II

Calendar No. 164

107TH CONGRESS

1ST SESSION S. 1439

To provide and revise conditions and requirements for the ballistic missile

defense programs, and for other purposes.

IN THE SENATE OF THE UNITED STATES

SEPTEMBER 19, 2001

Mr. LEVIN introduced the following bill; which was read the first time

SEPTEMBER 20, 2001

Read the second time and placed on the calendar

A BILL

To provide and revise conditions and requirements for the

ballistic missile defense programs, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Ballistic Missile De5 fense Act of 2001’’.
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1 SEC. 2. PRESIDENTIAL CERTIFICATION AND EXPEDITED

2 CONGRESSIONAL APPROVAL PROCESS FOR

3 CERTAIN USES OF BALLISTIC MISSILE DE4 FENSE FUNDS.

5 (a) LIMITATION.—No funds authorized to be appro6 priated for ballistic missile defense under the National De7 fense Authorization Act for Fiscal Year 2002 may be obli8 gated or expended for any activity that would be incon9 sistent with the requirements of the Anti-Ballistic Missile

10 Treaty of 1972 (as in effect on August 1, 2001), as deter11 mined by the President with the advice of the Secretary

12 of State and the Secretary of Defense, unless—

13 (1) the ABM Treaty has been modified or su14 perseded by a new strategic framework or other

15 agreement in a manner that, as determined by the

16 President with the advice of those officials, permits

17 such activity; or

18 (2)(A) the President submits a certification to

19 Congress in accordance with the requirements of

20 subsection (b); and

21 (B) there is enacted a joint resolution specifi22 cally authorizing the obligation or expenditure in ac23 cordance with the expedited procedures specified in

24 subsection (c).
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1 (b) PRESIDENTIAL CERTIFICATION.—(1) A certifi2 cation satisfies the requirements of this subsection if the

3 certification states that—

4 (A) the President has endeavored in good faith

5 and for a reasonable period to negotiate a new stra6 tegic framework or other appropriate modification to

7 the ABM Treaty, but has been unable to do so;

8 (B) further efforts to negotiate such framework

9 or other modification are not likely to be successful

10 within a reasonable period; and

11 (C) it is in the national security interest of the

12 United States to conduct activities that would be in13 consistent with the requirements of the ABM Trea14 ty.

15 (2) The President shall submit to Congress, with a

16 certification under subsection (a)(2)(A), a written state17 ment that—

18 (A) sets forth the basis for the President’s de19 termination to certify the matters in the certification

20 under subparagraphs (B) and (C) of paragraph (1);

21 and

22 (B) specifies each activity for which the Presi23 dent has determined that it is in the national inter24 est to conduct with funds authorized to be appro25 priated by the National Defense Authorization Act
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1 for Fiscal Year 2002, notwithstanding the inconsist2 ency of the activity with the requirements of the

3 ABM Treaty.

4 (c) EXPEDITED APPROVAL PROCEDURES.—(1) A

5 joint resolution referred to in subparagraph (B) of sub6 section (a)(2) means only a joint resolution introduced

7 after the date on which a certification of the President

8 pursuant to subparagraph (A) of such subsection is re9 ceived by Congress—

10 (A) the title of which is as follows: ‘‘A joint res11 olution approving the expenditure of funds for activi12 ties proposed by the President on llll.’’, the

13 blank space being filled in with the date on which

14 the President submitted the certification;

15 (B) which does not have a preamble; and

16 (C) the text of which only approves the activi17 ties specified by the President in the written state18 ment submitted with the certification pursuant to

19 subsection (b)(2)(B) by providing after the enacting

20 clause only the following: ‘‘That Congress approves

21 the expenditure of funds for activities proposed by

22 the President on llll, notwithstanding the in23 consistency of such activities with the requirements

24 of the Anti-Ballistic Missile Treaty of 1972.’’, the
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1 blank space being filled in with the date on which

2 the President submitted the certification.

3 (2) A joint resolution described in paragraph (1) shall

4 be considered in a House of Congress in accordance with

5 the procedures applicable to joint resolutions under para6 graphs (3) through (8) of section 8066(c) of the Depart7 ment of Defense Appropriations Act, 1985 (as contained

8 in section 101(h) of Public Law 98–473; 98 Stat. 1936),

9 except that—

10 (A) the committee to which the joint resolution

11 is referred under this paragraph in the Senate shall

12 be the Committee on Armed Services of the Senate,

13 and the committee to which the joint resolution is

14 referred under this paragraph in the House of Rep15 resentatives shall be the Committee on Armed Serv16 ices of the House of Representatives; and

17 (B) the limitation on total time for debate

18 under section 8066(c)(5)(B) of the Department of

19 Defense Appropriations Act, 1985, as applied to a

20 joint resolution under this paragraph, shall be 20

21 hours instead of 10 hours.

22 (d) RELATIONSHIP TO ABM TREATY.—Nothing in

23 this section shall be construed—

24 (1) to limit the authority of the United States

25 to withdraw from the ABM Treaty at any time upon
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1 a decision for the United States that extraordinary

2 events related to the subject matter of the Treaty

3 have jeopardized its supreme interests in accordance

4 with Article XV of the Treaty; or

5 (2) to authorize any obligation or expenditure

6 of funds for activities that would be inconsistent

7 with the requirements of the ABM Treaty, if the

8 United States has not withdrawn from the Treaty in

9 accordance with Article XV of the Treaty.

10 (e) ABM TREATY DEFINED.—In this section, the

11 terms ‘‘Anti-Ballistic Missile Treaty of 1972’’ and ‘‘ABM

12 Treaty’’ mean the Treaty Between the United States of

13 America and the Union of Soviet Socialist Republics on

14 the Limitation of Anti-Ballistic Missile Systems, signed at

15 Moscow on May 26, 1972, and includes the Protocol to

16 that treaty, signed at Moscow on July 3, 1974.

17 SEC. 3. PROGRAM ELEMENTS AND PROCUREMENT BUDGET

18 DISPLAYS FOR BALLISTIC MISSILE DEFENSE

19 PROGRAMS.

20 (a) PROGRAM ELEMENTS.—Section 223 of title 10,

21 United States Code, is amended—

22 (1) by redesignating subsections (b) and (c) as

23 subsections (d) and (e); and

24 (2) by striking subsection (a) and inserting the

25 following:
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1 ‘‘(a) PROGRAM ELEMENTS SPECIFIED.—In the budg2 et justification materials submitted to Congress in support

3 of the Department of Defense budget for any fiscal year

4 (as submitted with the budget of the President under sec5 tion 1105(a) of title 31), the amount requested for activi6 ties of the Ballistic Missile Defense Organization shall be

7 set forth in accordance with the following program ele8 ments:

9 ‘‘(1) Ballistic Missile Defense system.

10 ‘‘(2) Terminal Defense segment.

11 ‘‘(3) Mid-Course Defense segment.

12 ‘‘(4) Boost Defense segment.

13 ‘‘(5) Sensors.

14 ‘‘(6) Technology.

15 ‘‘(b) ADDITIONAL INFORMATION REQUIRED.—(1)

16 Within each program element set forth in paragraphs (2)

17 through (5) of subsection (a), the budget justification ma18 terials submitted to Congress shall separately specify the

19 amounts requested for specific categories of systems, as

20 follows:

21 ‘‘(A) Land-based systems.

22 ‘‘(B) Sea-based systems.

23 ‘‘(C) Air-based systems.

24 ‘‘(D) Space-based systems.
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1 ‘‘(2) Within the amounts specified pursuant to para2 graph (1), the budget justification materials shall sepa3 rately set forth amounts requested for established pro4 grams, as follows:

5 ‘‘(A) Within the amount specified for land6 based systems in the Terminal Defense segment, the

7 materials shall set forth the amount requested for

8 the Theater High-Altitude Area Defense system and

9 the amount requested for the Arrow system.

10 ‘‘(B) Within the amount specified for sea-based

11 systems in the Mid-Course Defense segment, the

12 materials shall set forth the amount requested for

13 the Navy Theater Wide system.

14 ‘‘(C) Within the amount specified for air-based

15 systems in the Boost Defense segment, the materials

16 shall set forth the amount requested for the Air17 borne Laser system.

18 ‘‘(D) Within the amount specified for space19 based systems in the Boost Defense segment, the

20 materials shall set forth the amount requested for

21 the Space-Based Laser system.

22 ‘‘(E) Within the amount specified for space23 based systems in the Sensors segment, the materials

24 shall set forth the amount requested for the Space25 Based Infrared System Low Component and the
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1 amount requested for the Russian American Obser2 vation Satellites (RAMOS) system.

3 ‘‘(c) LIMITED AUTHORITY TO VARY INDIVIDUAL

4 AMOUNTS.—(1) Subject to paragraphs (2) and (3), in any

5 case in which the Secretary of Defense determines that

6 it is necessary to do so in the national interest, the Sec7 retary may obligate amounts authorized to be appro8 priated for an established program or class of systems de9 scribed in subsection (b) in excess of the amount specifi10 cally authorized for such program or class of systems.

11 ‘‘(2) An obligation of funds for a program or class

12 of systems described in subsection (b) in excess of the spe13 cific amount authorized for such program or class of sys14 tems may be made under the authority of paragraph (1)

15 only after—

16 ‘‘(A) the Secretary submits to Congress a noti17 fication of the intent to do so together with a com18 plete discussion of the justification for doing so; and

19 ‘‘(B) 15 days have elapsed following the date of

20 the notification.

21 ‘‘(3) The Secretary may not, under the authority of

22 paragraph (1)—

23 ‘‘(A) obligate an amount for any program or

24 class of systems described in subsection (b) that is

25 in excess of the lesser of—
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1 ‘‘(i) the amount that is 115 percent of the

2 amount specifically authorized for such pro3 gram or class of systems; or

4 ‘‘(ii) the amount that is $100,000,000

5 more than the amount specifically authorized

6 for such program or class of systems;

7 ‘‘(B) reduce the amount that is available for ob8 ligation or expenditure for any such program or

9 class of systems below the higher of—

10 ‘‘(i) the amount that is 85 percent of the

11 amount specifically authorized for such pro12 gram or class of systems; or

13 ‘‘(ii) the amount that is $100,000,000 less

14 than the amount specifically authorized for such

15 program or class of systems; or

16 ‘‘(C) obligate amounts for any program element

17 described in subsection (a) in excess of the amount

18 specifically authorized for such program element.’’.

19 (b) REPEAL OF PROCUREMENT BUDGET DISPLAY

20 REQUIREMENT.—(1) Section 224 of such title is repealed.

21 (2) The table of sections at the beginning of chapter

22 9 of such title is amended by striking the item relating

23 to section 224.
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1 SEC. 4. BALLISTIC MISSILE DEFENSE RESEARCH AND DE2 VELOPMENT PROGRAM BASELINE DOCU3 MENT.

4 (a) REQUIREMENT FOR BASELINE DOCUMENT.—Not

5 later than February 1, 2002, the Secretary of Defense

6 shall submit to the congressional defense committees a

7 baseline document for the ballistic missile defense research

8 and development program through the period covered by

9 the future-years defense program that is submitted to

10 Congress that year under section 221 of title 10, United

11 States Code.

12 (b) CONTENTS OF BASELINE DOCUMENT.—The

13 baseline document required by subsection (a) shall, at a

14 minimum, include the following matters:

15 (1) A statement of the objectives of the ballistic

16 missile defense research and development program,

17 including, at a minimum, a specification of—

18 (A) the country or countries the program

19 is intended to protect;

20 (B) the type or types of missile threat the

21 program is intended to protect against, includ22 ing the number of ballistic missiles and types of

23 countermeasures to be addressed; and

24 (C) the level of success and degree of con25 fidence that are the intended standards for de-
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1 termining whether and when the objectives are

2 achieved.

3 (2) For each established program and each

4 class of systems identified under section 223(b) of

5 title 10, United States Code—

6 (A) each major technology to be pursued;

7 and

8 (B) an explanation of how each such tech9 nology relates to the objectives of the ballistic

10 missile defense research and development pro11 gram.

12 (3) For each technology identified pursuant to

13 paragraph (2)(A)—

14 (A) a technical baseline that identifies re15 search and development objectives and program

16 requirements for the technology;

17 (B) a schedule baseline for the period cov18 ered by the baseline document, including the

19 specific key program milestones and when the

20 program is expected to achieve each milestone;

21 (C) a cost baseline that includes estimates

22 of the total life-cycle costs and specifies for

23 each year of such period the costs for research

24 and development of the technology; and
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1 (D) a testing baseline for such period that

2 specifies—

3 (i) key test events for the program;

4 (ii) when the tests are to be con5 ducted;

6 (iii) the purposes of the tests; and

7 (iv) whether the tests are expected to

8 conflict with existing United States obliga9 tions under international law.

10 (c) CONSULTATION REQUIREMENTS.—In developing

11 the baseline document required by subsection (a), the Sec12 retary shall ensure that—

13 (1) the technical baseline required by subsection

14 (b)(3)(A) is developed in consultation with the Joint

15 Requirements Oversight Council and the Director of

16 Program Analysis and Evaluation of the Depart17 ment of Defense;

18 (2) the schedule baseline required by subsection

19 (b)(3)(B) is developed in consultation with the

20 Under Secretary of Defense for Acquisition, Tech21 nology, and Logistics and the Director of Program

22 Analysis and Evaluation of the Department of De23 fense;

24 (3) the cost baseline required by subsection

25 (b)(3)(C) is developed in consultation with the Cost
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1 Analysis and Improvement Group of the Department

2 of Defense; and

3 (4) the testing baseline required by subsection

4 (b)(3)(D) is developed in consultation with the Di5 rector of Operational Testing and Evaluation and

6 the Treaty Compliance Review Group of the Depart7 ment of Defense.

8 (d) ANNUAL UPDATES TO BASELINE DOCUMENT.—

9 Beginning in 2003 and ending with 2010, the Secretary

10 shall—

11 (1) update the baseline document each year to

12 cover the period covered by the future-years defense

13 program that is submitted to Congress that year

14 under section 221 of title 10, United States Code;

15 and

16 (2) submit the updated baseline document to

17 the congressional defense committees not later than

18 February 1 of that year.

19 SEC. 5. ANNUAL PROGRAM PLAN FOR BALLISTIC MISSILE

20 DEFENSE RESEARCH AND DEVELOPMENT

21 PROGRAM.

22 (a) REQUIREMENT FOR ANNUAL PROGRAM PLAN.—

23 With the submission of the program baseline document,

24 and with each annual update of the program baseline doc25 ument, required under section 223, the Secretary shall
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1 submit to the congressional defense committees each year

2 a program of activities planned to be carried out during

3 the fiscal year in which submitted and the two fiscal years

4 following such fiscal year.

5 (b) CONTENT OF ANNUAL PROGRAM PLAN.—Each

6 program plan required by subsection (a) shall include, at

7 a minimum, the following matters:

8 (1) A funding profile that includes, for each

9 major technology identified in the program baseline

10 document, an estimate of—

11 (A) the total expenditures to be made in

12 each fiscal year covered by the program plan;

13 (B) the expenditures to be made for each

14 procurement or military construction activity to

15 be conducted in such period;

16 (C) the expenditures to be made for each

17 ballistic missile defense flight test to be con18 ducted in such period;

19 (D) the expenditures to be made for each

20 other test activity to be conducted in such pe21 riod; and

22 (E) the expenditures to be made for each

23 research and development activity to be con24 ducted in such period.
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1 (2) A program schedule that identifies, for each

2 major technology identified in the program baseline

3 document—

4 (A) the planned schedule for each procure5 ment or military construction activity to be con6 ducted during the period covered by the pro7 gram plan;

8 (B) the planned date of each ballistic mis9 sile defense flight test to be conducted in such

10 period;

11 (C) the planned schedule for each other

12 test activity to be conducted in such period; and

13 (D) the planned schedule for each research

14 and development activity to be conducted in

15 such period.

16 (3) A legal compliance plan that includes a pre17 liminary assessment by the Treaty Compliance Re18 view Group of the Department of Defense regarding

19 whether each expenditure included in the funding

20 profile and each activity included in the schedule is

21 likely to be consistent with existing United States

22 obligations under international law.

23 (c) INTERIM PROGRAM PLAN.— Not later than 60

24 days after the date of the enactment of this Act, the Sec25 retary shall submit to the congressional defense commit-
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1 tees an interim program plan covering planned program

2 activities for fiscal years 2002 and 2003. The interim pro3 gram plan shall contain the information required by sub4 section (b) for such fiscal years, and shall govern program

5 activities until the Secretary submits the program baseline

6 document and program plan that are required to be sub7 mitted on February 1, 2002.

8 (d) MODIFICATIONS.—The Secretary may modify a

9 program plan submitted to the congressional defense com10 mittees pursuant to subsection (a) at any time. A modi11 fication to a program plan shall become effective 30 days

12 after the date on which the congressional defense commit13 tees are notified of the modification. Each notification

14 shall include a description of how the plan is to be modi15 fied and an explanation of the reasons for the modifica16 tion.

17 (e) REQUIREMENT THAT OBLIGATIONS AND EX18 PENDITURES BE CONSISTENT WITH PROGRAM PLAN.—

19 (1) Not more than 25 percent of the funds authorized to

20 be appropriated for ballistic missile defense research, de21 velopment, test, and evaluation under section 201(4) of

22 the National Defense Authorization Act for Fiscal Year

23 2002 may be obligated or expended before the date on

24 which the interim program plan required by subsection (c)

25 is submitted to the congressional defense committees.
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1 (2) Not more than 50 percent of the funds authorized

2 to be appropriated for ballistic missile defense research,

3 development, test, and evaluation under section 201(4) of

4 the National Defense Authorization Act for Fiscal Year

5 2002 may be obligated or expended before the date on

6 which the program baseline document required by section

7 4 and the first program plan required by subsection (a)

8 are submitted to the congressional defense committees.

9 (3) After the date on which the interim program plan

10 required by subsection (c) is submitted to the congres11 sional defense committees, none of the funds authorized

12 to be appropriated for ballistic missile defense research,

13 development, test, and evaluation may be obligated or ex14 pended for an activity unless—

15 (A) the cost of the activity is specifically identi16 fied in the funding profile included in an interim

17 program plan, program plan, or modification to a

18 program plan in accordance with subsection (b)(1);

19 (B) the date or schedule for the activity is spe20 cifically identified in an interim program plan, pro21 gram plan, or modification to a program plan in ac22 cordance with subsection (b)(2);

23 (C) a preliminary assessment of the legal status

24 of the activity is specifically included in an interim

25 program plan, program plan, or modification to a
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1 program plan in accordance with subsection (b)(3);

2 and

3 (D) the interim program plan, program plan, or

4 modification to a program plan has been submitted

5 to the congressional defense committees and be6 comes effective in accordance with the requirements

7 of subsection (a), (c), or (d), respectively.

8 SEC. 6. CONGRESSIONAL DEFENSE COMMITTEES DEFINED.

9 For purposes of this Act, the term ‘‘congressional de10 fense committees’’ means—

11 (1) the Committee on Armed Services and the

12 Committee on Appropriations of the Senate; and

13 (2) the Committee on Armed Services and the

14 Committee on Appropriations of the House of Rep15 resentatives.
Calendar No. 164

107TH CONGRESS

1ST SESSION S. 1439

A BILL

To provide and revise conditions and requirements

for the ballistic missile defense programs, and forother purposes.

SEPTEMBER 20, 2001

Read the second time and placed on the calendar