[Senate Prints 117-26]
[From the U.S. Government Publishing Office]


117th Congress      }					{       S. Prt.
                               COMMITTEE PRINT                     
 2d Session         }                                   {       117-26
_______________________________________________________________________

                                     


                       ENHANCING TRANSPARENCY ON

                      INTERNATIONAL AGREEMENTS AND

                        NON-BINDING INSTRUMENTS

                               __________


                                A REPORT

                      PREPARED FOR THE USE OF THE

                     COMMITTEE ON FOREIGN RELATIONS

                          UNITED STATES SENATE

                    One Hundred Seventeenth Congress

                             SECOND SESSION

                           December 22, 2022

                                     
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      Printed for the use of the Committee on Foreign Relations
      
      
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                              ___________

                    U.S. GOVERNMENT PUBLISHING OFFICE
                    
50-121 PDF                 WASHINGTON : 2022


_______________________________________________________________________


                COMMITTEE ON FOREIGN RELATIONS          

            ROBERT MENENDEZ, New Jersey, Chairman          

BENJAMIN L. CARDIN, Maryland           JAMES E. RISCH, Idaho
JEANNE SHAHEEN, New Hampshire          MARCO RUBIO, Florida
CHRISTOPHER A. COONS, Delaware         RON JOHNSON, Wisconsin
CHRISTOPHER MURPHY, Connecticut        MITT ROMNEY, Utah
TIM KAINE, Virginia                    ROB PORTMAN, Ohio
EDWARD J. MARKEY, Massachusetts        RAND PAUL, Kentucky
JEFF MERKLEY, Oregon                   TODD YOUNG, Indiana
CORY A. BOOKER, New Jersey             JOHN BARRASSO, Wyoming
BRIAN SCHATZ, Hawaii                   TED CRUZ, Texas
CHRIS VAN HOLLEN, Maryland             MIKE ROUNDS, South Dakota
                                       BILL HAGERTY, Tennessee

                Damian Murphy, Staff Director          

       Christopher M. Socha, Republican Staff Director          

                   John Dutton, Chief Clerk          

                              (ii)        


                            C O N T E N T S

                              ----------                              
                                                                   Page

I. Purpose.......................................................     1


II. Committee Action.............................................     1


III. Section-by-Section Summary..................................     2


IV. Discussion...................................................     4


V. Conclusion....................................................     8


VI. Appendix A.--Comparison of the Case-Zablocki Act Before and 
  After Being Amended by Section 5947 of H.R. 7776...............     9


VII. Appendix B.--Text of Section 5947 of H.R. 7776..............    13





                             (iii)        

 
                       ENHANCING TRANSPARENCY ON
                     INTERNATIONAL AGREEMENTS AND
                       NON-BINDING INSTRUMENTS

                              ----------                              

    Report on section 5947, Enhancing Transparency on 
International Agreements and Non-Binding Instruments, of the 
James M. Inhofe National Defense Authorization Act for Fiscal 
Year 2023, H.R. 7776.

                               I. Purpose

    The Committee strongly supports robust diplomacy and 
international engagement, including efforts to advance U.S. 
interests through the negotiation and implementation of 
international agreements and non-binding instruments with 
allies, partners, and other actors. These efforts must be 
conducted with accountability to Congress and, to the greatest 
extent appropriate, transparency for the public, as both are 
essential to our democracy.
    The Case-Zablocki Act of 1972 (P.L. 92-403; also known as 
the ``Case Act'') was an important but highly-limited and long-
outdated framework for reporting on binding international 
agreements. Section 5947 of H.R. 7776, Enhancing Transparency 
on International Agreements and Non-Binding Instruments, 
strengthens and modernizes the Case Act and makes it 
applicable, for the first time, to non-binding instruments. 
Even with this broadened scope, however, the Case Act is only 
the starting point--a basic notification and publication 
requirement. It does not replace consultation with Congress on 
the development of our foreign policy or substantive engagement 
with the public on commitments entered into on behalf of the 
American people.

                          II. Committee Action

    Chairman Menendez and Ranking Member Risch first proposed 
an amendment to update the Case Act as part of the Committee's 
consideration of S. 1169, the Strategic Competition Act of 2021 
(SCA). The bipartisan provision was included as section 310 of 
the SCA. On May 10, 2021, the Committee considered the SCA and 
ordered it reported, with an amendment in the nature of a 
substitute, by a vote of 21-1.
    A modified version of the Case Act reform passed the Senate 
on June 8, 2021 as section 3310 of S. 1260, the United States 
Innovation and Competition Act of 2021 (USICA).
    The House of Representatives passed a further modified 
version as section 5947 of H.R. 7776, the James M. Inhofe 
National Defense Authorization Act for Fiscal Year 2023 (NDAA 
or FY 23 NDAA), on December 8, 2022. The Senate subsequently 
passed section 5947 as part of the NDAA on December 15, 
2022.\1\
---------------------------------------------------------------------------
    \1\ The Committee appreciates the nearly two-year substantive 
engagement with the executive branch on section 5947 and, in 
particular, its interactions with the Department of State. The 
Committee conducted dozens of hours of negotiations with multiple 
agencies and the White House, exchanged numerous draft texts, and 
incorporated significant amounts of interagency feedback and requested 
edits into the final product. This extensive inter-branch process and, 
ultimately, the direct sign-off on the provision by the White House, 
the Department of State, and the Department of Defense facilitated 
enactment of the Case Act reforms into law.
    While the Office of Legal Counsel (OLC) at the Department of 
Justice did not engage directly with the Committee, the Committee is 
aware that OLC was involved in the interagency review process. No 
executive branch actor communicated to the Committee a constitutional 
objection to section 5947. The Committee is not otherwise aware of any 
such objection or of the view that there are any conceivable grounds 
for one.
---------------------------------------------------------------------------

                    III. Section-by-Section Summary

    A summary of the provisions of section 5947 of H.R. 7776, 
follows:

    Paragraph 5947(a)(1) amends 1 U.S.C. 112b as follows:

          Subsection 112b(a): This subsection requires the 
        Secretary of State not less frequently than once each 
        month to provide to congressional leadership and the 
        appropriate congressional committees a list of all 
        international agreements and qualifying non-binding 
        instruments signed, concluded, or otherwise finalized 
        during the prior month, as well as those that entered 
        into force or became operative. For such international 
        agreements and qualifying non-binding instruments, the 
        Secretary must provide the text and a detailed 
        description of the legal authority relied on, as well 
        as a description of any new or amended statutory or 
        regulatory authority anticipated to be required to 
        implement an agreement or qualified non-binding 
        instrument. The required information must be provided 
        in an unclassified form but may include a classified 
        annex.
          Subsection112b(b): This subsection requires the 
        Secretary of State to make public on the State 
        Department website the text of newly-operative 
        international agreements and qualifying non-binding 
        instruments, with certain exceptions, as well as the 
        information required to be reported to Congress under 
        subsection 112b(a).
          Subsection 112b(c): This subsection requires the 
        Secretary of State to provide the text of implementing 
        agreements or arrangements for international agreements 
        or qualifying non-binding instruments, or any other 
        documents of similar purpose or function, whether 
        binding or not binding, if not otherwise required to be 
        submitted under subsection 112b(a)(1). The text must be 
        provided within 30 days of receipt by the Secretary of 
        a written communication from the Chair or Ranking 
        Member of either appropriate congressional committee 
        requesting the text.
          Subsection 112b(d): This subsection requires any U.S. 
        Government department or agency that enters into any 
        international agreement or qualifying non-binding 
        instrument to provide the text to the Secretary of 
        State within 15 days of signature or conclusion, or 
        otherwise being finalized, in addition to a detailed 
        description of the legal authority that provides 
        authorization for each qualifying non-binding 
        instrument to become operative after such instrument is 
        signed. (With regard to international agreements, the 
        Committee understands that the relevant agency would 
        have already been obligated to submit the legal 
        authority to the Department of State through the 
        Circular-175 process.) This subsection further requires 
        such department or agency to provide on an ongoing 
        basis any implementing materials to the Secretary for 
        transmittal to congressional leadership and the 
        appropriate congressional committees to satisfy the 
        requirements of subsection 112b(c).
          Subsection 112b(e): This subsection requires each 
        U.S. Government department or agency, including the 
        Department of State, which enters into any 
        international agreement or qualifying non-binding 
        instrument to designate a Chief International 
        Agreements Officer, with particular requirements. 
        Further, it establishes an International Agreements 
        Compliance Officer at the Department of State.
          Subsection 112b(f): This subsection requires the 
        substance of oral international agreements to be 
        reduced to writing for purposes of meeting requirements 
        of subsections 112b(a) and 112b(b).
          Subsection 112b(g): This subsection provides that 
        notwithstanding any other provision of law, an 
        international agreement may not be signed or otherwise 
        concluded on behalf of the United States, without prior 
        consultation with the Secretary of State. Such 
        consultation may encompass a class of agreements.
          Subsection 112b(h): This subsection requires the 
        Comptroller General to conduct an audit and submit the 
        results to congressional leadership and appropriate 
        congressional committees, at least every three years 
        for nine years, assessing the Secretary of State's 
        compliance with reporting requirements under this 
        section, in addition to particular issues related to 
        whether any failure to comply resulted from failure or 
        refusal by other departments and agencies to provide 
        necessary information or material to the Department of 
        State. The Comptroller General and Secretary of State 
        are required to make the information publicly 
        available.
          Subsection 112b(i): This subsection requires the 
        President and Secretary of State to promulgate rules 
        and regulations that may be necessary for implementing 
        this section.
          Subsection 112b(j): This subsection expresses the 
        sense of Congress that the executive branch should not 
        prescribe or otherwise commit to specific legislative 
        text in a treaty, executive agreement, or non-binding 
        instrument unless Congress has authorized such action.
          Subsection 112b(k): This subsection defines key terms 
        including ``appropriate congressional committees''; 
        ``appropriate department or agency''; ``qualifying non-
        binding instrument''; and ``text'' with respect to an 
        international agreement or qualifying non-binding 
        instrument.
          Subsection 112b(l): This subsection includes two 
        rules of construction: first, that nothing in the 
        section may be construed to authorize the withholding 
        from disclosure to the public of any record if such 
        disclosure is required by law (e.g. pursuant to the 
        Freedom of Information Act, 5 U.S.C. 552). The second 
        rule of construction provides that nothing in the 
        section may be construed to require the provision to 
        congressional leadership or the appropriate 
        congressional committees of any implementing agreement, 
        arrangement, or document of similar purpose or 
        function, entered into by the Department of Defense, 
        Armed Forces, or any element of the intelligence 
        community, or any implementing material originating 
        with the aforementioned agencies, if such agreement, 
        arrangement, document, or material was not required to 
        be provided to congressional leadership or the 
        appropriate congressional committees prior to date of 
        the FY 2023 NDAA.
    Paragraph 5947(a)(4) requires the Secretary of State to 
establish within 270 days after enactment a mechanism for State 
Department personnel who become aware or have reason to believe 
that the requirements of the amended Case Act have not been 
fulfilled to report such instances to the Secretary.
    Paragraph 5947(a)(5) calls on the President, through the 
Secretary of State, to promulgate within 180 days after 
enactment rules and regulations necessary to carry out the Case 
Act, as amended by this section.
    Paragraph 5947(a)(6) requires the Secretary of State to 
consult with the Senate Foreign Relations Committee and House 
Foreign Affairs Committee on matters related to implementing 
this section before and after the effective date in subsection 
5947(c). It further requires the Secretary to brief, every 90 
days for one year after enactment of the FY 2023 NDAA, the 
Committees on Foreign Relations and Appropriations of the 
Senate and Committees on Foreign Affairs and Appropriations of 
the House of Representatives, on the status of efforts to 
implement the section and amendments made by it.
    Paragraph 5947(a)(7) authorizes to be appropriated to the 
Department of State $1,000,000 for each fiscal year 2023 
through 2027 for purposes of implementing the requirements of 
the Case Act, as amended by section 5947.
    Paragraph 5947(b) retains and updates the requirement under 
Section 112a of title 1, United States Code, for the Department 
of State to provide, upon request copies of international 
agreements in its possession, but not published. This 
subsection also expands that requirement to apply to qualifying 
non-binding instruments.
    Paragraph 5947(c) provides that amendments made by this 
section will take effect 270 days after the date of enactment 
of the FY 2023 NDAA.

                             IV. Discussion

    Section 5947 of H.R. 7776 is a critical bipartisan reform 
of the Case Act. It reflects notable developments in practice 
over the past fifty years in how the U.S. Government engages in 
diplomacy through accords with other countries and 
international actors. Key aspects of section 5947 include:


   expanding the Case Act publication and congressional 
        reporting requirements to cover the text of qualifying 
        non-binding instruments (QNIs);

   requiring more timely reporting to Congress and publication 
        of the text of international agreements, and mandating 
        that the executive branch provide to Congress and the 
        public detailed information related to each particular 
        agreement and QNI, including the legal basis that, in 
        the view of the executive branch, provides authority to 
        bring the instrument into force;

   strengthening intra-executive branch organization and 
        coordination on international agreements and QNIs, 
        including through explicitly requiring that each agency 
        of the federal government that enters into agreements 
        or QNIs (1) provide text of agreements and nonbindings 
        to the State Department, along with associated 
        information, within 15 days of signature, and (2) 
        appoint a Chief International Agreements Officer with 
        responsibility for compliance with the Case Act;

   providing a more complete and holistic understanding of 
        agreements and QNIs for the entirety of the time in 
        which they are in force or operational by ensuring 
        ongoing access for Congress to implementing materials 
        (subject to the rule of construction in 112b(l)(2)), 
        and;

   facilitating successful implementation of the amended Case 
        Act by (1) requiring that the Department of State 
        consult with the congressional foreign affairs 
        committees on an ongoing basis on matters related to 
        such implementation, (2) authorizing $1 million per 
        year for fiscal years 2023 through 2027 for 
        implementation, and (3) and mandating GAO audits of 
        executive branch compliance.

    An informal comparison of key features of the amended Case 
Act versus the law prior to enactment of section 5947 can be 
found in the chart on page 9. The discussion below focuses on 
one particular aspect: the expansion of the Case Act to non-
binding instruments.


                    case act coverage of nonbindings


Background
    When it was enacted in 1972, the Case Act was a 
groundbreaking recognition of developments to that date in 
executive branch practice, namely a shift in conducting foreign 
policy and reaching accords with other countries, from Article 
II treaties, entered into with the Senate's advice and consent, 
to executive agreements. Since then, however, executive branch 
practice has shifted again, in the direction of non-binding 
instruments.
    Updating the Case Act now is critical to address this 
shift. Previously, there had been no uniform statutory approach 
to non-binding instruments and no standing requirement that 
they be shared with Congress or, if appropriate, e.g., not 
involving classified information, shared with the public. 
Consequently, as such instruments have proliferated, there has 
been increasingly less visibility into the international 
commitments made on behalf of the United States.
    Congressional oversight on nonbindings has depended in part 
on case-specific statutory requirements with respect to 
particular non-binding instruments or, in the absence of any 
such law, requests from members of Congress for text and 
information on specific nonbindings. The most prominent example 
of a case-specific statute is the Iran Nuclear Agreement Review 
Act of 2015, P.L. 114-17 which ensured that Congress had access 
to the Joint Comprehensive Plan of Action (JCPOA).
    This ad hoc approach is not sustainable or acceptable, 
especially given the increasing reliance on nonbindings. 
Passing case specific legislation is a difficult, uncertain, 
and time-consuming endeavor that devours scarce legislative 
resources, yet covers only the tiniest fraction of the 
executive branch's expansive nonbinding practice. On the other 
hand, when there is not a specific statutory mandate for the 
executive branch to engage Congress on a nonbinding, the 
Committee's experience demonstrates that it cannot expect to 
receive basic information in a timely manner or on a consistent 
basis. Further, there have been instances when the executive 
branch has simply denied or refused to take any action on basic 
requests to provide the final text of nonbindings signed with 
foreign governments. Expansion of the Case Act to cover 
nonbindings is intended to address this obvious gap in U.S. 
law.
Definition of Qualifying Non-Binding Instruments in Section 5947
    The requirements of section 5947 apply to ``qualifying non-
binding instruments'' (QNI). That term is defined as those 
nonbindings that ``could reasonably be expected to have a 
significant impact on the foreign policy of the United 
States,'' \2\ as well as those that are the subject of a 
written communication from the Chair or Ranking Member of 
either of the congressional foreign affairs committees to the 
Secretary of State.
---------------------------------------------------------------------------
    \2\ The Committee notes that the standard of whether a nonbinding 
``could reasonably be expected to have a significant impact on the 
foreign policy of the United States,'' although incorporated into the 
amended Case Act, is significantly narrower than the Committee's 
jurisdiction over non-binding instruments.
---------------------------------------------------------------------------
    The Committee anticipates that the State Department will 
promulgate a regulation or share informal guidance for purposes 
of executive branch implementation and application of the 
``significant impact'' standard. During the negotiation of 
section 5947, the Committee shared its view that the executive 
branch must ultimately assess the totality of the facts and 
circumstances in determining whether a particular nonbinding 
meets the significant impact standard.\3\ That view has not 
changed.
---------------------------------------------------------------------------
    \3\ Such an interpretation is consistent with executive branch 
guidance for implementation of other statutory and regulatory 
provisions in which a ``significance'' standard is applied. See, e.g., 
State Department regulations for implementation of the Case Act prior 
to section 5947, in which the Department interprets and applies 
``significance'' based on ``all the circumstances'' and the ``entire 
context'' of an agreement. 22 CFR 181.2. See also State Department 
guidance for implementation of section 231 of the Countering America's 
Adversaries Through Sanctions Act (CAATSA), P.L. 115-44 and Treasury 
Department FAQ 545 concerning section 228 of CAATSA. Both Departments 
indicate that they determine significance for purposes of the 
respective CAATSA provisions by assessing the totality of the facts and 
circumstances. (https://www.state.gov/countering-americas-adversaries-
through-sanctions-act/public-guidance-frequently-asked-questions/ and 
https://home.treasury.gov/policy-issues/financial-sanctions/faqs/545, 
websites last visited on December 21, 2022).
---------------------------------------------------------------------------
    Factors the Committee expects to be considered as part of 
the analysis include, but are not limited to, whether a 
nonbinding is politically significant or if there is 
congressional or public interest in the instrument, as well as 
if implementation of the nonbinding (1) affects the rights or 
responsibilities of American citizens or individuals in the 
United States; (2) impacts State laws; (3) has budgetary or 
appropriations impact; (4) requires changes to U.S. law to 
satisfy commitments made therein, or; (5) presents a non-
trivial degree of commitment or risk for the entire Nation. The 
Committee views the presence of any of those factors as 
relevant and militating in favor of treatment of an instrument 
as a QNI and urges the State Department to include them in the 
implementing regulations or interagency guidance for the 
amended Case Act.
    The Committee notes that whether a non-binding instrument 
could reasonably be expected to have a significant impact on 
the United States cannot be dictated by comparison to those 
highly publicized non-binding instruments that were shared with 
Congress prior to enactment of this legislation, e.g., the 
JCPOA and the U.S.-Taliban Agreement. Those instruments were 
profoundly and extraordinarily significant and therefore do not 
set the bar for what constitutes mere significance. Nor should 
significance be determined by the form or structure of an 
instrument or the number of participants involved--the 
Committee expects that both bilateral and multilateral 
nonbindings will meet the standard, as will nonbindings that 
share a form and structure similar to a binding agreement and 
those that do not. Finally, the Committee notes that while a 
non-binding on a purely technical matter may not on its own 
rise to the level of ``significant impact,'' particular 
circumstances could lead to even technical nonbindings having a 
significant impact on foreign policy--e.g. if a nonbinding, 
although technical in nature, were of particular importance to 
a bilateral relationship.
    The Committee appreciates that there will inevitably be 
close calls on whether a particular nonbinding meets the 
``significant impact'' standard. In these situations, the 
Committee strongly encourages the executive branch to apply the 
standard liberally and err on the side of inclusion and 
engagement, treating the nonbinding as a QNI for purposes of 
the Case Act.
    As noted above, the definition of QNI also includes any 
non-binding that is the subject of a written communication from 
the chair or ranking member of either of the congressional 
foreign affairs committees to the Secretary of State. By 
design, a communication under this provision is not limited to 
a single nonbinding and does not require the chair or ranking 
member to specifically name or identify a nonbinding in the 
communication to the Secretary.\4\
---------------------------------------------------------------------------
    \4\ The Committee rejected efforts to include a naming or specific 
identification requirement, as it would have significantly undermined 
the utility of the chair or ranking member mechanism-- if Congress does 
not yet have the requested information, the chair or ranker are likely 
to be unable to describe it with specificity in a communication to the 
Secretary.
---------------------------------------------------------------------------
    Finally, the definition of QNI includes an important 
carveout. At the urging of the executive branch, nonbindings 
that are signed, become operational, or are implemented with 
authorities relied upon by the Department of Defense, the U.S. 
Armed Forces, or any element of the intelligence community are 
excluded from the definition of QNI, and therefore from 
coverage under the amended Case Act. As with almost all 
legislation, section 5947 is the product of compromise: The 
Committee understood that this carveout was necessary in order 
for section 5947 to be enacted, and encourages the 
congressional armed services and intelligence committees to 
conduct oversight related to the nonbindings of those agencies. 
\5\
---------------------------------------------------------------------------
    \5\ The Committee notes that the statutory carveout described above 
does not expand, diminish, or otherwise alter the respective 
jurisdiction of the congressional foreign affairs, armed services, or 
intelligence communities.
---------------------------------------------------------------------------

                             V. Conclusion

    The Committee looks forward to working with the Department 
of State and other executive branch agencies to ensure a smooth 
transition and ongoing successful implementation of the amended 
Case Act. At the request of the executive branch, the 
amendments in section 5947 do not take effect until 270 days 
after the date of enactment of H.R. 7776. This feature gives 
the executive branch ample time to prepare for and ensure full 
implementation of the Case Act reforms beginning on the 
effective date.
    The Committee expects that this reform will provide a 
richer tapestry of information that allows for greater 
understanding of the use of international accords as a foreign 
policy tool. Greater congressional input and public insight 
will lead to a stronger and more sustainable foreign policy.
    While an important starting point for executive branch 
engagement with Congress and the public, the Case Act is just 
that-a starting point-particularly with Congress. The State 
Department is required to keep the Committee fully and 
currently informed about its activities both so that the 
Committee may discharge its constitutional oversight 
responsibilities and as required by statute; other executive 
branch agencies and departments are required to provide 
information to the Committee upon request.\6\ Fulfilling those 
obligations requires the executive branch to proactively engage 
with the Committee at a stage well before the text of an 
agreement or nonbinding is signed and the amended Case Act 
obligations attach.
---------------------------------------------------------------------------
    \6\ State Department Basic Authorities Act of 1956 (P.L. 84-885), 
section 15(b).



                     VI. APPENDIX A.--COMPARISON OF
                   KEY FEATURES OF THE CASE-ZABLOCKI
                      ACT BEFORE AND AFTER BEING
                 AMENDED BY SECTION 5947 OF H.R. 7776

                              ----------                              


       COMPARISON OF KEY FEATURES OF THE CASE-ZABLOCKI ACT BEFORE AND  AFTER BEING AMENDED BY SECTION 5947
----------------------------------------------------------------------------------------------------------------
                                                Case-Zablocki Act prior to      Case-Zablocki Act as amended by
           Statutory Requirements                enactment of Section 5947                Section 5947
----------------------------------------------------------------------------------------------------------------
Applies to all binding international         YES.............................  YES
 agreements.
----------------------------------------------------------------------------------------------------------------
Applies to nonbinding inter-national         NO..............................  YES--Applies to qualifying non-
 arrangements.                                                                  binding instruments (QNIs)
                                                                                (except for elements of the
                                                                                Intelligence community, Armed
                                                                                Services, and Department of
                                                                                Defense).
                                                                               QNI means those that:
                                                                                 * Could reasonably be expected
                                                                                to have a significant impact on
                                                                                U.S. foreign policy, or
                                                                                 * Are the subject of a written
                                                                                communication from the chair or
                                                                                ranking member of either of the
                                                                                congressional foreign affairs
                                                                                committees to the Secretary of
                                                                                State.
----------------------------------------------------------------------------------------------------------------
Requires provision of text of agreements     NO--Only requirement is to        YES--Text must be provided within
 and QNIs to Congress upon conclusion of      submit text to Congress 60 days   one month of being finalized
 text with foreign partner.                   after entry into force.           regardless of date for entry
                                                                                into force.
----------------------------------------------------------------------------------------------------------------
Requires provision to Congress of detailed   NO..............................  YES--Also requires that the
 explanation of executive branch legal                                          explanations of legal authority
 authority to enter into agreement or QNI.                                      are made public as long as the
                                                                                agreement is not exempted from
                                                                                publication.
----------------------------------------------------------------------------------------------------------------
Requires publication of text of              YES--within 180 days of entry     YES--shortens publication
 international agreements.                    into force unless applicable      requirement to 120 days and
                                              exception to publication in       mandates publication unless
                                              State Department regulations.     applicable statutory exception.
----------------------------------------------------------------------------------------------------------------
Requires publication of text of qualifying   NO..............................  YES--requires publication within
 nonbinding arrangements.                                                       120 days after QNI becomes
                                                                                operative unless applicable
                                                                                statutory exception.
----------------------------------------------------------------------------------------------------------------
Requires that agencies negotiating           NO..............................  YES
 international agreements or nonbindings
 provide the State Department with the
 information needed to satisfy
 congressional reporting requirements
 including on an ongoing basis.
----------------------------------------------------------------------------------------------------------------
Requires that each department or agency      NO..............................  YES
 negotiating an international agreement or
 nonbinding designate a Chief International
 Agreements Office with agency-wide
 responsibility for compliance with
 congressional reporting obligations.
----------------------------------------------------------------------------------------------------------------
Establishes GAO auditing mechanism to        NO..............................  YES--GAO audit required once
 ensure compliance and identify needed                                          every three years for first 9
 improvements.                                                                  years after enactment.
----------------------------------------------------------------------------------------------------------------
Requires the Secretary of State to           NO..............................  YES
 establish a mechanism for State Department
 personnel who become aware or have reason
 to believe that the requirements of the
 Case Act have not been fulfilled to report
 such instances to the Secretary.
----------------------------------------------------------------------------------------------------------------
Authorizes funds to implement statutory      NO..............................  YES--Authorizes $1 million/ year
 requirements.                                                                  for 5 years.
----------------------------------------------------------------------------------------------------------------
Requires the Secretary of State to consult   NO..............................  YES
 with SFRC and HFAC on implementation of
 the Case Act on an ongoing basis.
----------------------------------------------------------------------------------------------------------------




                 VII. APPENDIX B.--TEXT OF SECTION 5947
                              OF H.R. 7776

                              ----------                              

SEC. 5947. ENHANCING TRANSPARENCY ON INTERNATIONAL AGREEMENTS AND NON-
        BINDING INSTRUMENTS.
    (a) Section 112b of Title 1, United States Code.--
          (1) In general.--Section 112b of title 1, United States Code, 
        is amended to read as follows:
``Sec. 112b. United States international agreements and non-binding 
        instruments; transparency provisions
    ``(a)(1) Not less frequently than once each month, the Secretary 
shall provide in writing to the Majority Leader of the Senate, the 
Minority Leader of the Senate, the Speaker of the House of 
Representatives, the Minority Leader of the House of Representatives, 
and the appropriate congressional committees the following:
          ``(A)(i) A list of all international agreements and 
        qualifying non-binding instruments signed, concluded, or 
        otherwise finalized during the prior month.
          ``(ii) The text of all international agreements and 
        qualifying non-binding instruments described in clause (i).
          ``(iii) A detailed description of the legal authority that, 
        in the view of the Secretary, provides authorization for each 
        international agreement and that, in the view of the 
        appropriate department or agency, provides authorization for 
        each qualifying non-binding instrument provided under clause 
        (ii) to become operative. If multiple authorities are relied 
        upon in relation to an international agreement, the Secretary 
        shall cite all such authorities, and if multiple authorities 
        are relied upon in relation to a qualifying non-binding 
        instrument, the appropriate department or agency shall cite all 
        such authorities. All citations to the Constitution of the 
        United States, a treaty, or a statute shall include the 
        specific article or section and subsection reference whenever 
        available and, if not available, shall be as specific as 
        possible. If the authority relied upon is or includes article 
        II of the Constitution of the United States, the Secretary or 
        appropriate department or agency shall explain the basis for 
        that reliance.
          ``(B)(i) A list of all international agreements that entered 
        into force and qualifying non-binding instruments that became 
        operative for the United States or an agency of the United 
        States during the prior month.
          ``(ii) The text of all international agreements and 
        qualifying non-binding instruments described in clause (i) if 
        such text differs from the text of the agreement or instrument 
        previously provided pursuant to subparagraph (A)(ii).
          ``(iii) A statement describing any new or amended statutory 
        or regulatory authority anticipated to be required to fully 
        implement each proposed international agreement and qualifying 
        non-binding instrument included in the list described in clause 
        (i).
    ``(2) The information and text required by paragraph (1) shall be 
submitted in unclassified form, but may include a classified annex.
    ``(b)(1) Not later than 120 days after the date on which an 
international agreement enters into force, the Secretary shall make the 
text of the agreement, and the information described in 
subparagraphs(A)(iii) and (B)(iii) of subsection (a)(1) relating to the 
agreement, available to the public on the website of the Department of 
State.
    ``(2) Not less frequently than once every 120 days, the Secretary 
shall make the text of each qualifying non-binding instrument that 
became operative during the preceding 120 days, and the information 
described in subparagraphs (A)(iii) and (B)(iii) of subsection 
(a)(1)relating to each such instrument, available to the public on the 
website of the Department of State.
    ``(3) The requirements under paragraphs (1) and (2) shall not apply 
to the following categories of international agreements or qualifying 
non-binding instruments, or to information described in 
subparagraphs)(iii) and (B)(iii) of subsection (a)(1) relating to such 
agreements or qualifying non-binding instruments:
          ``(A) International agreements and qualifying non-binding 
        instruments that contain information that has been given a 
        national security classification pursuant to Executive Order 
        13526 (50 U.S.C. 3161 note; relating to classified national 
        security information) or any predecessor or successor order, or 
        that contain any information that is otherwise exempt from 
        public disclosure pursuant to United States law.
          ``(B) International agreements and qualifying non-binding 
        instruments that address military operations, military 
        exercises, acquisition and cross servicing, logistics support, 
        military personnel exchange or education programs, or the 
        provision of health care to military personnel on a reciprocal 
        basis.
          ``(C) International agreements and qualifying non-binding 
        instruments that establish the terms of grant or other similar 
        assistance, including in-kind assistance, financed with foreign 
        assistance funds pursuant to the Foreign Assistance Act of 1961 
        (22 U.S.C. 2151 et seq.) or the Food for Peace Act (7 U.S.C. 
        1691 et seq.).
          ``(D) International agreements and qualifying non-binding 
        instruments, such as project annexes and other similar 
        instruments, for which the principal function is to establish 
        technical details for the implementation of a specific project 
        undertaken pursuant to another agreement or qualifying non-
        binding instrument that has been published in accordance with 
        paragraph (1) or (2).
          ``(E) International agreements and qualifying non-binding 
        instruments that have been separately published by a depositary 
        or other similar administrative body, except that the Secretary 
        shall make the information described in subparagraphs (A)(iii) 
        and (B)(iii) of subsection (a)(1), relating to such agreements 
        or qualifying non-binding instruments, available to the public 
        on the website of the Department of State within the timeframes 
        required by paragraph (1) or (2).
    ``(c) For any international agreement or qualifying non-binding 
instrument for which an implementing agreement or arrangement, or any 
document of similar purpose or function to the aforementioned 
regardless of the title of the document, is not otherwise required to 
be submitted to the Majority Leader of the Senate, the Minority Leader 
of the Senate, the Speaker of the House of Representatives, the 
Minority Leader of the House of Representatives, and the appropriate 
congressional committees under subparagraphs (A)(ii) or (B)(ii) of 
subsection (a)(1), not later than 30 days after the date on which the 
Secretary receives a written communication from the Chair or Ranking 
Member of either of the appropriate congressional committees requesting 
the text of any such implementing agreements or arrangements, whether 
binding or non-binding, the Secretary shall submit such implementing 
agreements or arrangements to the Majority Leader of the Senate, the 
Minority Leader of the Senate, the Speaker of the House of 
Representatives, the Minority Leader of the House of Representatives, 
and the appropriate congressional committees.
    ``(d) Any department or agency of the United States Government that 
enters into any international agreement or qualifying non-binding 
instrument on behalf of itself or the United States shall--
          ``(1) provide to the Secretary the text of each international 
        agreement not later than 15 days after the date on which such 
        agreement is signed or otherwise concluded;
          ``(2) provide to the Secretary the text of each qualifying 
        non-binding instrument not later than 15 days after the date on 
        which such instrument is concluded or otherwise becomes 
        finalized;
          ``(3) provide to the Secretary a detailed description of the 
        legal authority that provides authorization for each qualifying 
        non-binding instrument to become operative not later than 15 
        days after such instrument is signed or otherwise becomes 
        finalized; and
          ``(4) on an ongoing basis, provide any implementing material 
        to the Secretary for transmittal to the Majority Leader of the 
        Senate, the Minority Leader of the Senate, the Speaker of the 
        House of Representatives, the Minority Leader of the House of 
        Representatives, and the appropriate congressional committees 
        as needed to satisfy the requirements described in subsection 
        (c).
    ``(e)(1) Each department or agency of the United States Government 
that enters into any international agreement or qualifying non-binding 
instrument on behalf of itself or the United States shall designate a 
Chief International Agreements Officer, who shall--
          ``(A) be selected from among employees of such department or 
        agency;
          ``(B) serve concurrently as the Chief International 
        Agreements Officer; and
          ``(C) subject to the authority of the head of such department 
        or agency, have department- or agency-wide responsibility for 
        efficient and appropriate compliance with this section.
    ``(2) There shall be a Chief International Agreements Officer who 
serves at the Department of State with the title of International 
Agreements Compliance Officer.
    ``(f) The substance of oral international agreements shall be 
reduced to writing for the purpose of meeting the requirements of 
subsections (a) and (b).
    ``(g) Notwithstanding any other provision of law, an international 
agreement may not be signed or otherwise concluded on behalf of the 
United States without prior consultation with the Secretary. Such 
consultation may encompass a class of agreements rather than a 
particular agreement.
    ``(h)(1) Not later than 3 years after the date of the enactment of 
this section, and not less frequently than once every 3 years 
thereafter during the 9-year period beginning on the date of the 
enactment of this section, the Comptroller General of the United States 
shall conduct an audit of the compliance of the Secretary with the 
requirements of this section.
    ``(2) In any instance in which a failure by the Secretary to comply 
with such requirements is determined by the Comptroller General to have 
been due to the failure or refusal of another agency to provide 
information or material to the Department of State, or the failure to 
do so in a timely manner, the Comptroller General shall engage such 
other agency to determine--
          ``(A) the cause and scope of such failure or refusal;
          ``(B) the specific office or offices responsible for such 
        failure or refusal; and
          ``(C) recommendations for measures to ensure compliance with 
        statutory requirements.
    ``(3) The Comptroller General shall submit to the Majority Leader 
of the Senate, the Minority Leader of the Senate, the Speaker of the 
House of Representatives, the Minority Leader of the House of 
Representatives, and the appropriate congressional committees in 
writing the results of each audit required by paragraph (1).
    ``(4) The Comptroller General and the Secretary shall make the 
results of each audit required by paragraph (1) publicly available on 
the websites of the Government Accountability Office and the Department 
of State, respectively.
    ``(i) The President shall, through the Secretary, promulgate such 
rules and regulations as may be necessary to carry out this section.
    ``(j) It is the sense of Congress that the executive branch should 
not prescribe or otherwise commit to or include specific legislative 
text in a treaty, executive agreement, or non-binding instrument unless 
Congress has authorized such action.
    ``(k) In this section:
          ``(1) The term `appropriate congressional committees' means--
                  ``(A) the Committee on Foreign Relations of the 
                Senate; and
                  ``(B) the Committee on Foreign Affairs of the House 
                of Representatives.
          ``(2) The term `appropriate department or agency' means the 
        department or agency of the United States Government that 
        negotiates and enters into a qualifying non-binding instrument 
        on behalf of itself or the United States.
          ``(3) The term `intelligence community' has the meaning given 
        that term in section 3(4) of the National Security Act of 1947 
        (50 U.S.C. 3003(4)).
          ``(4) The term `international agreement' includes--
                  ``(A) any treaty that requires the advice and consent 
                of the Senate, pursuant to article II of the 
                Constitution of the United States; and
                  ``(B) any other international agreement to which the 
                United States is a party and that is not subject to the 
                advice and consent of the Senate.
          ``(5) The term `qualifying non-binding instrument'--
                ``(A) except as provided in subparagraph (B), means a 
                non-binding instrument that--
                          ``(i) is or will be under negotiation, is 
                        signed or otherwise becomes operative, or is 
                        implemented with one or more foreign 
                        governments, international organizations, or 
                        foreign entities, including non-state actors; 
                        and
                        ``(ii)(I) could reasonably be expected to have 
                        a significant impact on the foreign policy of 
                        the United States; or
                          ``(II) is the subject of a written 
                        communication from the Chair or Ranking Member 
                        of either of the appropriate congressional 
                        committees to the Secretary; and
          ``(B) does not include any non-binding instrument that is 
        signed or otherwise becomes operative or is implemented 
        pursuant to the authorities relied upon by the Department of 
        Defense, the Armed Forces of the United States, or any element 
        of the intelligence community.
          ``(6) The term `Secretary' means the Secretary of State.
          ``(7)(A) The term `text' with respect to an international 
        agreement or qualifying non-binding instrument includes--
                  ``(i) any annex, appendix, codicil, side agreement, 
                side letter, or any document of similar purpose or 
                function to the aforementioned, regardless of the title 
                of the document, that is entered into contemporaneously 
                and in conjunction with the international agreement or 
                qualifying non-binding instrument; and
                  ``(ii) any implementing agreement or arrangement, or 
                any document of similar purpose or function to the 
                aforementioned regardless of the title of the document, 
                that is entered into contemporaneously and in 
                conjunction with the international agreement or 
                qualifying non-binding instrument.
          ``(B) As used in subparagraph (A), the term 
        `contemporaneously and in conjunction with'--
                  ``(i) shall be construed liberally; and
                  ``(ii) may not be interpreted to require any action 
                to have occurred simultaneously or on the same day.
    ``(l) Nothing in this section may be construed--
          ``(1) to authorize the withholding from disclosure to the 
        public of any record if such disclosure is required by law; or
          ``(2) to require the provision of any implementing agreement 
        or arrangement, or any document of similar purpose or function 
        regardless of its title, which was entered into by the 
        Department of Defense, the Armed Forces of the United States, 
        or any element of the intelligence community or any 
        implementing material originating with the aforementioned 
        agencies, if such implementing agreement, arrangement, 
        document, or material was not required to be provided to the 
        Majority Leader of the Senate, the Minority Leader of the 
        Senate, the Speaker of the House of Representatives, the 
        Minority Leader of the House of Representatives, or the 
        appropriate congressional committees prior to the date of the 
        enactment of the James M. Inhofe National Defense Authorization 
        Act for Fiscal Year 2023.''.
          (2) Clerical amendment.--The table of sections at the 
        beginning of chapter 2 of title 1, United States Code, is 
        amended by striking the item relating to section 112b and 
        inserting the following:
``112b. United States international agreements and non-binding 
        instruments; transparency provisions.''.
          (3) Technical and conforming amendment relating to 
        authorities of the secretary of state.--Section 317(h)(2) of 
        the Homeland Security Act of 2002 (6 U.S.C. 195c(h)(2)) is 
        amended by striking ``Section 112b(c)'' and inserting ``Section 
        112b(g)''.
          (4) Mechanism for reporting.--Not later than 270 days after 
        the date of the enactment of this Act, the Secretary of State 
        shall establish a mechanism for personnel of the Department of 
        State who become aware or who have reason to believe that the 
        requirements under section 112b of title 1, United States Code, 
        as amended by paragraph (1), have not been fulfilled with 
        respect to an international agreement or qualifying non-binding 
        instrument (as such terms are defined in such section) to 
        report such instances to the Secretary.
          (5) Rules and regulations.--Not later than 180 days after the 
        date of the enactment of this Act, the President, through the 
        Secretary of State, shall promulgate such rules and regulations 
        as may be necessary to carry out section 112b of title 1, 
        United States Code, as amended by paragraph (1).
          (6) Consultation and briefing requirement.--
                  (A) Consultation.--The Secretary of State shall 
                consult with the Committee on Foreign Relations of the 
                Senate and the Committee on Foreign Affairs of the 
                House of Representatives on matters related to the 
                implementation of this section and the amendments made 
                by this section before and after the effective date 
                described in subsection (c).
                  (B) Briefing.--Not later than 90 days after the date 
                of the enactment of this Act, and once every 90 days 
                thereafter for 1 year, the Secretary shall brief the 
                Committee on Foreign Relations of the Senate, the 
                Committee on Appropriations of the Senate, the 
                Committee on Foreign Affairs of the House of 
                Representatives, and the Committee on Appropriations of 
                the House of Representatives regarding the status of 
                efforts to implement this section and the amendments 
                made by this section.
          (7) Authorization of appropriations.--There is authorized to 
        be appropriated to the Department of State $1,000,000 for each 
        of the fiscal years 2023 through 2027 for purposes of 
        implementing the requirements of section 112b of title 1, 
        United States Code, as amended by paragraph (1).
    (b) Section 112a of Title 1, United States Code.--Section 112a of 
title 1, United States Code, is amended--
          (1) by striking subsections (b), (c), and (d); and
          (2) by inserting after subsection (a) the following:
    ``(b) Copies of international agreements and qualifying non-binding 
instruments in the possession of the Department of State, but not 
published, other than the agreements described in section 
112b(b)(3)(A), shall be made available by the Department of State upon 
request.''.
    (c) Effective Date of Amendments.--The amendments made by this 
section shall take effect on the date that is 270 days after the date 
of the enactment of this Act.

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