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former IAEA Director-General

House Panel Revises U.S. Nuclear Export Law
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Daniel Horner

The House Foreign Affairs Committee last month approved a bill that would change the law governing U.S. agreements for civil nuclear cooperation by adding to the nonproliferation requirements that U.S. nuclear partners must meet.

At its April 14 session, the panel voted 34-0 to send the bill, H.R. 1280, to the House floor. As Arms Control Today went to press, no schedule had been set for a floor vote.

A Senate aide said in an April 26 interview that he “certainly” expected the Senate to produce a companion bill. “Multiple drafts” are circulating, but the Senate probably will not start moving legislation until the House has acted, he said.

The House bill had been introduced April 1 by committee chairman Ileana Ros-Lehtinen (R-Fla.) with several other senior members of the panel as co-sponsors. One of those was Rep. Howard Berman (D-Calif.), the ranking member, who also introduced his own bill, H.R. 1320, which overlapped with Ros-Lehtinen’s in many respects but contained some key differences. The legislation approved by the committee was “an amendment in the nature of a substitute,” which adapted the original Ros-Lehtinen bill to include some key elements of Berman’s.

Under U.S. law—section 123 of the Atomic Energy Act—the United States must negotiate nuclear cooperation agreements with other countries before engaging in nuclear trade with them. The law lists nine nonproliferation conditions that normally are required in U.S. agreements, including comprehensive international safeguards, adequate physical security, and the U.S. right of “prior consent” to uranium enrichment or spent fuel reprocessing of U.S.-origin nuclear material by the recipient country.

Ros-Lehtinen’s and Berman’s original bills included a provision tying eligibility for U.S. nuclear cooperation to a country’s commitment that it would not begin pursuing a domestic enrichment or reprocessing program. The committee-approved bill adopts that approach.

The bill also would change the circumstances under which cooperation agreements could enter into force without a congressional vote. Under current law, most nuclear cooperation agreements can enter into force after 90 days of so-called continuous session unless Congress enacts legislation blocking the pact. Agreements that meet the nine nonproliferation criteria can come into force this way. Those that do not meet all those conditions require a vote of approval in both chambers of Congress. The only cooperation agreement to come into force by the second route was the one with India, which Congress approved in 2008. (See ACT, October 2008.)

The House legislation retains that basic structure. However, by adding the restriction on enrichment and reprocessing, along with a number of other new conditions, it requires countries to do more to be eligible for “fast-track” approval, as Berman called it.

The two-track approach was in Berman’s bill; Ros-Lehtinen’s original bill would have required an affirmative approval vote for cooperation agreements with all countries. Among the other requirements is that each cooperating country has joined an array of international agreements, “has signed, ratified, and is fully implementing” an additional protocol to its safeguards agreement with the International Atomic Energy Agency, “has established and is fully implementing an effective export control system,” and “is closely cooperating with the United States to prevent state sponsors of terrorism from acquiring or developing nuclear, biological, chemical weapons” or “destabilizing numbers and types of advanced conventional weapons, including ballistic missiles.”

In her statement at the April 14 session, Ros-Lehtinen said Congress should “act now to put these new protections in place, so that cooperation between the U.S. and other countries to promote peaceful nuclear activities can grow without fear that it will be used to undermine our national security and that of the world as a whole.”

In a statement issued later that day, the Nuclear Energy Institute, which represents the nuclear industry in Washington, called on the House to reject the bill. The institute argued that the main effect of expanding the list of U.S. requirements would be to drive potential U.S. nuclear partners into the arms of other suppliers and therefore reduce the United States’ global influence on nuclear nonproliferation and safety. “It is clear that if the United States makes renunciation of enrichment and reprocessing rights a prerequisite for trade, the outcome will be few, if any, new Section 123 agreements,” the statement said.

It warned that the bill “threatens thousands of American jobs and billions of dollars in exports by U.S. companies.”

In comments to reporters after an April 26 appearance at a Washington think tank, Deputy Secretary of Energy Daniel Poneman said actions that would have the effect of taking the United States “out of the market” would be “unhelpful” to U.S. nonproliferation objectives. He said the administration was “taking a very methodical look” at the House legislation.

Setting a Standard

Part of the impetus for the legislation came from the U.S. nuclear agreement with the United Arab Emirates (UAE) and a debate over whether it is possible or advisable to replicate key provisions of that agreement in other U.S. nuclear accords. In that pact, which was concluded in 2009, the UAE commits itself to refrain from pursuing enrichment or reprocessing. (See ACT, June 2009.) Pursuing such programs would be grounds for the United States to halt nuclear cooperation with the UAE, an unprecedented provision in U.S. cooperation agreements.

A Department of State spokesman last year referred to the UAE agreement as the “gold standard,” but the Obama administration has been divided over the question of how to apply the UAE model to other countries. (See ACT, October 2010.) One particular piece of that question is whether to apply it to countries outside the Middle East.

One country affected by the debate is Vietnam. In March 29 remarks at the Carnegie International Nuclear Policy Conference, Richard Stratford, the director of the State Department’s Office of Nuclear Energy, Safety and Security, said the United States has signed a memorandum of understanding with Vietnam and has “given them a text of a 123 [agreement].” However, he said, “that discussion is on hold for the moment because…there is an issue as to whether we should require the gold standard in all future” 123 agreements.

With regard to another much-discussed potential 123 agreement, Stratford took issue with press accounts saying that Jordan would not agree to the same terms that the UAE did. “I wouldn’t count on that,” he said. Stratford said the two sides were “very, very close to an agreement that both of us like.” He noted that, with the current turmoil in the Middle East, the Jordanian government “had other issues on its mind.” However, he said, if the Jordanians “are prepared to engage at some point in the future, I think we will come to conclusion, and I think that the Congress will like the result. But let’s see what happens.”

Accounts of the negotiations vary on what the specific terms of the deal might be, but the general idea seems to be that Jordan would not pursue enrichment or reprocessing for some specified period of time and that the two sides would revisit the issue at the end of that period.

In an April 19 interview, a House aide who follows nonproliferation issues closely said the cooperation agreement with Jordan would not have to use “the actual words” of the UAE agreement as long as the effect is the same. “There are many paths to enlightenment,” he said.

One result of the House legislation may be that the administration presses harder for strong nonproliferation conditions in ongoing talks, the staffer said.

Multiple Suppliers

In an April 22 interview, a nuclear industry source said a Jordanian decision to accept U.S. conditions similar to those in the UAE agreement might have limited significance because Jordan has indicated it is not seriously considering the United States as a nuclear supplier. If the United States is not the supplier, it does not have the authority to demand the return of nuclear goods exported to Jordan if the country reverses its decision, the source said.

For many countries, the source said, signing a cooperation agreement with the United States nowadays is “for cachet or convenience, but not for commerce.” During the 1970s, the time of the last major revision of U.S. nuclear export law, the United States held a much more dominant place among suppliers, the source said. With the current diversity of suppliers, the unilateral restrictions of the House legislation represent “a very misconceived approach,” the source said.

The legislation requires a “report on comparability of nonproliferation conditions by foreign nuclear suppliers,” but does not specify action that Congress should take in response to the report. The “implied purpose” of the report is to exert some pressure on non-U.S. suppliers to upgrade their nonproliferation requirements to be more consistent with the ones the bill would establish, the Democratic staffer said.

In his statement at the April 14 committee session, Berman urged the Obama administration “to use all its influence to convince the other nuclear supplier states to adopt the same nonproliferation and security conditions in their agreements that we observe in ours, especially when those same suppliers are seeking nuclear business in the United States.”