                                                               February 27, 1978


78-12      MEMORANDUM OPINION FOR THE
           GENERAL COUNSEL, DEPARTMENT OF
           ENERGY

           Arms Control and Disarmament Act
           (22 U.S.C. § 2576)— Arms Control Impact
           Statements— Nonweapons Program


   In response to your request, we have considered the question whether § 36(a)
of the Arms Control and Disarmament Agency Act, as amended, 89 Stat. 758,
22 U .S.C . § 2576(a), permits the Director of the Arms Control and Disarma­
ment Agency (ACDA) to require the Department of Energy to prepare an
“ Arms Control Impact Statem ent” (ACIS) for research, development, or
production programs that do not involve “ w eapons” technology. We under­
stand that this would involve nonmilitary programs that may affect arms control
policy. For the reasons stated below, we conclude that § 36(a) does not require
the preparation of an ACIS for programs not designed or intended to be applied
as weapons.
   Section 36(a) of the Arms Control and Disarmament Agency Act provides as
follows:
        (a) In order to assist the Director in the performance o f his duties
     with respect to arms control and disarmament policy and negotia­
     tions, any Government agency preparing any legislative or budgetary
     proposal for—
            (1) any program of research, development, testing, engineer­
        ing, construction, deploym ent, or modernization with respect to
        nuclear arm am ents, nuclear implements o f war, military facilities
        or military vehicles designed or intended primarily for the delivery
        o f nuclear weapons,
          (2) any program of research, development, testing, engineer­
        ing, construction, deploym ent, or modernization with respect to
        arm am ents, amm unition, implements o f war, or military facilities,
        having—
               (A) an estimated total program cost in excess of $250,000,000,
          or
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                 (B) an estimated annual program cost in excess of $50,000,000,
            or
            (3)   any other program involving weapons systems or technol­
         ogy which such Government agency or the Director believes may
         have a significant impact on arms control and disarmament policy
         or negotiations,
      shall, on a continuing basis, provide the Director with full and timely
      access to detailed information, in accordance with the procedures
      established pursuant to section 2575 of this title, with respect to the
      nature, scope, and purpose of such proposal.
The section requires reports to the Director for three categories of programs: (1)
all programs involving nuclear armaments, implements of war, or their delivery
systems; (2) programs involving “ armaments, ammunition, implements of
war, or military facilities” costing $250 million or more or $50 million per
year; and (3) “ any other program involving weapons systems or technology"
which the agency or the Director of ACDA “ believes may have a significant
impact on arms control and disarmament policy or negotiations.” [Emphasis
added.] These reports are the first stage in preparing an A C IS .1 Since the
programs in question do not fall within category (1) or (2), the issue is whether
the term “ w eapons” in subsection (a)(3) modifies “ technology” as well as
“ system s,” so as to require reports only for “ weapons technology.”
   We understand that ACDA believes that “ w eapons” does not modify
“ technology” and that it can therefore require an ACIS for such nonweapons
programs as the breeder reactor. On the other hand, the Department of Energy
concludes that established principles of statutory construction and the legislative
history demonstrate that § 36(a)(3) should be read to mean “ weapons systems
or weapons technology.”
   It is a familiar principle of statutory construction that terms should be read in
context and that specific terms control general ones. See, Philbrook v.
Glodgett, 421 U.S. 707, 713-714 (1975); Weyerhauser S.S. Co. v. United
States, 372 U.S. 597, 600-601 (1963). The whole of § 36(a) is concerned with
the effect of programs for weapons, delivery systems, and supporting facilities
on arms control. Subsections (1) and (2) require reports on weapons programs
that are significant per se because of their nature or size. Subsection (3), in this
context, gives ACDA discretion to require reports on lesser weapons programs
that may have significant effects. The structure of subsection (3) is consistent
with this interpretation. Modifying a series of terms with an adjective placed at
the head is a common way of preventing needless repetition. It is reasonable to
conclude, as you have, that the draftsman of § 36(a) did not intend to expand
the scope o f subsection (3) beyond the remainder of the section merely by using
a familiar stylistic device.

   'U nder § 36(b)(2)(A ) o f the Act, an ACIS must accom pany all requests to Congress for
authorization or appropriations for category (I) or (2) programs. Under § 36(b)(2)(B), a category
(3) program requires an ACIS only if NSC accepts the D irector’s advice that the program will have
a significant impact on arm s control policy or negotiations.


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   The legislative history supports this interpretation. Section 36(a)(3) origi­
nated in the House o f R epresentatives,2 and the legislative history is particu­
larly significant. The general explanation in the House committee report states
that § 36 would:
     Generate[s] vital and necessary information for both the Executive
     Branch and Congress by:
        (a) providing for [ACDA] participation in assessing and analyzing
     the impact on arms control and disarmament policy o f proposed
     weapons programs or technology . . . ,3
  This, it continues, would allow Congress to exercise an informed foreign
policy judgm ent “ in the all important area o f proposed defense program s.” 4
The bill would accomplish this by requiring reporting o f all weapons programs
above its dollar limits. In addition, the report continues:
     . . . For weapons programs which fall below the $50 million annual
     limit and policy issues with no expenditure as such, the legislation
     provides a discretionary authority for the Director to make an arms
     control and disarmament assessment and analysis identical to the
     procedure outlined above. The intent in providing this discretionary
     authority to the Director is to include programs which, regardless of
     cost, have a potentially significant arms control impact. Included in
     this intent are items of a “ sem inal” nature, such as major philosophi­
     cal or doctrinal changes in defense posture or new weapons concepts
     in various stages of research and development— any o f which could
     have far-reaching implications for arms control and disarmament
     policy and planning.5
The section-by-section analysis of the bill states that “ weapons systems or
technology” refers to the above program s.6 Finally, Representative Zablocki,
Chairman of the House Foreign Affairs Committee and floor manager of the
bill, said in his opening statement that the purpose of § 36(a) was to allow
ACDA participation in the assessment o f “ defense program s.” 7
   It thus appears that the bill was concerned with the effect of “ defense
program s” on arms control. M oreover, there is strong evidence that the House
understood the bill to be limited to such programs. Representative Simon
introduced an amendment that would have required ACDA to report to the
National Security Council (NSC) and Congress on the transfer of any nuclear




   2See H. Conf. Rept. No. 94-660, 94th C ong.. 1st sess. (1975), at 26; 121 Cong. Rec. 21853
(1975).
  '’H. Rept. No. 94-281, 94th C o n g ., 1st sess. (1975), at 3.
  4M ., at 5.
  5l d . , at 6.
  bld ., at 11.
  7121 Cong. Rec. 21848 (1975).

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material to a foreign country.8 Its purpose, he stated, was to assure that ACDA
informed the NSC and Congress of the impact of such transfers on nuclear
proliferation.9 A point o f order was then raised that the amendment covered
nuclear material transferred for peaceful purposes and was thus not germane to
the bill. Representative Jordan, in the chair, ruled that the amendment was not
germane to § 36, “ which merely requires the furnishing o f information
regarding defense system s.” The ruling was not challenged.
   From the committee report and the history of the Simon amendment, it is
thus evident that the House intended § 36 to apply only to programs with a
military purpose. The history of the Senate version of the bill is not to the
contrary. Senators Humphrey and Stennis, who prepared that version, explained
that the “ weapons system or technology” provision was intended to give
ACDA discretion to study less important weapons program s.10 Nowhere in the
legislative history, in either House, is there support for the conclusion that
§ 36(a)(3) includes all technology which may affect arms control.
   We conclude that § 36(a)(3) o f the Arms Control and Disarmament Agency
Act does not give the Director of ACDA authority to require reports on the
Department of Energy’s nonmilitary technology programs which may affect
arms control policy or negotiations."

                                                           Larry A. H       ammond

                                                  D eputy Assistant Attorney General
                                                                 Office o f Legal Counsel




   “The am endm ent provided:
      No agreem ent betw een the U nited States and any foreign country providing for the sale or
      other transfer to such country o f any nuclear m aterial may be entered into, and no license
      for the sale or other transfer to any foreign country of any nuclear m aterial may be issued
      unless the Director has subm itted a report analyzing the impact o f such sale or other
      transfer on arm s control and disarm am ent policies and negotiations to the National
      Security Council and the C ongress. 121 Cong. Rec. 21853 (1975).
   9121 Cong. Rec. 21854.
   I0121 Cong. Rec. 28687-88 (1975).
   " W e note that under § 35 o f the Arm s Control and D isarm am ent A gency A ct, 22 U .S .C . § 2575,
and Executive O rder No. 11044 , 3 CFR 627 § 2 (1959-1963 Com pilation), the President may
require the Departm ent o f Energy to keep ACDA informed “ on all significant aspects o f the United
States arm s control and disarm am ent policy and related m atters, including current and prospective
policies, plans, and p ro g ram s."

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