B-115398 Although we did not have the opportunity to evaluate ERDA'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 decided to restart it at a a later date. By comparison, if ERDA were to delay project termination until December 1, 1977. by honoring ongoing contracts but not entering into additional contracts. not essential to ongoing work. the estimated costs would be increased by about $61 million. Based on the information set cut above. it would seem that terminating the project prior to congressional deliberations could make restarting the project so costly as to outweigh its benefit. Thus, in effect. the executive branch. if it is successful in promptly implementing its present plan. may well have made a major policy decision unilaterally through administrative procedures which should have been made through the legislative process. The documentation we have examined discloses no intention on the part of the executive branch to proceed with completion of an LMFBR demonstration plant at Clinch River in the future. II. THE IMFOUNDMENT 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 impoundments--ċeferrals and rescissions. The distinction between the two categories is the duration of a proposed 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 appropriated funds--in other words, a permanent withdrawal of budget authority. In both categories of withholdings there exists a common characteristic--impoundment. While the term "impoundment" is not defined by the Act. we have operated under the view that an impoundment is any type of executive action or inaction that effectively thwarts the obligation or expenditure, of budget authority. This does not mean, however, that impoundments always exist when budget authority is not used to implement all authorized activities. B-115398 The Act is concerned with the rescission or deferral of budget authority, not the rescission or deferral of programs. Thus, a lump-sum appropriation for programs A. B. and C used to carry out only program C would not necessarily indicate the existence of impoundments regarding programs A and B. So long as all budgetary resources were used for program C. no impoundment would occur even though activities A and B remained unfunded. Consistent with this construction of the Act. sections 1012(b) and 1013(b) of the Act. 31 U.S.C. 1402(a) and 1403(b). respectively, provide that when proposed rescissions and deferrals are rejected the impounded budget authority must be "zade available for cbligation." If this is not cone the Comptroller. General is authorized to bring suit to compel the cessation of the withholding. 31 U.S.C. 1406. In this connection, the requirements of the. Act clearly are to mandate the release of withheld funds. Significantly. no mention is made in the Act with respect to the uses to which the released funds are put. The Comptroller General can only seek, and the court can only grant, an order compelling the President to release the funds. 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, we have determined that, except for the $31.8 million held in reserve for deferral D77-58. all funds have been made available for obligation for either incurring or liquidating obligations associated with the project. Regarding the $31.8 million proposed for deferral, these funds also are planned for use. That available funding is being and will be used is the critical determination under the Act. In this light, we must presently conclude that no evidence suggests an intention not to utilize (i.e.. a rescission) the $31.8 million in the future. Thus, we are satisfied that the deferral has been properly classified. However, should we later determine 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 impoundment 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 B-115398 that ERDA's actions regarding the use of these funds or any other CRBRP funds indicate the existence of further budgetary withholdings, we will promptly report the matter to the Congress.. III. PROPRIETY OF THE REVISED CRBRP PLANS: . The President's plans to curtail substantially the scope of the LFHBR program at the Clinch River site raise a number of questions that focus upon the legislation that authorized the project. Our analysis of the statutes setting forth the LMFBR activities of AEC and later ERDA is that they authorize the AEC (ERDA) to embark only on clearly delineated lines of effort. In 1969 the effort was to define what ultimately might comprise an LMFBR demonstration project cooperative arrangement. with enactment of the 1970 and 1975 legislation. AEC (ERDA) was authorized to enter into agreements for the research and development, design, construction, and operation of such a reactor. We conclude that ERDA's proposed expenditure of funds for the curtailed LMFER program is an intention to expenā funds for unauthorized purposes. The most recent (1975) revisions of section 106 cf the CREPP authorization, quoted above. introduced the requirement of JCAE approval of LFBR program criteria. We believe subsection 106(a) incorporates by reference into the statute itself the program criteria submitted to and approved by the JCAE. In our view, and we know of no other that contradicts it, the approved program 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 CRBRP's ultimate objective--to successfully complete, operate. and demonstrate the usefulness of an LMFBR powerplant. Subsection 106(b) provides for a 45-day period of waiting during which time the basis or description of a proposed amendment to the cooperative arrangement must lie before the JCE. This delay, prior to ERDA's executing the amendment it proposes. affords the JCAE and others time to express views on the specific means by which ERDA would accomplish the statutory objective of the program. We believe the proposed amendments contemplated by subsection 106 (5) are only those the execution of which lead to fulfilling this goal. B-115398 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 not only that the basis or description of the amendment shall lie before the JCAE for 45 days. but also that the amended cooperative agreement ERDA is authorized to execute after the 45-day period is to be entered into "under the authority of subsection (a) of this section." Subsection (2) authorized ERDA to enter into cooperative agreements only in accordance with the statutorily approved program criteria. Those criteria. effectively a part of the statute itself. contemplate the eventual cperation of an LMFSR powerplant. Therefore, ERDA's authority to initiate the running of the 45-day period after which it may proceed to inclement its plans to amend the cooperative agreement, is constrained to offering to the JCAE a basis or description of amendments that are compatible with the objectives of the program criteria and of course the harmonious objective of the authorization act--operating an LMFER demonstration plant. Our construction of section 106 is supported as well by discussions of the JCAE. For example, during debate on the most recently submitted project criteria. the following exchange took place between Representative Hoss and Mr. William Parler, Committee Counsel, JCAE: "Representative Moss. If there is a conflict between the contract [the "Mr. Parler. The criteria and the "Representative Moss. In other words, Moreover, on April 29, 1976, Mr. Parler said: B-115398 ** ** If the Committee (JCAE) disapproves the criteria. ERDA cannot proceed with implementation of the modification to the contract." 1976. Hearings, page 521. : In meeting with ERDA representatives on the President's plans to revise the CRBRP objective, we discussed the agency's reading of section 106. ERDA views subsection 106(b) as a requirement that it begin to implement its plans for proposed amendments. after the expiration of the 45-day period during which the bases for those amendments will have laid before the JCAS, irrespective of whether such action supports or destroys the objective of the authorization act. And, because subsection (2) of section 106 does not provide explicit tize periods for either ERDA's submitting or the JCAE's approving new program criteria, subsection (a) "¿efers" to subsection (b). Thus, ERDA believes that its letter of May 19, 1977, was in compliance with the statutory mechanism of subsection (b) and it will, at the end of the 45-day period that began May 19, 1977. trigger both the necessary authority and the obligation to implement its revised plans to curtail the CRBRP. ERDA officials did not disagree that ERDA presently has no authority to revise the document representing the cooperative arrangement in ways that are inconsistent with existing statutory criteria, but apparently believe ERDA may effectively implement its plans without at the same time constructively revising the cooperative arrangement, an arrangement that calls for accomplishment. not termination, of the CRERP. In sum, ERDA views section 106 as conferring authority to begin implementing the cancellation of portions of the CRBRP 45 days after appropriate notice to the JCAE. but also requires that before ERDA formally modifies its contractual document 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 LMFER so long as the agency does not enter into a fully executed amendment of the formal contractual document. Such construction disregards the wideranging and very concrete changes that must be wrought upon the operation of the approved LFER program before implementation of the President's plan. ERDA apparently professes to read the relevant statutory language as indicative of congressional disinterest in whether ERDA unilaterally proceeds to change the statutory objective of the program. The simplest reading of |