Sec. 1236. Limitation on use of funds to vote to approve or otherwise adopt any implementing decision of the Open Skies Consultative Commission and related requirements
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None of the funds authorized to be appropriated or otherwise made available by this Act or any other Act for fiscal year 2017 or any subsequent fiscal year may be used to vote to approve or otherwise adopt any implementing decision of the Open Skies Consultative Commission pursuant to Article X of the Open Skies Treaty to authorize approval of requests by state parties to the Treaty to certify infra-red or synthetic aperture radar sensors pursuant to Article IV of the Treaty unless and until the Secretary of Defense, jointly with the relevant United States Government officials, submits to the appropriate congressional committees the following:
A certification that the implementing decision would not be detrimental or otherwise harmful to the national security of the United States. A report on the Open Skies Treaty that includes the following: The annual costs to the United States associated with countermeasures to combat potential abuses of observation flights by the Russian Federation carried out under the Treaty over European and United States territories involving infra-red or synthetic aperture radar sensors. A plan, and its estimated comparative cost, to replace the Treaty architecture with a more robust sharing of overhead commercial imagery, consistent with United States national security, with covered state parties, excluding the Russian Federation.
An evaluation by the Director of National Intelligence of matters concerning how an observation flight described in subparagraph
(A)could implicate intelligence activities of the Russian Federation in the United States and United States counterintelligence activities and vulnerabilities. An assessment of how such information is used by the Russian Federation, for what purpose, and how the information fits into the Russian Federation’s overall collection posture. Not later than 90 days before the date on which the United States votes to approve or otherwise adopt any implementing decision of the Open Skies Consultative Commission as described in subsection (a), the Secretary of State shall— submit to the appropriate congressional committees a certification that— the Russian Federation— is not taking any actions that are inconsistent with the terms of the Open Skies Treaty; is not exceeding the imagery limits set forth in the Treaty; and is allowing observation flights by covered state parties over all of Moscow, Chechnya, Kaliningrad and within 10 kilometers of its border with Georgia’s occupied territories of Abkhazia and South Ossetia without restriction and without inconsistency to requirements under the Treaty; and covered state parties have been notified and briefed on concerns of the intelligence community (as defined in section 3 of the National Security Act of 1947 ( 50 U.S.C. 3003 )) regarding infra-red or synthetic aperture radar sensors used under the Open Skies Treaty; or if the Secretary of State is unable to make a certification under paragraph (1), submit to the appropriate congressional committees a report that contains the reasons why the Secretary cannot make such certification and a justification why it is in the national interest of the United States to vote to approve or otherwise adopt such implementing decision. The Secretary of Defense, jointly with the Secretary of Energy, the Secretary of Homeland Security, the Director of the Federal Bureau of Investigation, and the Director of National Intelligence, shall submit to the appropriate congressional committees on a quarterly basis a report on all observation flights by the Russian Federation over the United States during the preceding calendar quarter. The report required under paragraph
(1)shall include the following with respect to each such observation flight: A description of the flight path. An analysis of whether and the extent to which any United States critical infrastructure was the subject of image capture activities of such observation flight. An estimate for the mitigation costs imposed on the Department of Defense or other United States Government agencies by such observation flight. An assessment of how such information is used by the Russian Federation, for what purpose, and how the information fits into the Russian Federation’s overall collection posture. The requirements of this subsection shall terminate 5 years after the date of the enactment of this Act. Not more than 65 percent of the funds authorized to be appropriated or otherwise made available by this Act or any other Act for fiscal year 2017 may be used to carry out any activities to implement the Open Skies Treaty until the requirements described in paragraph
(2)are met. The requirements described in this paragraph are the following: The Director of National Intelligence and the Director of the National Geospatial-Intelligence Agency jointly submit to the appropriate congressional committees a report on the following: Whether it is possible, consistent with United States national security interests, to provide enhanced access to United States commercial imagery or other United States capabilities, consistent with the protection of sources and methods and United States national security, to covered state parties that is qualitatively similar to that derived by observation flights over the territory of the United States or over the territory of a covered state party under the Open Skies Treaty, on a more timely basis. What the cost would be to provide enhanced access to such commercial imagery or other capabilities as compared to the current imagery sharing through the Treaty. Whether any new agreements would be needed to provide enhanced access to such commercial imagery or other capabilities and what would be required to obtain such agreements. Whether transitioning to such commercial imagery or other capabilities from the current imagery sharing through the Treaty would reduce opportunities by the Russian Federation to exceed imagery limits and reduce utility for Russian intelligence collection against the United States or covered state parties. How such commercial imagery or other capabilities would compare to the current imagery sharing through the Treaty. The Secretary of State, in consultation with the Director of the National Geospatial Intelligence Agency and the Secretary of Defense, submits to the appropriate congressional committees a report that— details the costs for implementation of the Open Skies Treaty, including— mitigation costs relating to national security; and aircraft, sensors, and related overhead and implementation costs for covered state parties; and describes the impact on contributions and participation by covered state parties and relationships among covered state parties in the context of the Open Skies Treaty, the North Atlantic Treaty Organization, and any other venues for United States partnership dialogue and activity. Each certification, report, and notice required under this section shall be submitted in unclassified form, but may contain a classified annex if necessary. In this section: The term appropriate congressional committees means— the Committee on Armed Services, the Committee on Foreign Relations, and the Select Committee on Intelligence of the Senate; and the Committee on Armed Services, the Committee on Foreign Affairs, and the Permanent Select Committee on Intelligence of the House of Representatives. The term covered state party means a foreign country that— is a state party to the Open Skies Treaty; and is a United States ally. The term infra-red or synthetic aperture radar sensor means a sensor that is classified as— an infra-red line-scanning device under category C of paragraph 1 of Article IV of the Open Skies Treaty; or a sideways-looking synthetic aperture radar under category D of paragraph 1 of Article IV of the Open Skies Treaty. The term observation flight has the meaning given such term in Article II of the Open Skies Treaty. The term Open Skies Treaty or Treaty means the Treaty on Open Skies, done at Helsinki March 24, 1992, and entered into force January 1, 2002. The term relevant United States Government officials means the following: The Secretary of Energy. The Secretary of Homeland Security. The Director of the Federal Bureau of Investigation. The Director of National Intelligence. The Commander of U.S. Strategic Command and the Commander of U.S. Northern Command in the case of an observation flight over the territory of the United States. The Commander of U.S. European Command in the case of an observation flight other than an observation flight described in subparagraph (E). The term sensor has the meaning given such term in Article II of the Open Skies Treaty.
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Sec. 1236
Limitation on use of funds to vote to approve or otherwise adopt any implementing decision of the Open Skies Consultative Commission and related requirements
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