42 U.S.C. § 2286d — Board recommendations

Page 5552 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 2286d (b) Authority of Secretary to deny information (1) The Secretary may deny access to informa- tion under subsection (a) only to any person who— (A) has not been granted an appropriate se- curity clearance or access authorization by the Secretary; or (B) does not need such access in connection with the duties of such person. (2) If the Board requests access to information under subsection (a) in written form, and the Secretary denies access to such information pur- suant to paragraph (1)— (A) the Secretary shall provide the Board notice of such denial in written form; and (B) not later than January 1 and July 1 of each year beginning in 2020— (i) the Board shall submit to the congres- sional defense committees a report identi- fying each request for access to information under subsection (a) submitted to the Sec- retary in written form during the preceding six-month period and denied by the Sec- retary; and (ii) the Secretary shall submit to the con- gressional defense committees a report iden- tifying— (I) each such request denied by the Sec- retary during that period; and (II) the reason for the denial. (3) In this subsection, the term ‘‘congressional defense committees’’ has the meaning given that term in section 101(a) of title 10. (c) Application of nondisclosure protections by Board The Board may not publicly disclose informa- tion provided under this section if such informa- tion is otherwise protected from disclosure by law, including deliberative process information. (Aug. 1, 1946, ch. 724, title I, § 314, as added Pub. L. 100–456, div. A, title XIV, § 1441(a)(1), Sept. 29, 1988, 102 Stat. 2080; renumbered title I, Pub. L. 102–486, title IX, § 902(a)(8), Oct. 24, 1992, 106 Stat. 2944; amended Pub. L. 116–92, div. C, title XXXII, § 3202(c), Dec. 20, 2019, 133 Stat. 1965.) Editorial Notes AMENDMENTS 2019—Subsec. (a). Pub. L. 116–92, § 3202(c)(1), sub- stituted ‘‘Except as specifically provided by this sec- tion, the Secretary of Energy’’ for ‘‘The Secretary of Energy’’ and ‘‘prompt and unfettered access’’ for ‘‘ready access’’ in two places, and inserted at end ‘‘The access provided to defense nuclear facilities, personnel, and information under this subsection shall be provided without regard to the hazard or risk category assigned to a facility by the Secretary.’’ Subsecs. (b), (c). Pub. L. 116–92, § 3202(c)(2), added sub- secs. (b) and (c) and struck out former subsec. (b) which authorized the Secretary of Energy to deny access to unauthorized persons to information provided to the Board. § 2286d. Board recommendations (a) Submission of recommendations (1) Subject to subsections (h) and (i), not later than 30 days before the date on which the Board transmits a recommendation to the Secretary of Energy under section 2286a of this title, the Board shall transmit to the Secretary in writing a draft of such recommendation and any related findings, supporting data, and analyses to en- sure the Secretary is adequately informed of a formal recommendation and to provide the Sec- retary an opportunity to provide input to the Board before such recommendation is finalized. (2) The Secretary may provide to the Board comments on a draft recommendation trans- mitted by the Board under paragraph (1) by not later than 30 days after the date on which the Secretary receives the draft recommendation. The Board may grant, upon request by the Sec- retary, additional time for the Secretary to transmit comments to the Board. (3) After the period of time in which the Sec- retary may provide comments under paragraph (2) elapses, the Board may transmit a final rec- ommendation to the Secretary. (b) Public availability and comment Subject to subsections (h) and (i), after the Secretary of Energy receives a recommendation from the Board under subsection (a)(3), the Board shall promptly make available to the pub- lic such recommendation and any related cor- respondence from the Secretary by— (1) providing such recommendation and cor- respondence to the public in the regional pub- lic reading rooms of the Department of En- ergy; and (2) publishing in the Federal Register— (A) such recommendation and correspond- ence; and (B) a request for the submission to the Board of public comments on such rec- ommendation that provides interested per- sons with 30 days after the date of the publi- cation in which to submit comments, data, views, or arguments to the Board concerning the recommendation. (c) Response by Secretary (1) The Secretary of Energy shall transmit to the Board, in writing, a statement on whether the Secretary accepts or rejects, in whole or in part, the recommendations submitted to him by the Board under section 2286a of this title, a de- scription of the actions to be taken in response to the recommendations, and his views on such recommendations. The Secretary of Energy shall transmit his response to the Board within 45 days after the date of the publication, under subsection (b), of the notice with respect to such recommendations or within such additional pe- riod, not to exceed 45 days, as the Board may grant. (2) At the same time as the Secretary of En- ergy transmits his response to the Board under paragraph (1), the Secretary, subject to sub- section (i), shall publish such response, together with a request for public comment on his re- sponse, in the Federal Register. (3) Interested persons shall have 30 days after the date of the publication of the Secretary of Energy’s response in which to submit com- ments, data, views, or arguments to the Board concerning the Secretary’s response. (4) The Board may hold hearings for the pur- pose of obtaining public comments on its rec- ommendations and the Secretary of Energy’s re- sponse. Page 5553 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 2286d (d) Provision of information to Secretary The Board shall furnish the Secretary of En- ergy with copies of all comments, data, views, and arguments submitted to it under subsection (b) or (c). (e) Final decision If the Secretary of Energy, in a response under subsection (c)(1), rejects (in whole or part) any recommendation made by the Board under sec- tion 2286a of this title, the Board shall either re- affirm its original recommendation or make a revised recommendation and shall notify the Secretary of its action. Within 30 days after re- ceiving the notice of the Board’s action under this subsection, the Secretary shall consider the Board’s action and make a final decision on whether to implement all or part of the Board’s recommendations. Subject to subsection (i), the Secretary shall publish the final decision and the reasoning for such decision in the Federal Register and shall transmit to the Committees on Armed Services, Appropriations, and Energy and Commerce of the House of Representatives and the Committees on Armed Services, Appro- priations, and Energy and Natural Resources of the Senate a written report containing that de- cision and reasoning. (f) Implementation plan The Secretary of Energy shall prepare a plan for the implementation of each Board rec- ommendation, or part of a recommendation, that is accepted by the Secretary in his final de- cision. The Secretary shall transmit the imple- mentation plan to the Board within 90 days after the date of the publication of the Secretary’s final decision on such recommendation in the Federal Register. The Secretary may have an additional 45 days to transmit the plan if the Secretary submits to the Board and to the Com- mittees on Armed Services, Appropriations, and Energy and Commerce of the House of Rep- resentatives and the Committees on Armed Services, Appropriations, and Energy and Nat- ural Resources of the Senate a notification set- ting forth the reasons for the delay and describ- ing the actions the Secretary is taking to pre- pare an implementation plan under this sub- section. The Secretary may implement any such recommendation (or part of any such rec- ommendation) before, on, or after the date on which the Secretary transmits the implementa- tion plan to the Board under this subsection. (g) Implementation (1) Subject to paragraph (2), not later than one year after the date on which the Secretary of Energy transmits an implementation plan with respect to a recommendation (or part thereof) under subsection (f), the Secretary shall carry out and complete the implementation plan. If complete implementation of the plan takes more than 1 year, the Secretary of Energy shall submit a report to the Committees on Armed Services, Appropriations, and Energy and Com- merce of the House of Representatives and the Committees on Armed Services, Appropriations, and Energy and Natural Resources of the Senate setting forth the reasons for the delay and when implementation will be completed. (2) If the Secretary of Energy determines that the implementation of a Board recommendation (or part thereof) is impracticable because of budgetary considerations, or that the implemen- tation would affect the Secretary’s ability to meet the annual nuclear weapons stockpile re- quirements established pursuant to section 2121 of this title, the Secretary shall submit to the President and to such committees a report con- taining the recommendation and the Secretary’s determination. (h) Imminent or severe threat (1) In any case in which the Board determines that a recommendation submitted to the Sec- retary of Energy under section 2286a of this title relates to an imminent or severe threat to pub- lic health and safety, the Board and the Sec- retary of Energy shall proceed under this sub- section in lieu of subsections (a) through (e). (2) At the same time that the Board transmits a recommendation relating to an imminent or severe threat to the Secretary of Energy, the Board shall also transmit the recommendation to the President and for information purposes to the Secretary of Defense. The Secretary of En- ergy shall submit his recommendation to the President. The President shall review the Sec- retary of Energy’s recommendation and shall make the decision concerning acceptance or re- jection of the Board’s recommendation. (3) After receipt by the President of the rec- ommendation from the Board under this sub- section, the Board promptly shall make such recommendation available to the public and shall transmit such recommendation to the Committees on Armed Services, Appropriations, and Energy and Commerce of the House of Rep- resentatives and the Committees on Armed Services, Appropriations, and Energy and Nat- ural Resources of the Senate. The President shall promptly notify such committees of his de- cision and the reasons for that decision. (i) Limitation Notwithstanding any other provision of this section, the requirements to make information available to the public under this section— (1) shall not apply in the case of information that is classified; and (2) shall be subject to the orders and regula- tions issued by the Secretary of Energy under sections 2167 and 2168 of this title to prohibit dissemination of certain information. (Aug. 1, 1946, ch. 724, title I, § 315, as added Pub. L. 100–456, div. A, title XIV, § 1441(a)(1), Sept. 29, 1988, 102 Stat. 2080; renumbered title I, Pub. L. 102–486, title IX, § 902(a)(8), Oct. 24, 1992, 106 Stat. 2944; amended Pub. L. 112–239, div. C, title XXXII, § 3202(c), Jan. 2, 2013, 126 Stat. 2218.) Editorial Notes AMENDMENTS 2013—Subsec. (a). Pub. L. 112–239, § 3202(c)(1)(B), added subsec. (a). Former subsec. (a) redesignated (b). Subsec. (b). Pub. L. 112–239, § 3202(c)(1)(A), (C), redesig- nated subsec. (a) as (b) and amended it generally. Prior to amendment, text read as follows: ‘‘Subject to sub- sections (g) and (h) of this section and after receipt by the Secretary of Energy of any recommendations from the Board under section 2286a of this title, the Board promptly shall make such recommendations available to the public in the Department of Energy’s regional Page 5554 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 2286e public reading rooms and shall publish in the Federal Register such recommendations and a request for the submission to the Board of public comments on such recommendations. Interested persons shall have 30 days after the date of the publication of such notice in which to submit comments, data, views, or arguments to the Board concerning the recommendations.’’ Former sub- sec. (b) redesignated (c). Subsec. (c). Pub. L. 112–239, § 3202(c)(1)(A), (2)(A), re- designated subsec. (b) as (c) and substituted ‘‘sub- section (b)’’ for ‘‘subsection (a)’’ in par. (1) and ‘‘sub- section (i)’’ for ‘‘subsection (h)’’ in par. (2). Former sub- sec. (c) redesignated (d). Subsec. (d). Pub. L. 112–239, § 3202(c)(1)(A), (2)(B), re- designated subsec. (c) as (d) and substituted ‘‘sub- section (b) or (c)’’ for ‘‘subsection (a) or (b)’’. Former subsec. (d) redesignated (e). Subsec. (e). Pub. L. 112–239, § 3202(c)(1)(A), (2)(C), (F), redesignated subsec. (d) as (e) and substituted ‘‘sub- section (c)(1)’’ for ‘‘subsection (b)(1)’’, ‘‘subsection (i)’’ for ‘‘subsection (h)’’, and ‘‘Committees on Armed Serv- ices, Appropriations, and Energy and Commerce of the House of Representatives and the Committees on Armed Services, Appropriations, and Energy and Nat- ural Resources of the Senate’’ for ‘‘Committees on Armed Services and on Appropriations of the Senate and to the Speaker of the House of Representatives’’. Former subsec. (e) redesignated (f). Subsec. (f). Pub. L. 112–239, § 3202(c)(1)(A), (2)(F), re- designated subsec. (e) as (f) and substituted ‘‘Commit- tees on Armed Services, Appropriations, and Energy and Commerce of the House of Representatives and the Committees on Armed Services, Appropriations, and Energy and Natural Resources of the Senate’’ for ‘‘Committees on Armed Services and on Appropriations of the Senate and to the Speaker of the House of Rep- resentatives’’. Former subsec. (f) redesignated (g). Subsec. (g). Pub. L. 112–239, § 3202(c)(1)(A), redesig- nated subsec. (f) as (g). Former subsec. (g) redesignated (h). Subsec. (g)(1). Pub. L. 112–239, § 3202(c)(2)(D)(i), (F), substituted ‘‘subsection (f)’’ for ‘‘subsection (e)’’ and ‘‘Committees on Armed Services, Appropriations, and Energy and Commerce of the House of Representatives and the Committees on Armed Services, Appropria- tions, and Energy and Natural Resources of the Sen- ate’’ for ‘‘Committees on Armed Services and on Appro- priations of the Senate and to the Speaker of the House of Representatives’’. Subsec. (g)(2). Pub. L. 112–239, § 3202(c)(2)(D)(ii), sub- stituted ‘‘and to such committees’’ for ‘‘, to the Com- mittees on Armed Services and on Appropriations of the Senate, and to the Speaker of the House of Rep- resentatives’’. Subsec. (h). Pub. L. 112–239, § 3202(c)(1)(A), redesig- nated subsec. (g) as (h). Former subsec. (h) redesignated (i). Subsec. (h)(1). Pub. L. 112–239, § 3202(c)(2)(E)(i), sub- stituted ‘‘through (e)’’ for ‘‘through (d)’’. Subsec. (h)(3). Pub. L. 112–239, § 3202(c)(2)(E)(ii), (F), substituted ‘‘Committees on Armed Services, Appro- priations, and Energy and Commerce of the House of Representatives and the Committees on Armed Serv- ices, Appropriations, and Energy and Natural Re- sources of the Senate’’ for ‘‘Committees on Armed Services and on Appropriations of the Senate and to the Speaker of the House of Representatives’’ and struck out ‘‘and the Speaker’’ after ‘‘notify such com- mittees’’. Subsec. (i). Pub. L. 112–239, § 3202(c)(1)(A), redesig- nated subsec. (h) as (i). § 2286e. Reports (a) Board report (1) The Board shall submit to the Committees on Armed Services, Appropriations, and Energy and Commerce of the House of Representatives and the Committees on Armed Services, Appro- priations, and Energy and Natural Resources of the Senate each year, at the same time that the President submits the budget to Congress pursu- ant to section 1105(a) of title 31, a written report concerning its activities under this subchapter, including all recommendations made by the Board, during the year preceding the year in which the report is submitted. The Board may also issue periodic unclassified reports on mat- ters within the Board’s responsibilities. (2) The annual report under paragraph (1) shall include an assessment of— (A) the improvements in the safety of De- partment of Energy defense nuclear facilities during the period covered by the report; (B) the improvements in the safety of De- partment of Energy defense nuclear facilities resulting from actions taken by the Board or taken on the basis of the activities of the Board; and (C) the outstanding safety problems, if any, of Department of Energy defense nuclear fa- cilities. (b) DOE report The Secretary of Energy shall submit to the Committees on Armed Services, Appropriations, and Energy and Commerce of the House of Rep- resentatives and the Committees on Armed Services, Appropriations, and Energy and Nat- ural Resources of the Senate each year, at the same time that the President submits the budg- et to Congress pursuant to section 1105(a) of title 31, a written report concerning the activi- ties of the Department of Energy under this sub- chapter during the year preceding the year in which the report is submitted. (Aug. 1, 1946, ch. 724, title I, § 316, as added Pub. L. 100–456, div. A, title XIV, § 1441(a)(1), Sept. 29, 1988, 102 Stat. 2082; renumbered title I, Pub. L. 102–486, title IX, § 902(a)(8), Oct. 24, 1992, 106 Stat. 2944; amended Pub. L. 112–239, div. C, title XXXII, § 3202(d), Jan. 2, 2013, 126 Stat. 2220.) Editorial Notes AMENDMENTS 2013—Subsecs. (a)(1), (b). Pub. L. 112–239 substituted ‘‘Committees on Armed Services, Appropriations, and Energy and Commerce of the House of Representatives and the Committees on Armed Services, Appropria- tions, and Energy and Natural Resources of the Sen- ate’’ for ‘‘Committees on Armed Services and on Appro- priations of the Senate and to the Speaker of the House of Representatives’’. Statutory Notes and Related Subsidiaries CERTIFICATION OF BUDGET SUFFICIENCY Pub. L. 115–91, div. C, title XXXII, § 3201(b), Dec. 12, 2017, 131 Stat. 1908, provided that: ‘‘Not later than 10 days after the date on which the budget of the Presi- dent for fiscal year 2019 or any fiscal year thereafter is submitted to Congress pursuant to section 1105(a) of title 31, United States Code, the Defense Nuclear Fa- cilities Safety Board shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Rep- resentatives] a letter certifying that the requested budget is sufficient to carry out the mission of the De- fense Nuclear Facilities Safety Board during the fiscal year covered by the budget request.’’ REPORTING REQUIREMENTS Pub. L. 100–456, div. A, title XIV, § 1441(c), (d), Sept. 29, 1988, 102 Stat. 2084, provided that: