FOIA Friday: Are Nuclear Regulators Adequately Evaluating Effects of Aircraft Impacts at New Power Plants?

FOIA FRIDAY

This week's document:   Memo: Inappropriate Use by NRC of Riera Model of Aircraft Impact for New Reactors Originating agency: Nuclear Regulatory Commission Office of Inspector General (NRC OIG) Document dates: September 21, 2010 Every Friday, POGO will strive to make one document available that we or others have obtained through the Freedom of Information Act (FOIA), especially documents that have not previously been posted online. Some of these documents will be more important than others, some may only be of historical interest— although relevance is in the eye of the beholder. POGO is doing this to highlight the importance of open government and FOIA throughout the year.

By NICK SCHWELLENBACH

Mohammed Atta, the Al Qaeda terrorist who piloted American Airlines Flight 11, which struck the North Tower of the World Trade Center on September 11, 2001, "considered targeting a nuclear facility during familiarization flights near New York," according to the 9/11 Commission report. It is widely believed that this "nuclear facility" is Indian Point Energy Center, which is 38 miles north of New York City.

The Nuclear Regulatory Commission (NRC) is responsible for regulating America's nuclear power industry, a responsibility that includes overseeing the nuclear industry's security and safety measures. According to an NRC Office of Inspector General (OIG) document POGO obtained via Freedom of Information Act (FOIA) request, questions have been raised about the methodology NRC used for assessing the impact of large commercial aircraft on new nuclear power plants:

The Office of the Inspector General (OIG), U.S. Nuclear Regulatory Commission (NRC), initiated this investigation based on a proactive initiative to identify instances where it appeared that NRC might not have followed agency processes regarding significant regulatory matters. At the time this investigation was initiated, the NRC was considering whether the Riera methodology was an appropriate tool for new reactor applicants to use to assess the potential effects of the impact of a large commercial aircraft on new nuclear power plants. OIG reviewed whether or not the NRC followed established procedures and processes regarding the appropriateness of using the Riera methodology for aircraft impact analysis.

Additionally, during the investigation, OIG identified information that suggested NRC may have inappropriately released information to licensees by providing them with data that could be reverse engineered using calculations from the Riera methodology to reveal classified information. Therefore, OIG reviewed whether or not the NRC appropriately handled Riera-related information in accordance with the NRC information security process.

Report: Dire Need for Congressional Overhaul of Secrecy Laws

By DEMONI NEWMAN

Now, more than ever, the government needs to "return to a narrow and well-defined vision of just what can and should be kept secret from its people," argues a report released yesterday by the American Civil Liberties Union (ACLU). By keeping fewer secrets, the report says, the government can focus on keeping the truly critical secrets safe.

The report, titled “Drastic Measures Required: Congress Needs to Overhaul U.S. Secrecy Laws and Increase Oversight of the Secret Security Establishment,” documents, diagnoses, and describes solutions for the problem of excessive government secrecy.

Government secrecy is growing. Even though President Obama promised “an unprecedented level of openness in government,” at the beginning of his term, government secrets have proliferated since he’s been in office. Citing figures from the Information Security Oversight Office (ISOO), the report points out that in 2010 the government made a record 76,795,945 classification decisions—more than a 40 percent increase from 2009.

Comment of the Week: A Defense Contractor Willing to Put Its Money Where Its Mouth Is?

By NICK SCHWELLENBACH

Frequent POGO blog commenter Dfens, citing a recent article in Defense Tech, writes:

Check out this interesting video Steve Trimble of The DEW Line shot of Sikorsky's presentation at the Oskhosh AirVenture on the future of it's high-speed coaxial rotor helos. Pay particular attention to the part about construction on the prototype S-97 high-speed military bird being set to begin in a "month or so." The first flight of the bird is tentatively scheduled for late 2013 or early 2014. -- Defense Tech

Ok, POGO, here's your chance to get behind something that would really save the US taxpayer some money. Here is a defense contractor that's willing to put their own money where their mouth is and develop a game changing new technology helicopter for the US Army. It took 3 decades to get the V-22 flying, and that crappy thing is still having major issues, not the least of them being a unique ring vortex state that has killed several crews. When the DoD needs real game changing technology it gets it from companies willing to spend their own money to develop it like General Atomics or Sikorsky or Barrett. Here's your chance to take a stand for the US taxpayer, POGO. Are you going to take it?

We agree with "Dfens"—it's encouraging to see traditional defense contractors taking risks to develop new technology with their own money. That's how the commercial marketplace, which generally delivers new technologies faster for less money, works.

Contrast what Sikorsky is doing with how Bell Helicopter charged taxpayers hundreds of millions of dollars for a helicopter that the military will not even buy. Bob Cox at the Fort Worth Star-Telegram highlights this difference of approach:

Congress to Chief: Curtail Concealment of Contractor Campaign Contributions

By BEN FREEMAN

President Obama's draft executive order (EO) to require government contractors to disclose all political contributions once looked to be dead in the water--but it may be coming back to life. The Washington Post is reporting that 62 House Democrats have signed a letter asking Obama to issue the EO.

The letter echoes a number of POGO's arguments in support of the EO. On May 4th, POGO, along with more than 30 other pro-transparency groups, signed a letter supporting the EO, which noted that "In response to numerous contracting scandals, more than a dozen states have imposed specific campaign finance disclosure requirements on government contractors."

Additionally, the Representatives’ letter notes, just as POGO did, that even the Citizens United Supreme Court decision supports disclosure of contributions. According to the Court's Majority Opinion, “Disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”

Morning Smoke: Cuts to Wasteful Spending Key to National Security

MORNING SMOKE

Where there's smoke, there's fire. POGO's Morning Smoke is a collection of the freshest investigations, scoops, and opinions related to the world of government oversight. Have a story you'd like to see included? Contact POGO's blog editor.

National Security

To Defend U.S. 'We Must' Cut Bases, Cut Weapons, Cut Contractors
POGO's Ben Freeman, AOL Defense

GAO details risks in meeting DoD's financial management goals
Sean Reilly, Federal Times

POGO on the Ground

Making Whistleblower Work - Advisory Committee on Transparency
Event Today - 10:30 a.m to Noon - Rayburn House Office Building, # 2247

Housing Crisis

Internal Doc Reveals GMAC Filed False Documents in Bid to Foreclose
Paul Kiel, ProPublica

Waste

White House taps inspectors general in campaign to cut waste
Charles S. Clark, Government Executive

Open Government

DoJ Report on FOIA - Positive, but Incomplete Development for Open Government
Dan Jenkins, Unredacted

Financial Oversight

Fight Over Dodd-Frank Shifts to Courts
Jean Eaglesham, The Wall Street Journal

GAO to Conduct Review of Madoff Trustee
Dustan Prial, Fox Business

Nuclear Energy

35 Minutes to Respond to Fake Fire at Y-12
Frank Munger, Atomic City Underground

Nuclear Weapons Complex

Hanford Whistleblower Questions DOE Relationship With Contractors
Corporate Whistleblower Blog

Contract Oversight

Senior Labor Dept. Official Resigns After Accused of Steering Contracts to Friends
Associated Press

Whistleblower Issues

GAO Recommends Adding Whistleblower Protection to Federal Antitrust Laws
Corporate Whistleblower Blog

Former Comptroller General Elmer B. Staats: In Memoriam

By BRYAN RAHIJA

We at POGO mourn the passing of former Comptroller General Elmer B. Staats, who died on July 23, 2011, at the age of 97. Elmer Staats headed the-then U.S. General Accounting Office (now Government Accountability Office--GAO), serving as Comptroller General from 1966 to 1981.

Prior to his GAO service, Staats served primarily at the Bureau of the Budget (now the Office of Management and Budget), rising to the position of Deputy Director. He began his government service in 1939 at the Bureau of the Budget.

As Comptroller General, Staats was a fierce and devoted protector of taxpayers. He moved GAO from its former role of “green eyeshade” accountants and voucher examiners into ever more sophisticated and complex work, including program analysis and oversight. Under Staats, GAO’s work in the area of government contracting was particularly noteworthy. As Comptroller General, Staats pressed for genuine competition in contracting, rigorous application of the Truth in Negotiations Act (TINA), and the establishment of the Cost Accounting Standards (CAS) Board and the issuance of the CAS. For ten years, Staats chaired the CAS Board, and defeated numerous contractor attempts to weaken the Standards or dilute their application to negotiated government contracts.

Elmer Staats was a devoted, learned and very competent public servant. His work will long be remembered and his contributions to effective and accountable government administration should serve as an example to current day federal policymakers and career officials alike.

Bryan Rahija edits POGO's blog.

Image: GAO.

Dear Arne: Senior Senate Judiciary Committee Republican Asks Education Secretary a Few Questions

By ADAM ZAGORIN

"Do federal employees give out information that short sellers can use to make money?" That is just one of the pointed questions raised in a July 26 letter to Secretary of Education Arne Duncan by Senator Charles Grassley (R-IA), ranking Republican on the Senate Judiciary Committee. 

Grassley’s letter cites his “concern” after reading a June 13 POGO article examining the possibility that short sellers obtained confidential, market-sensitive information from senior Dept. of Education (DoED) personnel.

Other Members of Congress have also raised questions about short seller interaction with the Department, prompting calls for an investigation by the Securities and Exchange Commission, as well as an ongoing probe by DoED’s Inspector General, Kathleen Tighe.

“Are the employees (at DoED) influenced in their rule-making by investors who don’t disclose their financial interests?” Grassley asked in a press release about his letter to Duncan.

Referring to material presented by POGO and others, Grassley points to “serious questions” about whether DoED has adequate internal controls and other policies to, “ensure that the Department promulgates regulations without improper interference or influence."

Grassley asserts that it is “essential for Congress to investigate the circumstances” surrounding the issuance of a DoED measure known as the “gainful employment rule,” provisions of which apparently leaked to Wall Street speculators.

Proposing an August 9 deadline, Grassley asks Duncan for more information about: DoED rules on dealing with outside investors, specific contacts with Eisman, and how DoED is complying with apparently numerous outstanding Freedom of Information Act requests seeking documentation of DoED’s conduct.

Grassley’s letter also pays particular attention to one of Wall Street’s biggest speculators, Steve Eisman, who famously made a fortune betting against the housing bubble before starting to attack companies in the multi-billion dollar for-profit, publicly-traded education sector.

As documented by POGO and others, Eisman repeatedly assailed for-profits in public, hiring a licensed private detective to dig up dirt on many of the firms, which receive billions of dollars in federally-guaranteed student loans, often leaving their graduates deeply in debt and unable to get jobs.

Eisman and the detective then began a campaign to get in touch with senior officials at the Dept. of Education, some of whom were in the process of formulating regulations with a material impact on the share prices and bottom lines of the for-profit companies.

Eisman also met with senior officials at DoED, apparently funneling them negative information that he and his hedge fund (Morgan Stanley-owned FrontPoint Financial Services) had developed on the industry. Eisman recently indicated he is leaving FrontPoint.

It remains to be seen whether Duncan’s response will make hedge fund managers happy.

Adam Zagorin is POGO’s Journalist in Residence.

Reps. Call for GAO Review of Littoral Combat Ship

By BRYAN RAHIJA

Looks like lawmakers are actually starting to care about cost overruns, schedule delays, and aggressive corrosion besetting the Littoral Combat Ship (LCS). Defense News reported yesterday that Rep. Duncan Hunter (R-CA) has put in the order for a Government Accountability Office (GAO) report on the Navy's management of the close-to-shore ship program:

In a July 27 letter to the GAO, Hunter, joined by Rep. Rob Wittman, R-Va., cited his concerns about the program's historic cost overruns and schedule delays, and more recent corrosion and structural issues with the ships.

Hunter and Wittman asked the GAO to "review and as necessary update the August 2010 [GAO] report on the LCS program." Specifically, the lawmakers want GAO to examine:

• what the Navy is doing to overcome technical design flaws in the first two ships;
• what the Navy is doing to make sure follow-on ships are delivered with cost and time estimates;
• what actions the Navy has taken to make certain that mission packages have the capabilities they were intended to have; and
• provide performance and operational maintenance date on the propulsion systems for both LCS variants.

Last week, POGO recommended that Congress cancel one version of the LCS as part of our blueprint for reducing the deficit. The Navy has awarded ten-ship contracts to two different LCS design teams—a strategy that, as POGO's Ben Freeman has pointed out, has some big drawbacks.

Bryan Rahija edits POGO's blog. Follow him on Twitter.

Conflicts of Interest in FDA Advisory Committees: Are Weaker Standards on the Way?

By NED FEDER

Can a drug or device company use hidden payments to members of FDA advisory committees to ensure that that member will provide favorable advice to the FDA about their product?

Undoubtedly this has happened, though it's hard to prove. Advisory committee members are supposed to comply with the FDA’s conflict-of-interest rules, which set limits on the financial arrangements that committee members make with the medical industry. 

But the conflict-of-interest rules may be about to weaken.

Speaking to Public Citizen, a watchdog group, FDA Commissioner Margaret Hamburg said on Monday that the current conflict-of interest rules “may loosen next year.” (See coverage here, here, and here.) If the rules on the financial arrangements of advisory committee members are made more permissive, this will obviously enlarge the pool of experts from which the FDA can choose and thus allow the FDA to recruit committee members more easily. That's one of the arguments for weakening the rules. 

On the other hand, the dangers of tainted advice from advisory committee members who are biased (or bought) by a financial conflict of interest are well known.

POGO is not using the present blog post to take a stand on the issue of tighter versus looser rules on conflicts of interest. However, we do want to champion a related change. We believe that many of the private financial arrangements made by advisory committee members should be subject to full public disclosure.

Currently, each prospective member of an FDA advisory committee must send the FDA a Confidential Financial Disclosure Report (CFD report) on Form FDA 3410. For a few members of the advisory committee, some of that information may be made public (for example, if there’s a waiver for that member). With this unusual exception, however, the information on the CFD report of all advisory committee members remains strictly confidential, sealed within the files of the FDA.

We recommend that the FDA make it a practice of publicly releasing each committee member’s CFD report, suitably redacted if necessary. (Of course, the member's permission would be needed in advance and as a condition for joining the committee.) Without these disclosures, we are forced to trust FDA officials, who've been wrong in the past, to make the right decision, privately, on the sensitive issue of advisory committee membership. Clearly the public interest will be better served in this case, as in many others, by full disclosure.

If Commissioner Hamburg goes through with her plans to weaken the current conflict-of-interest rules, the full disclosure of financial arrangements will become all the more important. 

For more about the value of disclosing CFD reports, see POGO's August 2010 public comment.

Dr. Ned Feder is POGO's Staff Scientist.

Image: FDA Commissioner Margaret Hamburg speaking at Public Citizen on July 25.

Morning Smoke: A Medical Study Isn't Out, but the Attacks are Already In

Where there's smoke, there's fire. POGO's Morning Smoke is a collection of the freshest investigations, scoops, and opinions related to the world of government oversight. Have a story you'd like to see included? Contact POGO's blog editor.

Public Health

Study of Medical Device Rules is Attacked Sight Unseen
Barry Meier, The New York Times

Energy Oversight

Whistleblowers Say Nuclear Regulatory Commission Watchdog is Losing Its Bite
John Sullivan and Cameron Hickey, ProPublica

NRC Fast Track of Cul-de-sac?
Dave Lochbaum, All Things Nuclear

Contract Oversight

How the DoD Allows Contractors to Grade Themselves and Write Their Own Contract Terms, Part II
Charles M. Smith, Truthout 

Financial Oversight

Once Unthinkable, Breakup of Big Banks Now Seems Feasible
Jesse Eisinger, ProPublica

National Security

Defense Department Won't Decide Which Contractors Get Paid if US Defaults
John T. Bennett, The Hill 

Pentagon Clears 3-Star General of Alleged Misdeed
Robert Burns, Associated Press

Army Report Highlights Need for More Contracting Officers
OMB Watch

Pentagon Seeks to Reduce Subcontractor Costs for F-35
Marcus Weisgerber, Defense News

Open Government

NSA "Declassified" a Publicly Available Text on Cryptology
Steven Aftergood, Secrecy News

Transparency Groups Assail House GOP Maneuver to Send Debt Bill to Senate
Fox News

Energy Issues

US House Panel to Draft Plan to Split Federal Oil Money with States
Tennille Tracy, Dow Jones Newswires

Good Government

White House Names Members of New Effort on Waste, Fraud
Joe Davidson, The Washington Post

Prosecutors Pursuing New Charges Against Suspended Defense Contractor

By NEIL GORDON

This week, it was reported that federal prosecutors are investigating potential new criminal charges against Agility, the Kuwaiti logistics company under indictment for overcharging the U.S. military on food supply contracts.

Agility (formerly Public Warehousing Company KSC and PWC Logistics), has been suspended from federal contracting since being indicted in November 2009. (The suspension record can be found on the Excluded Parties List System website.) Agility is also facing a civil False Claims Act lawsuit in the matter. The criminal charges also prompted DynCorp International to fire Agility as its main subcontractor in Afghanistan. This is what happens when you get caught “Playing With Uncle Sam’s Food,” as POGO wrote when we first heard about the case.

According to a court order, prosecutors subpoenaed an Agility executive, retired U.S. Army General Dan Mongeon, to testify before a grand jury in order to explore possible new charges. Agility is accused of overcharging the Department of Defense by inflating food prices and submitting false information on food supply contracts awarded between 2003 and 2005. It is not clear what General Mongeon’s testimony will add to the case, which seemed on the verge of settling last year.

In the meantime, check out this interview General Mongeon did with a business publication in April 2009, seven months before Agility’s legal woes set in. This part in particular caught my eye:

Upcoming Panel Discussion: "Making Whistleblowing Work"

By DAHNA BLACK

Whistleblowers play an important role in government transparency. They are a vital resource to investigators and others working to protect the public interest and rid the government of waste, fraud and abuse.

But what happens after they speak up?

The Advisory Committee on Transparency invites the public, the media, members of the public interest community, and congressional staff to a panel discussion—“Making Whistleblowing Work”—this Friday, July 29 from 10:30 a.m. until noon in Rayburn House Office Building Room 2247. The panel will address the following issues:

Does the law protect them sufficiently from retaliation? How does blowing the whistle on waste, fraud, and abuse in the government work? What is the balance between disclosure and the government’s legitimate need for confidentiality? What distinctions should we draw between reporting wrongdoing to employers, to Congress, to reporters, and online? Is WikiLeaks fundamentally different from what’s come before?

Angela Canterbury, POGO’s Director of Public Policy and member of the Advisory Committee on Transparency, will be joined by the following other panelists:

• Carolyn Lerner, Special Counsel, U.S. Office of Special Counsel
• Christian Sanchez, Border Patrol Agent, Customs & Border Protection, Department of Homeland Security
• Daniel Schuman, Moderator, Policy Counsel, the Sunlight Foundation
• Micah Sifry, Co-founder and editor of the Personal Democracy Forum; author of WikiLeaks and the Age of Transparency; Sunlight Foundation senior technology advisor.

 

You can RSVP for the event here.

Dahna Black is a POGO Policy Fellow.