42 U.S. Code § 2077a - Interagency review of applications for the transfer of United States civil nuclear technology

(a) Annual reports on transfers to covered foreign countries

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) Determination of technologies to be protected

(1) In general

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) Notification

(A) In general

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) 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 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) Consultations with intelligence community

(1) In general

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) 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 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) 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 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) Elements

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) Notifications of potential diversions

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) 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 violations of the terms of authorizations for the transfer of United States civil nuclear technology 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 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) Sensitive items defined

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) Combination of reports

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) Definitions

In this section:

(1) Appropriate congressional committees

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) 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 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 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.