Sec. 1242. LIMITATION ON AVAILABILITY OF FUNDS RELATING TO IMPLEMENTATION OF THE OPEN SKIES TREATY
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## SEC. 1242 LIMITATION ON AVAILABILITY OF FUNDS RELATING TO IMPLEMENTATION OF THE OPEN SKIES TREATY ###
(a)Prohibition on Activities to Modify United States Aircraft ####
(1)In general None of the funds authorized to be appropriated by this Act or otherwise made available for fiscal year 2019 for research, development, test, and evaluation, Air Force, for arms control implementation (PE 0305145F), Aircraft Procurement, Air Force (line item C135B0/C-135B), or procurement, Air Force, for digital visual imaging system (BA-05, Line Item #1900) may be obligated or expended to carry out any activities to modify any United States aircraft for purposes of implementing the Open Skies Treaty until the President submits to the appropriate congressional committees the certification described in paragraph (2). ####
(2)Certification #####
(A)In general The certification described in this paragraph is a certification of the President that— ######
(i)the President has imposed treaty violations responses and legal countermeasures on the Russian Federation for its violations of the Open Skies Treaty; and ######
(ii)the President has fully informed the appropriate congressional committees of such responses and countermeasures. #####
(B)Delegation The President may delegate the responsibility for making a certification under subparagraph
(A)to the Secretary of the State. ####
(3)Appropriate congressional committees defined In this subsection, the term “appropriate congressional committees” means— #####
(A)the congressional defense committees; and #####
(B)the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives. ###
(b)Limitation on Use of Funds to Vote or Approve Certain Implementing Decisions of the Open Skies Consultative Commission ####
(1)In general None of the funds authorized to be appropriated or otherwise made available by this Act or any other Act for fiscal year 2019 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 following requirements are met: #####
(A)The Secretary of Defense, jointly with the relevant United States Government officials, submits to the appropriate congressional committees the following: ######
(i)A certification that the implementing decision would not be detrimental or otherwise harmful to the national security of the United States. ######
(ii)A report on the Open Skies Treaty that includes the following: ######
(I)The annual costs to the United States associated with countermeasures to mitigate 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. ######
(II)A plan, and its estimated cost through December 31, 2023, to replace the Treaty architecture with an increased sharing of overhead commercial imagery, consistent with United States national security, with covered state parties, excluding the Russian Federation, compared with the current cost of implementing the Open Skies Treaty, including proposed aircraft recapitalization, through December 31, 2023. ######
(III)An evaluation by the Director of National Intelligence of matters concerning how an observation flight described in clause
(i)could implicate intelligence activities of the Russian Federation in the United States and United States counterintelligence activities and vulnerabilities. ######
(IV)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. #####
(B)Not later than 90 days before the date on which the United States votes to approve or otherwise adopt any such implementing decision, the President shall submit to the appropriate congressional committees a certification that— ######
(i)the Russian Federation— ######
(I)is in complete compliance with is obligations under the Open Skies Treaty; ######
(II)is not exceeding the imagery limits set forth in the Treaty; and ######
(III)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 ######
(ii)covered state parties have been notified and briefed, consistent with protection of sources and methods, 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. ####
(2)Waiver #####
(A)In general The President may waive the application of paragraph (1)(B) if the President determines that— ######
(i)the waiver is in the national security of the United States; and ######
(ii)the Russian Federation has taken clear and verifiable action to return to compliance with the Open Skies Treaty. #####
(B)Delegation ######
(i)In general The President may delegate the authority under subparagraph
(A)to waive the application of paragraph (1)(B) to the Secretary of State, in consultation with the Secretary of Defense and the Director of National Intelligence. ######
(ii)Report Not later than 30 days prior to a waiver taking effect pursuant to a delegation of the authority under subparagraph
(A)to waive the application of paragraph (1)(B), the Secretary of State, the Secretary of Defense, and the Director of National Intelligence shall submit to the appropriate congressional committees a report that contains the views of such Secretaries and Director with respect to the waiver. ###
(c)Form Each certification and report required under this section shall be submitted in unclassified form, but may contain a classified annex if necessary. ###
(d)Definitions Except as otherwise provided, in this section: ####
(1)Appropriate congressional committees The term “appropriate congressional committees” means— #####
(A)the Committee on Armed Services, the Committee on Foreign Relations, and the Select Committee on Intelligence of the Senate; and #####
(B)the Committee on Armed Services, the Committee on Foreign Affairs, and the Permanent Select Committee on Intelligence of the House of Representatives. ####
(2)Covered state party The term “covered state party” means a foreign country that— #####
(A)is a state party to the Open Skies Treaty; and #####
(B)is a United States ally. ####
(3)Infra-red or synthetic aperture radar sensor The term “infra-red or synthetic aperture radar sensor” means a sensor that is classified as— #####
(A)an infra-red line-scanning device under category C of paragraph 1 of Article IV of the Open Skies Treaty; or #####
(B)a sideways-looking synthetic aperture radar under category D of paragraph 1 of Article IV of the Open Skies Treaty. ####
(4)Observation flight The term “observation flight” has the meaning given such term in Article II of the Open Skies Treaty. ####
(5)Open skies treaty; 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. ####
(6)Relevant united states government officials The term “relevant United States Government officials” means the following: #####
(A)The Secretary of Energy. #####
(B)The Secretary of Homeland Security. #####
(C)The Director of the Federal Bureau of Investigation. #####
(D)The Director of National Intelligence. #####
(E)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. #####
(F)The Commander of U.S. European Command in the case of an observation flight other than an observation flight described in subparagraph (E). ####
(7)Sensor The term “sensor” has the meaning given such term in Article II of the Open Skies Treaty.
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Sec. 1242
LIMITATION ON AVAILABILITY OF FUNDS RELATING TO IMPLEMENTATION OF THE OPEN SKIES TREATY
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