42 U.S.C. § 2077a — Interagency review of applications for

Page 5409 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 2077a Energy’s process for determining a country’s generally authorized destination status under part 810 of title 10, Code of Federal Regulations, and for listing such coun- try as a generally authorized destination in Appendix A to part 810 of title 10, Code of Federal Regulations, tak- ing into consideration and, as appropriate, incor- porating factors identified and evaluated under sub- section (a). ‘‘(c) REVISIONS TO LIST.—Not later than one year after the date of enactment of this Act, and at least once every 5 years thereafter, the Secretary of Energy shall, in accordance with any process updated pursuant to this section, review the list in Appendix A to part 810 of title 10, Code of Federal Regulations, and amend such list as appropriate.’’ Executive Documents PERFORMANCE OF FUNCTIONS PENDING DEVELOPMENT OF PROCEDURES The performance of functions under this chapter, as amended by the Nuclear Non-Proliferation Act of 1978, Pub. L. 95–242, Mar. 10, 1978, 92 Stat. 120, not to be de- layed pending development of procedures even though as many as 120 days [after Mar. 10, 1978] are allowed for establishing those procedures, see section 5(b) of Ex. Ord. No. 12058, May 11, 1978, 43 F.R. 20947, set out under section 3201 of Title 22, Foreign Relations and Inter- course. § 2077a. Interagency review of applications for the transfer of United States civil nuclear technology (a) Annual reports on transfers to covered for- eign countries At the same time as the President submits to Congress the annual budget request under sec- tion 1105 of title 31 for a fiscal year, the Sec- retary of Energy shall submit to the appropriate congressional committees a report that in- cludes— (1) a description of the authorizations under section 2077(b) of this title to transfer United States civil nuclear technology to a covered foreign country during the preceding year; and (2) a statement of whether any agency re- quired to be consulted under that section or pursuant to regulation objected to or sought conditions on each such transfer. (b) Determination of technologies to be pro- tected (1) In general Not later than 90 days after November 25, 2015, and every five years thereafter, the Sec- retary of Energy shall— (A) in consultation with the Secretary of State, the Secretary of Commerce, the Sec- retary of Defense, the Director of National Intelligence, and the Nuclear Regulatory Commission, determine the critical United States civil nuclear technologies that should be protected from diversion to a military program of a covered foreign country, in- cluding with respect to a naval propulsion or weapons program; and (B) notify the appropriate congressional committees with respect to the determina- tion and the technologies covered by the de- termination. (2) Notification (A) In general Except as provided in subparagraph (B), not later than 14 days before making an au- thorization under section 2077(b) of this title for the transfer of a technology covered by a determination under paragraph (1) to a cov- ered foreign country, the Secretary of En- ergy shall submit to the appropriate con- gressional committees a report that in- cludes— (i) a notification of the intention of the Secretary to make the authorization for the transfer of such technology; and (ii) a statement of whether any agency required to be consulted under such sec- tion 2077(b) of this title or pursuant to reg- ulation objected to or sought conditions on the transfer. (B) Waiver of deadline The Secretary may waive the requirement under subparagraph (A) to submit the report required by that subparagraph not later than 14 days before making an authorization for the transfer of a technology covered by a determination under paragraph (1) to a cov- ered foreign country if the Secretary— (i) determines that an imminent radio- logical hazard exists; and (ii) not later than 7 days after deter- mining that such hazard exists, submits to the appropriate congressional commit- tees— (I) a certification that the hazard ex- ists; (II) a justification for the waiver; and (III) the notification required by clause (i) of subparagraph (A) and the state- ment required by clause (ii) of that sub- paragraph. (c) Consultations with intelligence community (1) In general The Secretary of Energy shall expeditiously revise part 810 of title 10, Code of Federal Reg- ulations, to ensure that the Director of Na- tional Intelligence— (A) is consulted with respect to the views of the intelligence community (as defined in section 3003(4) of title 50) with respect to each authorization issued under section 2077(b) of this title for the transfer of United States civil nuclear technology to a covered foreign country before the determination to approve or disapprove the request for the au- thorization; and (B) is provided with an opportunity to present the views of the Director and the in- telligence community on the national secu- rity risks of the transfer, if any. (2) Submission to Congress The Secretary of Energy, jointly with the Director of National Intelligence, shall include the results of consultations conducted under paragraph (1) in each report under subsection (a) and each notification under subsection (b)(2). (d) Report on compliance of covered foreign countries and end-users Not less frequently than annually, the Sec- retary of Energy shall submit to the appropriate congressional committees a report that in- cludes— Page 5410 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 2077a (1) an assessment of whether each covered foreign country is in compliance with its obli- gations under any authorization for the trans- fer of United States civil nuclear technology under section 2077(b) of this title; (2) with respect to any covered foreign coun- try that is not in compliance with such obliga- tions— (A) a description the efforts of the United States to bring the country into compliance; (B) an evaluation of the result of such ef- forts; and (C) an assessment of the options available to the Secretary as a result of the country not being in compliance; (3) an assessment of whether each end-user to which United States civil nuclear tech- nology is transferred pursuant to an author- ization under such section 2077(b) of this title is in compliance with the obligations of the end-user under that authorization; and (4) a description of any consequences for the end-user or the exporter of the technology if the end-user is not in compliance with such obligations. (e) Report on transfers to all foreign countries (1) In general Concurrent with the submission to Congress of the budget of the President for a fiscal year under section 1105(a) of title 31, the Secretary of Energy shall submit to the appropriate con- gressional committees a report on the activi- ties of the Department of Energy associated with the review of applications for authoriza- tion under section 2077(b) of this title to trans- fer United States civil nuclear technology to any foreign country. (2) Elements The report required by paragraph (1) shall include— (A) the number of applications for author- ization under section 2077(b) of this title to transfer United States civil nuclear tech- nology to a foreign country submitted dur- ing the year preceding the submission of the report; (B) the length of time each such applica- tion was under review; (C) for each such application, an identi- fication of any officer to which the author- ization under such section 2077(b) of this title was delegated pursuant to section 2201(n) of this title; (D) the number of such applications that were granted; and (E) a description of efforts to streamline the review of such applications, taking into account the proliferation and diversion po- tential of end-users in the country to which United States civil nuclear technology would be transferred pursuant to such appli- cations. (f) Notifications of potential diversions The Director of National Intelligence shall no- tify the Department of Energy and the appro- priate congressional committees not later than 30 days after the date on which the Director de- termines that there is credible intelligence that United States civil nuclear technology is being or has been diverted— (1) to a military program in a foreign coun- try to which the transfer of the technology was authorized under section 2077(b) of this title; or (2) to a foreign country to which the transfer of the technology was not so authorized. (g) Guidelines Not later than 60 days after November 25, 2015, the Secretary of Energy shall issue guidance with respect to the use of the clear and intended authority of the Secretary under section 2282 of this title to impose civil penalties, including fines and debarment, and to make referrals to the Attorney General for prosecution, for viola- tions of the terms of authorizations for the transfer of United States civil nuclear tech- nology issued under section 2077(b) of this title. (h) Report on transfer of sensitive items (1) In general Not later than 180 days after November 25, 2015, and annually thereafter, the President shall submit to the appropriate congressional committees a report— (A) describing the efforts of covered for- eign countries to prevent the transfer of sen- sitive items, including efforts to improve the prevention of the transfer of such items; and (B) assessing the adequacy of such efforts. (2) Sensitive items defined In this subsection, the term ‘‘sensitive items’’ means goods, services, and tech- nologies described in section 2(a) of the Iran, North Korea, and Syria Nonproliferation Act (Public Law 106–178; 50 U.S.C. 1701 note). (i) Combination of reports The Secretary of Energy may submit the an- nual reports required by subsections (a), (d), and (e) as a single annual report, including by pro- viding portions of the information so required as an annex to the single annual report. (j) Definitions In this section: (1) Appropriate congressional committees The term ‘‘appropriate congressional com- mittees’’ means— (A) the congressional defense committees; (B) the Committee on Energy and Natural Resources, the Committee on Foreign Rela- tions, and the Select Committee on Intel- ligence of the Senate; and (C) the Committee on Energy and Com- merce, the Committee on Foreign Affairs, and the Permanent Select Committee on In- telligence of the House of Representatives. (2) Covered foreign country The term ‘‘covered foreign country’’ means a foreign country that is a nuclear-weapon state, as defined by Article IX(3) of the Treaty on the Non-Proliferation of Nuclear Weapons, signed at Washington, London, and Moscow July 1, 1968, but does not include the United States, the United Kingdom, or France. (Pub. L. 114–92, div. C, title XXXI, § 3136, Nov. 25, 2015, 129 Stat. 1209; Pub. L. 115–232, div. C, title Page 5411 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 2091 XXXI, § 3116(c), Aug. 13, 2018, 132 Stat. 2291; Pub. L. 117–81, div. C, title XXXI, § 3131(b), Dec. 27, 2021, 135 Stat. 2230; Pub. L. 117–263, div. C, title XXXI, § 3131(b), Dec. 23, 2022, 136 Stat. 3059.) Editorial Notes CODIFICATION Section was enacted as part of the National Defense Authorization Act for Fiscal Year 2016, and not as part of the Atomic Energy Act of 1954 which comprises this chapter. AMENDMENTS 2022—Subsecs. (i), (j). Pub. L. 117–263 added subsec. (i) and redesignated former subsec. (i) as (j). 2021—Subsec. (a). Pub. L. 117–81 substituted ‘‘Annual reports’’ for ‘‘Report’’ in heading, ‘‘At the same time as the President submits to Congress the annual budget request under section 1105 of title 31 for a fiscal year,’’ for ‘‘Not less frequently than every 90 days,’’ in intro- ductory provisions, and ‘‘the preceding year’’ for ‘‘the preceding 90 days’’ in par. (1). 2018—Subsec. (e)(2)(C) to (E). Pub. L. 115–232 added subpar. (C) and redesignated former subpars. (C) and (D) as (D) and (E), respectively. Statutory Notes and Related Subsidiaries ‘‘CONGRESSIONAL DEFENSE COMMITTEES’’ DEFINED Congressional defense committees means the Com- mittees on Armed Services and Appropriations of the Senate and the House of Representatives, see section 3 of Pub. L. 114–92, 129 Stat. 745. See note under section 101 of Title 10, Armed Forces. Executive Documents DELEGATION OF AUTHORITY PURSUANT TO SECTION 3136(h) OF THE NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2016 Memorandum of President of the United States, May 10, 2016, 81 F.R. 31161, provided: Memorandum for the Secretary of State By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 301 of title 3, United States Code, I hereby order as follows: I hereby delegate functions and authorities vested in the President by section 3136(h) of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92) (the ‘‘Act’’) to the Secretary of State. Any reference in this memorandum to the Act shall be deemed to be a reference to any future act that is the same or substantially the same as such provision. You are authorized and directed to publish this memorandum in the Federal Register. BARACK OBAMA. § 2078. Congressional review of guaranteed pur- chase price, guaranteed purchase price pe- riod, and criteria for waiver of charges Before the Commission establishes any guar- anteed purchase price or guaranteed purchase price period in accordance with the provisions of section 2076 of this title, or establishes any cri- teria for the waiver of any charge for the use of special nuclear material licensed and distrib- uted under section 2073 of this title, the pro- posed guaranteed purchase price, guaranteed purchase price period, or criteria for the waiver of such charge shall be submitted to the Energy Committees and a period of forty-five days shall elapse while Congress is in session (in com- puting such forty-five days there shall be ex- cluded the days in which either House is not in session because of adjournment for more than three days): Provided, however, That the Energy Committees, after having received the proposed guaranteed purchase price, guaranteed purchase price period, or criteria for the waiver of such charge, may by resolution in writing waive the conditions of, or all or any portion of, such forty-five-day period. (Aug. 1, 1946, ch. 724, title I, § 58, as added Pub. L. 85–79, § 2, July 3, 1957, 71 Stat. 275; amended Pub. L. 88–489, § 13, Aug. 26, 1964, 78 Stat. 605; re- numbered title I, Pub. L. 102–486, title IX, § 902(a)(8), Oct. 24, 1992, 106 Stat. 2944; Pub. L. 103–437, § 15(f)(4), Nov. 2, 1994, 108 Stat. 4592.) Editorial Notes AMENDMENTS 1994—Pub. L. 103–437 substituted ‘‘Energy Commit- tees’’ for ‘‘Joint Committee’’ in two places. 1964—Pub. L. 88–489 substituted ‘‘guaranteed pur- chase’’ and ‘‘purchase’’ for ‘‘fair’’ wherever appearing, ‘‘licensed and distributed’’ for ‘‘licensed or distrib- uted’’, and provided that the Joint Committee resolu- tion waiving the conditions of the forty-five-day period must be in writing. SUBCHAPTER VI—SOURCE MATERIAL § 2091. Determination of source material The Commission may determine from time to time that other material is source material in addition to those specified in the definition of source material. Before making such determina- tion, the Commission must find that such mate- rial is essential to the production of special nu- clear material and must find that the deter- mination that such material is source material is in the interest of the common defense and se- curity, and the President must have expressly assented in writing to the determination. The Commission’s determination, together with the assent of the President, shall be submitted to the Energy Committees and a period of thirty days shall elapse while Congress is in session (in computing such thirty days, there shall be ex- cluded the days on which either House is not in session because of an adjournment of more than three days) before the determination of the Commission may become effective: Provided, however, That the Energy Committees, after having received such determination, may by res- olution in writing waive the conditions of or all or any portion of such thirty-day period. (Aug. 1, 1946, ch. 724, title I, § 61, as added Aug. 30, 1954, ch. 1073, § 1, 68 Stat. 932; renumbered title I, Pub. L. 102–486, title IX, § 902(a)(8), Oct. 24, 1992, 106 Stat. 2944; amended Pub. L. 103–437, § 15(f)(4), Nov. 2, 1994, 108 Stat. 4592.) Editorial Notes PRIOR PROVISIONS Provisions similar to this section were contained in section 1805(b)(1) of this title, prior to the general amendment and renumbering of act Aug. 1, 1946, by act Aug. 30, 1954. AMENDMENTS 1994—Pub. L. 103–437 substituted ‘‘Energy Commit- tees’’ for ‘‘Joint Committee’’ in two places.