42 U.S.C. § 2160d — Further restrictions on exports

Page 5460 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 2160b organization plan described in section 6601 of Title 22, Foreign Relations and Intercourse, see section 1201 of Pub. L. 105–277, set out as an Effective Date note under section 6511 of Title 22. EFFECTIVE DATE Section effective Mar. 10, 1978, except as otherwise provided and regardless of any requirements for the promulgation of implementing regulations, see section 603(c) of Pub. L. 95–242, set out as a note under section 3201 of Title 22, Foreign Relations and Intercourse. DEFINITIONS For definitions of terms used in this section, see sec- tion 3203 of Title 22, Foreign Relations and Intercourse. § 2160b. Authority to suspend nuclear coopera- tion with nations which have not ratified the Convention on the Physical Security of Nu- clear Material The President may suspend nuclear coopera- tion under this chapter with any nation or group of nations which has not ratified the Convention on the Physical Security of Nuclear Material. (Aug. 1, 1946, ch. 724, title I, § 132, as added Pub. L. 99–399, title VI, § 602, Aug. 27, 1986, 100 Stat. 875; renumbered title I, Pub. L. 102–486, title IX, § 902(a)(8), Oct. 24, 1992, 106 Stat. 2944.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in text, was in the original ‘‘this Act’’, meaning act Aug. 1, 1946, ch. 724, as added by act Aug. 30, 1954, ch. 1073, § 1, 68 Stat. 919, known as the Atomic Energy Act of 1954, which is classified prin- cipally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 2011 of this title and Tables. § 2160c. Consultation with Department of De- fense concerning certain exports and subse- quent arrangements (a) In addition to other applicable require- ments— (1) a license may be issued by the Nuclear Regulatory Commission under this chapter for the export of special nuclear material de- scribed in subsection (b); and (2) approval may be granted by the Sec- retary of Energy under section 2160 of this title for the transfer of special nuclear mate- rial described in subsection (b); only after the Secretary of Defense has been consulted on whether the physical protection of that material during the export or transfer will be adequate to deter theft, sabotage, and other acts of international terrorism which would re- sult in the diversion of that material. If, in the view of the Secretary of Defense based on all available intelligence information, the export or transfer might be subject to a genuine terrorist threat, the Secretary shall provide to the Nu- clear Regulatory Commission or the Secretary of Energy, as appropriate, his written assess- ment of the risk and a description of the actions the Secretary of Defense considers necessary to upgrade physical protection measures. (b) Subsection (a) applies to the export or transfer of more than 2 kilograms of plutonium or more than 5 kilograms of uranium enriched to more than 20 percent in the isotope 233 or the isotope 235. (Aug. 1, 1946, ch. 724, title I, § 133, as added Pub. L. 99–399, title VI, § 603, Aug. 27, 1986, 100 Stat. 875; renumbered title I, Pub. L. 102–486, title IX, § 902(a)(8), Oct. 24, 1992, 106 Stat. 2944; amended Pub. L. 103–236, title VIII, § 829, Apr. 30, 1994, 108 Stat. 521.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsec. (a)(1), was in the original ‘‘this Act’’, meaning act Aug. 1, 1946, ch. 724, as added by act Aug. 30, 1954, ch. 1073, § 1, 68 Stat. 919, known as the Atomic Energy Act of 1954, which is clas- sified principally to this chapter. For complete classi- fication of this Act to the Code, see Short Title note set out under section 2011 of this title and Tables. AMENDMENTS 1994—Subsec. (b). Pub. L. 103–236 substituted ‘‘5 kilo- grams’’ for ‘‘20 kilograms’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1994 AMENDMENT Amendment by Pub. L. 103–236 effective 60 days after Apr. 30, 1994, see section 831 of Pub. L. 103–236, set out as an Effective Date note under section 6301 of Title 22, Foreign Relations and Intercourse. § 2160d. Further restrictions on exports (a) In general Except as provided in subsection (b), the Com- mission may issue a license for the export of highly enriched uranium to be used as a fuel or target in a nuclear research or test reactor only if, in addition to any other requirement of this chapter, the Commission determines that— (1) there is no alternative nuclear reactor fuel or target enriched in the isotope 235 to a lesser percent than the proposed export, that can be used in that reactor; (2) the proposed recipient of that uranium has provided assurances that, whenever an al- ternative nuclear reactor fuel or target can be used in that reactor, it will use that alter- native in lieu of highly enriched uranium; and (3) the United States Government is actively developing an alternative nuclear reactor fuel or target that can be used in that reactor. (b) Medical isotope production (1) Definitions In this subsection: (A) Highly enriched uranium The term ‘‘highly enriched uranium’’ means uranium enriched to include con- centration of U–235 above 20 percent. (B) Medical isotope The term ‘‘medical isotope’’ includes Mo- lybdenum 99, Iodine 131, Xenon 133, and other radioactive materials used to produce a radiopharmaceutical for diagnostic, thera- peutic procedures or for research and devel- opment. (C) Radiopharmaceutical The term ‘‘radiopharmaceutical’’ means a radioactive isotope that— Page 5461 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 2160d (i) contains byproduct material com- bined with chemical or biological mate- rial; and (ii) is designed to accumulate tempo- rarily in a part of the body for therapeutic purposes or for enabling the production of a useful image for use in a diagnosis of a medical condition. (D) Recipient country The term ‘‘recipient country’’ means Can- ada, Belgium, France, Germany, and the Netherlands. (2) Licenses The Commission may issue a license author- izing the export (including shipment to and use at intermediate and ultimate consignees specified in the license) to a recipient country of highly enriched uranium for medical iso- tope production if, in addition to any other re- quirements of this chapter (except subsection (a)), the Commission determines that— (A) a recipient country that supplies an as- surance letter to the United States Govern- ment in connection with the consideration by the Commission of the export license ap- plication has informed the United States Government that any intermediate con- signees and the ultimate consignee specified in the application are required to use the highly enriched uranium solely to produce medical isotopes; and (B) the highly enriched uranium for med- ical isotope production will be irradiated only in a reactor in a recipient country that— (i) uses an alternative nuclear reactor fuel; or (ii) is the subject of an agreement with the United States Government to convert to an alternative nuclear reactor fuel when alternative nuclear reactor fuel can be used in the reactor. (3) Review of physical protection requirements (A) In general The Commission shall review the adequacy of physical protection requirements that, as of the date of an application under para- graph (2), are applicable to the transpor- tation and storage of highly enriched ura- nium for medical isotope production or con- trol of residual material after irradiation and extraction of medical isotopes. (B) Imposition of additional requirements If the Commission determines that addi- tional physical protection requirements are necessary (including a limit on the quantity of highly enriched uranium that may be con- tained in a single shipment), the Commis- sion shall impose such requirements as li- cense conditions or through other appro- priate means. (4) First report to Congress (A) NAS study The Secretary shall enter into an arrange- ment with the National Academy of Sciences to conduct a study to determine— (i) the feasibility of procuring supplies of medical isotopes from commercial sources that do not use highly enriched uranium; (ii) the current and projected demand and availability of medical isotopes in reg- ular current domestic use; (iii) the progress that is being made by the Department of Energy and others to eliminate all use of highly enriched ura- nium in reactor fuel, reactor targets, and medical isotope production facilities; and (iv) the potential cost differential in medical isotope production in the reactors and target processing facilities if the prod- ucts were derived from production systems that do not involve fuels and targets with highly enriched uranium. (B) Feasibility For the purpose of this subsection, the use of low enriched uranium to produce medical isotopes shall be determined to be feasible if— (i) low enriched uranium targets have been developed and demonstrated for use in the reactors and target processing fa- cilities that produce significant quantities of medical isotopes to serve United States needs for such isotopes; (ii) sufficient quantities of medical iso- topes are available from low enriched ura- nium targets and fuel to meet United States domestic needs; and (iii) the average anticipated total cost increase from production of medical iso- topes in such facilities without use of highly enriched uranium is less than 10 percent. (C) Report by the Secretary Not later than 5 years after August 8, 2005, the Secretary shall submit to Congress a re- port that— (i) contains the findings of the National Academy of Sciences made in the study under subparagraph (A); and (ii) discloses the existence of any com- mitments from commercial producers to provide domestic requirements for medical isotopes without use of highly enriched uranium consistent with the feasibility criteria described in subparagraph (B) not later than the date that is 4 years after the date of submission of the report. (5) Second report to Congress If the study of the National Academy of Sciences determines under paragraph (4)(A)(i) that the procurement of supplies of medical isotopes from commercial sources that do not use highly enriched uranium is feasible, but the Secretary is unable to report the existence of commitments under paragraph (4)(C)(ii), not later than the date that is 6 years after Au- gust 8, 2005, the Secretary shall submit to Con- gress a report that describes options for devel- oping domestic supplies of medical isotopes in quantities that are adequate to meet domestic demand without the use of highly enriched uranium consistent with the cost increase de- scribed in paragraph (4)(B)(iii). (6) Certification At such time as commercial facilities that do not use highly enriched uranium are capa- Page 5462 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 2160d ble of meeting domestic requirements for med- ical isotopes, within the cost increase de- scribed in paragraph (4)(B)(iii) and without im- pairing the reliable supply of medical isotopes for domestic utilization, the Secretary shall submit to Congress a certification to that ef- fect. (7) Sunset provision After the Secretary submits a certification under paragraph (6), the Commission shall, by rule, terminate its review of export license ap- plications under this subsection. (c) Medical production license sunset Effective 7 years after January 2, 2013, the Commission may not issue a license for the ex- port of highly enriched uranium from the United States for the purposes of medical isotope pro- duction. (d) Medical production license extension The period referred to in subsection (c) may be extended for no more than 6 years if, no earlier than 6 years after January 2, 2013, the Secretary of Energy certifies to the Committee on Energy and Commerce of the House of Representatives and the Committee on Energy and Natural Re- sources of the Senate that— (1) there is insufficient global supply of mo- lybdenum-99 produced without the use of high- ly enriched uranium available to satisfy the domestic United States market; and (2) the export of United States-origin highly enriched uranium for the purposes of medical isotope production is the most effective tem- porary means to increase the supply of molyb- denum-99 to the domestic United States mar- ket. (e) Public notice To ensure public review and comment, the de- velopment of the certification described in sub- section (d) shall be carried out through an- nouncement in the Federal Register. (f) Joint certification (1) In general In accordance with paragraph (2), the ban on the export of highly enriched uranium for pur- poses of medical isotope production referred to in subsections (c) and (d) shall not go into ef- fect unless the Secretary of Energy and the Secretary of Health and Human Services have jointly certified that— (A) there is a sufficient supply of molyb- denum-99 produced without the use of highly enriched uranium available to meet the needs of patients in the United States; and (B) it is not necessary to export United States-origin highly enriched uranium for the purposes of medical isotope production in order to meet United States patient needs. (2) Time of certification The joint certification under paragraph (1) shall be made not later than 7 years after Jan- uary 2, 2013, except that, if the period referred to in subsection (c) is extended under sub- section (d), the 7-year deadline under this paragraph shall be extended by a period equal to the period of such extension under sub- section (d). (g) Suspension of medical production license At any time after the restriction of export li- censes provided for in subsection (c) becomes ef- fective, if there is a critical shortage in the sup- ply of molybdenum-99 available to satisfy the domestic United States medical isotope needs, the restriction of export licenses may be sus- pended for a period of no more than 12 months, if— (1) the Secretary of Energy certifies to the Congress that the export of United States-ori- gin highly enriched uranium for the purposes of medical isotope production is the only ef- fective temporary means to increase the sup- ply of molybdenum-99 necessary to meet United States medical isotope needs during that period; and (2) the Congress enacts a Joint Resolution approving the temporary suspension of the re- striction of export licenses. (h) Definitions As used in this section— (1) the term ‘‘alternative nuclear reactor fuel or target’’ means a nuclear reactor fuel or target which is enriched to less than 20 per- cent in the isotope U–235; (2) the term ‘‘highly enriched uranium’’ means uranium enriched to 20 percent or more in the isotope U–235; (3) a fuel or target ‘‘can be used’’ in a nu- clear research or test reactor if— (A) the fuel or target has been qualified by the Reduced Enrichment Research and Test Reactor Program of the Department of En- ergy; and (B) use of the fuel or target will permit the large majority of ongoing and planned ex- periments and medical isotope production to be conducted in the reactor without a large percentage increase in the total cost of oper- ating the reactor; and (4) the term ‘‘medical isotope’’ includes mo- lybdenum-99, iodine-131, xenon-133, and other radioactive materials used to produce a radio- pharmaceutical for diagnostic or therapeutic procedures or for research and development. (Aug. 1, 1946, ch. 724, title I, § 134, as added Pub. L. 102–486, title IX, § 903(a)(1), Oct. 24, 1992, 106 Stat. 2944; Pub. L. 109–58, title VI, § 630, Aug. 8, 2005, 119 Stat. 785; Pub. L. 112–239, div. C, title XXXI, § 3174, Jan. 2, 2013, 126 Stat. 2214.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsecs. (a) and (b)(2), was in the original ‘‘this Act’’, meaning act Aug. 1, 1946, ch. 724, as added by act Aug. 30, 1954, ch. 1073, § 1, 68 Stat. 919, known as the Atomic Energy Act of 1954, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 2011 of this title and Tables. AMENDMENTS 2013—Subsecs. (c) to (h). Pub. L. 112–239 added sub- secs. (c) to (h) and struck out former subsec. (c), which provided definitions for terms used in this section. 2005—Subsec. (a). Pub. L. 109–58, § 630(1), inserted heading and substituted ‘‘Except as provided in sub- section (b), the Commission’’ for ‘‘The Commission’’ in introductory provisions. Page 5463 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 2160e Subsecs. (b), (c). Pub. L. 109–58, § 630(2), (3), added sub- sec. (b) and redesignated former subsec. (b) as (c). § 2160e. Congressional review and oversight of agreements with Iran (a) Transmission to Congress of nuclear agree- ments with Iran and verification assessment with respect to such agreements (1) Transmission of agreements Not later than 5 calendar days after reaching an agreement with Iran relating to the nuclear program of Iran, the President shall transmit to the appropriate congressional committees and leadership— (A) the agreement, as defined in subsection (h)(1), including all related materials and an- nexes; (B) a verification assessment report of the Secretary of State prepared under paragraph (2) with respect to the agreement; and (C) a certification that— (i) the agreement includes the appro- priate terms, conditions, and duration of the agreement’s requirements with respect to Iran’s nuclear activities and provisions describing any sanctions to be waived, sus- pended, or otherwise reduced by the United States, and any other nation or entity, in- cluding the United Nations; and (ii) the President determines the agree- ment meets United States non-prolifera- tion objectives, does not jeopardize the common defense and security, provides an adequate framework to ensure that Iran’s nuclear activities permitted thereunder will not be inimical to or constitute an un- reasonable risk to the common defense and security, and ensures that Iran’s nuclear activities permitted thereunder will not be used to further any nuclear-related mili- tary or nuclear explosive purpose, includ- ing for any research on or development of any nuclear explosive device or any other nuclear-related military purpose. (2) Verification assessment report (A) In general The Secretary of State shall prepare, with respect to an agreement described in para- graph (1), a report assessing— (i) the extent to which the Secretary will be able to verify that Iran is complying with its obligations and commitments under the agreement; (ii) the adequacy of the safeguards and other control mechanisms and other assur- ances contained in the agreement with re- spect to Iran’s nuclear program to ensure Iran’s activities permitted thereunder will not be used to further any nuclear-related military or nuclear explosive purpose, in- cluding for any research on or develop- ment of any nuclear explosive device or any other nuclear-related military pur- pose; and (iii) the capacity and capability of the International Atomic Energy Agency to effectively implement the verification re- gime required by or related to the agree- ment, including whether the International Atomic Energy Agency will have sufficient access to investigate suspicious sites or al- legations of covert nuclear-related activi- ties and whether it has the required fund- ing, manpower, and authority to under- take the verification regime required by or related to the agreement. (B) Assumptions In preparing a report under subparagraph (A) with respect to an agreement described in paragraph (1), the Secretary shall assume that Iran could— (i) use all measures not expressly prohib- ited by the agreement to conceal activities that violate its obligations and commit- ments under the agreement; and (ii) alter or deviate from standard prac- tices in order to impede efforts to verify that Iran is complying with those obliga- tions and commitments. (C) Classified annex A report under subparagraph (A) shall be transmitted in unclassified form, but shall include a classified annex prepared in con- sultation with the Director of National In- telligence, summarizing relevant classified information. (3) Exception (A) In general Neither the requirements of subparagraphs (B) and (C) of paragraph (1), nor subsections (b) through (g) of this section, shall apply to an agreement described in subsection (h)(5) or to the EU-Iran Joint Statement made on April 2, 2015. (B) Additional requirement Notwithstanding subparagraph (A), any agreement as defined in subsection (h)(1) and any related materials, whether concluded before or after May 22, 2015, shall not be sub- ject to the exception in subparagraph (A). (b) Period for review by Congress of nuclear agreements with Iran (1) In general During the 30-calendar day period following transmittal by the President of an agreement pursuant to subsection (a), the Committee on Foreign Relations of the Senate and the Com- mittee on Foreign Affairs of the House of Rep- resentatives shall, as appropriate, hold hear- ings and briefings and otherwise obtain infor- mation in order to fully review such agree- ment. (2) Exception The period for congressional review under paragraph (1) shall be 60 calendar days if an agreement, including all materials required to be transmitted to Congress pursuant to sub- section (a)(1), is transmitted pursuant to sub- section (a) between July 10, 2015, and Sep- tember 7, 2015. (3) Limitation on actions during initial con- gressional review period Notwithstanding any other provision of law, except as provided in paragraph (6), prior to and during the period for transmission of an