1. U.S. Code
  2. title 50
  3. chapter 42
  4. subchapter VII
  5. part A
  6. § 2758

Collapse to view only § 2758. Improvements to cost estimates informing analyses of alternatives

§ 2741. DefinitionsIn this part:
(1) The term “DOE national security authorization” means an authorization of appropriations for activities of the Department of Energy in carrying out programs necessary for national security.
(2)
(A) Except as provided by subparagraph (B), the term “minor construction threshold” means $30,000,000.
(B) The Administrator may calculate the amount specified in subparagraph (A) based on fiscal year 2022 constant dollars if the Administrator—
(i) submits to the congressional defense committees a report on the method used by the Administrator to calculate the adjustment;
(ii) a period of 30 days elapses following the date of such submission; and
(iii) publishes the adjusted amount in the Federal Register.
(Pub. L. 107–314, div. D, title XLVII, § 4701, formerly div. C, title XXXVI, § 3620, Dec. 2, 2002, 116 Stat. 2756; renumbered div. D, title XLVII, § 4701, by Pub. L. 108–136, div. C, title XXXI, § 3141(j)(2)(A)–(C), Nov. 24, 2003, 117 Stat. 1781; Pub. L. 111–84, div. C, title XXXI, § 3118(a), (b), Oct. 28, 2009, 123 Stat. 2709; Pub. L. 111–383, div. C, title XXXI, § 3121(a), Jan. 7, 2011, 124 Stat. 4514; Pub. L. 113–66, div. C, title XXXI, § 3146(a)(2)(I), Dec. 26, 2013, 127 Stat. 1073; Pub. L. 115–91, div. C, title XXXI, § 3119, Dec. 12, 2017, 131 Stat. 1892; Pub. L. 117–81, div. C, title XXXI, § 3115(a), Dec. 27, 2021, 135 Stat. 2226; Pub. L. 117–263, div. C, title XXXI, § 3113(a), Dec. 23, 2022, 136 Stat. 3052; Pub. L. 118–31, div. C, title XXXI, § 3120, Dec. 22, 2023, 137 Stat. 791.)

CITE AS: 50 USC 2741

§ 2742. Reprogramming
(a) In generalExcept as provided in subsection (b) and in sections 2750 and 2751 of this title, the Secretary of Energy may not use amounts appropriated pursuant to a DOE national security authorization for a program—
(1) in amounts that exceed, in a fiscal year—
(A) 115 percent of the amount authorized for that program by that authorization for that fiscal year; or
(B) $5,000,000 more than the amount authorized for that program by that authorization for that fiscal year; or
(2) which has not been presented to, or requested of, Congress.
(b) Exception where notice-and-wait givenAn action described in subsection (a) may be taken if—
(1) the Secretary submits to the congressional defense committees a report referred to in subsection (c) with respect to such action; and
(2) a period of 30 days has elapsed after the date on which such committees receive the report.
(c) Report
(d) Computation of days
(e) Limitations
(1) Total amount obligated
(2) Prohibited items
(Pub. L. 107–314, div. D, title XLVII, § 4702, formerly div. C, title XXXVI, § 3621, Dec. 2, 2002, 116 Stat. 2757; renumbered div. D, title XLVII, § 4702, and amended Pub. L. 108–136, div. C, title XXXI, § 3141(j)(2)(A)–(D)(i), Nov. 24, 2003, 117 Stat. 1781; Pub. L. 113–66, div. C, title XXXI, § 3146(h)(1), Dec. 26, 2013, 127 Stat. 1080.)

CITE AS: 50 USC 2742

§ 2743. Minor construction projects
(a) Authority
(b) Annual report
The Secretary shall submit to the congressional defense committees on an annual basis a report on each exercise of the authority in subsection (a) during the preceding fiscal year. Each report shall provide a brief description of each minor construction project covered by the report. The report shall include with respect to each project the following:
(1) The estimated original total project cost and the estimated original date of completion.
(2) The percentage of the project that is complete.
(3) The current estimated total project cost and estimated date of completion.
(c) Cost variation reports to congressional committees
(d) Notification required for certain projects
Notwithstanding subsection (a), the Secretary may not start a minor construction project with a total estimated cost of more than $5,000,000 until—
(1) the Secretary notifies the congressional defense committees of such project and total estimated cost; and
(2) a period of 15 days has elapsed after the date on which such notification is received.
(e) Minor construction project defined
(Pub. L. 107–314, div. D, title XLVII, § 4703, formerly div. C, title XXXVI, § 3622, Dec. 2, 2002, 116 Stat. 2757; renumbered div. D, title XLVII, § 4703, by Pub. L. 108–136, div. C, title XXXI, § 3141(j)(2)(A)–(C), Nov. 24, 2003, 117 Stat. 1781; Pub. L. 117–81, div. C, title XXXI, § 3115(b)(1), Dec. 27, 2021, 135 Stat. 2226; Pub. L. 117–263, div. C, title XXXI, § 3113(b), Dec. 23, 2022, 136 Stat. 3053.)

CITE AS: 50 USC 2743

§ 2743a. General plant projects

Plant or construction projects for which amounts are made available under this and subsequent appropriation Acts with a current estimated cost of less than $10,000,000 are considered for purposes of section 2743 of this title as a plant project for which the approved total estimated cost does not exceed the minor construction threshold and for purposes of section 2744 of this title as a construction project with a current estimated cost of less than a minor construction threshold.

(Pub. L. 112–74, div. B, title III, § 306, Dec. 23, 2011, 125 Stat. 877.)

CITE AS: 50 USC 2743a

§ 2744. Limits on construction projects
(a) Construction cost ceiling
Except as provided in subsection (b), construction on a construction project which is in support of national security programs of the Department of Energy and was authorized by a DOE national security authorization may not be started, and additional obligations in connection with the project above the total estimated cost may not be incurred, whenever the current estimated cost of the construction project exceeds by more than 25 percent the higher of—
(1) the amount authorized for the project; or
(2) the amount of the total estimated cost for the project as shown in the most recent budget justification data submitted to Congress.
(b) Exception where notice-and-wait given
An action described in subsection (a) may be taken if—
(1) the Secretary of Energy has submitted to the congressional defense committees a report on the actions and the circumstances making such action necessary; and
(2) a period of 30 days has elapsed after the date on which the report is received by the committees.
(c) Computation of days
(d) Exception for minor projects
(Pub. L. 107–314, div. D, title XLVII, § 4704, formerly div. C, title XXXVI, § 3623, Dec. 2, 2002, 116 Stat. 2758; renumbered div. D, title XLVII, § 4704, by Pub. L. 108–136, div. C, title XXXI, § 3141(j)(2)(A)–(C), Nov. 24, 2003, 117 Stat. 1781.)

CITE AS: 50 USC 2744

§ 2745. Fund transfer authority
(a) Transfer to other Federal agencies
(b) Transfer within Department of Energy
(1) Transfers permitted
(2) Maximum amounts
(c) Limitations
The authority provided by this subsection to transfer authorizations—
(1) may be used only to provide funds for items relating to activities necessary for national security programs that have a higher priority than the items from which the funds are transferred; and
(2) may not be used to provide funds for an item for which Congress has specifically denied funds.
(d) Notice to Congress
(Pub. L. 107–314, div. D, title XLVII, § 4705, formerly div. C, title XXXVI, § 3624, Dec. 2, 2002, 116 Stat. 2758; renumbered div. D, title XLVII, § 4705, by Pub. L. 108–136, div. C, title XXXI, § 3141(j)(2)(A)–(C), Nov. 24, 2003, 117 Stat. 1781.)

CITE AS: 50 USC 2745

§ 2746. Conceptual and construction design
(a) Conceptual design
(1) Requirement
(2) Requests for conceptual design funds
(3) Exceptions
The requirement in paragraph (1) does not apply to a request for funds—
(A) for a construction project the total estimated cost of which is less than the minor construction threshold; or
(B) for emergency planning, design, and construction activities under section 2747 of this title.
(b) Construction design
(1) Authority
(2) Limitation on availability of funds for certain projects
(Pub. L. 107–314, div. D, title XLVII, § 4706, formerly div. C, title XXXVI, § 3625, Dec. 2, 2002, 116 Stat. 2759; renumbered div. D, title XLVII, § 4706, and amended Pub. L. 108–136, div. C, title XXXI, § 3141(j)(2)(A)–(C), (D)(ii), Nov. 24, 2003, 117 Stat. 1781; Pub. L. 113–66, div. C, title XXXI, § 3120, Dec. 26, 2013, 127 Stat. 1059; Pub. L. 114–328, div. C, title XXXI, § 3121, Dec. 23, 2016, 130 Stat. 2764; Pub. L. 117–81, div. C, title XXXI, § 3115(c), Dec. 27, 2021, 135 Stat. 2227.)

CITE AS: 50 USC 2746

§ 2747. Authority for emergency planning, design, and construction activities
(a) Authority
(b) Limitation
(c) Specific authority
(Pub. L. 107–314, div. D, title XLVII, § 4707, formerly div. C, title XXXVI, § 3626, Dec. 2, 2002, 116 Stat. 2759; renumbered div. D, title XLVII, § 4707, and amended Pub. L. 108–136, div. C, title XXXI, § 3141(j)(2)(A)–(C), (D)(iii), Nov. 24, 2003, 117 Stat. 1781.)

CITE AS: 50 USC 2747

§ 2748. Scope of authority to carry out plant projects

In carrying out programs necessary for national security, the authority of the Secretary of Energy to carry out plant projects includes authority for maintenance, restoration, planning, construction, acquisition, modification of facilities, and the continuation of projects authorized in prior years, and land acquisition related thereto.

(Pub. L. 107–314, div. D, title XLVII, § 4708, formerly div. C, title XXXVI, § 3627, Dec. 2, 2002, 116 Stat. 2760; renumbered div. D, title XLVII, § 4708, by Pub. L. 108–136, div. C, title XXXI, § 3141(j)(2)(A)–(C), Nov. 24, 2003, 117 Stat. 1781.)

CITE AS: 50 USC 2748

§ 2749. Availability of funds
(a) In general
(b) Exception for program direction funds
(Pub. L. 107–314, div. D, title XLVII, § 4709, formerly div. C, title XXXVI, § 3628, Dec. 2, 2002, 116 Stat. 2760; renumbered div. D, title XLVII, § 4709, by Pub. L. 108–136, div. C, title XXXI, § 3141(j)(2)(A)–(C), Nov. 24, 2003, 117 Stat. 1781; Pub. L. 113–291, div. C, title XXXI, § 3142(p), Dec. 19, 2014, 128 Stat. 3901.)

CITE AS: 50 USC 2749

§ 2750. Transfer of defense environmental cleanup funds
(a) Transfer authority for defense environmental cleanup funds
(b) Limitations
(1) Number of transfers
(2) Amounts transferred
(3) Determination required
A transfer may not be carried out by a manager of a field office under subsection (a) unless the manager determines that the transfer is necessary—
(A) to address a risk to health, safety, or the environment; or
(B) to assure the most efficient use of defense environmental cleanup funds at the field office.
(4) Impermissible uses
(c) Exemption from reprogramming requirements
(d) Notification
(e) Definitions
In this section:
(1) The term “program or project” means, with respect to a field office of the Department of Energy, a program or project that is for defense environmental cleanup activities necessary for national security programs of the Department, that is being carried out by that office, and for which defense environmental cleanup funds have been authorized and appropriated.
(2) The term “defense environmental cleanup funds” means funds appropriated to the Department of Energy pursuant to an authorization for carrying out defense environmental cleanup activities necessary for national security programs.
(Pub. L. 107–314, div. D, title XLVII, § 4710, formerly div. C, title XXXVI, § 3629, Dec. 2, 2002, 116 Stat. 2760; renumbered div. D, title XLVII, § 4710, and amended Pub. L. 108–136, div. C, title XXXI, § 3141(j)(2)(A)–(C), (D)(iv), Nov. 24, 2003, 117 Stat. 1781; Pub. L. 113–66, div. C, title XXXI, § 3146(h)(2), Dec. 26, 2013, 127 Stat. 1081; Pub. L. 113–291, div. C, title XXXI, § 3142(q), Dec. 19, 2014, 128 Stat. 3901.)

CITE AS: 50 USC 2750

§ 2751. Transfer of weapons activities funds
(a) Transfer authority for weapons activities funds
(b) Limitations
(1) Number of transfers
(2) Amounts transferred
(3) Determination required
A transfer may not be carried out by a manager of a field office under subsection (a) unless the manager determines that the transfer—
(A) is necessary to address a risk to health, safety, or the environment; or
(B) will result in cost savings and efficiencies.
(4) Limitation
(5) Impermissible uses
(c) Exemption from reprogramming requirements
(d) Notification
(e) Definitions
In this section:
(1) The term “program or project” means, with respect to a field office of the Department of Energy, a program or project that is for weapons activities necessary for national security programs of the Department, that is being carried out by that office, and for which weapons activities funds have been authorized and appropriated.
(2) The term “weapons activities funds” means funds appropriated to the Department of Energy pursuant to an authorization for carrying out weapons activities necessary for national security programs.
(Pub. L. 107–314, div. D, title XLVII, § 4711, formerly div. C, title XXXVI, § 3630, Dec. 2, 2002, 116 Stat. 2761; renumbered div. D, title XLVII, § 4711, and amended Pub. L. 108–136, div. C, title XXXI, § 3141(j)(2)(A)–(C), (D)(v), Nov. 24, 2003, 117 Stat. 1781; Pub. L. 113–66, div. C, title XXXI, § 3146(h)(3), Dec. 26, 2013, 127 Stat. 1081.)

CITE AS: 50 USC 2751

§ 2752. Funds available for all national security programs of the Department of Energy

Subject to the provisions of appropriation Acts and section 2742 of this title, amounts appropriated pursuant to a DOE national security authorization for management and support activities and for general plant projects are available for use, when necessary, in connection with all national security programs of the Department of Energy.

(Pub. L. 107–314, div. D, title XLVII, § 4712, formerly div. C, title XXXVI, § 3631, Dec. 2, 2002, 116 Stat. 2762; renumbered div. D, title XLVII, § 4712, and amended Pub. L. 108–136, div. C, title XXXI, § 3141(j)(2)(A)–(C), (D)(vi), Nov. 24, 2003, 117 Stat. 1781.)

CITE AS: 50 USC 2752

§ 2753. Notification of cost overruns for certain Department of Energy projects
(a) Establishment of cost and schedule baselines
(1) Stockpile life extension projects
(A) In general
(B) Per unit cost
(C) Notification to congressional defense committees
(2) Major alteration projects
(A) In general
(B) Per unit cost
(C) Notification to congressional defense committees
(D) Major alteration project defined
(3) Defense-funded construction projects
(A) In generalThe Secretary of Energy shall establish a cost and schedule baseline under the project management protocols of the Department of Energy for each construction project that is—
(i) in excess of $65,000,000; and
(ii) carried out by the Department using funds authorized to be appropriated for a fiscal year pursuant to a DOE national security authorization.
(B) Notification to congressional defense committees
(4) Defense environmental cleanup projects
(A) In generalThe Secretary shall establish a cost and schedule baseline under the project management protocols of the Department of Energy for each defense environmental cleanup project that is—
(i) in excess of $65,000,000; and
(ii) carried out by the Department pursuant to such protocols.
(B) Notification to congressional defense committees
(b) Notification of costs exceeding baselineThe Administrator or the Secretary, as applicable, shall notify the congressional defense committees not later than 30 days after determining that—
(1) the total cost for a project referred to in paragraph (1), (2), (3), or (4) of subsection (a) will exceed an amount that is equal to 125 percent of the cost baseline established under subsection (a) for that project; and
(2) in the case of a stockpile life extension project referred to in subsection (a)(1) or a major alteration project referred to in subsection (a)(2), the cost for any warhead in the project will exceed an amount that is equal to 150 percent of the cost baseline established under subsection (a)(1)(B) or (a)(2)(B), as applicable, for each warhead in that project.
(c) Notification of determination with respect to termination or continuation of projects and root cause analysesNot later than 90 days after submitting a notification under subsection (b) with respect to a project, the Administrator or the Secretary, as applicable, shall—
(1) notify the congressional defense committees with respect to whether the project will be terminated or continued;
(2) if the project will be continued, certify to the congressional defense committees that—
(A) a revised cost and schedule baseline has been established for the project and, in the case of a stockpile life extension project referred to in subparagraph (A) or (B) of subsection (a)(1) or a major alteration project referred to in subsection (a)(2), a revised estimate of the cost for each warhead in the project has been made;
(B) the continuation of the project is necessary to the mission of the Department of Energy and there is no alternative to the project that would meet the requirements of that mission; and
(C) a management structure is in place adequate to manage and control the cost and schedule of the project; and
(3) submit to the congressional defense committees an assessment of the root cause or causes of the growth in the total cost of the project, including the contribution of any shortcomings in cost, schedule, or performance of the program, including the role, if any, of—
(A) unrealistic performance expectations;
(B) unrealistic baseline estimates for cost or schedule;
(C) immature technologies or excessive manufacturing or integration risk;
(D) unanticipated design, engineering, manufacturing, or technology integration issues arising during program performance;
(E) changes in procurement quantities;
(F) inadequate program funding or funding instability;
(G) poor performance by personnel of the Federal Government or contractor personnel responsible for program management; or
(H) any other matters.
(d) Applicability of requirements to revised cost and schedule baselinesA revised cost and schedule baseline established under subsection (c) shall—
(1) be submitted to the congressional defense committees with the certification submitted under subsection (c)(2); and
(2) be subject to the notification requirements of subsections (b) and (c) in the same manner and to the same extent as a cost and schedule baseline established under subsection (a).
(Pub. L. 107–314, div. D, title XLVII, § 4713, as added Pub. L. 111–383, div. C, title XXXI, § 3114(a), Jan. 7, 2011, 124 Stat. 4510; amended Pub. L. 112–239, div. C, title XXXI, § 3131(t), Jan. 2, 2013, 126 Stat. 2184; Pub. L. 113–66, div. C, title XXXI, § 3146(h)(4), Dec. 26, 2013, 127 Stat. 1081; Pub. L. 113–291, div. C, title XXXI, § 3115, Dec. 19, 2014, 128 Stat. 3888; Pub. L. 114–92, div. C, title XXXI, §§ 3113(a), 3114, Nov. 25, 2015, 129 Stat. 1191, 1193; Pub. L. 117–263, div. C, title XXXI, § 3118, Dec. 23, 2022, 136 Stat. 3055.)

CITE AS: 50 USC 2753

§ 2754. Life-cycle cost estimates of certain atomic energy defense capital assets
(a) In general
(b) Capital assets described
A capital asset described in this subsection is an atomic energy defense capital asset—
(1) the total project cost of which exceeds $100,000,000; and
(2) the purpose of which is to perform a limited-life, single-purpose mission.
(c) Independent defined
(Pub. L. 107–314, div. D, title XLVII, § 4714, as added

CITE AS: 50 USC 2754

§ 2755. Matters relating to critical decisions
(a) Post-critical decision 2 changesAfter the date on which a plant project specifically authorized by law and carried out under Department of Energy Order 413.3B (relating to program management and project management for the acquisition of capital assets), or a successor order, achieves critical decision 2, the Administrator may not change the requirements for such project if such change increases the cost of such project by more than the lesser of $5,000,000 or 15 percent, unless—
(1) the Administrator submits to the congressional defense committees—
(A) a certification that the Administrator, without delegation, authorizes such proposed change; and
(B) a cost-benefit and risk analysis of such proposed change, including with respect to—
(i) the effects of such proposed change on the project cost and schedule; and
(ii) any mission risks and operational risks from making such change or not making such change; and
(2) a period of 15 days elapses following the date of such submission.
(b) Review and approval
(Pub. L. 107–314, div. D, title XLVII, § 4715, as added Pub. L. 115–91, div. C, title XXXI, § 3111(d)(1), Dec. 12, 2017, 131 Stat. 1882.)

CITE AS: 50 USC 2755

§ 2756. Unfunded priorities of the Administration
(a) Annual report or certificationNot later than 10 days after the date on which the budget of the President for a fiscal year is submitted to Congress pursuant to section 1105(a) of title 31, the Administrator shall submit to the Secretary of Energy and the congressional defense committees either—
(1) a report on the unfunded priorities of the Administration; or
(2) if the Administrator determines that there are no unfunded priorities to include in such a report, a certification and explanation by the Administrator, without delegation, of the determination.
(b) Elements
(1) In generalEach report under subsection (a)(1) shall specify, for each unfunded priority covered by the report, the following:
(A) A summary description of that priority, including the objectives to be achieved or the risk to be mitigated if that priority is funded (whether in whole or in part).
(B) The additional amount of funds recommended in connection with the objectives or risk mitigation under subparagraph (A).
(C) Account information with respect to that priority.
(2) Prioritization of priorities
(c) Unfunded priority definedIn this section, the term “unfunded priority”, in the case of a fiscal year, means a program, activity, or mission requirement that—
(1) is not funded in the budget of the President for that fiscal year as submitted to Congress pursuant to section 1105(a) of title 31;
(2) is necessary to address a requirement associated with the mission of the Administration; and
(3) would have been recommended for funding through the budget referred to in paragraph (1) by the Administrator—
(A) if additional resources were available for the budget to fund the program, activity, or mission requirement; or
(B) in the case of a program, activity, or mission requirement that emerged after the budget was formulated, if the program, activity, or mission requirement had emerged before the budget was formulated.
(Pub. L. 107–314, div. D, title XLVII, § 4716, as added Pub. L. 115–91, div. C, title XXXI, § 3132(a), Dec. 12, 2017, 131 Stat. 1895; amended Pub. L. 115–232, div. C, title XXXI, § 3124, Aug. 13, 2018, 132 Stat. 2297; Pub. L. 116–92, div. C, title XXXI, §§ 3115, 3139(b)(7)(A), Dec. 20, 2019, 133 Stat. 1951, 1963; Pub. L. 118–31, div. C, title XXXI, § 3121, Dec. 22, 2023, 137 Stat. 792.)

CITE AS: 50 USC 2756

§ 2757. Review of adequacy of nuclear weapons budget
(a) Review of adequacy of Administration budget by Nuclear Weapons Council
(1) Transmission to Council
(2) Review
(3) Department of Energy response
(A) In general
If the Council submits to the Secretary of Energy a written description under section 179(f)(2)(B)(i) of title 10 with respect to the budget request of the Administration for a fiscal year, the Secretary shall include as an appendix to the budget request submitted to the Director of the Office of Management and Budget—
(i) the funding levels and initiatives identified in that description; and
(ii) any additional comments the Secretary considers appropriate.
(B) Transmission to Congress
(b) Review and certification of Department of Energy budget by Nuclear Weapons Council
(Pub. L. 107–314, div. D, title XLVII, § 4717, as added Pub. L. 116–283, div. A, title XVI, § 1632(b)(1), Jan. 1, 2021, 134 Stat. 4057; amended Pub. L. 117–263, div. A, title XVI, § 1633(c), Dec. 23, 2022, 136 Stat. 2937.)

CITE AS: 50 USC 2757

§ 2758. Improvements to cost estimates informing analyses of alternatives
(a) Requirement for analyses of alternatives
(b) Use of project engineering and design fundsIn the case of a project the total estimated cost of which exceeds $500,000,000 and that has not reached critical decision 1 in the acquisition process, the Administrator may use funds authorized by a DOE national security authorization for project engineering and design to begin the development of a conceptual design to facilitate the development of a cost estimate for the project during the analysis of alternatives for the project if—
(1) the Administrator—
(A) determines that such use of funds would improve the quality of the cost estimate for the project; and
(B) notifies the congressional defense committees of that determination; and
(2) a period of 15 days has elapsed after the date on which such committees receive the notification.
(Pub. L. 107–314, div. D, title XLVII, § 4718, as added Pub. L. 117–81, div. C, title XXXI, § 3112(a), Dec. 27, 2021, 135 Stat. 2220.)

CITE AS: 50 USC 2758