U.S. GOVERNMENT PRINTING OFFICE

69–980 DTP WASHINGTON : 2001

IMPLEMENTATION OF THE IRAN NONPROLIFERATION ACT OF 2000: IS LOSS OF LIFE IMMINENT

ON THE INTERNATIONAL SPACE STATION?

HEARING

BEFORE THE

COMMITTEE ON

INTERNATIONAL RELATIONS

HOUSE OF REPRESENTATIVES

ONE HUNDRED SIXTH CONGRESS

SECOND SESSION

OCTOBER 12, 2000

Serial No. 106–194

Printed for the use of the Committee on International Relations

(

Available via the World Wide Web: http://www.house.gov/international—relations

For sale by the Superintendent of Documents, U.S. Government Printing Office

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Mail: Stop SSOP, Washington, DC 20402–0001

(II)

COMMITTEE ON INTERNATIONAL RELATIONS

BENJAMIN A. GILMAN, New York, Chairman

WILLIAM F. GOODLING, Pennsylvania

JAMES A. LEACH, Iowa

HENRY J. HYDE, Illinois

DOUG BEREUTER, Nebraska

CHRISTOPHER H. SMITH, New Jersey

DAN BURTON, Indiana

ELTON GALLEGLY, California

ILEANA ROS-LEHTINEN, Florida

CASS BALLENGER, North Carolina

DANA ROHRABACHER, California

DONALD A. MANZULLO, Illinois

EDWARD R. ROYCE, California

PETER T. KING, New York

STEVE CHABOT, Ohio

MARSHALL ‘‘MARK’’ SANFORD, South

Carolina

MATT SALMON, Arizona

AMO HOUGHTON, New York

TOM CAMPBELL, California

JOHN M. MCHUGH, New York

KEVIN BRADY, Texas

RICHARD BURR, North Carolina

PAUL E. GILLMOR, Ohio

GEORGE RADANOVICH, California

JOHN COOKSEY, Louisiana

THOMAS G. TANCREDO, Colorado

SAM GEJDENSON, Connecticut

TOM LANTOS, California

HOWARD L. BERMAN, California

GARY L. ACKERMAN, New York

ENI F.H. FALEOMAVAEGA, American

Samoa

DONALD M. PAYNE, New Jersey

ROBERT MENENDEZ, New Jersey

SHERROD BROWN, Ohio

CYNTHIA A. MCKINNEY, Georgia

ALCEE L. HASTINGS, Florida

PAT DANNER, Missouri

EARL F. HILLIARD, Alabama

BRAD SHERMAN, California

ROBERT WEXLER, Florida

STEVEN R. ROTHMAN, New Jersey

JIM DAVIS, Florida

EARL POMEROY, North Dakota

WILLIAM D. DELAHUNT, Massachusetts

GREGORY W. MEEKS, New York

BARBARA LEE, California

JOSEPH CROWLEY, New York

JOSEPH M. HOEFFEL, Pennsylvania

[VACANCY]

RICHARD J. GARON, Chief of Staff

KATHLEEN BERTELSEN MOAZED, Democratic Chief of Staff

STEPHEN G. RADEMAKER, Chief Counsel

LIBERTY DUNN, Staff Associate

(III)

C O N T E N T S

Page

WITNESSES

Edward A. Frankle, Associate Administrator, Office of the General Counsel,

NASA ..................................................................................................................... 5

W. Michael Hawes, Deputy Associate Administrator for Space Flight Development, Office of Space Flight, NASA ................................................................... 9

APPENDIX

Prepared statements:

The Honorable Benjamin A. Gilman, a Representative in Congress from the

State of New York, and Chairman, Committee on International Relations ... 19

Edward A. Frankle .................................................................................................. 22

Michael Hawes ......................................................................................................... 26

Additional material submitted for the record:

Response by NASA to additional questions submitted for the Record by the

Honorable George R. Nethercutt, a Representative in Congress from the

State of Washington ............................................................................................. 34

Response by NASA to additional questions submitted for the Record by the

Honorable Dana Rohrabacher, a Representative in Congress from the State

of California .......................................................................................................... 40

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IMPLEMENTATION OF THE IRAN NONPROLIFERATION ACT OF 2000: IS LOSS OF

LIFE IMMINENT ON THE INTERNATIONAL

SPACE STATION?

THURSDAY, OCTOBER 12, 2000

HOUSE OF REPRESENTATIVES,

COMMITTEE ON INTERNATIONAL RELATIONS,

Washington, DC.

The Committee met, pursuant to call, at 10:18 a.m. in Room

2172, Rayburn House Office Building, Hon. Benjamin A. Gilman

(Chairman of the Committee) presiding.

Chairman GILMAN. The Committee will come to order. We received preliminary reports this morning that at least four American sailors were killed and 12 are missing in a terrorist attack on

the USS COLE in the Gulf of Aden. We think of ourselves as a nation at peace, but there will always be those who, for misguided

reasons of their own, seek to inflict harm.

Our hearts go out to the families of those servicemen who made

the ultimate sacrifice in the service of our Nation. So let us take

a moment of silence as we begin our hearing today.

Thank you. Our hearing will come to order. I called this hearing

in order for Members of Congress to hear firsthand about a remarkable legal interpretation of the Iran Nonproliferation Act that

apparently has been adopted by the National Aeronautics and

Space Administration. This interpretation threatens to eviscerate

this important new law that was enacted with great fanfare just

7 months ago.

As everyone knows, the problem of proliferation from Russia to

Iran of dangerous weapons technology, especially missile technology, has been with us for many years now. The Clinton Administration tried repeatedly in the past to do something about it, but

the results were invariably disappointing. In exasperation, a number of us in the Congress felt compelled to act. Here in the House,

I joined with our distinguished Ranking Democratic Member, Mr.

Gejdenson, and the distinguished Chairman of our Committee on

Science, Mr. Sensenbrenner, to introduce the Iran Nonproliferation

Act. The lead Senate sponsors of this measure included not only

the distinguished majority leader, Mr. Lott, but also the man that

Vice President Gore has chosen as his running mate, the junior

Senator from Connecticut, Mr. Lieberman.

The Clinton Administration did not like our legislation. In fact,

they threatened in writing to veto it, but we were not deterred. The

Gilman-Gejdenson-Lott-Lieberman bill passed the House unaniVerDate 11-MAY-2000 17:14 Feb 27, 2001 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 F:\WORK\FULL\H101200\69980 HINTREL1 PsN: HINTREL1
2

mously, and then it passed the Senate unanimously, and eventually President Clinton signed it into law on March 14th of this

year.

Since that time a remarkable thing has occurred. The Administration has gone about its business as if the law didn’t exist. In essence, the law only requires two things: First, it requires the President to report periodically to Congress about proliferation to Iran

from other countries. Second, it prohibits NASA from buying new

goods and services from Russia for the International Space Station

until the President determines that all of the approximately 400

entities under the Russian Aviation and Space Agency have gotten

out of the business of proliferating to Iran.

The law’s reporting requirement has been utterly disregarded by

the Administration. The first report was required by law to be submitted to Congress no later than 3 months after the date of its enactment, or by June 12th of this year. The second report was required by law to be submitted to Congress no later than 6 months

after the date of enactment, or by September 14th. Neither of these

reports have been submitted.

The State Department has a number of excuses for disregarding

these report deadlines. They have been busy doing other things.

They have had a hard time figuring out how to write the report.

Also, it is a lot of work. Most recently, they sent us a letter saying

they are going to try hard to finish the first report by December

1st, or 6 months after the due date. But they are not making any

promises.

Obviously the Administration has not treated compliance with

the reporting requirements of the Iran Nonproliferation Act as a

priority. In fact, after the bill was enacted they waited for two full

months to get around to asking the CIA to collect the information

they would need to write the first report. That information apparently was not given to the people who will actually write the report

until just last month. And when we asked, we were told that not

a single person within the executive branch had been put to work

full time on complying with this law.

And we have now learned that NASA is considering implementing the law in a way that will make the State Department’s

record look like a model of compliance. The law is very clear that

NASA cannot make what are called, ‘‘extraordinary payments in

connection with the International Space Station,’’ to Russia until

the President gives all entities within the Russia Aviation and

Space Agency until they have a clean bill of health on proliferation

to Iran. The President cannot even consider doing that now because the State Department has not written any of the required reports about what these entities are doing. There is, however, an exception in the law for crew safety. If the President notifies Congress in writing that an otherwise prohibited purchase from Russia

is, ‘‘necessary to prevent the imminent loss of life by or grievous

injury to individuals aboard the International Space Station,’’ that

purchase may be made notwithstanding the law’s prohibition.

This exception was inserted into legislation by a Member of our

own Committee, the gentleman from California, Mr. Rohrabacher,

during the Science Committee’s markup of the bill. Hopefully in a

few minutes Mr. Rohrabacher will be able to describe to us his inVerDate 11-MAY-2000 17:14 Feb 27, 2001 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 F:\WORK\FULL\H101200\69980 HINTREL1 PsN: HINTREL1
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tentions in writing this exception. My own understanding was always that this was an exception that was to be available to NASA

in emergency situations only. NASA, however, has come up with its

own interpretation of what Mr. Rohrabacher intended, which is

considerably broader than an exception just for emergency circumstances.

NASA apparently believes that the purchase of anything that arguably enhances safety will fit within this exception. If NASA’s interpretation is allowed to stand, I fear that virtually nothing will

be left of the law’s prohibition on extraordinary payments in connection with the International Space Station. I had hoped that we

in the Congress had concluded our work in this area when we enacted the Iran Nonproliferation Act earlier this year, but regrettably NASA’s present course may leave us with no choice but to

legislate again on this issue. And if we are forced to do that, we

may also have to address some new areas of concern that are now

under investigation by the NASA Inspector General, such as

NASA’s subsidization of other entities in Russia that have a history

of producing and proliferating weapons of mass destruction.

I am now pleased to recognize our Ranking Minority Member,

Mr. Gejdenson, for any comments he may have. Mr. Gejdenson.

Mr. GEJDENSON. Thank you, Mr. Chairman. We are always in a

little bit of a quandary in dealing with the Russians. Obviously we

are concerned about their proliferation. On the other hand, if we

exclude their participation in every commercial venture with the

United States, they are only left with commercial ventures with

rogue nations. So it is a very difficult balance obviously.

Clearly, though, no Member of this Committee would want any

Federal agency to make a decision that would put our people in

jeopardy when traveling in space. And it is clearly also the intent

of the legislation that if it is necessary for the safety of our men

and women who go into space that the agency is perfectly legally

within the law to purchase the elements they need from the Russians. Maybe it is a lesson for the Congress. Maybe we ask for too

many reports too often and maybe we need to pick fewer reports

that we want to be more serious about with the State Department.

Thank you, Mr. Chairman.

Chairman GILMAN. Thank you, Mr. Gejdenson. I am now pleased

to recognize——

Mr. SHERMAN. I wonder if I could make a brief statement.

Chairman GILMAN. Yes, but first I want to recognize Mr. Rohrabacher. The gentleman from California.

Mr. ROHRABACHER. Thank you, Mr. Chairman, and thank you for

your leadership, Mr. Chairman, in this and other issues that have

meant so much to our national security. Chairman Gilman has

taken the security of this country very seriously and especially on

this issue of proliferation of deadly weapons to countries that wish

us harm. I think it behooves all of us to take this issue very seriously because people’s lives are at stake.

We started this hearing having a moment of silence for five dead

American military personnel. This is a very serious matter, and I

am afraid that what we see is that our government that supposedly

has the responsibility of watching out for the safety of our people

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has again shown itself either incompetent or unwilling to meet that

responsibility, and that is very, very sad, shameful.

As chairman of the Space and Aeronautics Subcommittee and author of the crew safety exception amendment to the Iran Nonproliferation Act, I have taken a keen interest in ensuring that the

law is properly carried out. Sadly, Mr. Frankle’s testimony today

leads me to believe that NASA is not properly carrying out the act

as clearly intended. When I wrote the amendment that became

paragraph (f) in section 6, my intention was to address those emergency situations in which the Russians insisted that we pay them

to resolve an immediate threat to the lives of our astronauts while

on board the International Space Station. I said so at the time,

stating, quote, emergency payments are allowed. Let me repeat

that, emergency payments are allowed, end of quote, and then the

quote again, we need to do this just in case there is a life threatening emergency, end of quote.

Working with attorneys on the Science Committee and in the Office of Legislative Counsel, I crafted the amendment specifically

and very narrowly to address just those emergencies, which is how

Chairman Sensenbrenner characterized the amendment during the

floor debate. Nobody questioned my emphasis on the emergency aspects during the Subcommittee markup, consideration by the full

Committee on Science or during the House passage of this bill.

Mr. Frankle, I was there, I know what I said, and I know what

I meant and I know what this amendment states. I don’t know how

we could have made it any plainer. I have to assume if someone

is coming up with another interpretation that this is not being

done in good faith.

Your testimony selectively quotes myself and Chairman Sensenbrenner to create the false impression that the Science Committee

meant to give NASA the ability to bypass our nonproliferation efforts. Nothing could be further from the truth. Your interpretation

turns the entire legislation upside down and guts it of its meaning

and I expected better from NASA, America’s space agency, than

that.

Mr. Chairman, I believe the political appointees at NASA are

abusing the exception that I created for America’s space agency.

Had I anticipated this abuse, I would not have offered the amendment now being misused. This is a very serious matter. People’s

lives are at stake. Today we have five dead sailors to testify here

before us of the importance of our nonproliferation stand in that

part of the world. Perhaps the Committee should consider repealing this exception if we keep seeing members of this Administration trying to misuse it through misinterpretations.

With that, I yield back the balance of my time.

Chairman GILMAN. Thank you, Mr. Rohrabacher. The gentleman’s time has expired. Mr. Sherman.

Mr. SHERMAN. Mr. Chairman, I do think there is an emergency

situation. There is an emergency threat to NASA’s credibility before Congress. I have never seen a situation where someone can

just ignore the word ‘‘imminent’’ that is right in the statute, ignore

its plain meaning. By this definition any time NASA wants to do

anything it just says, well, that is necessary to prevent a loss of

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life because anything that enhances whatever we want to do will

lead to more successful and safer space shots.

I have supported this Administration on an awful lot of votes. It

is embarrassing, frankly, to be on this side of the room. We also

have a situation where we as a Committee are faced again and

again with whether to put a waiver into a bill. And we are told give

the Administration some reasonable leeway. And this interpretation is not just an attack on NASA’s credibility, it is an attack on

whether there should be waivers in any of the legislation that we

pass. And finally it is an attack on whether Congress can by statute direct the Administration and the agencies to do anything or

whether the statute will simply be ignored with a fig leaf so small

and so thin that it leaves nothing to the imagination.

I am confident that if this interpretation is not reversed that

Congress will respond very quickly. And I have been an intense

supporter of the space program and I think that this interpretation

certainly undermines that.

Thank you.

Chairman GILMAN. Thank you, Mr. Sherman. We are pleased to

be joined today by the gentleman from Washington, Mr.

Nethercutt, who is a Member of the Science Committee. Welcome.

Did you have an opening statement?

Mr. NETHERCUTT. Thank you, Mr. Chairman. I would just say

thank you for allowing us on the Science Committee and the Space

and Aeronautics Subcommittee to join this Committee of yours. I

am delighted to participate in the question and answer portion.

Chairman GILMAN. Thank you for joining us. We will now proceed with our table of witnesses. We are pleased to have two distinguished witnesses from the National Aeronautics and Space Administration. Edward Frankle is NASA’s General Counsel, having

held that job since 1988. He served previously as NASA’s Deputy

General Counsel. He is a graduate of the Georgetown University

Law Center and also worked as a lawyer at the Selective Service

System and the Department of the Navy. Welcome, Mr. Frankle.

Mr. Frankle is joined by Michael Hawes, NASA’s Deputy Associate Administrator for Space Flight Development. Mr. Hawes currently is responsible for directing U.S. participation in the International Space Station project. He is a graduate of the University

of Notre Dame and the George Washington University and he

spent most of his career in a variety of positions with NASA. Welcome, Mr. Hawes.

Whoever wishes to proceed may go first. Mr. Frankle. You may

put your full statement in the record and summarize, or proceed

as you deem appropriate. Please proceed.

STATEMENT OF EDWARD A. FRANKLE, ASSOCIATE

ADMINISTRATOR, OFFICE OF THE GENERAL COUNSEL, NASA

Mr. FRANKLE. Thank you, Mr. Chairman, Members of the Committee. Thank you for the opportunity to appear before the Committee to explain how NASA has been applying the provisions of

the Iran Nonproliferation Act to the agency’s contracting activities

with Rosaviakosmos, the Russian space agency. My remarks will

address specifically the legal analysis underlying NASA’s decisions

6

to utilize the act’s exception for purchases necessary to ensure crew

safety on the International Space Station.

The President signed the Iran Nonproliferation Act of 2000 on

March 14th, 2000, and among other things the INA restricts certain U.S. Government payments to Rosaviakosmos or any organization or entity under its control or any other organization, entity or

element of the government of the Russian Federation made in connection with the International Space Station. The act prohibits

NASA from making payments to a Russian entity for work on the

ISS that the Russian Government had previously pledged to provide at its own expense.

In addition, without regard to previous pledges, the INA also restricts payments to any entity of the Russian Government for work

on the ISS or for goods or services relating to human space flight

purchased under a contract or agreement that came into effect

after January 1, 1999.

These broad restrictions do not apply, however, when the President determines that Russia’s cooperation in preventing proliferation to Iran meets certain criteria prescribed in the INA. Since the

President has not yet made those determinations, the INA prohibits payments by agencies of the U.S. Government to Russian entities unless one or two specific exceptions applies.

The first exception relates to the ISS service module, which is

now in orbit and is not relevant here. The other exception relates

to crew safety and authorizes payments by NASA to Russian entities that are necessary to prevent imminent loss of life or grievous

injury to individuals aboard the ISS. To invoke this exception the

President must notify Congress and within 30 days submit a report

describing the measures that NASA is taking to ensure that both

the conditions necessitating extraordinary payments are not repeated and it is no longer necessary to make any such extraordinary payments, as well as to provide a status on Russian

progress in preventing weaponry proliferation to Iran.

I should add that on September 11th, 2000 the President delegated to the Secretary of State the authority under the act to make

findings relative to Russian cooperation in preventing proliferation

to Iran and to the NASA Administrator the authority to determine

whether payments to Russian entities are required because of an

imminent concern for crew safety.

The restrictions on payments in connection with work on the ISS

emerge out of section 6 and 7 of the INA. Section 6 states no action

of the U.S. Government may make extraordinary payments in connection with the International Space Station to the Russian Aviation and Space Agency or any other entity of the government of the

Russian Federation.

The act, however, provides an important exception with respect

to crew safety. Section 6(f) authorizes NASA to make otherwise restricted payments to an entity of the Russian Government if the

President has notified Congress in writing that such payments are

necessary to prevent the imminent loss of life by or grievous injury

to an individual aboard the International Space Station. It is the

authority to make this finding and to notify Congress that has now

been delegated to the NASA Administrator. For each such notice

a report to Congress is also required, but not necessarily before the

7

extraordinary payment is made. Specifically section 6(f)(2) of the

INA states that not later than 30 days after notifying Congress

that NASA will make extraordinary payments the President shall

submit to Congress a report describing the progress made in analyzing Russia’s cooperation in nonproliferation to Iran along with

the results of that review to date; and, two, the measures that

NASA is taking to ensure that the conditions posing a threat of imminent loss of life or grievous injury are not repeated and that future extraordinary payments for those purchases are not necessary.

But neither the act nor its legislative history provide guidance

concerning the meaning or scope of the phrase ‘‘imminent loss of

life by or grievous injury to individuals’’ or the circumstances in

which it should be invoked. So to implement the safety-related provision we first reviewed the accepted rules of statutory interpretation to see how best to interpret the narrow exception placed into

the statute by Congress. A definitive legal text in this area of the

law states: It has been called a golden rule of statutory interpretation that unreasonableness of the result produced by one among alternative possible interpretations of a statute is reason for rejecting

that interpretation in favor of another which would produce a reasonable result. It is a well-established principle of statutory interpretation that the law favors rational and sensible construction.

The Supreme Court echos that opinion frequently. Therefore,

NASA has to interpret this provision and apply both the INA payment restrictions and the exception for crew safety in a manner

that achieves reasonable and intended results and provides clear

and rational guidance to mission operations managers.

In addition to simple application of the rules of statutory construction, we also looked to other areas of Federal law and practice

for insight into the meaning and application of an imminence test

for matters involving health and safety. While even expert opinions

may differ over whether imminent safety concerns exist in a specific situation, one point is clear: In health and safety cases, imminent does not mean immediate. If technical expertise leads to the

conclusion that an impending accident or disaster threatening to

kill or cause serious physical harm is likely to occur, then the

threat is imminent even if not necessarily immediate. Indeed, Federal courts have noticed on numerous occasions that agencies

should avoid narrow or limited construction of statutes concerned

with the protection of human safety.

From this research our conclusion was that in interpreting the

safety exception, we had to abandon the notion that the word ‘‘imminent’’ should be taken literally to mean immediate. That interpretation would lead to one of two results, either of which appears

to go beyond the expressed intent of Congress and could easily lead

to an unreasonable result. For example, such an interpretation

could require that no purchase of required safety-related goods or

services could be made until someone’s life was in actual jeopardy.

The legislative record provides no support for that extreme proposition, which would mean that NASA, faced with a situation involving human beings in definite, significant and current peril, could

not respond until specific determinations and notifications were

made.

8

The second problem with interpreting ‘‘imminent’’ to mean immediate is that if NASA determined that a safety requirement exceeds

current contract requirements the agency could not address that

requirement unless and until it developed into an actual life

threatening emergency. Since the threatening situation could not

be addressed in advance, continued performance of the program

would compel NASA to launch crews to the station knowing that

an unnecessarily dangerous situation to which it was not prepared

to respond could arise. Given NASA’s emphasis on safety and on

simple moral grounds as well, NASA would not be able to knowingly launch crews to the ISS under those circumstances. Such a

result would halt the ISS program and mean that the crew safety

exception was self-nullifying and meaningless, another reason to

conclude that Congress did not intend such a result.

These observations led us to the conclusion that the use of the

word ‘‘imminent’’ in the INA was consistent with its use in the

safety cases cited earlier. This in turn means that NASA could respond to newly recognized dangers and act to avoid placing people

in situations posing mortal or other serious personal risk. I believe

this interpretation is legally compelling as reasonable and consistent with both the rules of statutory interpretation and the intent of Congress. Indeed, given the unpalatable results of interpreting ‘‘imminent’’ more restrictively, I doubt that Congress could

have intended any other result.

In summary, I believe that NASA’s interpretation is appropriate

and indeed a conservative one. It gives effect to the statute—it

gives effect to the exception written into law but does not let the

crew safety exception swallow the general rule against extraordinary payments to the Russians.

Even in light of the paramount congressional and agency concern

for crew safety, it does not follow, for example, that NASA may pay

a Russian entity for any effort for which some tangential or remote

link to crew safety can be identified. Instead, the rule of statutory

construction compels the conclusion that to be compliant with the

statute NASA be able to demonstrate that protecting the ultimate

safety of the ISS crew is paramount to the transaction and that the

acquisition of the goods and services will significantly reduce safety-related risks to the international crew and to the overall ISS.

At least three factors appear to be highly relevant to such determination. First, the goods and services should be necessary to meet

U.S. standards for crew training and to reduce overall safety risk

to the ISS. The second, the procurement will either prevent the occurrence of conditions that would pose a threat of imminent loss of

life by or grievous injury to individuals aboard the station or enable U.S. personnel to respond promptly and effectively to those

that do occur. Those are considered the Apollo 13 response type

purchases, the requirement. And third, the required crew safety capabilities and equipment are required to be available for use by the

ISS program as soon as possible as time is of the essence.

In conclusion, Mr. Chairman, for the reasons described above, it

is my opinion that NASA has a thorough working understanding

of the conditions that must be met in order to utilize the crew safety exception. It is with this interpretation that the needs of the ISS

program to make purchases from Rosaviakosmos as described by—

9

to be described by Mr. Hawes are analyzed to determine if they are

permissible under the INA.

Thank you.

Chairman GILMAN. Thank you, Mr. Frankle.

Mr. Hawes, again you may put your full statement in the record

or summarize as you deem appropriate.

STATEMENT OF W. MICHAEL HAWES, DEPUTY ASSOCIATE ADMINISTRATOR FOR SPACE FLIGHT DEVELOPMENT, OFFICE

OF SPACE FLIGHT, NASA

Mr. HAWES. I would like to just summarize some points. I believe

that NASA vigorously follows the U.S. laws and regulations relating to nonproliferation. As requested in the invitation letter, I will

focus on NASA’s intention to purchase a limited amount of goods

from the Russian Aviation and Space Agency under the crew safety

exception of the INA. As you know, now NASA has planned for

some time to purchase some hardware from the Russian Aviation

and Space Agency to further its contingency planning and to further improve and enhance the safety of the International Space

Station. We heard earlier comments of unwillingness to meet responsibility. We take our responsibility very seriously in terms of

crew safety in the planning and execution of the International

Space Station. We also take very seriously our responsibility under

the provisions of this act, and we have thoroughly analyzed and

vetted the purchases that have been proposed by our program team

in Houston for their applicability in this crew exemption status.

Two items were recently purchased, as you know, under the service module exception, those that were required for contingency

planning and activities on the International Space Station. One of

those items because of the successful launch of the service module

is no longer needed, and as we notified Congress in our operating

plan letter just recently, we have terminated that activity. We are

now finishing our deliberate review of the items that we proposed

purchasing, and as the ISS program executive, I will shortly recommend to the NASA Administrator that a limited set of hardware

and equipment that can only be provided by Rosaviakosmos in a

timely fashion be procured to prevent certain types of safety

threats to the ISS crew.

These equipment include on-orbit safety equipment, simulation

and training capability, and integrated operations support and

service. As the lead agency in the ISS partnership, it is NASA’s

duty to ensure that we have done everything possible to ensure the

safety of the in orbit crew while we proceed with the most complex

and difficult international scientific endeavor ever attempted. We

would be negligent and Congress would rightfully criticize NASA if

we were to allow a situation to develop in which our in orbit crews

and our mission control teams could not respond to emergencies. I

do not believe that it could be the intent of the Congress to prevent

NASA from being able to respond appropriately and successfully to

an Apollo 13 type of emergency.

Therefore, in order to improve our ability to prevent such situations, we feel strongly that a limited purchase of Russian hardware

under the crew safety provisions is the most prudent course of acVerDate 11-MAY-2000 17:14 Feb 27, 2001 Jkt 000000 PO 00000 Frm 00013 Fmt 6633 Sfmt 6633 F:\WORK\FULL\H101200\69980 HINTREL1 PsN: HINTREL1
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tion and is in fact required if NASA is going to continue to be a

responsible steward of the Nation’s space program.

As you know, NASA has been recently delegated the authority by

the President to determine which purchases come under the crew

safety exception of the INA. The specific timing of the congressional notification by the NASA Administrator will be based solely

on NASA’s assessments of the safety needs of the International

Space Station.

I thank you, and I will be happy to respond to any questions.

Thank you very much.

Chairman GILMAN. Thank you very much, Mr. Hawes. I understand that the crew of the space shuttle Discovery is scheduled to

dock with the International Space Station tomorrow and remain

aboard the station for a week. Does NASA consider that those crew

members face imminent loss of life or grievous injury during their

week aboard the station?

Mr. HAWES. No, we do not.

Chairman GILMAN. In what way are the items that you plan to

purchase from Russia necessary to prevent loss of life aboard the

space station?

Mr. HAWES. The items that we are considering purchasing in

some cases are specific hardware to be utilized by the crew on orbit

during their long stay expeditions, such as a SAFER system, which

in our acronym world, is a Simplified—Simplified Aid for EVA Rescue. I am sorry. My own acronyms lose me. That is a small backpack that would allow any space walking crewmen to be able to

translate back to the space station if their safety tether breaks or

becomes disconnected. We have that capability for the United

States developed space suits. We do not have that capability for the

Russian provided space suits which we will be using in some cases

on the space station.

The other capabilities that we are talking about procuring are

mock-ups and trainers of the Russian elements to be utilized in

Houston so that not all of our teams have to travel all the time to

Russia both for training and for the use of these capabilities in response planning to real time mission anomalies. We are also intending to purchase software testing and certain hardware certification testing to ensure the compatibility of all of the systems that

we are required to use on the space station.

I believe these are very specific purchases that have all been reviewed for their applicability to enhance the crew safety in the program and are necessary for us to plan ahead and train both our

flight crews and our mission control teams to be able to respond

to situations that will arise on orbit in the space station.

Chairman GILMAN. Mr. Hawes, are any of these items available

in other countries aside from Iran?

Mr. HAWES. All of these items are Russian in origin. They are

mock-ups and trainers, for instance, of the Russian elements.

Chairman GILMAN. That is not what I am asking. Are these

items available in other countries?

Mr. HAWES. Not at this point, no.

Chairman GILMAN. They are not available at all except from—— Mr. HAWES. They could be developed probably at a much longer

schedule, at a much higher cost, but would still have an uncertain

11

fidelity with regard to the actual Russian elements that are flying

as part of this space station.

Chairman GILMAN. If your agency doesn’t buy these items, are

the crew members on the station likely to be grievously injured or

lose their lives?

Mr. HAWES. We have operational work-around procedures for

these situations that we believe we can continue to fly in the short

term, but in terms of long-term solutions that those would not be

appropriate and we should continue to pursue higher fidelity training and operational capability in the United States.

Chairman GILMAN. Mr. Hawes, if you do buy these items will the

risk of loss of life be eliminated?

Mr. HAWES. I think it will be significantly reduced by having the

proper training and real time response capability here in the

United States to manage space station anomalies.

Chairman GILMAN. Can none of these items that you plan to buy

from Russia under the imminent loss of life exception be bought

here in the United States or elsewhere outside of Russia?

Mr. HAWES. As I said, these are items that are all Russian in origin. We certainly could pay dramatically more on a much longer

schedule and with questionable fidelity. One of these items actually

has a rather interesting heritage. We had posed to an American

company to build this Simplified Aide for EVA Rescue for the Russian suit. They came back to us after struggling with this problem

and said we cannot meet schedule nor cost and we recommend that

you go to the Russian manufacturer of their space suit, Zvezda, and

procure this device.

Chairman GILMAN. Thank you. Mr. Gejdenson.

Mr. GEJDENSON. Thank you, Mr. Chairman. It seems to me that

what you are doing here is you are buying items that are fundamentally designed to increase either training or survival of crew

members, is that correct?

Mr. HAWES. Yes, sir.

Mr. GEJDENSON. And what you are assuming is that the Congress was reasonable enough that they would desire that you would

maximize the safety and training of the crew even if, you know, a

statistical analysis of the life and death threat of failing to buy this

equipment might not put it at the forefront of immediate and imminent danger. Still, rational people in the Congress would want

you to do everything you could to keep our people in space as safe

as possible?

Mr. HAWES. Absolutely, sir. I believe that the Congress has

shown time and again that they are very supportive of the International Space Station program and its execution.

Mr. GEJDENSON. And in answering the Chairman’s questions,

these products are not available from other countries or in the

United States?

Mr. HAWES. No, they are not.

Mr. GEJDENSON. So you came to the conclusion that a rational

Congress would want you to not just take a look at immediate danger, but to minimize danger to the people that go in outer space,

is that correct?

Mr. HAWES. Absolutely, sir.

Mr. GEJDENSON. Thank you.

12

Chairman GILMAN. Mr. Rohrabacher.

Mr. ROHRABACHER. Yes. And Mr. Gejdenson’s line of questioning

certainly makes a lot of sense when taken totally out of the context

of our efforts to keep weapons of mass destruction out of the hands

of people who will kill Americans in the Middle East and elsewhere. It has something else to do, doesn’t it, we are not just talking today about NASA policy, are we? We are talking about an effort by the United States Government to prevent weapons of mass

destruction from getting into the hands of people who hate our

country. Is that not correct?

Mr. HAWES. And as I have said, sir, I believe we are vigorously

following——

Mr. ROHRABACHER. The answer is yes, is it not?

Mr. HAWES. Yes, and we are following the——

Mr. ROHRABACHER. Thank you very much. Thank you very much.

So, Mr. Gejdenson, this isn’t just about those questions. The answer is those questions in the context of people who hate our country getting their hands on weapons that will put the lives of millions of Americans in jeopardy and also the lives of our American

military personnel, who we happen to be mourning today for the

very same reason.

Mr. GEJDENSON. Will the gentleman yield?

Mr. ROHRABACHER. Yes, I will.

Mr. GEJDENSON. Recognizing the danger of countries like Iran or

proliferation from any country, it seems to me not an unreasonable

conclusion, if you are a Federal agency, that Congress would want

you to take every effort to make sure that our personnel, whether

on a ship in the Persian Gulf or being sent into space, have the

maximum chance for survival. And I think what they have told us,

if you can demonstrate them wrong I would be interested, that the

equipment they have purchased is either for training or used in increasing the chances of survival.

Mr. ROHRABACHER. Thank you, Mr. Gejdenson. I will reclaim my

time. Whereas Mr. Gejdenson isn’t on the Science Committee and

is certainly not on my Subcommittee which oversees this very effort, he is unaware of the battles that have taken place with NASA

and this Administration as to try to mold our relationship, this specific relationship over the International Space Station with the

Russian Government, in a way that we believe is beneficial to the

United States of America and not to the political whims of this Administration and their short-term goals with the former Soviet

Union. What we have here, Mr. Chairman, is a manifestation not

of an effort by NASA to look at safety issues, but instead is a manifestation of policy by this Administration to deal in a certain way

with the Russian Government, even if that way in dealing with the

Russian Government is contrary to the wishes of the legislative

branch. This is arrogance, this is thumbing their nose at the legislative branch and our power and oversight not only of this Committee in terms of nonproliferation but in terms of my other Committee and my Subcommittee on Space and Aeronautics. This Administration time and again has ignored ours pleas and from the

Science Committee and Chairman Sensenbrenner and myself and

the other Members of the Aeronautics and Space Subcommittee to

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try to deal specifically with Russian companies rather than going

through the Russian space agency.

Maybe you could tell us, you just mentioned a moment ago that

there was a recommendation to go directly and make your purchase directly from the manufacturer of the space suit. Is that

what NASA did or did they make this purchase through the Russian space agency?

Mr. HAWES. First off, we have not made any of these purchases.

Mr. ROHRABACHER. All right.

Mr. HAWES. We are proposing—I am proposing to make these

purchases and as yet—— Mr. ROHRABACHER. Are you proposing to make it through the

Russian space agency?

Mr. HAWES. We are proposing to make the purchases through

the Russian space agency.

Mr. ROHRABACHER. All right. That answers the question. Thank

you very much. Which is exactly opposite, Mr. Chairman, I might

add, again exactly opposite of the direction that has been given by

Chairman Sensenbrenner and myself and other Members of the

Space and Aeronautics Subcommittee and Science Committee to try

to make what purchases they can not through the Russian space

agency but directly through contracts with Russian companies so

that the money can specifically be held accountable. Again this

problem is flowing not from a concern for safety, but instead for political considerations of this Administration in its dealings with a

power structure in the former Soviet Union, now Russia.

Let me get back to some of the testimony that we have had here

today. By the way, let me just say this testimony demonstrates

and, Mr. Frankle, with all due respect and I am sorry, I think is

why people hate lawyers. Your testimony demonstrates why so

many people hate lawyers in this country. It is not only—well, it

is unbelievable that we have people making these type of arguments directly to the people who wrote the legislation. You know,

it is incredible. And let me ask, who was it who directed you to

write this report, this opinion? And were you directed to write the

opinion specifically to justify that position? Or did you—are you

telling us that you just on your own came up with this idea that

that was your conclusion after reading the legislation?

Mr. FRANKLE. Mr. Rohrabacher, after I had seen the legislation,

there was a question posed to me as to the interpretation of the

crew safety exception.

Mr. ROHRABACHER. Who posed that question to you?

Mr. FRANKLE. The program. I don’t remember the exact individual. It may have been Mr. Hawes. It may have been somebody

else. We looked at it. We looked at the legislative history, which

was not extensive. We looked at the cases, and I came to that conclusion on my own that that was what the interpretation is.

Mr. ROHRABACHER. You came to that conclusion on your own;

you were not instructed by anyone here or higher up in NASA to

come to that conclusion?

Mr. FRANKLE. I am the chief legal officer of the National Aeronautics Space Administration and nobody directs me to make a

specific determination.

Mr. ROHRABACHER. Where did you get your law degree, sir?

14

Mr. FRANKLE. Georgetown University Law Center.

Mr. ROHRABACHER. Let me say it is your answer to that question

that stretches your credibility even further. I don’t know when it

will break. It is like the tether on that astronaut going out there,

eventually it is going to break and there are going to be some problems. And what we have here is something that is stretching credibility beyond the breaking point that someone could interpret the

law. This is beyond bending over backwards. This is legal contortions that boggle the mind.

And that is why people are upset because it appears to be just

another Clintonesque, what the definition of ‘‘is’’ is, in order to pursue a policy or pursue one’s goals in an arrogant manner; who

cares what the legislative branch says, who cares what other people’s thoughts are.

Mr. Chairman, my time is up but I would hope that we would

have a second round of questioning. This is a disgrace.

Chairman GILMAN. I believe we will.

Ms. Ros-Lehtinen. Mr. Nethercutt.

Mr. NETHERCUTT. Thank you, Mr. Chairman. Mr. Frankle, I will

try not to pile on here but this does seem to me to be a curious

interpretation of the Iran Nonproliferation Act. I could agree with

you, sir, if we didn’t have the word ‘‘imminent’’ there. You indicate

that imminence does not mean immediate. I can understand an interpretation like that if you talked about loss of life and/or grievous

injury to individuals. The nature of space exploration is risky. I assume you would agree with that. You send people up in space,

there is some risk involved.

Mr. FRANKLE. Yes, sir.

Mr. NETHERCUTT. So it seems to me that with all due respect

where your interpretation fails is in your focus on the word ‘‘imminent/immediate,’’ because it seems under that interpretation then

that any modification or training or additional equipment could be

interpreted to significantly reduce safety risks and so therefore it

is convenient. And I don’t mean that in a negative fashion to you,

but it is convenient to broadly interpret the word ‘‘imminent’’ in

such a fashion that you have. And I don’t even know that it is convenient to do it. I am a little surprised that you might broaden the

definition of ‘‘imminent’’ like you have.

Any response to that?

Mr. FRANKLE. Yes, sir. I don’t think that we stretched anything

significantly at all, sir.

Mr. NETHERCUTT. Did you stretch it at all or just not significantly?

Mr. FRANKLE. You have to interpret a statute when it is applied.

You have to figure out how to apply it. The amendment was clearly

one that was intended to help protect the lives of the astronauts

on the International Space Station. When we looked at how those

same words were used in other cases, in other statutes, we found

that ‘‘imminent’’ did not have and is not generally given by the

courts a meaning that means—you might believe ‘‘imminent’’ really

means. Specifically, one of the cases that is cited in my testimony

is talking about—I believe it is OSHA, and it says since the act in

question is remedial and a safety statute with primary concern

being the preservation of human life, it is the type of an enactment

15

to which a narrow or limited construction is to be issued. And

then—one more sentence if you let me, sir. And then to limit imminent danger to immediate danger would result in many cases in

gambling with human lives. Such a result is clearly inconsistent

with the humane purposes of the act.

And I believe this amendment from all I could see and I still believe that this amendment was put in for humane purposes, so that

we would not unnecessarily place U.S. astronauts at risk, and

therefore we should not interpret it too narrowly and we should interpret consistent with this.

And, yes, space is a dangerous place. So we need to have in place

the ability to respond to on-orbit emergencies when they come up.

Mr. NETHERCUTT. I understand that, and I appreciate that. But

the name of the act is not OSHA, the name of the act is the Iran

Nonproliferation Act. That should give you, as a good lawyer, some

sense of what the overriding expectation is of the statute. And that

is why it seems to me you have sort of conveniently—and I say it

respectfully to you—looked at the safety side and ignored essentially what the Congress, Mr. Rohrabacher and others—and I am

on the Science Committee as well as the Chairman—have done to

try to prevent nonproliferation.

So I think you would be hard-pressed to identify any language

that could be any stronger than ‘‘imminent’’ that would also cure

the deficiency or the broad definition that you have concluded is

there.

Mr. FRANKLE. May I respond, sir?

Mr. NETHERCUTT. Well, I guess we will have a second round and

I will have a chance to ask Mr. Hawes some questions. I have some

serious questions of him. But go ahead.

Mr. FRANKLE. We understand that this is the Iran Nonproliferation Act, and we absolutely concur in the need to encourage nonproliferation. But this is an exception to that. Congress understood

by putting an exception in, Congress understands that there might

be instances when it is necessary to do something you would not

otherwise like to do. Otherwise, it would not have to have an exception. So we are trying to interpret the humane purposes of the

exception.

I don’t believe that if you look at the factors that we say you

must consider in making this specific one, the fact that it is going

to have an absolute impact on our ability to maintain our standards, that it will allow us to prevent the situations that would pose

immediate risk of death or grievous injury would be reduced, or our

ability to respond would be increased, and that time was of the essence. You will see we were trying to make this as narrow as humanly possible because of the importance of the nonproliferation

activity, but at the same time allow us to run our program in a

way that is sensible and not unnecessarily riskful to the astronauts.

Mr. NETHERCUTT. I will follow up with you, sir. Thanks.

Chairman GILMAN. Thank you, Mr. Nethercutt. We will now go

into a second round. Mr. Gejdenson?

Mr. GEJDENSON. No questions.

Chairman GILMAN. Mr. Rohrabacher.

Mr. ROHRABACHER. Thank you very much.

16

So, Mr. Frankle, your testimony today is that you were not given

any instructions as to what the outcome of your analysis of this

would be. You weren’t told to give a suggestion, give us some sort

of wording that will justify us going in this other direction?

Mr. FRANKLE. No, sir, I was not.

Mr. ROHRABACHER. All right. Is there any wording that you could

have suggested to us now that—clearly you have the people here

who authored the legislation that you analyzed in a way in which

we are making clearer to you, your interpretation was exactly the

opposite of what we intended. What wording would you have put

into the bill that would have ensured that a legal interpretation

from you and others would not have permitted you this leeway?

Mr. FRANKLE. Without getting to the point of actually drafting

provisions, it seems to me that if you go to the extent of putting

a crew safety exception into a bill, that it should be a usable and

meaningful exception. If it was really to be interpreted as only

being able to be used when people were physically and immediately

and currently at life-threatening risk, I believe an exception won’t

work. So I am not sure you could have drafted a crew safety exception that would have had the impact that has been suggested.

I think that once you do, you have to allow the agency to do

things that are necessary to preserve and protect the safety of the

astronauts.

Mr. ROHRABACHER. So there was no way that we could have written this legislation that would have prevented your interpretation

of going exactly opposite to the intent of the legislation?

Mr. FRANKLE. I am saying I don’t see how you could write something that really, in fact, was a crew safety exception.

Mr. ROHRABACHER. Do you believe that it is up to Congress to

establish policy, and not unelected officials in government agencies

like NASA?

Mr. FRANKLE. Congress certainly passes the laws, sets those policies, and if they are signed by the President they become law. And

we are sworn to uphold the Constitution and law of the United

States, and I believe we do, sir.

Mr. ROHRABACHER. And sets the priorities in terms of things

like—nonproliferation has a certain priority, and thus we put certain things in the law, based on that priority; not in your job at

NASA, maybe not even the International Space Station, but we actually have priorities that sometimes go beyond your purview as an

unelected official.

Mr. FRANKLE. Yes, sir.

Mr. ROHRABACHER. All right. I think that what we have here is

an example of unelected people making the determination for the

policy of the United States Government, no matter what the people

who are elected to write the laws are going to write, because there

is a difference in priority: your ideas, the safety of the crew, within

the context of getting the mission done. And obviously Congress

meant that nonproliferation has to be a high priority, and perhaps

would cause delays, if necessary, or restructuring of programs, like

our relationship with Russia, if the Russians continued to engage

themselves in activity that put millions of American lives or even

certain sailors lives at risk.

17

Is this hard for people to understand? I mean, it seems to me

that is very clear, and it seems to me, with all due respect, that

your agency, and that you gentlemen, and especially by your last

answer, are suggesting that the elected officials are not going to set

the policy.

Mr. FRANKLE. I don’t think we—I certainly did not mean to

imply that. I think that the elected officials through the legislative

process do set priority, and it is up to the agencies to implement

it, and I believe we have been and are implementing it to the best

of our ability.

Mr. ROHRABACHER. Mr. Chairman, just for the record, being the

chairman of the Space and Aeronautics Subcommittee and having

followed this issue and other Space Station related issues very

closely, let me just say that NASA has demonstrated, time and

again—and it is not necessarily NASA, it might be other people in

the Administration who are directing those people at NASA to

move in certain directions—but, time and again, our efforts to direct policy in the Space Station, especially with our relationship

with Russia, has been ignored. And this is particularly egregious

today, because we believe that the efforts of Congress to protect the

lives and safety of our citizens, the safety of our country, are at

sake.

Chairman GILMAN. The gentleman’s time has expired. Mr.

Nethercutt, please be brief.

Mr. NETHERCUTT. I will be brief, Mr. Chairman.

Mr. Hawes, would you agree, sir, that you have been wanting to

buy $24 million to $35 million worth of equipment for well over a

year, including spacesuits and tethers and those things that we

have talked about here today?

Mr. HAWES. Yes, we have been pursuing purchase of much of

this equipment for some time.

Mr. NETHERCUTT. That is right. And we have done—how many

EVAs, extra-vehicular activity, have there been that have occurred

on the Space Station thus far and in space?

Mr. HAWES. Using Russian suits on the Space Station? Zero.

Mr. NETHERCUTT. Okay. But there has been an awful lot done

with the American spacesuits, right?

Mr. HAWES. Which have the backup capability we are trying to

pursue for the Russians.

Mr. NETHERCUTT. So by your logic, it sounds like you are saying

if we don’t have that additional Russian equipment, that somehow

our people’s lives are in danger, right?

Mr. HAWES. We will have U.S. astronauts conducting space

walks——

Mr. NETHERCUTT. You didn’t answer my question.

Mr. HAWES. Yes, I am answering your question. We will have

U.S. Astronauts conducting space walks in Russian spacesuits on

the Space Station.

Mr. NETHERCUTT. That is right. What is wrong with American

spacesuits? We have to have the Russian spacesuits?

Mr. HAWES. In some cases we have to use the Russian

spacesuits, because they are best suited to the tasks that we have

to do. But in the early part of the Space Station, we will have only

18

Russian suits, because we will not yet have the U.S. Airlock that

allows us to do space walks with the U.S. suits.

Mr. NETHERCUTT. I am going to submit some questions for the

record, if I may.

Chairman GILMAN. Without objection, and if you will respond to

those questions at an early date.

[The information referred to is available in the appendix.]

Chairman GILMAN. Thank you for being with us, Mr. Nethercutt.

How soon do you expect the NASA Adminisrator to decide whether to proceed with these purchases from Russia?

Mr. HAWES. I cannot answer, sir. I have yet to take these—— Chairman GILMAN. Where are you in the decision-making process?

Mr. HAWES. I have built my list. I have vetted it against the

criteria—— Chairman GILMAN. And who has to make the decision?

Mr. HAWES. The Administrator has to make the decision.

Chairman GILMAN. And you have no idea how soon he will be

making that decision?

Mr. HAWES. I have to go through my chain of command, sir, to

the NASA Adminisrator. I expect that to be shortly.

Chairman GILMAN. We have been told by State that NASA will

not make any decisions about use of the imminent loss of life exception until after the first report required to be submitted to Congress under the Iran Nonproliferation Act has in fact been submitted; is that correct?

Mr. HAWES. We have absolutely no agreement with State that

these events are tied whatsoever. We will proceed on the basis of

safety.

Chairman GILMAN. You have not made any agreement with the

State Department?

Mr. HAWES. No.

Chairman GILMAN. I guess because we have votes on the floor,

we will conclude our hearing.

I thank you, gentleman, for appearing before our Committee.

The Committee stands adjourned.

[Whereupon, at 11:23 a.m., the Committee was adjourned.]

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