42 U.S.C. § 16281 — Advanced nuclear fuel availability

Page 8836 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 16281 (3) Secretary The term ‘‘Secretary’’ means the Secretary of Energy. (b) Establishment The Secretary shall establish a grant program, to be known as the ‘‘Advanced Nuclear Energy Cost-Share Grant Program’’, under which the Secretary shall make cost-share grants to appli- cants for the purpose of funding a portion of the Commission fees of the applicant for pre-appli- cation review activities and application review activities. (c) Requirement The Secretary shall seek out technology diver- sity in making grants under the program. (d) Cost-share amount The Secretary shall determine the cost-share amount for each grant under the program in ac- cordance with section 16352 of this title. (e) Use of funds A recipient of a grant under the program may use the grant funds to cover Commission fees, including those fees associated with— (1) developing a licensing project plan; (2) obtaining a statement of licensing feasi- bility; (3) reviewing topical reports; and (4) other— (A) pre-application review activities; (B) application review activities; and (C) interactions with the Commission. (Pub. L. 115–248, § 3, Sept. 28, 2018, 132 Stat. 3160.) Editorial Notes CODIFICATION Section was enacted as part of the Nuclear Energy In- novation Capabilities Act of 2017, and not as part of the Energy Policy Act of 2005 which comprises this chapter. § 16281. Advanced nuclear fuel availability (a) Program (1) Establishment The Secretary shall establish and carry out, through the Office of Nuclear Energy, a pro- gram to support the availability of HA–LEU for civilian domestic research, development, demonstration, and commercial use. (2) Program elements In carrying out the program under para- graph (1), the Secretary— (A) shall develop, in consultation with the Commission, criticality benchmark data to assist the Commission in— (i) the licensing and regulation of special nuclear material fuel fabrication and en- richment facilities under part 70 of title 10, Code of Federal Regulations; and (ii) certification of transportation pack- ages under part 71 of title 10, Code of Fed- eral Regulations; (B) shall conduct research and develop- ment, and provide financial assistance to as- sist commercial entities, to design and li- cense transportation packages for HA–LEU, including canisters for metal, gas, and other HA–LEU compositions; (C) shall, to the extent practicable— (i) by January 1, 2024, support commer- cial entity submission of such transpor- tation package designs to the Commission for certification by the Commission under part 71 of title 10, Code of Federal Regula- tions; and (ii) encourage the Commission to have such transportation package designs so certified by the Commission within 24 months after receipt of an application; (D) shall consider options for acquiring or providing HA–LEU from a stockpile of ura- nium owned by the Department, or using en- richment technology, to make available to members of the consortium established pur- suant to subparagraph (F) for commercial use or demonstration projects, taking into account cost and amount of time required, and prioritizing methods that would produce usable HA–LEU the quickest, including op- tions for acquiring or providing HA–LEU— (i) that— (I) directly meets the needs of an end user; and (II) has been previously used or fab- ricated for another purpose; (ii) that meets the needs of an end user after having radioactive or other contami- nants that resulted from a previous use or fabrication of the fuel for research, devel- opment, demonstration, or deployment ac- tivities of the Department removed; (iii) that is produced from high-enriched uranium that is blended with lower assay uranium to become HA–LEU to meet the needs of an end user; (iv) that is produced by Department re- search, development, and demonstration activities; (v) that is produced in the United States by— (I) a United States-owned commercial entity operating United States-origin technology; (II) a United States-owned commercial entity operating a foreign-origin tech- nology; or (III) a foreign-owned entity operating a foreign-origin technology; (vi) that does not require extraction of uranium or development of uranium from lands managed by the Federal Govern- ment, cause harm to the natural or cul- tural resources of Tribal communities or sovereign Native Nations, or result in de- graded ground or surface water quality on publicly managed or privately owned lands; or (vii) that does not negatively impact the availability of HA–LEU by the Department to support the production of medical iso- topes, including the medical isotopes de- fined under the American Medical Isotopes Production Act of 2012 (Public Law 112–239; 126 Stat. 2211); (E) not later than 1 year after December 27, 2020, and biennially thereafter, shall con- duct a survey of stakeholders to estimate Page 8837 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 16281 the quantity of HA–LEU necessary for do- mestic commercial use for each of the 5 sub- sequent years; (F) shall establish, and from time to time update, a consortium, which may include en- tities involved in any stage of the nuclear fuel cycle, to partner with the Department to support the availability of HA–LEU for ci- vilian domestic demonstration and commer- cial use, including by— (i) providing information to the Sec- retary for purposes of surveys conducted under subparagraph (E); (ii) purchasing HA–LEU made available by the Secretary to members of the con- sortium for commercial use under the pro- gram; and (iii) carrying out demonstration projects using HA–LEU provided by the Secretary under the program; (G) if applicable, shall, prior to acquiring or providing HA–LEU under subparagraph (H), in coordination with the consortium es- tablished pursuant to subparagraph (F), de- velop a schedule for cost recovery of HA–LEU made available to members of the consortium using HA–LEU for commercial use pursuant to subparagraph (H); (H) shall, beginning not later than 3 years after the establishment of a consortium under subparagraph (F), have the capability to acquire or provide HA–LEU, in order to make such HA–LEU available to members of the consortium beginning not later than January 1, 2026, in amounts that are con- sistent, to the extent practicable, with— (i) the quantities estimated under the surveys conducted under subparagraph (E); plus (ii) the quantities necessary for dem- onstration projects carried out under the program, as determined by the Secretary; (I) shall, for advanced reactor dem- onstration projects, prioritize the provi- sion of HA–LEU made available under this section through a merit-based, com- petitive selection process; and (J) shall seek to ensure that the activi- ties carried out under this section do not cause any delay in the progress of any HA–LEU project between private indus- try and the Department that is under- way as of December 27, 2020. (3) Applicability of USEC Privatization Act (A) Sale or transfer to consortium The requirements of section 3112 of the USEC Privatization Act (42 U.S.C. 2297h–10), except for the requirements of subparagraph (A) of section 3112(d)(2), shall not apply to the provision of enrichment services, or the sale or transfer of HA–LEU for commercial use by the Secretary to a member of the consortium under this subsection. (B) Demonstration HA–LEU made available to members of the consortium established pursuant to para- graph (2)(F) for demonstration projects shall remain the property of and title will remain with the Department, which shall be respon- sible for the storage, use, and disposition of all radioactive waste and spent nuclear fuel created by the irradiation, processing, or pu- rification of such uranium, and shall not be subject to the requirements of a sale or transfer of uranium under sections 3112, ex- cept for the requirements of subparagraph (A) of section 3112, and 3113 of the USEC Pri- vatization Act (42 U.S.C. 2297h–10; 42 U.S.C. 2297h–11). (4) National security needs The Secretary shall only make available to a member of the consortium under this section for commercial or demonstration project use material that the President has determined is not necessary for national security needs, pro- vided that this available material shall not in- clude any material that the Secretary may de- termine to be necessary for the National Nu- clear Security Administration or other crit- ical Departmental missions. (5) DOE acquisition of HA–LEU The Secretary may not make commitments under this section (including cooperative agreements (used in accordance with section 6305 of title 31), purchase agreements, guaran- tees, leases, service contracts, or any other type of commitment) for the purchase or other acquisition of HA–LEU unless— (A) funds are specifically provided for such purposes in advance in subsequent appro- priations Acts, and only to the extent that the full extent of anticipated costs stem- ming from such commitments is recorded as an obligation up front and in full at the time it is made; or (B) such committing agreement includes a clause conditioning the Federal Govern- ment’s obligation on the availability of fu- ture year appropriations. (6) Sunset The authority of the Secretary to carry out the program under this subsection shall expire on the earlier of— (A) September 30, 2034; or (B) 90 days after the date on which HA–LEU is available to provide a reliable and adequate supply for civilian domestic advanced nuclear reactors in the commercial market. (7) Limitation The Secretary shall not barter or otherwise sell or transfer uranium in any form in ex- change for services relating to the final dis- position of radioactive waste from uranium that is made available under this subsection. (b) Reports to Congress (1) Commission report on necessary regulatory updates Not later than 12 months after December 27, 2020, the Commission shall submit to Congress a report that includes— (A) identification of updates to regula- tions, certifications, and other regulatory policies that the Commission determines are necessary in order for HA–LEU to be com- mercially available, including— Page 8838 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 16281 (i) guidance for material control and ac- countability of special nuclear material; (ii) certifications relating to transpor- tation packaging for HA–LEU; and (iii) licensing of enrichment, conversion, and fuel fabrication facilities for HA–LEU, and associated physical security plans for such facilities; (B) a description of such updates; and (C) a timeline to complete such updates. (2) DOE report on program to support the availability of HA–LEU for civilian domes- tic demonstration and commercial use (A) In general Not later than 180 days after December 27, 2020, the Secretary shall submit to Congress a report that describes actions proposed to be carried out by the Secretary under the program described in subsection (a)(1). (B) Coordination and stakeholder input In developing the report under this para- graph, the Secretary shall consult with— (i) the Commission; (ii) suppliers of medical isotopes that have converted their operations to use HA–LEU; (iii) the National Laboratories; (iv) institutions of higher education; (v) a diverse group of entities from the nuclear energy industry; (vi) a diverse group of technology devel- opers; (vii) experts in nuclear nonproliferation, environmental safety, safeguards and secu- rity, and public health and safety; and (viii) members of the consortium created under subsection (a)(2)(F). (C) Cost and schedule estimates The report under this paragraph shall in- clude estimated costs, budgets, and time- frames for all activities carried out under this section. (D) Required evaluations The report under this paragraph shall evaluate— (i) the actions required to establish and carry out the program under subsection (a)(1) and the cost of such actions, includ- ing with respect to— (I) proposed preliminary terms for con- tracting between the Department and re- cipients of HA–LEU under the program (including guidelines defining the roles and responsibilities between the Depart- ment and the recipient); and (II) the potential to coordinate with recipients of HA–LEU under the program regarding— (aa) fuel fabrication; and (bb) fuel transport; (ii) the potential sources and fuel forms available to provide uranium for the pro- gram under subsection (a)(1); (iii) options to coordinate the program under subsection (a)(1) with the operation of the versatile, reactor-based fast neutron source under section 16279a of this title (as added by section 2003); (iv) the ability of uranium producers to provide materials for advanced nuclear re- actor fuel; (v) any associated legal, regulatory, and policy issues that should be addressed to enable— (I) implementation of the program under subsection (a)(1); and (II) the establishment of an industry capable of providing HA–LEU; and (vi) any research and development plans to develop criticality benchmark data under subsection (a)(2)(A), if needed. (3) Alternate fuels report Not later than 180 days after December 27, 2020, the Secretary shall, after consulting with relevant entities, including National Labora- tories, institutions of higher education, and technology developers, submit to Congress a report identifying any and all options for pro- viding nuclear material, containing isotopes other than the uranium-235 isotope, such as uranium-233 and thorium-232 to be used as fuel for advanced nuclear reactor research, devel- opment, demonstration, or commercial appli- cation purposes. (c) Authorization of appropriations There are authorized to be appropriated to carry out research, development, demonstra- tion, and transportation activities in this sec- tion— (1) $31,500,000 for fiscal year 2021; (2) $33,075,000 for fiscal year 2022; (3) $34,728,750 for fiscal year 2023; (4) $36,465,188 for fiscal year 2024; and (5) $38,288,447 for fiscal year 2025. (d) Definitions In this section: (1) Commission The term ‘‘Commission’’ means the Nuclear Regulatory Commission. (2) Demonstration project The term ‘‘demonstration project’’ has the meaning given such term in section 16279a of this title. (3) HA–LEU The term ‘‘HA–LEU’’ means high-assay low- enriched uranium. (4) High-assay low-enriched uranium The term ‘‘high-assay low-enriched ura- nium’’ means uranium having an assay greater than 5.0 weight percent and less than 20.0 weight percent of the uranium-235 isotope. (5) High-enriched uranium The term ‘‘high-enriched uranium’’ means uranium with an assay of 20.0 weight percent or more of the uranium-235 isotope. (6) Secretary The term ‘‘Secretary’’ means the Secretary of Energy. (Pub. L. 116–260, div. Z, title II, § 2001, Dec. 27, 2020, 134 Stat. 2453.) Editorial Notes REFERENCES IN TEXT The American Medical Isotopes Production Act of 2012, referred to in subsec. (a)(2)(D)(vii), is subtitle F Page 8839 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 16282 (§ 3171 et seq.) of title XXXI of div. C of Pub. L. 112–239, Jan. 2, 2013, 126 Stat. 2211. For complete classification of this Act to the Code, see Short Title of 2013 Amend- ment note set out under section 2011 of this title and Tables. Section 16279a of this title (as added by section 2003), referred to in subsec. (b)(2)(D)(iii), is section 16279a of this title as added by section 2003 of div. Z of Pub. L. 116–260. CODIFICATION Section was enacted as part of the Energy Act of 2020, and not as part of the Energy Policy Act of 2005 which comprises this chapter. Statutory Notes and Related Subsidiaries DEVELOPMENT, QUALIFICATION, AND LICENSING OF ADVANCED NUCLEAR FUEL CONCEPTS Pub. L. 118–67, div. B, title IV, § 404, July 9, 2024, 138 Stat. 1469, provided that: ‘‘(a) IN GENERAL.—The [Nuclear Regulatory] Commis- sion shall establish an initiative to enhance prepared- ness and coordination with respect to the qualification and licensing of advanced nuclear fuel. ‘‘(b) AGENCY COORDINATION.—Not later than 180 days after the date of enactment of this Act [July 9, 2024], the Commission and the Secretary of Energy shall enter into a memorandum of understanding— ‘‘(1) to share technical expertise and knowledge through— ‘‘(A) enabling the testing and demonstration of accident tolerant fuels for existing commercial nu- clear reactors and advanced nuclear reactor fuel concepts to be proposed and funded, in whole or in part, by the private sector; ‘‘(B) operating a database to store and share data and knowledge relevant to nuclear science and en- gineering between Federal agencies and the private sector; ‘‘(C) leveraging expertise with respect to safety analysis and research relating to advanced nuclear fuel; and ‘‘(D) enabling technical staff to actively observe and learn about technologies, with an emphasis on identification of additional information needed with respect to advanced nuclear fuel; and ‘‘(2) to ensure that— ‘‘(A) the Department of Energy has sufficient technical expertise to support the timely research, development, demonstration, and commercial ap- plication of advanced nuclear fuel; ‘‘(B) the Commission has sufficient technical ex- pertise to support the evaluation of applications for licenses, permits, and design certifications and other requests for regulatory approval for advanced nuclear fuel; ‘‘(C)(i) the Department of Energy maintains and develops the facilities necessary to enable the time- ly research, development, demonstration, and com- mercial application by the civilian nuclear industry of advanced nuclear fuel; and ‘‘(ii) the Commission has access to the facilities described in clause (i), as needed; and ‘‘(D) the Commission consults, as appropriate, with the modeling and simulation experts at the Of- fice of Nuclear Energy of the Department of En- ergy, at the National Laboratories, and within in- dustry fuel vendor teams in cooperative agreements with the Department of Energy to leverage physics- based computer modeling and simulation capabili- ties. ‘‘(c) REPORT.— ‘‘(1) IN GENERAL.—Not later than 2 years after the date of enactment of this Act, the Commission shall submit to the appropriate committees of Congress [Committee on Energy and Commerce of the House of Representatives and Committee on Environment and Public Works of the Senate] a report describing the efforts of the Commission under subsection (a), in- cluding— ‘‘(A) an assessment of the preparedness of the Commission to review and qualify for use— ‘‘(i) accident tolerant fuel; ‘‘(ii) ceramic cladding materials; ‘‘(iii) fuels containing silicon carbide; ‘‘(iv) high-assay, low-enriched uranium fuels; ‘‘(v) molten-salt based liquid fuels; ‘‘(vi) fuels derived from spent nuclear fuel or de- pleted uranium; and ‘‘(vii) other related fuel concepts, as determined by the Commission; ‘‘(B) activities planned or undertaken under the memorandum of understanding described in sub- section (b); ‘‘(C) an accounting of the areas of research needed with respect to advanced nuclear fuel; and ‘‘(D) any other challenges or considerations iden- tified by the Commission. ‘‘(2) CONSULTATION.—In developing the report under paragraph (1), the Commission shall seek input from— ‘‘(A) the Secretary of Energy; ‘‘(B) National Laboratories; ‘‘(C) the nuclear energy industry; ‘‘(D) technology developers; ‘‘(E) nongovernmental organizations; and ‘‘(F) other public stakeholders.’’ [For definitions of terms used in section 404 of Pub. L. 118–67, set out above, see section 2 of Pub. L. 118–67, set out as a note under section 2011 of this title.] RECEIPTS TO BE CREDITED TO AMERICAN ENERGY INDEPENDENCE FUND Pub. L. 118–42, div. D, title III, § 312(a), Mar. 9, 2024, 138 Stat. 210, provided in part: ‘‘That notwithstanding 31 U.S.C. 3302, receipts from the sale or transfer of LEU and HALEU or from any other transaction in connec- tion with the amounts repurposed, transferred, or oth- erwise made available pursuant to this section shall hereafter be credited to the ‘American Energy Inde- pendence Fund’ as discretionary offsetting collections and shall be available, for the same purposes as funds repurposed or transferred pursuant to this section, to the extent and in the amounts provided in advance in appropriations Acts: Provided further, That receipts may hereafter be collected from transactions entered into pursuant to section 2001(a)(2)(F)(iii) of the Energy Act of 2020 (42 U.S.C. 16281(a)(2)(F)(iii)) and, notwith- standing 31 U.S.C. 3302, receipts from any transaction entered into pursuant to section 2001(a)(2)(F)(ii) and (iii) of such Act (42 U.S.C. 16281(a)(2)(F)(ii) and (iii)) shall hereafter be credited to the ‘American Energy Independence Fund’ as discretionary offsetting collec- tions and shall be available, for the same purposes as funds repurposed or transferred pursuant to this sec- tion, to the extent and in the amounts provided in ad- vance in appropriations Acts’’. § 16282. U.S. nuclear fuel security initiative (a) Short title This section may be cited as the ‘‘Nuclear Fuel Security Act of 2023’’. (b) Sense of Congress It is the sense of Congress that— (1) the Department should— (A) support increased domestic production of low-enriched uranium; and (B) accelerate efforts to establish a domes- tic high-assay, low-enriched uranium enrich- ment capability; and (2) if domestic enrichment of high-assay, low-enriched uranium will not be commer- cially available at the scale needed in time to meet the needs of the advanced nuclear reac-