[House Hearing, 106 Congress]
[From the U.S. Government Printing Office]




                               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/


69-980 DTP                 WASHINGTON : 2001

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                 BENJAMIN A. GILMAN, New York, Chairman
WILLIAM F. GOODLING, Pennsylvania    SAM GEJDENSON, Connecticut
JAMES A. LEACH, Iowa                 TOM LANTOS, California
HENRY J. HYDE, Illinois              HOWARD L. BERMAN, California
DOUG BEREUTER, Nebraska              GARY L. ACKERMAN, New York
DAN BURTON, Indiana                      Samoa
ELTON GALLEGLY, California           DONALD M. PAYNE, New Jersey
CASS BALLENGER, North Carolina       SHERROD BROWN, Ohio
DANA ROHRABACHER, California         CYNTHIA A. McKINNEY, Georgia
DONALD A. MANZULLO, Illinois         ALCEE L. HASTINGS, Florida
EDWARD R. ROYCE, California          PAT DANNER, Missouri
PETER T. KING, New York              EARL F. HILLIARD, Alabama
STEVE CHABOT, Ohio                   BRAD SHERMAN, California
    Carolina                         STEVEN R. ROTHMAN, New Jersey
MATT SALMON, Arizona                 JIM DAVIS, Florida
AMO HOUGHTON, New York               EARL POMEROY, North Dakota
TOM CAMPBELL, California             WILLIAM D. DELAHUNT, Massachusetts
JOHN M. McHUGH, New York             GREGORY W. MEEKS, New York
KEVIN BRADY, Texas                   BARBARA LEE, California
RICHARD BURR, North Carolina         JOSEPH CROWLEY, New York
PAUL E. GILLMOR, Ohio                JOSEPH M. HOEFFEL, Pennsylvania
                    Richard J. Garon, Chief of Staff
          Kathleen Bertelsen Moazed, Democratic Chief of Staff
                  Stephen G. Rademaker, Chief Counsel
                     Liberty Dunn, Staff Associate

                            C O N T E N T S



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


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



                       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 unanimously, 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 
    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 
    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 intentions 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 
    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 
    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 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 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 
    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.

                  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 to utilize the act's exception for purchases 
necessary to ensure crew safety on the International Space 
    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 
    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 
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.
    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 
    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--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.


    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 
    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 
    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 action and is in fact required if NASA is going to 
continue to be a responsible steward of the Nation's space 
    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 
    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 
    Mr. Hawes. They could be developed probably at a much 
longer schedule, at a much higher cost, but would still have an 
uncertain 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 
    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 
    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.
    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 
    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 
    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 
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 
    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?
    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 
    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 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 
    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.
    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 
    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.
    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 
    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 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. 
    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 
    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.]
                            A P P E N D I X


               Material Submitted for the Hearing Record