section of the act that applies depends on the type of isotope, radioactive or stable, and the production method. Legal opinions from DOE note that reactor-produced radioisotopes, as by-product materials, are governed by Sections 81-82, and other radioisotopes and stable isotopes are governed by Section 161 of the Atomic Energy Act:
The Commission [Atomic Energy Commission (AEC), now DOE] may distribute, sell, loan, or lease such by-product material as it owns to qualified applicants with or without charge: Provided, however, that, for by-product materials to be distributed by the Commission for a charge, the Commission shall establish prices on such an equitable basis as, in the opinion of the Commission, (a) will provide reasonable compensation to the Government for such material, (b) will not discourage the use of such material or the development of sources of supply of such material independent of the Commission, and (c) will encourage research and development. In distributing such materials, the Commission shall give preference to applicants proposing to use such material either in the conduct of research and development or in medical therapy. (Section 81; 42 U.S.C. 2111)
To execute this mandate, the DOE is authorized to
acquire, purchase, lease and hold real and personal property, including patents, as agent of and on behalf of the United States, … and to sell, lease, grant, and dispose of such real and personal property as provided in this Act. (Section 161g; 42 U.S.C. 2201).
Because financial considerations and the business arrangements were not specifically addressed, the legal ramifications surrounding those issues might become apparent only on implementation, and then only on a case-by-case basis.
In 1990 Title III of Public Law 101-101 (the Energy and Water Development Appropriations Act of 1990) established a revolving fund that required IPDP to finance itself through operating revenues, but there was no financial provision for the production of isotopes made exclusively for research. The intended goal was to provide an incentive for cost-effectiveness, bringing the management of isotope production and distribution under the aegis of a single, accountable headquarters so that revenue and expenses could be properly quantified. The designated revolving fund was characterized:
For necessary expenses of activities related to the production, distribution, and sale of isotopes and related services, $16,243,000, to remain available until expended: Provided, That this amount and, notwithstanding 31 U.S.C. 3302, revenues received from the disposition of isotopes and related services shall be credited to this account to be available for carrying out these purposes without further appropriation: Provided further, That all unexpended balances of previous appropriations made for the purpose of carrying out activities related to the