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109TH CONGRESS

2D SESSION S. 3879

AN ACT

To implement the Convention on Supplementary

Compensation for Nuclear Damage, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Convention on Supple5 mentary Compensation for Nuclear Damage Contingent

6 Cost Allocation Act’’.
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1 SEC. 2. FINDINGS AND PURPOSE.

2 (a) FINDINGS.—Congress finds that—

3 (1) section 170 of the Atomic Energy Act of

4 1954 (42 U.S.C. 2210) (commonly known as the

5 ‘‘Price-Anderson Act’’)—

6 (A) provides a predictable legal framework

7 necessary for nuclear projects; and

8 (B) ensures prompt and equitable com9 pensation in the event of a nuclear incident in

10 the United States;

11 (2) section 170 of that Act, in effect, provides

12 operators of nuclear powerplants with insurance for

13 damage arising out of a nuclear incident and funds

14 the insurance primarily through the assessment of a

15 retrospective premium from each operator after the

16 occurrence of a nuclear incident;

17 (3) the Convention on Supplementary Com18 pensation for Nuclear Damage, done at Vienna on

19 September 12, 1997, will establish a global system—

20 (A) to provide a predictable legal frame21 work necessary for nuclear energy projects; and

22 (B) to ensure prompt and equitable com23 pensation in the event of a nuclear incident;

24 (4) the Convention benefits United States nu25 clear suppliers that face potentially unlimited liabil26 ity for a nuclear incidents outside the coverage of
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1 section 170 of the Atomic Energy Act of 1954 (42

2 U.S.C. 2210) by replacing a potentially open-ended

3 liability with a predictable liability regime that, in

4 effect, provides nuclear suppliers with insurance for

5 damage arising out of such an incident;

6 (5) the Convention also benefits United States

7 nuclear facility operators that may be publicly liable

8 for a Price-Anderson incident by providing an addi9 tional early source for a Price-Anderson incident by

10 providing an additional early source of funds to com11 pensate damage arising out of the Price-Anderson

12 incident;

13 (6) the combined operation of the Convention,

14 section 170 of the Atomic Energy Act of 1954 (42

15 U.S.C. 2210), and this Act will augment the quan16 tity of assured funds available for victims in a wider

17 variety of nuclear incidents while reducing the poten18 tial liability of United States suppliers without in19 creasing potential costs to United States operators;

20 (7) the cost of those benefits is the obligation

21 of the United States to contribute to the supple22 mentary compensation fund established by the Con23 vention;

24 (8) any such contribution should be funded in

25 a manner that neither upsets settled expectations
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1 based on the liability regime established under sec2 tion 170 of the Atomic Energy Act of 1954 (42

3 U.S.C. 2210) nor shifts to Federal taxpayers liabil4 ity risks for nuclear incidents at foreign installa5 tions;

6 (9) with respect to a Price-Anderson incident,

7 funds already available under section 170 of the

8 Atomic Energy Act of 1954 (42 U.S.C. 2210)

9 should be used; and

10 (10) with respect to a nuclear incident outside

11 the United States not covered by section 170 of the

12 Atomic Energy Act of 1954 (42 U.S.C. 2210), a ret13 rospective premium should be prorated among nu14 clear suppliers relieved from potential liability for

15 which insurance is not available.

16 (b) PURPOSE.—The purpose of this Act is to allocate

17 the contingent costs associated with participation by the

18 United States in the international nuclear liability com19 pensation system established by the Convention on Sup20 plementary Compensation for Nuclear Damage, done at

21 Vienna on September 12, 1997—

22 (1) with respect to a Price-Anderson incident,

23 by using funds made available under section 170 of

24 the Atomic Energy Act of 1954 (42 U.S.C. 2210) to

25 cover the contingent costs in a manner that neither
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1 increases the burdens nor decreases the benefits

2 under section 170 of that Act; and

3 (2) with respect to a covered incident outside

4 the United States that is not a Price-Anderson inci5 dent, by allocating the contingent costs equitably, on

6 the basis of risk, among the class of nuclear sup7 pliers relieved by the Convention from the risk of po8 tential liability resulting from any covered incident

9 outside the United States.

10 SEC. 3. DEFINITIONS.

11 In this Act:

12 (1) COMMISSION.—The term ‘‘Commission’’

13 means the Nuclear Regulatory Commission.

14 (2) CONTINGENT COST.—The term ‘‘contingent

15 cost’’ means the cost to the United States in the

16 event of a covered incident the amount of which is

17 equal to the amount of funds the United States is

18 obligated to make available under paragraph 1(b) of

19 Article III of the Convention.

20 (3) CONVENTION.—The term ‘‘Convention’’

21 means the Convention on Supplementary Compensa22 tion for Nuclear Damage, done at Vienna on Sep23 tember 12, 1997.

24 (4) COVERED INCIDENT.—The term ‘‘covered

25 incident’’ means a nuclear incident the occurrence of
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1 which results in a request for funds pursuant to Ar2 ticle VII of the Convention.

3 (5) COVERED INSTALLATION.—The term ‘‘cov4 ered installation’’ means a nuclear installation at

5 which the occurrence of a nuclear incident could re6 sult in a request for funds under Article VII of the

7 Convention.

8 (6) COVERED PERSON.—

9 (A) IN GENERAL.—The term ‘‘covered per10 son’’ means—

11 (i) a United States person; and

12 (ii) an individual or entity (including

13 an agency or instrumentality of a foreign

14 country) that—

15 (I) is located in the United

16 States; or

17 (II) carries out an activity in the

18 United States.

19 (B) EXCLUSIONS.—The term ‘‘covered per20 son’’ does not include—

21 (i) the United States; or

22 (ii) any agency or instrumentality of

23 the United States.
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1 (7) NUCLEAR SUPPLIER.—The term ‘‘nuclear

2 supplier’’ means a covered person (or a successor in

3 interest of a covered person) that—

4 (A) supplies facilities, equipment, fuel,

5 services, or technology pertaining to the design,

6 construction, operation, or decommissioning of

7 a covered installation; or

8 (B) transports nuclear materials that could

9 result in a covered incident.

10 (8) PRICE-ANDERSON INCIDENT.—The term

11 ‘‘Price-Anderson incident’’ means a covered incident

12 for which section 170 of the Atomic Energy Act of

13 1954 (42 U.S.C. 2210) would make funds available

14 to compensate for public liability (as defined in sec15 tion 11 of that Act (42 U.S.C. 2014)).

16 (9) SECRETARY.—The term ‘‘Secretary’’ means

17 the Secretary of Energy.

18 (10) UNITED STATES.—

19 (A) IN GENERAL.—The term ‘‘United

20 States’’ has the meaning given the term in sec21 tion 11 of the Atomic Energy Act of 1954 (42

22 U.S.C. 2014).

23 (B) INCLUSIONS.—The term ‘‘United

24 States’’ includes—

25 (i) the Commonwealth of Puerto Rico;
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1 (ii) any other territory or possession

2 of the United States;

3 (iii) the Canal Zone; and

4 (iv) the waters of the United States

5 territorial sea under Presidential Procla6 mation Number 5928, dated December 27,

7 1988 (43 U.S.C. 1331 note).

8 (11) UNITED STATES PERSON.—The term

9 ‘‘United States person’’ means—

10 (A) any individual who is a resident, na11 tional, or citizen of the United States (other

12 than an individual residing outside of the

13 United States and employed by a person who is

14 not a United States person); and

15 (B) any corporation, partnership, associa16 tion, joint stock company, business trust, unin17 corporated organization, or sole proprietorship

18 that is organized under the laws of the United

19 States.

20 SEC. 4. USE OF PRICE-ANDERSON FUNDS.

21 (a) IN GENERAL.—Funds made available under sec22 tion 170 of the Atomic Energy Act of 1954 (42 U.S.C.

23 2210) shall be used to cover the contingent cost resulting

24 from any Price-Anderson incident.
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1 (b) EFFECT.—The use of funds pursuant to sub2 section (a) shall not reduce the limitation on public liabil3 ity established under section 170 e. of the Atomic Energy

4 Act of 1954 (42 U.S.C. 2210(e)).

5 SEC. 5. EFFECT ON AMOUNT OF PUBLIC LIABILITY.

6 (a) IN GENERAL.—Funds made available to the

7 United States under Article VII of the Convention with

8 respect to a Price-Anderson incident shall be used to sat9 isfy public liability resulting from the Price-Anderson inci10 dent.

11 (b) AMOUNT.—The amount of public liability allow12 able under section 170 of the Atomic Energy Act of 1954

13 (42 U.S.C. 2210) relating to a Price-Anderson incident

14 under subsection (a) shall be increased by an amount

15 equal to the difference between—

16 (1) the amount of funds made available for the

17 Price-Anderson incident under Article VII of the

18 Convention; and

19 (2) the amount of funds used under section 4

20 to cover the contingent cost resulting from the

21 Price-Anderson incident.

22 SEC. 6. RETROSPECTIVE RISK POOLING PROGRAM.

23 (a) IN GENERAL.—Except as provided in subsection

24 (b), each nuclear supplier shall participate in a retrospec25 tive risk pooling program in accordance with this Act to
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1 cover the contingent cost resulting from a covered incident

2 outside the United States that is not a Price-Anderson in3 cident.

4 (b) DEFERRED PAYMENT.—

5 (1) IN GENERAL.—The obligation of a nuclear

6 supplier to participate in the retrospective risk pool7 ing program shall be deferred until the United

8 States is called on to provide funds pursuant to Ar9 ticle VII of the Convention with respect to a covered

10 incident that is not a Price-Anderson incident.

11 (2) AMOUNT OF DEFERRED PAYMENT.—The

12 amount of a deferred payment of a nuclear supplier

13 under paragraph (1) shall be based on the risk-in14 formed assessment formula determined under para15 graph (3).

16 (3) RISK-INFORMED ASSESSMENT FORMULA.—

17 (A) IN GENERAL.—Not later than 3 years

18 after the date of enactment of this Act, and

19 every 5 years thereafter, the Secretary shall, by

20 regulation, determine the risk-informed assess21 ment formula for the allocation among nuclear

22 suppliers of the contingent cost resulting from

23 a covered incident that is not a Price-Anderson

24 incident, taking into account risk factors such

25 as—
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1 (i) the nature and intended purpose of

2 the goods and services supplied by each

3 nuclear supplier to each covered installa4 tion outside the United States;

5 (ii) the quantity of the goods and

6 services supplied by each nuclear supplier

7 to each covered installation outside the

8 United States;

9 (iii) the hazards associated with the

10 supplied goods and services if the goods

11 and services fail to achieve the intended

12 purposes;

13 (iv) the hazards associated with the

14 covered installation outside the United

15 States to which the goods and services are

16 supplied;

17 (v) the legal, regulatory, and financial

18 infrastructure associated with the covered

19 installation outside the United States to

20 which the goods and services are supplied;

21 and

22 (vi) the hazards associated with par23 ticular forms of transportation.

24 (B) FACTORS FOR CONSIDERATION.—In

25 determining the formula, the Secretary may—
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1 (i) exclude—

2 (I) goods and services with neg3 ligible risk;

4 (II) classes of goods and services

5 not intended specifically for use in a

6 nuclear installation;

7 (III) a nuclear supplier with a de

8 minimis share of the contingent cost;

9 and

10 (IV) a nuclear supplier no longer

11 in existence for which there is no

12 identifiable successor; and

13 (ii) establish the period on which the

14 risk assessment is based.

15 (C) APPLICATION.—In applying the for16 mula, the Secretary shall not consider any cov17 ered installation or transportation for which

18 funds would be available under section 170 of

19 the Atomic Energy Act of 1954 (42 U.S.C.

20 2210).

21 (D) REPORT.—Not later than 5 years

22 after the date of enactment of this Act and

23 every 5 years thereafter, the Secretary shall

24 submit to the Committee on Environment and

25 Public Works of the Senate and the Committee
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1 on Energy and Commerce of the House of Rep2 resentatives a report on whether there is a need

3 for continuation or amendment of this Act, tak4 ing into account the effects of the implementa5 tion of the Convention on the United States nu6 clear industry and suppliers.

7 SEC. 7. REPORTING.

8 (a) COLLECTION OF INFORMATION.—

9 (1) IN GENERAL.—The Secretary may collect

10 information necessary for developing and imple11 menting the formula for calculating the deferred

12 payment of a nuclear supplier under section 6(b).

13 (2) PROVISION OF INFORMATION.—Each nu14 clear supplier and other appropriate persons shall

15 make available to the Secretary such information,

16 reports, records, documents, and other data as the

17 Secretary determines, by regulation, to be necessary

18 or appropriate to develop and implement the formula

19 under section 6(b)(3).

20 (b) PRIVATE INSURANCE.—The Secretary shall make

21 available to nuclear suppliers, and insurers of nuclear sup22 pliers, information to support the voluntary establishment

23 and maintenance of private insurance against any risk for

24 which nuclear suppliers may be required to pay deferred

25 payments under this Act.
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1 SEC. 8. EFFECT ON LIABILITY.

2 Nothing in any other law (including regulations) lim3 its liability for a covered incident to an amount equal to

4 less than the amount prescribed in paragraph 1(a) of Arti5 cle IV of the Convention, unless the law—

6 (1) specifically refers to this Act; and

7 (2) explicitly repeals, alters, amends, modifies,

8 impairs, displaces, or supersedes the effect of this

9 section.

10 SEC. 9. PAYMENTS TO AND BY THE UNITED STATES.

11 (a) ACTION BY NUCLEAR SUPPLIERS.—

12 (1) NOTIFICATION.—In the case of a request

13 for funds under Article VII of the Convention result14 ing from a covered incident that is not a Price-An15 derson incident, the Secretary shall notify each nu16 clear supplier of the amount of the deferred payment

17 required to be made by the nuclear supplier.

18 (2) PAYMENTS.—

19 (A) IN GENERAL.—Except as provided in

20 subparagraph (B), not later than 60 days after

21 receipt of a notification under paragraph (1), a

22 nuclear supplier shall pay to the general fund of

23 the Treasury the deferred payment of the nu24 clear supplier required under paragraph (1).

25 (B) ANNUAL PAYMENTS.—A nuclear sup26 plier may elect to prorate payment of the de-
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1 ferred payment required under paragraph (1) in

2 5 equal annual payments (including interest on

3 the unpaid balance at the prime rate prevailing

4 at the time the first payment is due).

5 (3) VOUCHERS.—A nuclear supplier shall sub6 mit payment certification vouchers to the Secretary

7 of the Treasury in accordance with section 3325 of

8 title 31, United States Code.

9 (b) USE OF FUNDS.—

10 (1) IN GENERAL.—Amounts paid into the

11 Treasury under subsection (a) shall be available to

12 the Secretary of the Treasury, without further ap13 propriation and without fiscal year limitation, for

14 the purpose of making the contributions of public

15 funds required to be made by the United States

16 under the Convention.

17 (2) ACTION BY SECRETARY OF TREASURY.—

18 The Secretary of the Treasury shall pay the con19 tribution required under the Convention to the court

20 of competent jurisdiction under Article XIII of the

21 Convention with respect to the applicable covered in22 cident.

23 (c) FAILURE TO PAY.—If a nuclear supplier fails to

24 make a payment required under this section, the Secretary
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1 may take appropriate action to recover from the nuclear

2 supplier—

3 (1) the amount of the payment due from the

4 nuclear supplier;

5 (2) any applicable interest on the payment; and

6 (3) a penalty of not more than twice the

7 amount of the deferred payment due from the nu8 clear supplier.

9 SEC. 10. LIMITATION ON JUDICIAL REVIEW; CAUSE OF AC10 TION.

11 (a) LIMITATION ON JUDICIAL REVIEW.—

12 (1) IN GENERAL.—In any civil action arising

13 under the Convention over which Article XIII of the

14 Convention grants jurisdiction to the courts of the

15 United States, any appeal or review by writ of man16 damus or otherwise with respect to a nuclear inci17 dent that is not a Price-Anderson incident shall be

18 in accordance with chapter 83 of title 28, United

19 States Code, except that the appeal or review shall

20 occur in the United States Court of Appeals for the

21 District of Columbia Circuit.

22 (2) SUPREME COURT JURISDICTION.—Nothing

23 in this subsection affects the jurisdiction of the Su24 preme Court of the United States under chapter 81

25 of title 28, United States Code.
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1 (b) CAUSE OF ACTION.—

2 (1) IN GENERAL.—Subject to paragraph (2), in

3 any civil action arising under the Convention over

4 which Article XIII of the Convention grants jurisdic5 tion to the courts of the United States, in addition

6 to any other cause of action that may exist, an indi7 vidual or entity shall have a cause of action against

8 the operator to recover for nuclear damage suffered

9 by the individual or entity.

10 (2) REQUIREMENT.—Paragraph (1) shall apply

11 only if the individual or entity seeks a remedy for

12 nuclear damage (as defined in Article I of the Con13 vention) that was caused by a nuclear incident (as

14 defined in Article I of the Convention) that is not a

15 Price-Anderson incident.

16 (3) EFFECT OF SUBSECTION.—Nothing in this

17 subsection limits, modifies, extinguishes, or other18 wise affects any cause of action that would have ex19 isted in the absence of enactment of this subsection.

20 SEC. 11. RIGHT OF RECOURSE.

21 This Act does not provide to an operator of a covered

22 installation any right of recourse under the Convention.
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1 SEC. 12. PROTECTION OF SENSITIVE UNITED STATES IN2 FORMATION.

3 Nothing in the Convention or this Act requires the

4 disclosure of—

5 (1) any data that, at any time, was Restricted

6 Data (as defined in section 11 of the Atomic Energy

7 Act of 1954 (42 U.S.C. 2014));

8 (2) information relating to intelligence sources

9 or methods protected by section 102A(i) of the Na10 tional Security Act of 1947 (50 U.S.C. 403–1(i)); or

11 (3) national security information classified

12 under Executive Order 12958 (50 U.S.C. 435 note;

13 relating to classified national security information)

14 (or a successor regulation).

15 SEC. 13. REGULATIONS.

16 (a) IN GENERAL.—The Secretary or the Commission,

17 as appropriate, may prescribe regulations to carry out sec18 tion 170 of the Atomic Energy Act of 1954 (42 U.S.C.

19 2210) and this Act.

20 (b) REQUIREMENT.—Rules prescribed under this sec21 tion shall ensure, to the maximum extent practicable,

22 that—

23 (1) the implementation of section 170 of the

24 Atomic Energy Act of 1954 (42 U.S.C. 2210) and

25 this Act is consistent and equitable; and
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1 (2) the financial and operational burden on a

2 Commission licensee in complying with section 170

3 of that Act is not greater as a result of the enact4 ment of this Act.

5 (c) APPLICABILITY OF PROVISION.—Section 553 of

6 title 5, United States Code, shall apply with respect to

7 the promulgation of regulations under this section.

8 (d) EFFECT OF SECTION.—The authority provided

9 under this section is in addition to, and does not impair

10 or otherwise affect, any other authority of the Secretary

11 or the Commission to prescribe regulations.

12 SEC. 14. EFFECTIVE DATE.

13 This Act takes effect on the date on which the Con14 vention enters into force for the United States under Arti15 cle XX of the Convention.

Passed the Senate September 30 (legislative day,

September 29), 2006.

Attest:

Secretary.
109TH CONGRESS

2D SESSION S. 3879

AN ACT

To implement the Convention on Supplementary

other purposes.Compensation for Nuclear Damage, and for