On the last day before Congress left Washing- ton for the August recess, the House and Senate conference committee for the defense authorization bill (S. 1059) reached an agreement to reorganize the Department of Energy (DOE). The legislation would establish a new semiautonomous agency within DOE with responsibility over the nuclear weapons laboratories and production facilities, marking the first major reorganization of the department since it was created in 1977. In a press release following the release of the conference report, House Armed Services Committee and Conference Chairman Floyd Spence (R-SC) stated, “This agreement takes an important first step to streamline and make more accountable what has become a dysfunctional organization. This legislation will provide for cleaner lines of authority and accountability to ensure that our nation’s most vital nuclear secrets are properly managed and secured.”

The conference agreement directly responds to a recent investigation into security threats at DOE weapons laboratories conducted by the President’s Foreign Intelligence Advisory Board (PFIAB) chaired by former Senator Warren Rudman. The PFIAB report, Science at its Best, Security at its Worst, concluded that DOE had failed in countering security threats, and that it is a “dysfunctional bureaucracy that has proven it is incapable of reforming itself.” The PFIAB report recommended two organizational solutions, to either create a semi-autonomous agency or a wholly autonomous agency. The idea of creating a wholly autonomous agency could not garner a majority interest and met with severe opposition from the Administration, hence, the concept of a semiautonomous agency gained momentum through two legislative vehicles — the intelligence and defense authorization bills.

Senators Jon Kyl (R-AZ), Frank Murkowski (R-AK), and Pete V. Domenici (R-NM) offered amendments to the intelligence authorization bill (H.R. 1555) in July that would also create a nuclear security agency within DOE. The authors also worked in amendments to address concerns from the Administration and Senate Democrats with respect to the ability of weapons and non-weapons laboratories to conduct related research and to ensure that environmental, health and safety requirements are met. Shortly after the Senate passed H.R. 1555, defense authorizers (already primed for conference) rightly claimed jurisdiction over the energy laboratories and incorporated language into their conference agreement to create the semiautonomous agency (S. 1059, House Report 106-301).

The agreement would establish within DOE a National Nuclear Security Administration (NNSA). According to the conference report, NNSA would be a “semi-autonomous agency within the Department that would be responsible for nuclear weapons development, naval nuclear propulsion, defense nuclear nonproliferation, and fissile material disposition.” The NNSA is to be headed by an Administrator for Nuclear Security who would also be considered the Undersecretary for Nuclear Security subject to the “authority, direction, and control of the Secretary of Energy.” The new Undersecretary/Administrator would, however, have authority over agency-specific policies, the agency’s budget, personnel and, legislative and public affairs.

The issue of the line of authority is of immediate concern to the Administration that fears the creation of an insular agency with vague accountability to the Secretary, no clear links to non-weapons activities within DOE or responsibility to environmental, health, and safety issues. Echoing the Administration’s concerns, Sen. Carl Levin (D-MI), Ranking Member of the Senate Armed Services Committee, released a statement outlining a memorandum prepared by the Congressional Research Service (CRS) that raised questions regarding the reorganization. The CRS Memorandum states that “the Department’s staff offices will be unable to have authority, direction or control over any officer and employee of the [new] Administration.” It also highlights concern that the NNSA would not be subject directly to the DOE General Counsel, Inspector General, or Chief Financial Officer. In addition, a letter from 46 state attorneys general was sent in early September to Congress expressing worry that the reorganization would undercut a 1992 law that gives the states regulatory control over DOE’s hazardous waste management and cleanup activities. Defense conferees countered that the proposal does not undermine the authority of the Secretary of Energy over the new agency and that existing state regulatory controls still remain in place.

Both the House and the Senate recently passed S. 1059. The only mechanism to stop the reorganization from moving further forward is a Presidential veto, which is unlikely. While Secretary Richardson has voiced dismay with the Armed Services proposal, S. 1059 also includes language for many popular items such as increases for combat readiness and training, pay raises, health care, and spending for military service programs. The White House has yet to release a formal statement of its intention with respect to the bill.