Nelson, Hutchison Differ on INKSNA Solution for NASA

Senator Bill Nelson (D-FL) and Senator Kay Bailey Hutchison (R-TX), long-standing partners on most issues concerning NASA programs, have amendments pending to the FY2013 National Defense Authorization Act (S. 3254) with different solutions to NASA’s need for a waiver from the Iran-North Korea-Syria Nonproliferation Act (INKSNA).  The Senate plans to resume debate on the bill tomorrow.

The purpose of INKSNA is to incentivize Russia to stop providing nuclear, chemical or biological weapons technologies to Iran, North Korea and Syria.   It is major issue, but many wonder how NASA got in the middle of it.

When the law was first passed in 2000 as the Iran Nonproliferation Act (INA) there were allegations that Russia’s space agency, then headed by Yuri Koptev, was violating the Missile Technology Control Regime (MTCR).  The MTCR is an international agreement that seeks to stem the transfer of ballistic missile technology. Getting Russia to adhere to it was one of the reasons the United States invited Russia to join the ISS program in the first place.  When the INA was being marked up by the House Science Committee in July 1999, then-chairman Jim Sensenbrenner (R-WI) said:  “Earlier this year, there were publications of the fact that entities of the Russian Space Agency were violating the MTCR.  That’s why there is Section 6 in this bill.”

Section 6 prohibits the U.S. government from making “extraordinary payments” to Russia related to ISS after January 1, 1999 unless the President determines and certifies to Congress that Russia is not transferring weapons of mass destruction or missile systems to Iran (or Syria or North Korea as the Act was later amended).  The term extraordinary payments is defined in section 7 (1) of the law (50 U.S.C. 1701).

The White House has not been willing to make that certification.   That is a problem for NASA because it needs certain services from Russia in order for the ISS program to continue, for example crew transportation and “lifeboat” services.   Consequently, NASA has required waivers from the law in order to enter into contracts with Russia for those services.   Congress agreed to pass waivers in 2005 and 2008.  The 2008 waiver allows NASA to contract for services that will be provided through July 1, 2016. 

With the decision to keep the ISS operating through 2020, however, NASA will require those services beyond 2016 and therefore needs another waiver.  Although some of the commercial crew companies say they will be ready to transport astronauts to the ISS by 2015 or 2016, NASA is planning on 2017, so needs to contract with Russia for additional crew transportation services.    It also is not clear if any of the U.S. commercial companies will be able to provide lifeboat services.  To do so, the spacecraft would have to designed to be able to remain docked to the ISS for many months, like Russia’s Soyuz, so crews can evacuate in an emergency.

The Hutchison amendment (SA 3078) would simply extend the time period and allow NASA to contract for services that would be provided through December 31, 2020.  The Nelson amendment (SA 3267), by contrast, would change the definition of “extraordinary payments” by deleting subsection (7(1)(B)) that applies to contracting for services after January 1, 1999.  Under his amendment, the U.S. government would be prohibited only from paying Russia for any work that Russia had previously agreed to provide at its expense (the first part of the definition).

The Nelson approach would solve the problem permanently, but the ongoing geopolitical situations with Iran and Syria may make it difficult to win support.  NASA is anxious to obtain the waiver soon because it estimates that it takes about three years to negotiate contracts with Russia and it then takes about 24 months to build Soyuz spacecraft.

Separately, both the Hutchison and Nelson amendments would extend third party launch liability indemnification for commercial launch service companies for two more years.  The Hutchison amendment also has a section that would require NASA to fund the SLS/Orion program in FY2014 and FY2015 at the same proportional level of the Exploration budget as those programs receive in FY2013.   The Nelson amendment does not address that issue.

The number of amendments to S. 3254 is currently up to 366, but Senators and their staffs were expected to work through this weekend to determine how many of those really need to be brought to the floor for debate.   The Senate is expected to resume debate on S. 3254 at 2:00 pm ET Monday.  The House passed its version of the bill in May.   Once it passes the Senate, the two will have to reach agreement on a final version.