§ 2160. Subsequent arrangements

Legislative history

Reconstructed from this section’s Code source credit and amendment notes, resolved against the local Statutes at Large. Editorial notes are evidence, not the law that made the change.

1. 1946

   Nuclear Non-Proliferation Act of 1978

   Pub. L. 95–242 title III § 303(a) · 92 Stat. 120

   Enacted · 42 U.S.C. § 2160

   Aug. 1, 1946, ch. 724, title I, § 131, as added Pub. L. 95–242, title III, § 303(a), Mar. 10, 1978, 92 Stat. 127

   Source evidence

   Code source credit
   Aug. 1, 1946, ch. 724, title I, § 131, as added Pub. L. 95–242, title III, § 303(a), Mar. 10, 1978, 92 Stat. 127

   Enacted provision · exact public law section
   (a) Chapter 11 of the 1954 Act, as amended by sections 304, 305, 306, 307, and 308, is further amended by adding at the end thereof the following: “Sec. 131. Subsequent Arrangements.— 42 USC 2160. “a. (1) Prior to entering into any proposed subsequent arrangement Consultation. under an agreement for cooperation (other than an agreement for cooperation arranged pursuant to subsection 91 c., 144 b., or 144 c. of this Act), the Secretary of Energy shall obtain the concurrence of the 42 USC 2121, 2164. Secretary of State and shall consult with the Director, the Commission, and the Secretary of Defense: Provided, That the Secretary of State shall have the leading role in any negotiations of a policy nature pertaining to any proposed subsequent arrangement regarding arrangements for the storage or disposition of irradiated fuel elements or approvals for the transfer, for which prior approval is required under an agreement for cooperation, by a recipient of source or special nuclear material, production or utilization facilities, or nuclear technology. Notice of any proposed subsequent arrangement shall be published Notice, publication in Federal Register. in the Federal Register, together with the written determination of the Secretary of Energy that such arrangement will not be inimical to the common defense and security, and such proposed subsequent arrangement shall not take effect before fifteen days after publication. Whenever the Director declares that he intends to prepare a Nuclear Proliferation Assessment Statement pursuant to paragraph (2) of this subsection, notice of the proposed subsequent arrangement which is the subject of the Director’s declaration shall not be published until after the receipt by the Secretary of Energy of such Statement or the expiration of the time authorized by subsection c. for the preparation of such Statement, whichever occurs first. “(2) If in the Director’s view a proposed subsequent arrangement Nuclear Proliferation Assessment Statement. might significantly contribute to proliferation, he may prepare an unclassified Nuclear Proliferation Assessment Statement with regard to such proposed subsequent arrangement regarding the adequacy of the safeguards and other control mechanisms and the application of the peaceful use assurances of the relevant agreement to ensure that assistance to be furnished pursuant to the subsequent arrangement will not be used to further any military or nuclear explosive purpose. For “Subsequent arrangements.” the purposes of this section, the term ‘subsequent arrangements’ means arrangements entered into by any agency or department of the United States Government with respect to cooperation with any nation or group of nations (but not purely private or domestic arrangements) involving— “(A) contracts for the furnishing of nuclear materials and Contracts. equipment; “(B) approvals for the transfer, for which prior approval is required under an agreement for cooperation, by a recipient of any source or special nuclear material, production or utilization facility, or nuclear technology; “(C) authorization for the distribution of nuclear materials and equipment pursuant to this Act which is not subject to the procedures set forth in section 111 b., section 126, or section Ante, p. 125. Post, pp. 131, 141. 109 b.; “(D) arrangements for physical security; “(E) arrangements for the storage or disposition of irradiated fuel elements; “(F) arrangements for the application of safeguards with respect to nuclear materials and equipment; or “(G) any other arrangement which the President finds to be important from the standpoint of preventing proliferation. “(3) The United States will give timely consideration to all requests for prior approval, when required by this Act, for the reprocessing of material proposed to be exported, previously exported and subject to the applicable agreement for cooperation, or special nuclear material produced through the use of such material or a production or utilization facility transferred pursuant to such agreement for cooperation, or to the altering of irradiated fuel elements containing such material, and additionally, to the maximum extent feasible, will attempt to expedite such consideration when the terms and conditions for such actions are set forth in such agreement for cooperation or in some other international agreement executed by the United States and subject to congressional review procedures comparable to those set forth Post, p. 142. in section 123 of this Act. “(4) All other statutory requirements under other sections of this Act for the approval or conduct of any arrangement subject to this subsection shall continue to apply and any other such requirements for prior approval or conditions for entering such arrangements shall also be satisfied before the arrangement takes effect pursuant to subsection a. (1). “b. With regard to any special nuclear material exported by the United States or produced through the use of any nuclear materials and equipment or sensitive nuclear technology exported by the United States— “(1) the Secretary of Energy may not enter into any subsequent arrangement for the retransfer of any such material to a third country for reprocessing, for the reprocessing of any such material, or for the subsequent retransfer of any plutonium in quantities greater than 500 grams resulting from the reprocessing of any such material, until he has provided the Committee on International Relations of the House of Representatives and the Committee on Foreign Relations of the Senate with a report containing his reasons for entering into such arrangement and a period of 15 days of continuous session (as defined in subsection Post, p. 139. 130 g. of this Act) has elapsed: Provided, however, That if in the view of the President an emergency exists due to unforeseen circumstances requiring immediate entry into a subsequent arrangement, such period shall consist of fifteen calendar days; “(2) the Secretary of Energy may not enter into any subsequent arrangement for the reprocessing of any such material in a facility which has not processed power reactor fuel assemblies or been the subject of a subsequent arrangement therefor prior to the date of enactment of the Nuclear Non-Proliferation Act of 1978 or for subsequent retransfer to a non-nuclear-weapon state of any plutonium in quantities greater than 500 grams resulting from such reprocessing, unless in his judgment, and that of the Secretary of State, such reprocessing or retransfer will not result in a significant increase of the risk of proliferation beyond that, which exists at the time that approval is requested. Among all the factors in making this judgment, foremost consideration will be given to whether or not the reprocessing or retransfer will take place under conditions that will ensure timely wanting to the United States of any diversion well in advance of the time at which the non-nuclear-weapon state could transform the diverted material into a nuclear explosive device; and “(3) the Secretary of Energy shall attempt to ensure, in entering into any subsequent arrangement for the reprocessing of any such material in any facility that has processed power reactor fuel assemblies or been the subject of a subsequent arrangement therefor prior to the date of enactment of the Nuclear-Non-Proliferation Act of 1978, or for the subsequent retransfer to any non-nuclear-weapon state of any plutonium in quantities greater than 500 grams resulting from such reprocessing, that such reprocessing or retransfer shall take place under conditions comparable to those which in his view, and that of the Secretary of State, satisfy the standards set forth in paragraph (2). “c. The Secretary of Energy shall, within ninety days after the Nuclear materials, reprocessing or transfer procedures. enactment of this section, establish orderly and expeditious procedures, including provision for necessary administrative actions and inter-agency memoranda of understanding, which are mutually agreeable to the Secretaries of State, Defense, and Commerce, the Director of the Arms Control and Disarmament Agency, and the Nuclear Regulatory Commission for the consideration of requests for subsequent arrangements under this section. Such procedures shall include, at a minimum, explicit direction on the handling of such requests, express deadlines for the solicitation and collection of the views of the consulted agencies (with identified officials responsible for meeting such deadlines), an inter-agency coordinating authority to monitor the processing of such requests, predetermined procedures for the expeditious handling of intraagency and inter-agency disagreements and appeals to higher authorities, frequent meetings of inter-agency administrative coordinators to review the status of all pending requests, and similar administrative mechanisms. To the extent practicable, an applicant should be advised of all the information required of the applicant for the entire process for every agency’s needs at the beginning of the process. Potentially controversial requests should be identified as Controversial requests, identification. Standards and criteria. quickly as possible so that any required policy decisions or diplomatic consultations can be initiated in a timely manner. An immediate effort should be undertaken to establish quickly any necessary standards and criteria, including the nature of any required assurance or evidentiary showings, for the decisions required under this section. Further, such Nuclear Proliferation Assessment Statement. Presidential waiver. Notice to congressional committees. procedures shall specify that if he intends to prepare a Nuclear Proliferation Assessment Statement, the Director shall so declare in his response to the Department of Energy. If the Director declares that he intends to prepare such a Statement, he shall do so within sixty days of his receipt of a copy of the proposed subsequent arrangement (during which time the Secretary of Energy may not enter into the subsequent arrangement), unless pursuant to the Director’s request, the President waives the sixty-day requirement and notifies the Committee on International Relations of the House of Representatives and the Committee on Foreign Relations of the Senate of such waiver and the justification therefor. The processing of any subsequent arrangement proposed and filed as of the date of enactment of this section shall not be delayed pending the development and establishment of procedures to implement the requirements of this section. “d. Nothing in this section is intended to prohibit, permanently or unconditionally, the reprocessing of spent fuel owned by a foreign nation which fuel has been supplied by the United States, to preclude the United States from full participation in the International Nuclear Fuel Cycle Evaluation provided for in section 105 of the Nuclear Non-Proliferation Act of 1978; to in any way limit the presentation or consideration in that evaluation of any nuclear fuel cycle by the United States or any other participation; nor to prejudice open and objective consideration of the results of the evaluation. “e. Notwithstanding subsection 402(d) of the Department of Energy 42 USC 7172. Organization Act (Public Law 95–91), the Secretary of Energy, and not the Federal Energy Regulatory Commission, shall have sole jurisdiction within the Department of Energy over any matter arising from any function of the Secretary of Energy in this section. “f. (1) With regard to any subsequent arrangement under subsection a. (2)(E)(for the storage or disposition of irradiated fuel elements), where such arrangement involves a direct or indirect commitment of the United States for the storage or other disposition, interim or permanent, of any foreign spent nuclear fuel in the United States, the Secretary of Energy may not enter into any such subsequent arrangement, unless: “(A) (i) Such commitment of the United States has been submitted to the Congress for a period of sixty days of continuous Post, p. 139. session (as defined in subsection 130 g. of this Act) and has been referred to the Committee on International Relations of the House of Representatives and the Committee on Foreign Relations of the Senate, but any such commitment shall not become effective if during such sixty-day period the Congress adopts a concurrent resolution stating in substance that it does not favor the commitment, any such commitment to be considered pursuant to the procedures set forth in section 130 of this Act for the consideration of Presidential submissions; or (ii) if the President has submitted a detailed generic plan for such disposition or storage in the United States to the Congress for a period of sixty days of continuous session (as defined in subsection 130 g. of this Act), which plan has been referred to the Committee on International Relations of the House of Representatives and the Committee on Foreign Relations of the Senate and has not been disapproved during such sixty-day period by the adoption of a concurrent resolution stating in substance that Congress does not favor the plan; and the commitment is subject to the terms of an effective plan. Any such plan shall be considered pursuant to the procedures set forth in section 130 of this Act for the consideration of Presidential submissions; “(B) The Secretary of Energy has complied with subsection a.; and “(C) The Secretary of Energy has complied, or in the arrangement will comply with all other statutory requirements of this Ante, p. 125. Post, p. 131. Act, under sections 54 and 55 and any other applicable sections, and any other requirements of law. “(2) Subsection (1) shall not apply to the storage or other disposition in the United States of limited quantities of foreign spent nuclear fuel if the President determines that (A) a commitment under section 54 or 55 of this Act of the United States for storage or other disposition of such limited quantities in the United States is required by an emergency situation, (B) it is in the national interest to take such immediate action, and ( C) he notifies the Committees on International Relations and Science and Technology of the House of Representatives and the Committees on Foreign Relations and Energy and Natural Resources of the Senate of the determination and action, with a detailed explanation and justification thereof, as soon as possible. “(3) Any plan submitted by the President under subsection f. (1) Plan, contents. shall include a detailed discussion, with detailed information, and any supporting documentation thereof, relating to policy objectives, technical description, geographic information, cost data and justifications, legal and regulatory considerations, environmental impact information and any related international agreements, arrangements or understandings. “(4) For the purposes of this subsection, the term ‘foreign spent “Foreign spent nuclear fuel.” nuclear fuel’ shall include any nuclear fuel irradiated in any nuclear power reactor located outside of the United States and operated by any foreign legal entity, government or nongovernment, regardless of the legal ownership or other control of the fuel or the reactor and regardless of the origin or licensing of the fuel or reactor, but not including fuel irradiated in a research reactor.”

2. 1994

   Pub. L. 103–437 § 15(f)(6)(A) · 108 Stat. 4581

   Substituted · 42 U.S.C. § 2160(b)(1); 42 U.S.C. § 2160(b)(c); 42 U.S.C. § 2160(f)(1)(A)

   Pub. L. 103–437, § 15(f)(6)(A), substituted “Foreign Affairs” for “International Relations” wherever appearing

   Source evidence

   Code amendment note
   Subsecs. (b)(1), (c), (f)(1)(A). Pub. L. 103–437, § 15(f)(6)(A), substituted “Foreign Affairs” for “International Relations” wherever appearing.

   Enacted provision · exact public law section
   (A) strike “International Relations” each place it appears and substitute “Foreign Affairs”; and

3. 1994

   Pub. L. 103–437 § 15(f)(6) · 108 Stat. 4581

   Substituted · 42 U.S.C. § 2160(f)(2)

   Pub. L. 103–437 substituted “Foreign Affairs and Science, Space, and Technology” for “International Relations and Science and Technology”

   Source evidence

   Code amendment note
   Subsec. (f)(2). Pub. L. 103–437 substituted “Foreign Affairs and Science, Space, and Technology” for “International Relations and Science and Technology”.

   Enacted provision · exact public law section
   (6) In section 131 (42 U.S.C. 2160)— (A) strike “International Relations” each place it appears and substitute “Foreign Affairs”; and (B) in subsection f. (2), strike “Science and Technology” and substitute “Science, Space, and Technology”.

4. 1998

   Pub. L. 105–277 § 1225(d)(6)(A) · 112 Stat. 2681

   1. Struck · 42 U.S.C. § 2160(a)(1)

      Pub. L. 105–277, § 1225(d)(6)(A), in first sentence, struck out “the Director,” after “shall consult with” and, in third sentence

   2. Substituted · 42 U.S.C. § 2160(a)(1)

      Pub. L. 105–277, § 1225(d)(6)(A), in first sentence, substituted “the Secretary of State is required” for “the Director declares that he intends”

   3. Substituted · 42 U.S.C. § 2160(a)(1)

      Pub. L. 105–277, § 1225(d)(6)(A), in first sentence, substituted “the requirement to prepare a Nuclear Proliferation Assessment Statement” for “the Director’s declaration”

   Source evidence

   Code amendment note
   Subsec. (a)(1). Pub. L. 105–277, § 1225(d)(6)(A), in first sentence, struck out “the Director,” after “shall consult with” and, in third sentence, substituted “the Secretary of State is required” for “the Director declares that he intends” and “the requirement to prepare a Nuclear Proliferation Assessment Statement” for “the Director’s declaration”.

   Effective date note
   Amendment by Pub. L. 105–277 effective on earlier of Apr. 1, 1999, or date of abolition of the United States Arms Control and Disarmament Agency pursuant to reorganization 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.

5. 1998

   Pub. L. 105–277 § 1225(d)(6)(B) · 112 Stat. 2681

   1. Substituted · 42 U.S.C. § 2160(a)(2)

      Pub. L. 105–277, § 1225(d)(6)(B), substituted “view of the Secretary of State, Secretary of Energy, Secretary of Defense, or the Commission” for “Director’s view”

   2. Substituted · 42 U.S.C. § 2160(a)(2)

      Pub. L. 105–277, § 1225(d)(6)(B), substituted “the Secretary of State, in consultation with such Secretary or the Commission, shall prepare” for “he may prepare”

   Source evidence

   Code amendment note
   Subsec. (a)(2). Pub. L. 105–277, § 1225(d)(6)(B), substituted “view of the Secretary of State, Secretary of Energy, Secretary of Defense, or the Commission” for “Director’s view” and “the Secretary of State, in consultation with such Secretary or the Commission, shall prepare” for “he may prepare”.

   Effective date note
   Amendment by Pub. L. 105–277 effective on earlier of Apr. 1, 1999, or date of abolition of the United States Arms Control and Disarmament Agency pursuant to reorganization 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.

6. 1998

   Pub. L. 105–277 § 1225(d)(7) · 112 Stat. 2681

   1. Struck · 42 U.S.C. § 2160(c)

      Pub. L. 105–277, § 1225(d)(7), struck out “, the Director of the Arms Control and Disarmament Agency,” before “and the Nuclear” in first sentence

   2. Substituted · 42 U.S.C. § 2160(c)

      Pub. L. 105–277, § 1225(d)(7), substituted “Secretary of State” for “Director” in seventh sentence

   3. Substituted · 42 U.S.C. § 2160(c)

      Pub. L. 105–277, § 1225(d)(7), substituted “Secretary of State’s” for “Director’s” in seventh sentence

   Source evidence

   Code amendment note
   Subsec. (c). Pub. L. 105–277, § 1225(d)(7), struck out “, the Director of the Arms Control and Disarmament Agency,” before “and the Nuclear” in first sentence and substituted “Secretary of State” for “Director” in sixth and seventh sentences and “Secretary of State’s” for “Director’s” in seventh sentence.

   Effective date note
   Amendment by Pub. L. 105–277 effective on earlier of Apr. 1, 1999, or date of abolition of the United States Arms Control and Disarmament Agency pursuant to reorganization 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.

3 of 11 references resolved to an enrolled provision · 8 partial