sake you looked at Livermore and said that because of the defense programs and nonproliferation (DPN), that you wanted a much clearer chain of command so that the Livermore functions that dealt with the nuclear complex went to Albuquerque, inside of the NNSA, and then the science work for others went to Oakland, I don't see a problem with that. Do you see a problem with that?

    Ms. JONES. Off the top of my head, no, but I would actually like to think through what the implications are and what kinds of duplications of activities you would have. That is one of the reasons you need to look at the functions of the Operations Office, what they do for you. Is it purely administrative, do you have program direction, and what functions do you need in both those places? And if it makes sense, maybe it is just fine to do it that way.

    You might also look at do you need the number of operations offices that you have. There is a lot of different cuts you can use to look at this. I think we also recognize the political difficulty of doing this, because if you are talking about changing, closing, reducing, any kind of Federal entity, there is always problems with doing that.

    So that is another issue that has to be dealt with as we look at the field structure.

    Ms. TAUSCHER. Thank you. Thank you, Mr. Chairman.

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    Mr. THORNBERRY. Thank you. Let me follow that up, because both GAO and Mr. Rosenberg talked about this field office, and the implementation plan specifically says we are not changing this. We are going to not change it.

    Mr. Rosenberg, as you I think noted, the law says the head of each of these sites reports directly to the Deputy Administrator for Defense Programs. So do you have an opinion about whether it is consistent with the law to have these field offices or anything else in between there in the chain of command?

    Mr. ROSENBERG. The restructuring legislation says nothing about this, obviously, or we wouldn't be talking about it. The reorganization, the effective rejection of this structure by Congress, fully aware of the management plans that were implemented by the Secretary in, I believe, April of 1999, indicates implicitly that this was not meant to be, but it was continued on in spite of that, and there is certainly a sense that this is contrary to what the Congress wanted.

    However, you can speak to these things and could have spoken to it and didn't, and left open this loophole.

    Mr. THORNBERRY. It is always a difficulty of how specific you get in legislation and how much flexibility you leave, and that is one of the trade-offs.

    Mr. ROSENBERG. The problem is there were no full hearings on these particular things, which might have made it clear in the legislative history, and a report.

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    Mr. THORNBERRY. There certainly has been full hearings on the problems.

    Mr. ROSENBERG. Yes.

    Mr. THORNBERRY. And a number of times the field office structure and the confusion has come up.

    Ms. Jones, would you agree that at least the way it has worked in the past, it has been part of the problem?

    Ms. JONES. Yes, in many cases it has been part of the problem in the past. But, again, part of this is a culture issue as well. So I keep wanting to bring it back to the culture and the fact that, as you said earlier, Mr. Chairman, we cannot legislate a culture change. So this legislation is a framework, and we need to continue to work with the Department of Energy and the NNSA to move forward in terms of how they really are going to make this culture change.

    Mr. THORNBERRY. I think we are particularly aware of the limits of our ability to fix all problems. What we can do is have a framework of legislation that hopefully will work better than what we have had before.

    Let me also just be as clear as we can. Both of you have talked about dual-hatting. Mr. Rosenberg, for a lawyer you were pretty clear saying that it seems to be clearly against the letter and intent of the law. Is that your testimony?
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    Mr. ROSENBERG. Yes, sir.

    Mr. THORNBERRY. And, Mrs. Jones, you also agree that dual-hatting, whether at the top or down through the ranks, is clearly against the letter and intent of the law?

    Ms. JONES. Our testimony really spoke to the intent of the law, not to the letter of the law, simply because of the timeframe we had to do the analysis. We were comfortable with that. We weren't comfortable going quite as far.

    Mr. THORNBERRY. But you agree that is not what Congress intended when it passed that law?

    Ms. JONES. That is correct.

    Mr. THORNBERRY. Thank you. Mr. Rosenberg, you alluded in your testimony to all of the, or some of the, difficulties with the Vacancies Act and leaving these positions open. If, as the newspaper reports today, the Secretary makes a recommendation, is that enough to solve these problems, or do the formal papers have to go from the White House to the Senate before the burden is really off the backs of the Administration in some of the limitations that you have outlined for us?

    Mr. ROSENBERG. For the three advice and consent positions in the NNSA, until a formal nomination is submitted to the Senate, the ball remains in the executive's court and there is a taint or a question about actions taken by those people who are designated to perform the functions of those three offices.
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    Mr. THORNBERRY. And I think your analysis of the cases indicated the reasonable timeframe roughly that courts have looked at was what period of time?

    Mr. ROSENBERG. They looked at, the seminal case, the leading case in this area, Williams v. Phillips, took as a benchmark 1973 under the old Vacancies Act, the 30 days of the Vacancies Act is a reasonable period.

    I don't believe that a court looking at it today would then say well, that is a reasonable period now, is the 210 days that is done by the— that is a limitation of the Vacancies Act. I think a court looking at it would probably not split the difference, but would be closer to the 30-day reasonableness period and then take into account how long has this been going on.

    The Secretary, for instance, has been acting as the administrator since October. A nomination has not come forward. A recommendation apparently just went up yesterday. So if it is possible for a lawsuit to be brought, and that is another question, I think the period probably has expired.

    Mr. THORNBERRY. Well, I want to get, because this is the first—

    Mr. ROSENBERG. Of reasonableness.

    Mr. THORNBERRY. This is the first time I have heard this concern, that if— and we hope not— if something happens, there may be some legal liability for having persons in these positions on a temporary or acting basis. Is that what you were talking about?
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    Mr. ROSENBERG. Well, first there is the injunction with regard to advise and consent positions of the Constitution.

    Mr. THORNBERRY. Yes, sir.

    Mr. ROSENBERG. The President apparently, according to the case law, as I have understood it, has no inherent authority to simply designate an advise and consent person for an indefinite period of time. So, therefore, it is simply actions that he took which may cause harm outside of the Department of Energy and outside of NNSA that would be questioned if they caused injury someplace, or simply the injury may be to the institutional prerogatives of the Senate, not being given the timely opportunity to say something. That is an injury, an institutional one, that I think still even despite Reins v. Byrd, is one that is litigable.

    Mr. THORNBERRY. Interesting idea. One area we have not talked about today yet, and is something that I think Ms. Tauscher and I heard about as much as anything as we visited all of the sites, was the planning and programming and budgeting issues and the considerable frustration that people working in the complex have because they don't know what is in front of them and are very frustrated about the situation as it has existed in the Department of Energy.

    Ms. Jones, you talked some about that in your testimony. Would you elaborate a little bit on what GAO has said in the past about the Department of Energy on their planning and budgeting aspects and what you see in the implementation plan that helps make it better, if anything?
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    Ms. JONES. I think we have talked in a number of different reviews about problems in this area. We have also looked at their Government Performance and Results Act (GPRA) plans from an overall standpoint. Basically what the implementation plan says is we think what we have is just fine, we will leave what we have in place.

    I think our testimony gives an example in each of those areas: planning, programming and budgeting from the stockpile stewardship program, which is the defense program's program, where recent studies have said there continues to be problems.

    So I think that is something, again, that the Department could take a step back on and say wait a minute, let's make sure that what we are going forward with is what we want to go forward with. Let's try to address some of the problems that our own internal studies have talked about.

    Mr. THORNBERRY. Well, for example, there is a provision in the law regarding the budgets that come up as well as using your money, which has been a continuing source of concern for members of this Committee, the full Committee, and none of those items were changed at all.

    Let me ask you about one other thing of particular interest to GAO, and that is overseeing the contractors. There is part of this that I understand GAO labels as high risk and in the Budget Committee last week or the week before we had considerable discussion with some other GAO folks on high risk programs and what that means.

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    Can you summarize for us what your concerns are and what it means to have a program labeled as high risk?

    Ms. JONES. Well, I think in this particular case, DOE's contracting we have labeled high risk and one of the reasons is the unclear lines of authority have resulted in very weak oversight of the contractors.

    I also think that the incentive structure that has been in place over the years, though it has gotten better—they are going to performance-based contracting, so they have made strides in that area, is another element.

    The third element is competition. The fact that again DOE is getting better at this, that for years and years they competed very few of their contracts. They have made great strides there.

    But, again, what we are looking at is a culture issue. I think one of the culture points that they need to look at is that the contractor always knows best, and DOE's response is also we don't have the technically qualified people to really look at the contractor to make sure they are doing the right thing.

    I think the legislation does provide some help in that regard, and I would hope that the Department would step up to the plate. I have been hearing that argument for 15 years. I have been in and out of looking at DOE for a long time, and they have used that argument forever.

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    Mr. THORNBERRY. Is the help you are referring to the provisions of the law that allow 300 employees to have some exemptions from some of the regulations that govern the employees?

    Ms. JONES. That is correct, sir, because then you can bring in the folks with the technical knowledge that you need, folks with contract knowledge, people with finance expertise, and even project management is another big issue that DOE is still grappling with.

    Mr. THORNBERRY. We are not really talking about more people to oversee these contracts, because some of the reports we are talking about are the differences between DOE contract oversight and some other agencies. We are talking more about the examiner expertise in doing that.

    Ms. JONES. It is kind of two different things. One is, you are correct, the expertise in doing that. Let me just give you an example. Project managers at DOE are supposed to be certified. They take a certain amount of training and have certain skills. We did a report last year on training. I think it was two out of the 33 project managements at Savannah River had been certified. That was it.

    But the other point is the incentive structure for the contracts and the ability of the Department of Energy employees when they are looking at those contractors to use the incentive structure as it was meant. I think our position has been that they really have not had the will to do that, that basically whatever goes wrong they are still going to give a lot of the incentive award fees to the contractors.
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    Mr. THORNBERRY. The Secretary is recompeting many of the contracts for the nuclear weapons complex sites this year. Have you looked at that? Are you watching it to see how all of that goes?

    Ms. JONES. We really have not. Certainly we have been following it in the press and we have folks who are knowledgeable about that. We don't have any specific work ongoing at this time to look at those contracts and how they are being competed.

    Mr. THORNBERRY. That may be an area that we all want to pay careful attention to.

    Ms. Tauscher.

    Ms. TAUSCHER. Thank you, Mr. Chairman. I actually have two questions. I want to follow on with Ms. Jones. Since GAO is seeing a lot of things out there, are there some new best practices modems used on competing contracts, Federal contracts, that you have noticed over time or that you could help us with over time that are kind of the state of the art way of doing it, that as this opportunity approaches of competition for some of the nuclear weapons complex contracts, so that we could be aware of what is out there, what is the state of the art and how we might make sure that we are not applying an old paradigm to an obviously new problem?

    Ms. JONES. Ms. Tauscher, let me supply something for the record on that, because I know that our GAO staff do, for example, DOD work. We have done a lot of work in acquisition management there. They may have some best practices. Let me look across our organization that looks at all Federal agencies and see what we can pull together for you for the record.
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    [The information referred to can be found in the Appendix.]

    Ms. TAUSCHER. I appreciate that.

    Mr. Rosenberg, earlier when you and Mr. Thornberry were discussing the Secretary's acting administrator position, you indicated that he had been in the job since October. But since the NNSA had been formally promulgated only yesterday, isn't he in the job one day?

    Mr. ROSENBERG. Well, he—.

    Ms. TAUSCHER. I am concerned about when does the clock start ticking.

    Mr. ROSENBERG. That is the question, when does the clock start ticking. I discussed that in my memo. The earliest, of course, it can start ticking is on October 5th, when the President assigned him and directed him to do this. In effect, at that particular moment he was the head of that agency, creating it, developing it, and obviously the culmination, the first major point is the implementation plan which is a product of his leadership.

    The second point where a court might look at is when he established the search Committee, and that is a particular point of time where a court could say well, at that particular time is where we might start.

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    The third is now, the clock is ticking. I don't know what a court will do right now, but they might be persuaded by the fact that he took control of the nascent agency, has been shaping it, and without any impetus in finding somebody who would be permanent.

    As I understand the implementation plan, the impetus for setting up the selection Committee was some kind of encouragement from Senator Domenici that he would do something with the statute. So quid pro quo, they started looking.

    That doesn't sound like good faith to a court at any rate.

    Ms. TAUSCHER. I think much of the discussion about this has been mitigated by the fact that it looks like there has been a candidate, at least winnowed down to at least one person, and perhaps we are going to see a nomination soon, and I just don't want to get wrapped around the axle here about when the clock started. I think we probably have a solution. I remember when I got pregnant with my daughter, they didn't call me a mother, they called me a mother-to-be. Perhaps he was the administrator-to-be until yesterday, and I am perfectly willing to concede that today he is day one of being the administrator.

    Mr. ROSENBERG. I think I said this, as a technical matter, the clock doesn't start until the nomination comes and the ball is in the Senate's court. We don't know when that is going to happen.

    There are two other advise and consent positions in which there has been no search Committee, as I am aware of, and these people who are put into the office yesterday, the clock will be ticking on them starting yesterday I would presume.
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    Ms. TAUSCHER. I am happy to take the Secretary at his word in his statement that is on the website basically where he says I hope the President will soon nominate an Under Secretary for Nuclear Security and that the Senate will quickly confirm. The naming of two people who have already gone through the process that were essentially temporarily dual-hatted but certainly are qualified for these jobs I think mitigates any question of us being concerned in the short run about any kind of legal action.

    Mr. ROSENBERG. Sure. I agree.

    Ms. TAUSCHER. For the very short term.

    Mr. THORNBERRY. Well, let me thank our witnesses again for being here and for all of your assistance. Without objection, I would like to include in the record the memo that was on the DOE website which Ms. Jones referenced which we also have a copy of, as well as the other information on the website dealing with NNSA as of last night.

    [The information referred to can be found in the Appendix.]

    Mr. THORNBERRY. The Panel will continue to have other hearings in the future and work with the Department to try to make this thing function as good as it can. We spend lots of time talking about the details of things. What we can't forget is that we are talking about an issue that is central to the national security of the United States.

    Getting back to a point that Mr. Rosenberg made earlier, there were two options recommended by the President's Committee. One was the more modest one of a semi-autonomous agency. The other was a completely independent agency. If we can't make it work with the Department of Energy, there will be a lot of interest in going ahead and separating it out and doing whatever it takes to make sure that this vital work for our defense and for our nonproliferation efforts, is done successfully.
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    So I appreciate our witnesses and guests, certainly as always our ranking member, and the hearing is adjourned.

    [Whereupon, at 11:52 a.m., the Panel was adjourned.]


March 2, 2000
[The Appendix is pending.]