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B-115398

: Although we did not have the opportunity to evaluate EKDA's estimates in detail. we believe they provide a reasonable indication of the magnitude of the costs and extent of schedule slippages that might occur, if the project were terminated on July 26. 1977. and the Congress.cecideċ to restart it at a a later date. By comparison. if ERDA were to celay project termination until Deceber l. 1977. by honoring ongoing contracts but not entering into accitior.al contracts. not essential to ongoing work. the estirates costs wouli be increasej by about Sól million.

Based on the information set cut above, it would seem that teräinating the project prior to congressional celiberations coulĊ ake restarting the project so costly as to outweigh its benefit. Thus, in effect. the executive branca, if it is successful in pror.ptly implementing its present plan. may well have made a major policy cecision unilaterally tárough aduinistrative procedures which should have been race through the legislative process. The documentation we have examined discloses no intention on the part of the executive branch to proceec with completion of an LMFSA cenonstracion plant at clinch River in the future.

II.

THE IMFOURDMENT CONTROL ACT OF 1974:

Under the Impoundment Control Act of 1974 (Act), title X of Public Law 93-344. 88 Stat. 332. July 12. 1974. 31 U.S.C. 1400, et sec.. there are two types of inçcunccents--ceferrals and rescissions. The distinction between the two categories is the duration of a proposes withholding of budget authority: a deferral is a proposal to withdraw temporarily budget authority from availability for obligation; a rescission is a request to cancel. i.e., rescind. previously appropriate, funás--in other words, a permanent withàrawal of bucget authority.

In both categories of withholdings there exists a connon characteristic--in.poundment. While the term "icipourcent" is not defined by the Act. we have operates under the view that an inpouncnent is any type of executive action or inaction that effectively thwarts the obligation or expenditure , of budget authority. This does not mean, however, that impounazents always exist when budget authority is not used to implement all authorized activities.

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: The Act is concerned with the rescission or deferral of budget authority. not the rescission or deferral of programs. Thus, a luno-sum appropriation for programs A. 6. and c usei to carry out only program C would not necessarily indicate the exister.ce of impoundments regarding programs å ano 5. So long as all budgetary resources were used for program C, no impound ent would occur even though activities A and B remained unfunded.

Consistent with this construction of the Act. sections 1012(b) aná 1013(b) of the act. 31 U.S.C. 1402(3) aná 1403(5). respectively. provice that when proposerescissions and deferrals are rejected the inpounaec budget authority zust be "zace available for cölization." If this is not come the Comptroller General is authorized to bring suit to compel tie cessation of the withholding. 31 U.S.c. 1506. In this connection, the reguirements of the Act cleariy are to mandace the release of withheld funds. Significantly. no mention is tace in the act with respect to the uses to which 22 release, funds are put. The Comptroller General can only seek. and the court can only grant. an order compelling the President to release the funcs. Neither the Comptroller General nor the courts are authorized under the Act to constrain the executive branch in the way the funds are to be used once released.

Concerning the CRBRP. vie have deternines that, except for the $31.8 million helò in reserve for deferral 077-38. all funds have been made available for oblication for either incurring or liquidating obligations associatec with the project. Regariing the $31.8 million proposed for deferral. these funds also are planned for use. That available Eunáirg is beirg and will be used is the critical determination uncer the Act. In this light, we must presertly conclude that no evidence suggests an intention not to utilize (1.e.. a rescission) the $31.8 million in the future. Thus, weače satisfied that the deferral has been properly classified. However, should we later cetermine that the executive branch has altered its plans for the use of the $31.8 million and has decided that a portion of the funds will not be used at all. we will. at that time. take the necessary action to reclassify: the impounament to a rescission.

In addition we are monitoring the executive branch's handling of the $9.8 million involved in the award of subcontracts currently being reviewed by ERDA. If we decide

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that ERDA's actions regarding the use of these funds or any other CRBRO funds indicate the existence of further bucgetary withholdings, lie will promptly report the matter to the Congress..

i : III. PROPRIETY OF THE REVISED CRBRP PLASS: .

The President's plans to curtail substantially the scope of the LEHBR program at the clinch River site raise a number of guestions that focus upon the legislation that authorizea the project. Our analysis of the statutes setting forth the LMFBR activities of H.EC 2r., later Erdi is that they authorize the AEC (EXDA) to embark only on clearly delineates lines of effort. In 1969 the effort was to define what ultimately might comprise an LMFBR ceronstration project cooperative arrangement. vith enactment of the 1970 ar 1975 legislation. AEC (ERDA) was authorizeò to enter into agreements for the research ani development, design, construction, and operation of such a reactor.

We conclude that ERDA's proposed experiture of funds for the curtailed LMFER program is an intention to expena funds for unautsorizei purposes. Ta ost recent (1275) revisions of section 106 cf the Crazp.autro:ization. cuoted above. introduces the requirement of JCHE approval of L:23: program criteria. lie believe subsection 106(a) ir.corporates by reference into the statute itself the program criteria suonitted to and approved by the JCAE. In our vieti. and we know of no other that contradicts it, the approved progran criteria and the major objectives set forth therein are as much a part of subsection 106(a) as if they were explicitly stated in the statutory language itself. Thus, the currently approved program criteria, and of course the statute itself. establish the CRSRD's ultimate objective--to successfully complete, operate. and demonstrate the usefulness of an LHFR powerplant.

Subsection 10616) provides for a 45-aay çerica of waiting during which time the basis or description of a proposed amenament to the cooperative arrangement must lie before the JC2E. This delay, prior to ERDA's executing the amendment it proposes. affords the ICAE and others time to express views on the specific seans by which ERDA would accomplish the statutory objective of the program. lie believe the proposed amenaments contemplated by subsection 106(5) are only those the execution of which lead to fulfilling this goal.

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This construction of section 106 is supported; both by the language of the statute and by its legislative history. Subsection (b) of section 106 provides cot only that the basis or description of the arendment shall lie before tre JChe fo: 45 days. but also that the anences cooperative: aoreezent ERDA is authorized to execute after the 45-5ay period is to be entered into "under the authority of subsection (al of this section." Subsection (2) authorized ads to enter into cooperative agreements only in accorcance with the statutorily aprovei fiscacriteria. Those criteria. effectively : part c: the stat:te itself. cor.terplate the eventual cperation of 2.. 11:253 powerplant. Therefore, EZDA's authority to initiate the cunning of the 45-day period after which it may proceed to inclement its plans to 2.cend the cooperativa aç:eerenc, is constrainsc to offering to the JCA.E a basis or ċescription of 27encuents that are conçatible with the objectives of the prosra. criteria and of course the harronious. corective of the cachorization act--operating an LiFBR denonstratico? plant.

Our construction of section ich is supportes 23 well by discussions of the JCa2. For example. carira cezate on te most: recently subaittec project criteria. ine follc1.c exchance took place between Representative oss and !!r. liillian Failer. Committee Counsel. JCAE:

"Representative coss. If there is
a conflict between tre contract (the
cooperative arrangement) provisiors er.d
the criteria,' which controls?

*Mr. Parler. The criteria and the
justification data which the corzittee
(JCAE) approved.

"Representative oss. In other worås,
at all times that becomes the dominant
factor in interpreting any contract 1 for
the CRBRP) ? It must be consistent at
all times with the criteria?

"Mr. Parler. That is my opinion, Mr. Moss; Yes, sir." 1976 Hearings. page 4.

Moreover, on April 29, 1976, Mr. Parler said:

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* If the Committee (ICAE) disapproves the criteria. ERDA cannot proceed with implementation of the modification to

the contract." 1976. Hearings. paçe 521. IR meeting with ERDA representatives on the President's plans to revise the CRBRP objective, we ciscusses the agency's reading of section 106. ERDA views subsectio. 1Có (b) as a requirement that it begin to iaplement its plans for proposed amendments, after the expiratica of the 15-cay cerics during which the bases for those anerc..ents will have laid before the JC:9. irrespective of whether such action supports or destroys the objective of the authorizatica act. ind, because subsection (a) cf section 106 cces not provide explicit tice perioċs for either ERDĀ's submitting or the JCAE's approving new program criteria, subsection (a) "cefers" to subsection (b). Thus, ERDA believes that its letter of 2 19. 1977, was in compliance with the statutory rechanism of subsection (b) and it will. at the end of the 45-cay period that bega.? May 19. 1977. tricoer both the necessary authority arc the obligation to implement its revised plans to curtail the CABRP. ERDÀ officials dio not cisagree thai ESDA presently has ro authority to revise the accusent representing the cooperative arrangement in ways that are inconsistent witá existing statutory criteria. but apparently believe SAD: .ag efecéively implement its plans without at the same time constructiveiy revising the cooperative arrangement, an arrangement that calls for accomplishment, not termination, of the CKERP.

In sum. ERDA views section 106 as conferring authority to begin implementing the cancellation of portions of the CRBRP 45 days after açoropriate rotice to the scaz, but also requires that before ERDA formally modifies its contractual cocument it obtain from the JCAE approval of ERDA's proposed new program.

The practical consequences of ERDA's construction of the law deny the JCAE oversight of the LiF3R so long as the agency does not enter into ully executed amendment of the fornal contractual document. Such construction cisregards the wiceranging and very concrete changes that must be wrought upon the operation of the approved LÖPBR program before implementation of the President's plan. EP.DA apparently professes to read the relevant statutory languaçe as indicative of congressional disinterest in whether ERDA unilaterally proceeds to change the statutory objective of the program. The simplest reading of

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