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House Nuclear Trade Reform Measure on Ice, But Likely Not Gone
WASHINGTON -- A measure before the U.S. House of Representatives that would demand up-or-down congressional votes for all but the most proliferation-resistant nuclear trade agreements has few prospects for a floor tally of its own this year, but similar legislation could re-emerge in 2013, according to Washington insiders (see GSN, May 4).
The bill, known as H.R. 1280, won the unanimous backing of the House Foreign Affairs Committee in April 2011, but has since been the focus of intense opposition from the nuclear energy industry. Republican leaders have blocked the measure’s movement to the chamber floor for debate, according to a key sponsor.
The controversial measure would reward those trade partners willing to pledge not to domestically produce nuclear fuel by offering a more streamlined legislative review process. Uranium enrichment or plutonium reprocessing can be useful for civil energy production, but also have the potential to be diverted for clandestine nuclear-weapon efforts.
The bill is aimed at “preventing a short-sighted focus on commercial and political interests from undermining our long-term security,” House Foreign Affairs Committee Chairwoman Ileana Ros-Lehtinen (R-Fla.) said at a May 16 event on Capitol Hill.
She co-sponsored the legislation with committee Ranking Member Howard Berman (D-Calif.) and has won some significant support from the House Armed Services Committee. Still, industry lobbyists have alleged the measure would harm chances of the United States landing lucrative atomic trade deals abroad.
Backers of the legislation strongly reject that contention, arguing that security concerns must take precedence over commercial interests. In any case, congressional advocates argue, the legislation would simply offer incentives for nonproliferation commitments but not demand them as a condition of congressional approval.
A companion bill in the Senate, S. 109, would require the House and Senate to approve any nuclear cooperation agreement before it could go into effect, regardless of its nonproliferation provisions. However, the Senate Foreign Relations Committee has not acted on the measure and its sponsor, former Senator John Ensign (R-Nev.), resigned from Congress last year.
Nuclear energy advocates worry that even under the House version, Congress might fail to act or could even vote down accords that lack the so-called nonproliferation “gold standard” -- a nation’s promise that it would not produce nuclear fuel on its soil.
Washington’s atomic cooperation pacts with selected trade partners -- governed by Section 123 of the Atomic Energy Act -- allow U.S. companies to share sensitive materials, technologies and know-how with nations interested in developing peaceful nuclear energy.
The Florida lawmaker last month called out her own House Republican leadership for preventing the bipartisan measure from going to a floor debate.
“Unfortunately the bill has some formidable opponents,” Ros-Lehtinen said. “First we have the Rules Committee, a big hurdle to overcome there. It’s holding up the legislation for what I consider to be reasons that are not truly serious.
“They say that if the House were to occasionally vote on nuclear cooperation agreements that it would clog up our legislative calendar,” she said. “Well, that really doesn’t pass the laugh test, but I will leave it up to you to determine what their actual objections are.”
The executive branch typically submits to Congress no more than one or two U.S. nuclear trade pacts each year for review. Under current law, such an agreement is automatically eligible for implementation if Congress has not acted to stop it within 90 days of continuous legislative session.
By contrast, the Ros-Lehtinen-Berman bill would give only those trade accords with gold-standard pledges this relatively permissive approval treatment; all others would be subjected to a floor vote.
Issue experts say current law typically favors the executive branch ability to move forward with negotiated nuclear trade pacts. As things stand, the Atomic Energy Act effectively demands a veto-proof majority be assembled in both chambers in a relatively short time period if a particular agreement is to be stopped.
Industry advocates see it differently. They want today’s process to remain in place.
“It’s hard enough just to get the requisite 90 continuous session days to put it in front of Congress and actually just sit there and become law,” said one nuclear industry representative who was not authorized to speak publicly about the matter. “To get both houses to approve a ‘123’ by joint resolution, I think most congressional staffers would tell you that’s kind of a stretch.”
Representative David Dreier (R-Calif.), who chairs the House Rules Committee, has longstanding ties to the nuclear energy industry and is reported to personally oppose the House Foreign Affairs bill.
However, Dreier’s spokeswoman in May declined to respond to questions about the lawmaker’s position on the legislation and whether he has discussed it with other GOP leaders or industry lobbyists.
“I don’t think that important votes clog up the calendar,” Ros-Lehtinen said. “I believe that’s the reason that we are here.”
A spokesman for House Majority Leader Eric Cantor (R-Va.), who controls the schedule for bills to be considered on the House floor, declined last month to make any public comment. One GOP leadership aide did say, though, that the bill “is working its way through the committee process and has been referred to the Rules Committee.”
“The principal opponent, of course, is the nuclear energy industry, which has been lobbying members with a great deal of success,” Ros-Lehtinen asserted. “For example, the [House] Armed Services Committee was prevented from putting key provisions of the [H.R. 1280] legislation in the defense authorization bill.”
The armed services panel initially drafted in its report on fiscal 2013 spending policy a demand that nuclear cooperative agreements that allow a partner state to conduct enrichment or reprocessing win a congressional vote of approval before proceeding to implementation.
However, this restriction was stripped out during the committee’s mark-up process, and in its place was left solely a statement about the potential value of a trade partner’s voluntary pledge.
“The gold standard represents a binding legal restriction on uranium enrichment and [plutonium] reprocessing as a condition for concluding nuclear cooperation agreements,” the Armed Services Committee said in its report, issued on May 11. “The committee is now concerned that the administration may not require ‘the gold standard’ in upcoming 123 agreements.”
The report voices concern that a failure to pursue this standard in trade negotiations “would weaken United States nonproliferation efforts,” according to the text. The fissile material produced by these activities “could be used by a state to make nuclear weapons or could be stolen by terrorists,” the armed services panel members stated.
“My understanding is that Republican leadership nixed the idea” of incorporating into the authorization bill the key provisions from H.R. 1280, said one House aide. This congressional staffer and several others requested anonymity, lacking permission to address the issue publicly.
The House Energy and Commerce Committee also recently entered the fray, asserting that it shared jurisdiction over H.R. 1280, according to congressional aides. The turf declaration allowed House Speaker John Boehner (R-Ohio) to refer the bill to Energy and Commerce Chairman Fred Upton (R-Mich.) to do his own markup.
“The committee has very broad jurisdictional interests in the bill,” Energy and Commerce spokeswoman Charlotte Baker told Global Security Newswire on Wednesday. “For example, the committee has jurisdiction over statutes that provide foreign assistance.”
Specifically, energy panel staff argued they must have a say on the bill because any potential move by Washington to cease cooperation with a foreign partner that violates its nuclear pact could affect other areas of collaboration, Capitol Hill aides. Those could include multinational environmental projects that the energy lawmakers oversee, according to these sources.
“If true, that could mean that virtually every committee could claim jurisdiction because they might have a cooperative program overseas,” said one staffer.
According to Baker, the House speaker gave Energy and Commerce until the fall to mark up H.R. 1280, if it so chooses, as part of the “sequential referral” -- congressional jargon for allowing a second committee to weigh in on a bill after a primary committee initially reports it out. Energy and Commerce has not set a date for its markup, Baker said.
The flurry of activity following the initial House Armed Services adoption of key H.R. 1280 provisions -- but more than a year after Foreign Affairs adopted the bill -- was widely believed triggered by opposition lobbying this spring, several congressional aides said.
Lawmakers sitting on the Energy and Commerce Committee have strong ties to the nuclear power industry and the panel is widely believed to have used the legislative tactic to erect an additional roadblock to the legislation making it to the House floor.
“Time has run out for H.R. 1280, like a whole lot of other bills in this Congress,” one House aide said on Thursday. “However, it often takes multiple Congresses to successfully enact new law. Just because it is going nowhere in this Congress doesn’t mean it won’t ultimately be enacted in the next.”
“The bill that I have put forth has indeed its fair share of controversy,” Ros-Lehtinen said. “But I think that no matter where you stand on that piece of legislation, we can all agree that preventing the spread of weapons of mass destruction must rank among our nation’s highest priorities.”
Following the November elections, there are both opportunities and risks for both sides regarding the prospect that similar legislation will be introduced and gain steam in the new Congress.
Dreier has announced he will retire at the end of this year. That potentially removes a key GOP leadership obstacle for H.R. 1280 supporters, though it is uncertain who will replace the California Republican as House Rules Committee chairman and what position on the legislation that lawmaker will hold.
Ros-Lehtinen will run for re-election this fall in a different Florida district, the 27th, because of redistricting. The 12-term lawmaker won her 2010 bid against a Democratic challenger with nearly 69 percent of the vote. However, Republican Party term-limit rules will force Ros-Lehtinen to step down from the chairmanship of the House foreign affairs panel, and it is not yet certain who will take her gavel.
Berman, the committee’s ranking member, is facing Representative Brad Sherman (D-Calif.) in the general election, after the two were the top vote-getters in their bipartisan state primary.
Sherman co-sponsored H.R. 1280, suggesting that whoever wins the 30th District election could be expected to support similar legislation next year. It is up in the air, however, as to whether Sherman -- if elected -- would succeed Berman as the top Democrat on the Foreign Affairs Committee, according to congressional aides.
Regardless of the election outcomes, substantial bipartisan support for reform legislation like H.R. 1280 is expected to remain among lawmakers on that panel.
In both the House and Senate, lawmaker interest in the matter might also be expected to rise in coming years. The United States is likely to renew its current nuclear trade pact with China before it expires in 2015, and that new agreement could be sent to Capitol Hill for review before the end of 2014, according to congressional staffers.
“The next Congress might think an up-or-down vote on a China pact would be a good idea,” said one aide, noting growing questions about whether Beijing could be more helpful in stanching global proliferation, particularly when it comes to Iran. “It certainly would provide needed leverage on Chinese nonproliferation cooperation.”
At the same time, the nuclear energy industry can be expected to continue its heavy lobbying on Capitol Hill in opposition to such measures. It has sent more than two dozen lobbyists to Capitol Hill at a cost of more than $3 million to oppose H.R. 1280, as well as to advocate the energy sector’s perspective on other measures over the past two years.
The Nuclear Energy Institute, the industry’s lobbying arm, has cited a Commerce Department estimate that the international market for nuclear equipment and services could reach $740 billion in the next decade. That could translate to thousands of U.S. jobs potentially lost if the ability to land contracts overseas is constrained, the industry is arguing.
The House bill “is not directed against the nuclear industry,” countered Ros-Lehtinen, speaking last month. “It’s to have Congress have a voice in what is a very, very serious issue. And, right now, we don’t have a voice.”
In related news, an internal Obama administration review of its policy on when and how to seek gold-standard pledges from nuclear trade partners is at the White House for decision, according to one participant in a Washington speaker event held this week.
Senior officials with the State and Energy departments in January notified Congress that the administration would take a “case-by-case” approach to demanding this type of nonproliferation feature in future agreements (see GSN, Jan. 23).
The announcement received considerable criticism on Capitol Hill and among issue experts, though, leading the Obama team to revisit the policy -- its third such review of the matter since 2009 (see GSN, Feb. 17).
The policy debuted in January was “not well explained and not well understood,” said the Monday event participant, who spoke on condition that the discussion venue and those present not be identified publicly.
The use of the term “case-by-case” in describing the policy was “unfortunate”; the phrase was meant to convey that each negotiation is unique, but was misinterpreted as a lack of clear policy or priority, the speaker said.
In fact, according to this individual, Washington puts “nonproliferation priorities first, ahead of commercial considerations.”
A case-by-case tack to nuclear cooperative deals translates to seeking the gold standard wherever possible, but not necessarily insisting on it in all negotiations, the participant said. It remains unclear if that approach will change following the ongoing review, but almost certainly the policy will be more carefully explained, this person elaborated in a brief interview following the event.
One supporter of the Ros-Lehtinen-Berman legislation noted that while Congress tussles over H.R. 1280 and the administration reviews its negotiating policy, no new nuclear cooperation pacts have been submitted to Congress this year for review. The nonproliferation features of pending accords that might prove controversial -- such as anticipated deals with Jordan and Vietnam -- remain under wraps.
“As long as there’s not a 123 [agreement] sent up to the Hill, our policy remains that of … the UAE pact,” said Henry Sokolski, executive director of the Nonproliferation Policy Education Center, referring to a 2009 pledge by the United Arab Emirates that led Washington to coin the term “gold standard.”
March 20, 2013
This report is part of a collection examining implementation of United Nations Security Council Resolution 1540, which requires all states to implement measures aimed at preventing non-state actors from acquiring NBC weapons, related materials, and their means of delivery. It details implementation efforts in Central America, South America and the Caribbean to-date.
Nov. 27, 2012
Several U.S. bilateral nuclear cooperation agreements are set to expire in the next four years, and a long list of nuclear newcomers are interested in concluding new agreements with the United States. Jessica C. Varnum examines the debate over whether stricter nonproliferation preconditions for concluding these new and renewal "123" nuclear cooperation agreements with the United States would enhance or undermine their value as instruments of U.S. nonproliferation policy.