§2077a — Title 42 The Public Health and Welfare | U.S. Code

Summary

The Secretary of Energy must give Congress regular reports and notices about any authorizations to send U.S. civil nuclear technology to certain foreign countries. At the same time the President sends the annual budget, the Secretary must report what transfers happened in the past year and say if any other U.S. agency objected or asked for conditions. Within 90 days after November 25, 2015, and every 5 years after that, the Secretary, working with State, Commerce, Defense, the Director of National Intelligence, and the Nuclear Regulatory Commission, must decide which U.S. civil nuclear technologies are most critical to protect and tell Congress which technologies those are. For any of those critical technologies, the Secretary must notify Congress at least 14 days before authorizing a transfer and report whether any consulted agency objected. If there is an imminent radiological hazard, the Secretary can waive the 14-day notice but must, within 7 days, certify the hazard, explain the waiver, and give the same notice and objection statement. The Secretary must quickly update rules so the Director of National Intelligence is consulted and can present intelligence views before approval decisions. The results of those intelligence consultations must be included in the reports and notices. At least once a year the Secretary must report on whether each covered foreign country and each end-user are following the authorization terms, describe U.S. efforts to fix problems, evaluate results, list possible actions, and note any penalties or consequences. Along with the budget, the Secretary must also report how many transfer applications were filed, how long each was reviewed, any delegated decisionmakers, how many were approved, and what streamlining was done. The Director of National Intelligence must notify DOE and Congress within 30 days if there is credible intelligence that U.S. civil nuclear technology was diverted to a military program or to an unauthorized country. The Secretary must issue guidance within 60 days after November 25, 2015 on using civil penalties, debarment, and referrals for violations. The President must report within 180 days after November 25, 2015 and yearly on how covered foreign countries are working to stop transfers of “sensitive items” and whether those efforts are enough. The Secretary may combine the annual reports into one. Defined terms: “appropriate congressional committees” means the congressional defense committees; the Senate Committees on Energy and Natural Resources, Foreign Relations, and the Select Committee on Intelligence; and the House Committees on Energy and Commerce, Foreign Affairs, and the Permanent Select Committee on Intelligence. “Covered foreign country” means a nuclear-weapon state as defined by the Treaty on the Non‑Proliferation of Nuclear Weapons (signed July 1, 1968), but not the United States, the United Kingdom, or France.

Title 42, §2077a

The Public Health and Welfare — Source: USLM XML via OLRC

(a)At the same time as the President submits to Congress the annual budget request under section 1105 of title 31 for a fiscal year, the Secretary of Energy shall submit to the appropriate congressional committees a report that includes—

(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 required to be consulted under that section or pursuant to regulation objected to or sought conditions on each such transfer.

(b)(1)Not later than 90 days after November 25, 2015, and every five years thereafter, the Secretary of Energy shall—

(A)in consultation with the Secretary of State, the Secretary of Commerce, the Secretary 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, including with respect to a naval propulsion or weapons program; and

(B)notify the appropriate congressional committees with respect to the determination and the technologies covered by the determination.

(2)(A)Except as provided in subparagraph (B), not later than 14 days before making an authorization under section 2077(b) of this title for the transfer of a technology covered by a determination under paragraph (1) to a covered foreign country, the Secretary of Energy shall submit to the appropriate congressional committees a report that includes—

(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 section 2077(b) of this title or pursuant to regulation objected to or sought conditions on the transfer.

(B)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 covered foreign country if the Secretary—

(i)determines that an imminent radiological hazard exists; and

(ii)not later than 7 days after determining that such hazard exists, submits to the appropriate congressional committees—

(I)a certification that the hazard exists;

(II)a justification for the waiver; and

(III)the notification required by clause (i) of subparagraph (A) and the statement required by clause (ii) of that subparagraph.

(c)(1)The Secretary of Energy shall expeditiously revise part 810 of title 10, Code of Federal Regulations, to ensure that the Director of National 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 authorization; and

(B)is provided with an opportunity to present the views of the Director and the intelligence community on the national security risks of the transfer, if any.

(2)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)Not less frequently than annually, the Secretary of Energy shall submit to the appropriate congressional committees a report that includes—

(1)an assessment of whether each covered foreign country is in compliance with its obligations under any authorization for the transfer of United States civil nuclear technology under section 2077(b) of this title;

(2)with respect to any covered foreign country that is not in compliance with such obligations—

(A)a description the efforts of the United States to bring the country into compliance;

(B)an evaluation of the result of such efforts; 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 technology is transferred pursuant to an authorization 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)(1)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 congressional committees a report on the activities of the Department of Energy associated with the review of applications for authorization under section 2077(b) of this title to transfer United States civil nuclear technology to any foreign country.

(2)The report required by paragraph (1) shall include—

(A)the number of applications for authorization under section 2077(b) of this title to transfer United States civil nuclear technology to a foreign country submitted during the year preceding the submission of the report;

(B)the length of time each such application was under review;

(C)for each such application, an identification of any officer to which the authorization 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 potential of end-users in the country to which United States civil nuclear technology would be transferred pursuant to such applications.

(f)The Director of National Intelligence shall notify the Department of Energy and the appropriate congressional committees not later than 30 days after the date on which the Director determines 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 country 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)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 violations of the terms of authorizations for the transfer of United States civil nuclear technology issued under section 2077(b) of this title.

(h)(1)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 foreign countries to prevent the transfer of sensitive items, including efforts to improve the prevention of the transfer of such items; and

(B)assessing the adequacy of such efforts.

(2)In this subsection, the term “sensitive items” means goods, services, and technologies 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)The Secretary of Energy may submit the annual reports required by subsections (a), (d), and (e) as a single annual report, including by providing portions of the information so required as an annex to the single annual report.

(j)In this section:

(1)The term “appropriate congressional committees” means—

(A)the congressional defense committees;

(B)the Committee on Energy and Natural Resources, the Committee on Foreign Relations, and the Select Committee on Intelligence of the Senate; and

(C)the Committee on Energy and Commerce, the Committee on Foreign Affairs, and the Permanent Select Committee on Intelligence of the House of Representatives.

(2)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.

Notes & Related Subsidiaries

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 introductory 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 Committees 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.

§2077a Interagency review of applications for the transfer of United States civil nuclear technology